By Matthew King

Faith-based social welfare programs came to the forefront when President George W. Bush issued Executive Order 13198, which created a federal office to expand charitable choice provisions to remove “regulatory, contracting, and other programmatic obstacles that prevent faith-based organizations from gaining full access to government funds.”1

General faith-based organizations are a crucial provider of social services. They are often the only providers remaining in troubled neighborhoods and are more easily accessible to clients. They are “close to the needs of the people and trusted by those who hurt.”2

Despite these organizations’ importance, private funding has decreased. Since the expansion of federal welfare programs in the 1960s, charitable giving by individuals has decreased by 25%.3 If Americans today gave at the same rate as in the 1960s, faith-based organizations would have $20 billion more per annum to devote to social service programs.4 By way of comparison, federal funding of social services has increased 20% (of national income) since the 1960s.5

As the need for funding increases -- and the major source of that funding is the federal government -- faith-based organizations must work to understand the constitutional issues presented when the government grants them money. The Supreme Court long ago rejected the argument that every form of financial aid to church-sponsored activities violates the establishment clause.6 In Bradfield, the Court upheld a construction grant to a hospital operated by a Catholic order by distinguishing the hospital as “a secular corporation being managed by people who hold to the doctrines of the Roman Catholic Church.”7

Some five decades later, modern establishment-clause analysis was born in Everson v. Board of Education.8 In Everson, a statute authorized school districts to provide transportation to and from schools, regardless of whether the schools were public, private or religious. The Court upheld the statute, reasoning that the funding promoted a public purpose and was provided on a religion-neutral basis.

In 1971, the Court articulated a three-part test to determine whether government grants to faith-based organizations violate the establishment clause.9 First, the grant must have a secular legislative purpose. Second, the principal or primary effect must be one that neither advances nor inhibits religion. Finally, the grant must not foster “an excessive government entanglement with religion.”10

Washington’s constitution, Art. I, Sec. 11, significantly differs and is considerably more specific than the establishment clause. Art. I, Sec. 11 explicitly prohibits appropriation or application of public money or property for four express purposes: religious worship, religious exercise, religious instruction and support of any religious establishment. The framers of Art. I, Sec. 11 were aware that faith-based organizations regularly provided social services to the public. Reference to the health-care work provided by the Sisters of Providence appears in the debates on the Washing-ton constitution.11 Many religious groups received state funding through public service contracts.12

With this background, there is no reason to believe that government funding of faith-based social service organizations would run afoul of either the federal or state constitutions. While there is the potential for abuse by faith-based organizations, the remedy is not to deny funding to all faith-based organizations, but rather to withhold funding from those organizations that cannot meet the Lemon test.

As such, faith-based organizations need to establish programs that serve a secular purpose (i.e., assisting homeless people, job centers, shelters, chemical dependency treatment, etc.). Obviously, programs that have a religious component need to segregate the funding for those components. But if faith-based organizations can provide better and more effective services, then we should encourage their growth and use. n

1 66 Fed. Reg. 8497 (1/29/2001).

2 Rallying the Armies of Compassion. Pres. George W. Bush www.whitehouse.gov/news/reports/faithbased.html (last visited August 23, 2005).

3 H.R. Rep. No. 107-138, pt. 1 at 17 (2001).

4 Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (2000).

5 H.R. Rep. No. 107-138, pt. 1 at 17 (2001).

6 Bradfield v. Roberts, 175 U.S. 291 (1899).

7 Id.

8 330 U.S. 1 (1947).

9 Lemon v. Kurtzman, 403 U.S. 602 (1971).

10 403 U.S. at 612.

11 Malyon v. Pierce County, 79 Wn. App. 452, 469, 903 P.2d 475 (1995).