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George W. Bush’s conservatism may be compassionate, but is it constitutional? The answer is no, according to four recent lawsuits. That includes one filed on Jan. 5 by the American Jewish Congress in California, challenging the mounting collaboration between church and state in social services. If “compassion” means anything, it likely means a wide embrace of “charitable choice” — a concept experimentally embodied in a 1996 welfare law that allows state funding of faith-based social services. “Things are looking pretty good right now for state-funded faith-based programs,” says Bobby Polito, director of Milwaukee’s FaithWorks, seen as a prime example of such a program by Bush, who praised it, and by the Freedom From Religion Foundation, which seeks to bury it. “By suing us, they’re trying to get ahead of the curve and thwart charitable choice.” Two suits allege improper state funding of, respectively, a Bible class for the jobless in Texas and a Christian 12-step course for addicted fathers in Wisconsin. A third suit, filed against the Kentucky Baptist Homes for Children by Alicia Pedreira, a counselor fired for her lesbianism, may test the principle that religious state contractors have a free hand in hiring and firing. “Nobody’s complaining about churches running senior centers or soup kitchens,” says Marc D. Stern, top lawyer at the American Jewish Congress (AJCongress), “but there are people — and the president-elect may be one of them — who think personal change can come only through faith.” “Bush’s plan for the social services would essentially merge church and state into a single bureaucracy,” claims Barry W. Lynn, director of Americans United for Separation of Church and State, a plaintiff in the Kentucky case. Charitable choice as conceived by the 1996 federal welfare law tries to walk a fine line. Rather than forcing religious service providers to set up formally secular arms to qualify for state aid, it allows them to show religious symbols, use religious criteria in hiring, and use faith-based concepts in providing help. But clients have the right to a secular alternative and may not be forced to “actively participate in a religious practice.” Nor may public funds be used for “sectarian worship, instruction or proselytization.” Bush pledged during the election campaign to apply charitable choice to all government-contracted social services. As president-elect, he has reaffirmed his intent to create an “Office of Faith-Based Action” and has nominated as attorney general a champion of charitable choice. “In 1996, charitable choice was John Ashcroft’s one-man crusade,” says Stern. “Ashcroft is the godfather of this terrible constitutional dilemma,” said Lynn, who vows to raise the issue at Ashcroft’s confirmation hearings. Stanley Carlson-Thies of the Center for Public Justice in Washington, D.C., who often faces off with Lynn, agreed that charitable choice likely will be a flashpoint at the confirmation hearings — although he noted that Al Gore, and in particular Joe Lieberman, have supported the concept. “I hope it will be one of the bipartisan bridge points,” he said. Further signs of Bush’s fondness for faith-based social policy are his nomination of Wisconsin Governor Tommy Thompson as secretary of health and human services and his reported plan to tap ex-Indianapolis mayor Stephen Goldsmith as head of the Office of Faith-Based Action. Wisconsin and Indiana, right behind Texas, are at the vanguard of implementing charitable choice, according to a report card issued by the Center for Public Justice. “It indicates this isn’t just going to be a rhetorical thing,” says Carlson-Thies. Bush’s evident commitment lends special importance to the allegations of abuse in early charitable choice plans. In the newest suit, American Jewish Congress v. Bernick, the AJCongress alleges that the California Employment Development Department, in August 2000, solicited proposals for $5 million in funding earmarked for faith-based groups — and only faith-based groups. “This goes way beyond what charitable choice was supposed to do, which was to put religious groups on an equal footing,” says AJC lawyer Fred M. Blum of Jaffe, Martini & Blum in San Francisco. Calif. “This is affirmative action for religious groups.” In an earlier suit, American Jewish Congress v. Bost, the AJCongress alleged that the Jobs Partnership of Washington County, a welfare-to-work training program in Brenham, Texas, used state funding to buy Bibles and give Bible instruction. According to the complaint, biblical lessons were taught one night a week and applied to “life skills” lessons another night a week. Clients gave the program high marks, but several indicated that they were pressured “to join a church or change [their] beliefs.” The group’s contract was not renewed. Michael W. McConnell, a conservative scholar at the University of Utah College of Law, says that in theory, directly state-funded Bible instruction is probably unconstitutional, as the Constitution is understood by a majority of the current Supreme Court. Carl Esbeck, director of the Center for Law and Religious Freedom and a lead drafter of the 1996 charitable-choice law, says that purchasing Bibles would clearly violate the statute. In any event, the defendants argue that the case is moot because the program ended. “It seems this is not the battleground charitable-choice advocates would prefer to fight on,” says McConnell. Both McConnell and Esbeck say that the early challenges to charitable choice are positive to the extent that they encourage careful implementation. Esbeck hopes that “the more carefully designed original concept” is not tainted. “There’s all kinds of ways to misimplement a law,” he says. “Whatever horrid set of facts you can find doesn’t make the law unconstitutional on its face.” Perhaps FaithWorks, in Wisconsin, provides a better test case. It relies on a “faith-enhanced” version of the Alcoholics Anonymous method, encouraging addicts to believe in a higher power. The group was targeted after Bush’s campaign stop there. “Bush doesn’t visit us, we don’t get sued,” says Polito. “That’s what lit the ignition switch.” The complaint in Freedom From Religion Foundation v. Thompson calls FaithWorks “pervasively sectarian.” Unfortunately for the plaintiff, that is a category of constitutional analysis, which, scholars say, at least four justices seem no longer to accept. “FaithWorks is proselytizing a captive audience of addicted absentee fathers,” says Annie Laurie Gaylor of the plaintiff group, based in Madison, Wis. “This is a very good example of what’s wrong with charitable choice.” The final case seen as an attack on charitable choice, Pedreira v. Kentucky Baptist Homes for Children, does not directly involve the 1996 charitable-choice provisions. Indeed, it arises out of a 25-year-old system for funding residential child care run by ministries. Esbeck, the drafter, prefers that the term “charitable choice” be used strictly. But lawyers on both sides see the case as a key test of a concept that is poised for swift expansion. Pedreira’s lesbian identity was discovered by management after a photo of her and her lover at an AIDS walk was displayed at the state fair. She was fired, according to the termination statement, “because her admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.” KBHC’s president expanded on this point in a letter to the parents of a child who was upset when Pedreira left (and who later became plaintiffs). “We do not believe the homosexual lifestyle is the one God intends for the human race,” he wrote. “The purpose of our agency is to help hurting children and families through Christ-centered ministries. Having staff whose lifestyles demonstrate the opposite of the Jude[o]-Christian values we build our mission upon working with our kids is a contradiction of who we are.” Lawyers from the American Civil Liberties Union and Americans United for Separation of Church and State are pressing Pedreira’s case on both civil rights and First Amendment grounds. With respect to the First Amendment, they argue that KBHC uses public funds for indoctrination, that it is a pervasively sectarian institution. and that a group may not restrict state-funded salaries to people of certain religious beliefs and practices. “It’s a truly radical argument,” says Patrick T. Gillen of the Thomas More Center for Law and Justice in Ann Arbor, Mich., who represents the defendants. “Simply because a state has contracted with a group does not mean that group is required to be areligious.” Adds another defendants’ lawyer, John O. Sheller of Smith and Smith in Louisville, Ky., “It’s a frontal attack on the government’s ability to use a faith-based organization at all.” Lynn of Americans United sees none of the four challenges to charitable choice as an ideal test case, and all are in their early stages. Perhaps the future of charitable choice is more likely to be shaped by related church-state doctrine. The Supreme Court’s fractured last word came this summer in Mitchell v. Helms, holding that government may put computers in Catholic schools. Justice Sandra Day O’Connor’s concurrence, which is widely seen as the controlling opinion, is read by some to signal that few restrictions apply when state funding to faith-based groups is channeled through individual vouchers. “The voucher mechanism is more bullet-proof,” says Professor McConnell, who argued the winning side in Mitchell. If this belief prevails, it is a fair bet that charitable choice will often take the form of a voucher system. The Supreme Court’s next word on church and state may well come in Simmons-Harris v. Zelman. On Dec. 20, the 6th U.S. Circuit Court of Appeals invalidated Cleveland’s school choice plan. An en banc petition has just been filed. Stern of the AJCongress says that a Supreme Court decision in Simmons-Harris would largely control the charitable-choice debate. He adds that Simmons-Harris is a perfectly cert.-worthy case — except that neither side can predict which way the court would rule. Meanwhile, time passes. “There will be a war over charitable choice in the next year and a half,” Lynn predicts, “but it’s going to be fought mainly in the court of public opinion.”

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