From Charitable Choice to the faith-based office, when churches got a seat

The cots do not know the difference. The men sleeping on them do not much care. The grant office does. Take two hypothetical shelters. The first is run by a secular nonprofit, and it can apply for a public contract to serve the homeless. The second is run by a church that has been serving the same homeless for fifty years, in the same building, on the same cots, and it is told that to be considered it must first make its religion go away. Washington had a theory for that.

That theory had a long run. For decades the assumption in Washington was that taking a church's help meant taking its religion, and since the Establishment Clause forbade the second, the first was off the table. Charitable Choice was the first serious break in that assumption, and the faith-based office was the second. Between them they rewrote the rules about who gets a seat at the table when government and civil society sit down to fight poverty.

I want to tell this story in order, with the dates, because the details are where the argument is. And I want to be fair to the critics, because there are good ones on both the left and the right. Then I'll give you my verdict.

The problem

By the 1980s and 1990s, government funded an enormous range of social services through private contractors: job training, drug treatment, shelters, adoption and foster care, child care, counseling. Religious organizations had been doing this work since before there was a government to fund it. Catholic Charities, the Salvation Army, Jewish family services, Lutheran social ministries and thousands of local congregations were already on the ground.

Yet they ran into a wall. Courts had developed a doctrine under which an institution that was "pervasively sectarian" could not receive direct government money, on the theory that in such an institution, religion and service were so intertwined that public dollars would end up advancing religion. Agencies that did not want a lawsuit took the cautious route and told religious groups to either secularize or stay home. Some groups complied by creating a separate nonprofit shell. Others simply declined.

Think about what that meant to a small congregation with a food pantry and a good heart. It meant a choice between its mission and its eligibility. The cautious reading of the Constitution treated the church's faith as a contaminant.

1988: Bowen v. Kendrick

The first crack in the wall came from the Supreme Court. In 1981 Congress had passed the Adolescent Family Life Act, which funded programs on teen pregnancy and related counseling and expressly allowed religious organizations to take part. A challenge argued the program violated the Establishment Clause.

In Bowen v. Kendrick, decided in 1988, the Court ruled 5-4, in an opinion by Chief Justice Rehnquist, that the statute was not unconstitutional on its face. Congress could include religious organizations among the grantees without advancing religion in the constitutional sense. The Court sent the case back to the lower court to examine whether particular grants were used improperly. The upshot: the mere fact that a grantee is religious does not make a program unconstitutional. That was not a blank check, but it was a door held ajar.

Summer 1996: Section 104

Now to Congress. The year 1996 produced a welfare overhaul, the Personal Responsibility and Work Opportunity Reconciliation Act, signed by President Clinton on August 22. If you want the whole story of that law, I tell it in two vetoes, one signature and the 1996 welfare law that put marriage in statute. Buried in it was a provision that did not make the headlines: Section 104, popularly called Charitable Choice. Senator John Ashcroft was its main champion in the Senate.

Charitable Choice said, in substance, that when a state uses federal welfare money to contract with outside providers, it may not exclude an organization because the organization is religious. It also set rules. Here are the main ones:

1. Religious organizations compete on the same basis as any other provider. They are neither favored nor shut out.
2. A religious provider keeps its religious character. It may keep its religious art and symbols, its governing structure, and its mission statement.
3. Public money may not be spent on sectarian worship, instruction or proselytization.
4. A beneficiary who objects to receiving services from a religious provider has a right to an alternative provider, and the state has to make sure one exists.
5. A religious provider cannot discriminate against a beneficiary on the basis of religion or require the beneficiary to participate in religious activities.

Read those again, because you will hear this law described as "government funding churches to preach." That is not what it says. It says the opposite on funding: no money for worship or proselytizing, a secular alternative guaranteed, and no religious test for the people being served. What it did say was that a church could not be turned away for being a church.

The provision was later extended to other federal programs, including substance-abuse treatment, in 2000.

January 29, 2001: the office

The next step came from the executive branch. In 2001, George W. Bush came into office having campaigned on what he called "compassionate conservatism," an idea with roots in the writing of Marvin Olasky, whose 1992 book The Tragedy of American Compassion argued that the old charities, close to the people they helped, had done a better job than the welfare bureaucracy. If you want the political arc of that idea, see Compassionate Conservatism, No Child Left Behind and Medicare Part D.

On January 29, 2001, Bush signed Executive Order 13199, creating the White House Office of Faith-Based and Community Initiatives. A companion order set up centers in several cabinet departments. The mission was to find and remove the barriers that kept faith-based and community groups from competing for federal funds, and to promote partnership between them and government.

In December 2002, Executive Order 13279 added a set of principles. Among them: faith-based organizations should not be discriminated against in competing for funds, and organizations receiving direct federal funds could not use them for inherently religious activities such as worship, religious instruction or proselytization, and any such activities had to be separate in time or place from the funded program.

Pay attention to the symmetry. The first half of the order was about equal treatment. The second half was a promise to the skeptics: your tax dollars will not pay for sermons.

The Court catches up

While the executive branch was building the office, the Supreme Court was dismantling the old doctrine that had kept religious groups out.

In Mitchell v. Helms in 2000, the Court upheld a federal program that lent educational equipment to public and private schools, religious ones included. A plurality of four justices said what mattered was that aid was distributed on neutral terms, and rejected the "pervasively sectarian" label as a basis for exclusion. The deciding concurrence by Justice O'Connor, joined by Justice Breyer, was narrower, but the program was upheld, 6-3.

Two years later, on June 27, 2002, the Court decided Zelman v. Simmons-Harris, ruling 5-4 that Ohio's Cleveland voucher program did not violate the Establishment Clause. The key was that the aid went to parents, who then chose among schools, religious and secular. The reasoning, neutral program plus private choice, has been the backbone of the cases that followed. You can trace those cases from the 1947 Everson decision to the 2022 Carson v. Makin decision in From Everson to Carson, the Court Cases That Opened the Door to Choice, and Five cases that ended America's religious penalty in school aid looks at the five that matter most.

One more case explains why there are so few court battles over the faith-based office itself. In Hein v. Freedom From Religion Foundation (2007), the Court held that taxpayers did not have standing to challenge conferences the executive branch put on to promote faith-based initiatives, because those were paid from general executive funds rather than a specific congressional appropriation.

Obama kept it

Here is the part that tends to surprise people on both sides. When Barack Obama took office, he did not abolish the office. On February 5, 2009, he issued Executive Order 13498, renaming it the White House Office of Faith-Based and Neighborhood Partnerships and creating an advisory council. In late 2010 a further order added protections for the people receiving services, including written notice of their rights and a referral to an alternative provider on request.

Then, in 2018, President Trump issued an order establishing a White House Faith and Opportunity Initiative.

Three administrations, two parties, four different names for roughly the same idea. That does not make it right. It does tell you it is sturdier than either side's rhetoric suggests.

Does it work?

Now for the honest part. Supporters say faith-based providers reach people the government cannot, because they are trusted, local, and motivated by something deeper than a contract. A pastor who knows your name and has been at your door in good and bad times has a kind of credibility that no case worker with a caseload of two hundred can match.

The research on whether faith-based programs outperform secular ones is mixed, and honest advocates say so. Some programs show strong results; others show nothing special. What supporters can fairly claim is narrower: that religious groups have as much right to compete as anyone else, and that many of them are good at the work. That is a claim about fairness and capacity, not a promise that every steeple outperforms every agency.

The critics, left and right

From the left, the objections are three.

First, that public money can end up supporting proselytizing despite the rules, particularly in programs where faith is intertwined with the service. A well-known example came out of Iowa. A federal court in 2006 ruled against a state-funded prison program run by a Christian ministry, finding that it was so pervasively religious that the funding violated the Establishment Clause. The case shows the rules are enforced when they are tested.

Second, hiring. Can a religious provider that takes federal money hire only people of its own faith? That question has been fought over for years, and it remains contested.

Third, that a beneficiary who does not want a religious provider may find the alternative hard to reach in a small town.

From the right, the objections are about independence. Every dollar of public money comes with strings, and strings pull. A church that depends on a government contract for half its budget will find that the contract shapes the ministry. Reporting requirements, audits, nondiscrimination rules and the changing priorities of the next administration all have a way of turning a ministry into a vendor. Tocqueville's warning about the state absorbing the associations that stand between it and the individual applies here too, and I wrote about it in What Tocqueville saw in American clubs and why conservatives still quote him.

I take that second objection seriously, and I think more conservatives should. A government that funds a church can regulate it, and the church should think hard before saying yes.

My verdict

So where do I come down? I would put it in four points.

1. The principle of equal treatment is right. Government should not tell a soup kitchen it is ineligible because the people running it pray before they serve. That is discrimination against religion dressed up as neutrality, and the Court has increasingly said so.

1. The safeguards are also right. No public money for worship, a secular alternative for the person who wants one, and no religious test for those served. Those rules protect the beneficiary and the church.

1. Faith-based groups should accept public money with open eyes. Many will decide the strings are worth it. Many will decide to stay independent and raise the money from their own members. Both are honorable choices.

1. The measure of success is not whether the office exists. It is whether the family at the shelter got a bed, a meal, a job and a way out. If you want to see what running a small version of this looks like, A church food pantry checklist, from IRS rules to dignity at the door shows it from the church's side.

The bottom line

• Charitable Choice (Section 104 of the 1996 welfare law) said states could not exclude a provider just for being religious, and it banned public money for worship or proselytizing.
• The faith-based office began with Executive Order 13199 on January 29, 2001, and survived under Obama and Trump with new names and added protections.
• Beneficiaries have a right to a secular alternative, and no religious provider may require participation in religious activity.
• If your church is considering public money, count the strings before you count the dollars. Independence is worth something.
• If you care about how your tax dollars are used, read the actual contract terms and ask your state agency how it enforces the rules. The law is only as good as the people who check.