Constitutional Standards

The faith-based initiative rests on, and is a response to, the U.S. Supreme Court's decisive turn away from the strict-separationist doctrine that there must be "no government aid of religion" to the concept of equal treatment of religion and secularism by government. The equal treatment or neutrality interpretation of the First Amendment requires officials to give faith-based organizations equal opportunity to win government support to provide social services.

Eligibility for Government Funding. The Supreme Court has abandoned the concept of "pervasively sectarian" organizations—faith-based organizations that are deemed so thoroughly religious that any government support of them must violate the First Amendment's Establishment Clause. Officials are no longer to attempt to distinguish between organizations that are "too religious" to fund and those that are "secular enough" to partner with the government. Instead, the Court requires equal treatment of all providers. Government officials are not to ask: How religious is this organization? Instead they are to ask: Will this organization effectively provide the needed services while following the applicable rules?

Restrictions on Religion When the Funding is Direct. When the government "directly" funds a faith-based organization by awarding it a grant or contract, the government money cannot be used to pay for inherently religious activities like worship and religious instruction, in order to avoid government support for the organization's religious message. Such activities have to be kept separate from the government-funded services. However, the activities can be offered to beneficiaries on a voluntary basis. The culminating U.S. Supreme Court case is Mitchell v. Helms (2000).

Religion Can Be Incorporated When the Funding is Indirect. Another set of Supreme Court cases validates government support of social services that include religious activities, if the services are funded "indirectly." In "indirect" funding, it is the person needing the help, rather than a government official, who decides which organization will provide the service and receive government payment. In these circumstances, the Supreme Court holds that the government is not responsible for any religion that might be included in the services selected by the person. Thus, when a faith-based provider receives government funds "indirectly"—for example, after turning in to the government a voucher received from a person authorized to seek services—it is not required to separate inherently religious activities from the government-funded services. Vouchers are the most common form of such indirect funding of services. Vouchers (also called certificates) are widely used for federally funded child care. They are also used for some other social services. The culminating U.S. Supreme Court case is Zelman v. Simmons-Harris (2002).