social programs. But these organizations have for the most part separated themselves
from their sponsoring denominations and become purely professional and secular.
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Whatever might be the motivations of the governing boards and at least some of the
employees, the organizations themselves are in practice largely indistinguishable from
their secular counterparts. Supporters of President Bush’s faith-based initiative are
divided among themselves with regard to whether this is the route all faith-based
organizations should take. Some would do so, if only to avoid costly and distracting
litigation. Others regard this as surrendering precisely what makes some faith-based
organizations distinctive and distinctively effective: if they can no longer challenge their
clients to change their hearts, then they cannot live out their calling. The real task is to
determine to what extent there is a means of publicly supporting this distinctive mission
that is regarded by the Supreme Court as consistent with the Constitution.
INDEPENDENT CHOICE, INDIRECT FUNDING, AND VOUCHERS
Perhaps the safest route to funding—at least in the contemporary jurisprudential
context—is connected with “the genuinely independent and private choices of
individuals,” in other words, vouchers and programs that arguably operate analogously to
vouchers. This conclusion follows from a string of Supreme Court decisions beginning
with Mueller v. Allen (1983),
53
Witters v. Washington Department of Services (1986),
54
and Zobrest v. Catalina Foothills School District (1993),
55
passing through Agostini and
Mitchell v. Helms (2000), and culminating—for the moment, at least—in Zelman v.
Simmons-Harris, decided in 2002 . At issue—and vigorously disputed among the Justices
Convention