Stanley W. Carlson-Thies*

One of the least noticed, but most important, innovations of the 1996 federal law that overhauled welfare in America is its Charitable Choice provision. This provision set out new rules for government cooperation with faith-based organizations that serve the needy.(1) Charitable Choice creates a legal shield to protect the religious character of faith-based nonprofit organizations and congregations that accept federal welfare funds. With their faith bases protected, such organizations are free to serve in the most effective way they can and also to encourage a wider range of religious organizations to cooperate with the government in welfare reform.

Of course, contracting by religious organizations is not new, and often the relationship has worked well. But there have been problems. Good practice often had no solid legal foundation, rules have been inconsistent, the presumed constitutional requirement of separationism has cast doubt on cooperation, and too often the conditions accompanying government money have required a significant degree of secularization.(2) Charitable Choice clarifies the constitutional requirements, sets forth the necessary legal rules, and codifies appropriate practices. The effect is to remove both actual threats to religious liberty and the uncertainty that can be equally harmful.

The new rules forbid the exclusion of faith-based organizations from contracting and voucher opportunities because of their religious character. Participating organizations do not lose their right to hire and fire on the basis of religion or to display religious symbols and items in their facilities. They may use religious principles and language in their services, although contract funds may not be spent on proselytization, worship, or doctrinal instruction (because of the indirect tie, no similar restrictions are attached to funds that arrive via vouchers). States need not require houses of worship to create a separate legal structure to provide services, and participating organizations can limit the scope of audits by setting up a special account for the federal funds.

Charitable Choice protects clients by requiring the religious agencies to serve them without discrimination and to allow them to sit out any religious activities that offend them. And, most important, states are required to ensure that any client who objects to a religious provider has the option of receiving an equivalent service from a different agency. By building choice into the service framework in this way, Charitable Choice simultaneously protects the religious liberty of both provider organizations and clients.

These new rules accompany the federal welfare block-grant funds and are not optional for states that choose to utilize nongovernmental organizations to deliver welfare services.(3) The rules apply mainly to TANF funds, which can be used for a wide variety of services. Unfortunately, services funded under other programs are not covered; this includes, for example, social services funded by Community Development Block Grants. Similarly, as the result of an oversight, abstinence programs funded by the welfare law itself are also not covered. And child care for low-income families is also not covered, though this program does have its own religion-friendly rules.

Actual opportunities for involvement by faith-based organizations depend, though, on what services a state decides to offer. Enactment of Charitable Choice and the increasing interest in "civil society" solutions are generating many new ways for government to team up with religious groups to serve the poor. Programs such as Mississippi's Faith and Families initiative enable congregations to provide welfare families with mentoring, emergency transportation and child care help, job leads, and a connection to a community of care. In Mecklenburg County, North Carolina, recipients who have made it into the job market are offered the support of a congregational team dedicated to helping them remain self-sufficient. In San Diego County, California, church volunteers staff desks in county welfare offices, enabling welfare families to request from congregations services the welfare department is unable to give.(4)

Innovations in how officials actually purchase services have been less common, though not unheard of. In one of Michigan's Project Zero pilot projects, the Ottawa County welfare agency contracted with a faith-based nonprofit for a range of welfare-to-work services, many of which are provided through a network of congregations. A church in Baltimore won a large state contract to move long-term welfare recipients into jobs. The state of Texas is systematically modifying its contracting policies and actively reaching out to religious groups that traditionally have kept their distance to avoid secularization.(5) Still, many officials have not yet even heard of Charitable Choice, others are little inclined to redress biases and practices that in effect exclude religious organizations, and too many jurisdictions continue illegally to require faith-based providers to give up their right to take religion into account in hiring.

Over the past decades, courts, officials, and the public became enamored of the myth that the Constitution requires church and state to remain far distant from each other. Public sentiment is changing — even The New Yorker has praised the work of faith-based groups that minister to the needy. Legislators increasingly seek to make government a support for, rather than an alternative to, community and faith-based programs. Courts are acknowledging that the constitutional requirement in church-state matters is neutrality or equal treatment, not separationism.(6)

But the patterns and assumptions engendered by the myth are dying only slowly.(7) The Charitable Choice provision frames a new and better way for government and religious organizations to cooperate in service of the poor. For its promise to be fulfilled, those who interpret and adjudicate the law need to ensure that it is faithfully implemented.

*Stanley W. Carlson-Thies is Director of Social Policy Studies at The Center for Public Justice, Washington, DC.

1. Section 104 of Personal Responsibility and Work Opportunity Reconciliation Act, PL 104-193. The best exposition of the provision can be found in A Guide to Charitable Choice: The Rules of Section 104 of the 1996 Federal Welfare Law Governing State Cooperation with Faith-based Social-Service Providers (Washington, DC: Center for Public Justice; and Annandale, Virginia: Center for Law and Religious Freedom of the Christian Legal Society, January 1997); available at http://cpjustice.org/CGuide/Guide.html. For brief discussions of the provision, see Stanley Carlson-Thies and Melissa Rogers, "Charitable Choice: Two Views," Sojourners (July-August 1998), 28-30; and Keith Pavlischek, "Religious Liberty, Welfare Reform, and Charitable Choice," in the Fall 1997 issue of this newsletter. The J. M. Dawson Institute of Church-State Studies at Baylor University organized a conference on Welfare Reform and the Churches in April 1998, much of which was devoted to Charitable Choice. The conference papers, including my contribution, "Faith-based Institutions Cooperating with Public Welfare: The Promise of the Charitable Choice Provision," are being prepared for publication.
2. Stephen V. Monsma, When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money (Lanham, Maryland: Rowman & Littlefield, 1996); Carl H. Esbeck, The Regulation of Religious Organizations as Recipients of Governmental Assistance (Washington, DC: Center for Public Justice, 1996).
3. "Blaire Amendment" states have to keep their state money separate so they can follow the Charitable Choice requirements for the federal funds.
4. See Amy L. Sherman, Fruitful Collaboration between Government and Christian Social Ministries: Lessons from Virginia and Maryland, Policy Papers from the Religious Social Sector Project (Washington, DC: Center for Public Justice, January 1998); Sherman, Mississippi's "Faith and Families" Congregational Mentoring Program, Policy Papers from the Religious Social Sector Project (Washington, DC: Center for Public Justice, January 1998); Sherman, Restorers of Hope: Reaching the Poor in Your Community with Church-based Ministries That Work (Wheaton,Ill.: Crossway, 1997); and State Human Service Mentoring Programs (Washington, DC: American Public Welfare Association, October 1997).
5. See, Faith in Action . . . A New Vision for Church-State Cooperation in Texas, the report of the Governor's Advisory Task Force on Faith-Based Community Service Groups (December 1996), and the Charitable Choice materials on the Texas Department of Human Services web site (http://www.dhs.state.tx.us/).
6. See esp. Carl H. Esbeck, "A Constitutional Case for Governmental Cooperation with Faith-based Social Service Providers"; Douglas Laycock, "The Underlying Unity of Separation and Neutrality"; and John H. Garvey, "What's Next After Separationism?"; all in 46 Emory L.J. 1 (Winter 1997).
7. For reluctance on the side of faith communities, see Carlson-Thies, "'Don't Look to Us': The Negative Responses of the Churches to Welfare Reform," 11 Notre Dame J. of Law, Ethics & Public Policy 667-689, "Entitlements" special issue (1997).