Christian Nation: Bush Moves Big Bucks to Religious Organizations

The following is excerpted from The Court and the Cross: The Religious Right's Crusade to Reshape the Supreme Court.

Faith-Based Organizations and Religious Discrimination in Hiring

For the Religious Right, the most significant workplace religion issue over the past decade has been the movement's push to free faith-based organizations (FBOs) from the anti-discrimination provisions of Title VII, while still preserving (and expanding) their access to public funds. Thanks in large part to the movement's political success in Congress and the White House, billions of taxpayer dollars have been funneled to FBOs; even more importantly, FBOs have been freed of the allegedly onerous obligation of nondiscrimination.

When President Clinton issued his executive order on religious expression in the federal workplace, he tried to strike a delicate balance between the protection of federal employee religious rights on the one hand and the prohibition against government establishment of religion on the other. The order repeatedly warned against the appearance of governmental endorsement, and closed with a flat prohibition against establishment: "Supervisors and employees must not engage in activities or expression that a reasonable observer would interpret as government endorsement or denigration of religion or a particular religion."

But Clinton, unfortunately, was not always able to be so careful about the structural integrity of the Jeffersonian wall between church and state; the current feeding frenzy by FBOs can be traced directly to legislation that Clinton had little choice but to accept. In 1996 Congress passed a fiercely debated welfare reform package called the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). The legislation was largely the work of the Republican-controlled Congress that took office in 1994 after the so-called Republican Revolution. Under intense public pressure from bombastic House Speaker Newt Gingrich, and in the midst of a re-election battle with Sen. Bob Dole, R-Kan., Clinton signed the legislation on Aug. 22, 1996. Among the numerous provisions included in the legislation was the following language:

RELIGIOUS ORGANIZATIONS -- The purpose of this section is to allow states to contract with religious organizations, or to allow religious organizations to accept certificates, vouchers, or other forms of disbursement under any program described in subsection (a)(2), on the same basis as any other nongovernmental provider without impairing the religious character of such organizations, and without diminishing the religious freedom of beneficiaries of assistance funded under such program.

The PRWORA did acknowledge that the Constitution contains an establishment clause and declared that any religious organization operating a program to provide social services must do so in a manner consistent with the First Amendment. To reduce charges of undue government entanglement with religion, the law also specifically stated that neither the federal nor state government can require a participating religious organization to change its structure or "remove religious art, icons, scripture, or other symbols."

The "charitable choice" initiative, as it was called, was the work of Sen. John Ashcroft, R-Mo., who received assistance in drafting the new provision from Steve McFarland, who at the time was serving as director of the Christian Legal Society's Center for Law and Religious Freedom (he was later appointed by President George W. Bush to lead the U.S. Justice Department's Task Force for Faith-Based and Community Initiatives). Despite the provision's virtual upending of the traditional relationship between government and religion, media coverage of charitable choice was remarkably limited and largely lost in the much louder debate about the potential impact of the welfare reform act.