and Milwaukee Faith Works, a faith-based drug rehabilitation program)
9
, Locke v. Davey
(dealing with an educational voucher program in Washington state)
10
, and a recent
lawsuit filed against the United Methodist Homes of North Georgia.
11
My purpose in this paper is to clarify the constitutional issues raised by government’s
effort to cooperate with faith-based organizations. Needless to say, a program can be
constitutional without necessarily being good public policy. But all too often political
and constitutional controversies mix these two considerations and so confuse those who
would try to understand and resolve them.
CHARITABLE CHOICE AND ITS PROGENY
Those who participated in the 1996 debate over welfare reform paid little attention to
a provision inserted into the law by then-Senator John Ashcroft, the purpose of which “is
to allow States to contract with religious organizations, or to allow religious
organizations to accept certificates, vouchers, and other forms of disbursement…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.”
12
The law protects faith-based
organizations that accept federal funds in several ways. First, they are permitted to retain
their essentially religious character, maintaining their “control over the definition,
development, practice, and expression of [their] religious beliefs.”
13
They cannot be
required to alter their “form of internal governance” or to “remove religious art, icons,
Convention