Remarks of Dr. Stanley Carlton-Thies
MR. BRADLEY: There is an anecdote about Presidential potential
candidate, George Bush on the campaign trail in 1988. He said, was
I scared floating around in a little yellow raft off the coast of
an enemy-held island, setting a world record for paddling?
Of course, I was. What sustains you in times like that, he asked
himself? Well, you go back to fundamental values. I thought about
mother and dad and the strength I got from them, and God and faith,
and the separation of church and state.
Well, I think we've come a long way since 1988, which appears to
be a high water mark for the privatization of religion. And those
days, not only politically, but in Constitutional law, privatization
was the rule of the day.
It was the high water mark in Constitutional law, partly because
school aid was controlled by that duo of cases of just a few years
earlier, Aguilar and Ball, cases now eclipsed by Mitchell
v. Helms, and also a year or so after, Edwards v. Aguillard,
the creation science case, and one of the more thoughtless opinions
rejecting the role of religion in public schools.
Now, both Presidential candidates of the major parties profess
often and fervently, their devotion to Jesus Christ. It's true that
Jesse Ventura thinks religion is only for knuckleheads and neurotics,
but Jesse Ventura is not going to be President.
So it seems an opportune time to reexamine on a broad front, the
role of religion in our public life. And what better type of issue
or better context in which to examine the role of religion in public
life than Charitable Choice?
Welcome to all of you. I'm Gerry Bradley, Professor at Notre Dame
Law School, and Chair of U.S. Liberties Practice Group. It's my
pleasure to welcome you to the conference, and to acknowledge the
help of the National Office headed by Leonard Leo, and the local
Chapter of the Lawyers Group headed by Tim Fisher, and to introduce
to you, the Moderator of our first panel.
Professor Nicole Garnett is on the faculty of the Notre Dame Law
School, a graduate of Yale Law School; served as a law clerk to
the Honorable Clarence Thomas of the United States Supreme Court;
teaches in the area of property, and soon in the area of Constitutional
Law at Notre Dame.
She is the head of the Practice Groups Committee on School
Choice and Educational Reform. Nicole Garnett.
PROFESSOR GARNETT: Thank you very much. I am honored to have this
opportunity to moderate this panel, in particular, because this
panel will focus on something that us [sic] academic types focus
too rarely upon, and that is, what is happening in the real world?
Everybody, as we know, is talking about Charitable Choice these
days. George W. Bush is for it, Al Gore is for it, most Americans
say they are for it, and this panel will tell us a little more about
what we all profess to be for.
What is Charitable Choice? What are faith-based charities doing?
What can they do, and what can they do in partnership with Government?
Before I introduce the members of this panel, who know an awful
lot more about these questions than I do, I want to tell a little
anecdote about how I came to be interested in Charitable Choice.
I am doing so not simply for narcissistic reasons, but also because
I think it really highlights the issues that this panel and that
all faith-based organizations and that organizations like the Federalist
Society that are concerned about limited government, really need
to think about when we embrace Charitable Choice.
After I graduated from law school and before I began my clerkship
on the 8th Circuit, I spent a summer working as a law clerk for
a place in Washington, D.C. called the Institute for Justice. It's
a small, public interest law firm.
And I came -- I got to be involved in a case about a group called
Teen Challenge, which is a faith-based drug treatment center, nationwide.
This Teen Challenge happened to be in San Antonio, Texas, and it
had gotten into a little bit of trouble with the regulators, the
Texas Department of Alcohol and Drug Abuse.
They had -- it wasn't that Teen Challenge wasn't doing a good job;
in fact, they were doing a great job. By some counts, they were
doing something like 30 times better curing people of drug addiction
than secular programs.
But they had more serious problems in the eyes of TDADA. Those
problems ranged from frayed carpeting to the fact that they did
not hire [something] licensed chemical dependency treatment counselors.
Teen Challenge said we can't do that because we hire people who
have been saved from their own addictions by God to be counselors
and there aren't that many licensed chemical dependency treatment
counselors that fit that description.
Things looked pretty bad for Teen Challenge until Governor Bush,
with the help of an esteemed member of our panel, stepped in. And
we'll hear a little bit more about that, but I do think that incident
has always really highlighted to me the risks involved in Charitable
Choice, not just because the regulators stepped in and tried to
close down Teen Challenge, threatening them with fines of $10,000
a day for every day they remained open with their frayed carpeting
and lack of counselors, but also because of the reason that Teen
Challenge came to the attention of the regulators.
And that was because they started accepting food stamps. So the
hook was, well, we are now taking government money and now you're
Perhaps they could have gotten in trouble without the food stamps,
but it is something that always gives me pause. Although I'm a fan
of Charitable Choice, we do have to be vigilant when we're putting
these programs together, to worry about government strings.
Okay, I'd like to just briefly introduce the panel in the order
in which they will speak, and then turn it over to them.
Our first speaker is Dr. Stanley Carlson-Thies. He's the Director
of Social Policy Studies at the Center for Public Justice, a nonpartisan,
Christian public policy research institute located in the Washington,
He currently directs the Center's project to track the implementation
of the 1996 Charitable Choice provision of the Welfare Act.
He is the author of numerous publications on faith-based charities,
including "Faith-Based Institutions Cooperating with Public
Welfare: The Promise of the Charitable Choice Provision."
He holds a doctorate in political science from the University of
Our next speaker is Amy Sherman, who is with the Hudson Institute.
She is the Senior Fellow for Welfare Policy at the Hudson Institute,
and the Irvin Ministries Advisor at Trinity Presbyterian Church
in Charlottesville, Virginia.
She is the co-founder and former Executive Director of Charlottesville
Abundant Life Ministries. Dr. Sherman has also authored numerous
publications on faith-based charities and Charitable Choice, and
has been named by Christianity Today as one of the top 50 evangelical
leaders under 40.
She frequently speaks on the topics of welfare reform and provides
consulting services to churches who are trying to start their own
faith-based ministries and charities.
She also has a Ph.D. from the University of Virginia.
Our third speaker is Dr. Carl Chrisner, who has recently left Teen
Challenge to form a consulting service for faith-based ministries,
and has a lot of experience and will talk about what it is that
faith-based ministries are doing, and what they hope to be able
to do through Charitable Choice.
Dr. Chrisner has a Ph.D. in New Testament Studies, and in addition
to serving for Teen Challenge, he also has been a college professor
and a minister with the Assemblies of God Church.
And, finally, Don Willett, who just recently left Governor Bush's
government job to join the Presidential campaign. I actually first
came across John when I was an attorney for the Institute for Justice
and he was helping us out with another case.
But he has a law degree, clerked on the 5th Circuit, and was very
instrumental with Governor Bush in putting together really a groundbreaking
plan for government and faith-based institutions to work together,
which came out of the Teen Challenge incident in Texas.
So he will tell us a little bit about that, what's happening in
Texas, and how it's working.
DR. CARLSON-THIES: Good morning. Everyone might be for Charitable
Choice but not everyone understands it. And worse than that, many
of those who are supposed to be complying with it aren't.
And that's going to be the burden of my discussion. I hasten to
add that there are a lot of very creative and interesting new collaborations
going on between the public sector and faith-based organizations.
I think Amy will talk about some of those. They don't all fit the
model that they are supposed to, and in some cases, in fact, they
are being created and taking shape without the benefit of the legislation,
just because it's a good idea, and that's to say that the collaborations
don't have the structure that they're supposed to.
So you will see many innovative collaborations happening out there,
but when it comes to following the rules of Charitable Choice, things
are not going as well as they ought to. So that's what I want to
We're going to talk about the impact of faith-based organizations
working in collaboration with government. We're talking about the
impetus that was given to that through Charitable Choice.
And if we want to ask about what good these faith-based organizations
now are doing in collaboration, then, as a part of this whole movement,
I think we have to ask this prior question, Is government doing
its part to craft that hospitable environment that it's supposed
to according to Charitable Choice, that environment that allows
these faith-based organizations to become active and not to be hobbled?
And that's my question here.
I want to start with one assumption, which is that I don't believe
that just because an organization is faith-based it's by definition
effective and will do wonderful things. Some of them do, some of
I don't think that's a Charitable Choice question; the Charitable
Choice question is that they can't be excluded because they are
faith-based; they ought to be looked at for what they can contribute,
and many of them are effective and therefore ought not to be excluded
from working with the public sector.
Let me speak just briefly about Charitable Choice and its goals,
and then let me talk about the compliance issue.
I take it that Charitable Choice basically rests on or is comprised
of four principles. I think we can organize those in two pairs:
The first pair is this: in the first place, the eligibility of
faith-based organizations to take part in government purchase-of-service
programs. That is to say, there is to be a level playing field.
They won't be excluded because they are faith-based, because they
are religious, because they are too religious, because they are
pervasively sectarian. They have an opportunity to take part. That's
the first point.
Number Two: The other side of that is that there are certain Constitutional
safeguards that are built into Charitable Choice. These organizations
are not allowed to use government funds for purposes other than
the public purpose of serving the folks who need help.
The money cannot be used for certain inherently religious activities
such as sectarian worship, instruction, proselytization.
And in choosing these faith-based organizations, government is
supposed to act neutrally; it's not supposed to single them out
because they are faith-based, just like they are not supposed to
keep them out because they are faith-based.
Then the second pair of principles. Number three is to protect
the faith character, the religious character, of participating faith-based
organizations. If they come into the program, then their character
has to be protected.
That means things like -- and you probably know this -- allowing
them to have a religious atmosphere, icons, religious symbols, maintaining
religious expression, and so on.
Charitable Choice says that these organizations have the right
to hire only staff who fit with the organization's religiously-defined
way of meeting the public purpose.
So their religious character is protected if they take public funds.
Then the other side to that, number four, is if you're going to
strengthen the faith-based organizations then you must make explicit
protections for clients.
So Charitable Choice specifies that clients cannot be denied service
because of their religion, they cannot be denied service because
they don't want to actively take part in an inherently religious
activity, and the state government has an obligation to provide
an alternative to a recipient who doesn't want to get services from
a faith-based provider.
So, first an opportunity to take part; second, there are some limitations
on activities; third, faith-based organizations can retain their
religious character, and, fourth, there are protections for clients.
That's what Charitable Choice is.
The whole point, while at the same time respecting the Constitutional
requirements, is to make sure government can have its proper oversight
and can buy effective services, and make sure the clients are protected
from religious coercion. Charitable Choice is designed within those
boundaries, to expand the opportunity for faith-based organizations
to work with government, to take government funds, and equally to
ensure that when faith-based organizations do take public funding,
they don't have to give up their faith-based way of working.
Okay, so that's the goal of Charitable Choice. Well, what's the
record of compliance with those new rules? What are states doing
with Charitable Choice?
You remember that Charitable Choice is part of a federal law, the
1996 Welfare Reform Act, and it is an obligation that comes to the
states, along with the federal money. It's one of those strings
that comes, and in that sense, it's binding on states, whether or
not they like it or accept it or even know about it.
They don't have to enact it, they don't have to do anything in
one sense; it just is binding on them because they have accepted
On the other hand, Charitable Choice is a dead letter in a state
that pays no attention to it. No matter what the federal law says,
if a state keeps operating its procurement process the way it always
has, then in that state, all of those protections are a dead letter.
And that's because virtually all states, if not every state, in
some way or another has been operating a procurement process that
is more restrictive than Charitable Choice requires. In fact, that's
why and how Charitable Choice came about. Carl Esbeck came up with
a catalog of restrictive laws, state and federal laws, and said,
let's write a provision that gets rid of these restrictions.
So those restrictions are already there; Charitable Choice says
let's get rid of them. Thus, if a state hasn't done anything, you
can be pretty sure that it has restrictions in its law that aren't
supposed to be there anymore.
There is now a new standard. Each state ought to be taking a close
look at that standard; it ought to look at its own procurement policies
and practices, and root out the ones that don't meet the new standard.
If states do that, then Charitable Choice becomes a practice in
that state, and not just words in a federal law book. And then Charitable
Choice makes a difference for the faith-based organizations in that
state and for people who need services, some of which can be best
provided by faith-based organizations.
So how are states doing at looking at their laws and rooting out
the ones that don't conform to the new standards? Well, there is
a saying someplace that every happy family is the same, but all
unhappy families are unhappy in their own way.
I think that's kind of true of Charitable Choice as well. There
are a handful of states that take Charitable Choice seriously, and
they're doing similar things, some of them more excellently than
others, and I'll come to that.
A few states are just getting on the bandwagon, and many states
are flunking miserably. But they have very diverse ways to flunk.
So, let me talk first about the Charitable Choice stars and then
I'll talk about the Charitable Choice failures, and then just briefly
about the in-between ones.
The Charitable Choice stars, let me name them as Texas, Wisconsin,
Indiana, and Ohio. These are states that have taken an explicit
look at what Charitable Choice requires.
They have looked at what their own policies and practices have
been, and then they have set about to change those state rules,
laws, practices, and customs that put barriers in the way of faith-based
organizations, barriers that are now illegal under Charitable Choice.
That means things like explicitly complying with the requirements.
Charitable Choice says, for example, that faith-based organizations
have the right to hire on the basis of faith. But the rule outside
of Charitable Choice is that you can't do that. So what a state
has to do is put an exception in the case of Charitable Choice.
These "A" states have been going through their own rules,
going through contracts, going through requests for proposals and
all those things, taking out what no longer belongs, and in some
cases putting in positive things that ought to be there, inviting
faith-based involvement, and also protecting clients in an explicit
That's what Charitable Choice requires, and that's the kind of
thing these states have done.
Secondly, they are reeducating the bureaucracy about what the new
standards are. It's not enough to just pass it at the state level
either, but officials need to actively go out and let the entire
government agency know that things need to be done differently.
Then, thirdly, these states are reeducating the public and the
faith community. We used to do things that way; we're doing them
this way now. And, therefore, there is a new door that's opened
that didn't used to be open.
And then fourthly, they are providing all kinds of technical assistance,
outreach, and so on, that makes it practically possible for faith-based
organizations to get involved. They are building bridges, reaching
out, having liaison persons, a point of contact, and sweeping away
non-church/state barriers that have made it difficult for groups
to get involved -- too much regulation, too much red tape, all those
kinds of things.
In this whole process, of those four states I think that Texas,
(not just because Don's on the panel), is going the deepest and
the widest, and is systematically going through, kind of marching
through the rules of the bureaucracies, passing the legislation,
rewriting the regulations, pushing for cultural change in the bureaucracy,
redesigning service programs to best utilize the strengths of faith-based
organizations to make sure that new organizations have a chance
and so on.
So here's a place that's doing things, in my view, the way they
ought to be done. But in all these leading states, it is clear that
there is a new day, which has required new actions by government,
and opens up new opportunities for faith communities. Affirmative
steps are being taken to clear away barriers and to welcome the
participation of faith-based organizations. That's what Charitable
Choice ought to be, and that's being done in those states.
In the many states that are failing -- and I won't say exactly
how many and I'm not going to name them all because we're not totally
finished analyzing or survey in the many states that are failing,
they have many different ways of not doing what these four exemplary
states are doing.
Some states have told us that they haven't systematically checked
their procurement to see if it fits with Charitable Choice, and
they haven't changed anything, either. So you can be 100 percent
sure that they're just not doing what they ought to be doing. They
just admit it; they haven't done anything.
There are some states -- Maryland is one of them -- that actually
have taken legislative notice at the state level about Charitable
Choice, and actually changed their statutes because of Charitable
But what some of these states have done -- and, again, Maryland
is one of them -- they've made it explicit that the welfare agencies
may contract with religious organizations more widely than in the
past. They have written into the state law the protections that
are required by Charitable Choice for clients of faith-based organizations.
But they forgot the third step, which was to write in the protections
for faith-based organizations themselves. So these organizations
are being invited to the table, but they're not being given the
protection they're supposed to be given under the federal legislation.
There is one state, New Jersey, that has a special Governor's program
to target money particularly for religious community development
efforts to help them get going. Well, first of all, that's not what
Charitable Choice permits. You're not supposed to target it to faith-based
organizations. In the second place, New Jersey doesn't understand
that all their other procurement is supposed to be run according
to these new principles. It's kind of like they have a little playground
for faith-based organizations, and that's where they're supposed
to do their thing, and the rest of the rules are still the way they've
always been. That's not what Charitable Choice requires.
Officials in Nevada told us that they knew about Charitable Choice,
they knew they had to do something, but they have been busy with
other priorities, so they haven't gotten around to it yet. At least
they were honest.
A number of states have devolved welfare to lower levels. Just
as welfare has come from the Federal Government down to states,
some states have devolved it to counties. California is one, Colorado
is another one. Florida has devolved welfare to regional coalitions.
Unfortunately in that process, these states neglected to tell the
lower level governments that Charitable Choice was a requirement.
So, in these states you will find great diversity. Some places are
doing what they should be; some places don't have a clue, they have
never heard about it. No one has told them they've got to do it.
The state of New Hampshire responded to our survey by admitting
that it wasn't paying any attention to Charitable Choice; it doesn't
protect the rights of faith-based organizations the way it's supposed
to, and it said, in our state, all vendors are required to be secular
and that's just the way we do things. That's not the way they're
supposed to be doing things, but that's the way they're doing things.
More than ten states responded to our survey by admitting that
despite the clear language of Charitable Choice, they continue to
refuse to allow faith-based organizations to take account of religion
when they hire staff. So, in our public survey, they said, no, we're
not doing that, even though it's required. We know that many other
states don't, in fact, protect that right, although they didn't
admit that on the survey.
Finally, a number of states told us that Charitable Choice just
doesn't apply to them. A Mississippi official told me that he believed
Charitable Choice was optional for states. They could do it or not,
depending on what they wanted to do, and they didn't want to do
Vermont said that Charitable Choice wasn't relevant for the way
it operates. Washington, D.C. claims Charitable Choice just doesn't
apply inside its borders.
Massachusetts says they run their procurement according to the
First Amendment, and they don't care what Congress says the First
Washington State said Charitable Choice doesn't apply because their
own constitution restricts state funding of religious organizations.
They have a Blaine Amendment, and, after all, it says in Charitable
Choice that the new rule does not preempt state restrictions on
funding religious organizations, which is true. But Charitable Choice
does say that when it comes to the federal money, it has to be spent
according to the federal rules. But Washington State decided that
its Blaine Amendment covers the federal funds as well.
So, there are many different ways to not do what ought to be done.
These are not all the F-states, but those are the typical ways to
ignore what Charitable Choice requires.
Finally, a handful of states are starting to make progress. For
example, Pennsylvania understands Charitable Choice. There are some
very creative things that are going on, exactly the way they're
supposed to. They are beginning to change the way the bureaucracy
operates in that state.
Arizona last year passed legislation applying Charitable Choice
to not just the federal funds, but to state and local funds for
certain departments, and they are starting to educate the bureaucracy
California finally got around to passing a law that requires the
Welfare Department to tell the counties that they've got to implement
Charitable Choice, and one of these days we hope we'll have good
regulations that say that.
Some states like Illinois and Michigan have always been quite positive
in working with faith-based organizations, but they haven't take
this opportunity to clear up the hindrances that remain. We have
tried to encourage them to do that.
And then, finally, let me note that Virginia had a task force last
year that recommended an aggressive uprooting of barriers to faith-based
involvement. The Legislature picked up all those suggestions, and
passed it into legislation. I think we'll begin to see in Virginia,
finally, a transformation of the state's climate for collaboration.
Faith-based organizations can't more effectively collaborate with
the government if they are kept outside or they are required to
set aside their faith when they come inside. Charitable Choice is
designed to change that situation. And the unfortunate thing is
that many states are dragging their feet on doing what the law requires.