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Faith-based initiatives face court tests

By Charles Bierbauer
CNN Senior Washington Correspondent

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WASHINGTON (CNN)--President Bush's faith-based initiatives won't succeed on faith alone. They'll have to pass certain court challenges that the president's plan to involve religious organizations in government social programs breaches the constitutional wall separating church and state.

"On its face, the Bush plan is sinking in constitutional quicksand," says Barry Lynn of Americans United for Separation of Church and State.

But the plan will have to be implemented and the federal dollars begin to flow before that can happen.

"You have to have real people who have real problems--job discrimination. People who feel they have been compelled to engage in religious activity they find offensive," says Lynn, an ordained minister of the United Church of Christ.

Critics of the Bush proposals are particularly concerned that religious institutions will discriminate and proselytize in conducting such programs. They contend that would violate the First Amendment's Establishment Clause prohibiting state-supported religion.

"For me, hiring discrimination is a fundamental question of justice," says Sister Maureen Fiedler of Washington's Quixote Center. "Baptists can refuse to hire Catholics or Jews or vice versa. Groups may refuse to hire someone if they're divorced and remarried, if they're gay or lesbian or, let's say, they're a non-veiled Muslim woman."

Bush wants to help faith-based charities by changing the tax code, leading to increased giving and lessening legal challenges to separation of church and state

Religious organizations are not required to hire people who may not share their faith or objectives. In many instances equal employment opportunity regulations do not apply.

The billions of federal dollars Bush would make available will be a temptation. Money's fungible. A religious organization could free up the money it's already spending on a soup kitchen or homeless shelter and use it for religious purposes.

"That kind of government subsidy of religious life has no place in a county that has built walls to keep religion out," says Rabbi David Saperstein of the Religious Action Center.

Yet it's not a novel idea. Catholic Charities and the Salvation Army long ago established separate tax-exempt entities--501 (C) 3 charities--to avail themselves of federal funding and facilitate their social, not religious, programs.

The Bush proposal is really an expansion of President Clinton's 1996 welfare reform that created a "charitable choice" allowing religious organizations to compete for program funds. The religious institutions could not use those funds for worship or to convert clients. There had to be a secular alternative.

The charitable choice provisions are facing legal action:

• Milwaukee's FaithWorks was visited by candidate Bush during the election campaign. Then Faithworks was sued. Its program to help drug-addicted dads has Christian foundations.
• A bible class is part of a program for the unemployed in Texas.
• A counselor at the Kentucky Baptist Homes for Children was fired because she's a lesbian.

But judicial guidelines are not absolutely clear on church/state separation. The Supreme Court, in a series of cases in recent years, has allowed that parochial schools may receive federal aid for programs that mirror those in public schools:

• A sign-language interpreter for a deaf student at a California Catholic high school. (Zobrest v. Catalina Foothills School Dist.)
• Public school teachers for remedial classes at parochial schools in New York. (Agostini v. Felton)
• Computers and other technical equipment loaned to parochial schools in Louisiana. (Mitchell v. Helms)

The Supreme Court decided that taxpayer money may be used to buy computers and other materials for religious and other private schools

Such aid, Justice Clarence Thomas wrote in the court's divided opinion on Mitchell v. Helms, "is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a non-discriminatory basis."

Justice Sandra Day O'Connor agreed "neutrality is an important reason for upholding government-aid programs against Establishment Clause challenges." But Justice O'Connor was shocked by the "unprecedented breadth" four of her colleagues in the majority would allow for government aid.

That sets the stage for the high court to review the next major church/state issue--school vouchers. So far, the justices have sidestepped several opportunities. But there will be more.

The 6th Circuit Court of Appeals last year ruled that Cleveland's voucher program broke the constitutional wall. Its low ceiling for tuition aid--$2250 for the school year--"is designed in a manner calculated to attract religious institutions," the appeals court ruled. More than 90 percent of the 3,700 Cleveland students in the program opted for religious schools, presumably because they are cheaper than most private schools.

The social services now being considered raise parallel questions. But supporters of the Bush initiatives are optimistic because of the court rulings.

"There is an emerging doctrine of neutrality that the courts have been promulgating that says government should be able to support a faith-based social services provision, but people ought to have alternatives," says the Progressive Policy Institute's Will Marshall. PPI is a Democratic institution that supports the president on the faith-based issue.

So far, President Bush's proposal has divided the politicians and church leaders. There's no reason to think faith-based initiatives won't also divide the judges and justices.

Charles Bierbauer, CNN's senior Washington correspondent, covers the U.S. Supreme Court and public policy issues. Send comments to Charles Bierbauer by writing to charles.lawcenter@cnn.com.