Charitable Choice Guide - Questions & Answers

A GUIDE TO CHARITABLE CHOICE

Questions and Answers


General

Q/ What is the purpose of the Charitable Choice provision?

A/ The goal is to encourage states to involve community and faith-based organizations as providers of services funded under the new federal welfare law, while protecting the religious character of participating faith-based organizations and the religious freedom of beneficiaries.

Q/ How does Charitable Choice foster the involvement of faith-based providers in government welfare programs?

A/ Many faith-based organizations fear that they will have to compromise their religious character if they cooperate with government programs. Government officials too often have mistakenly thought that the Constitution requires providers to downplay their religious character or even that faith-based providers must be entirely excluded from participation. Charitable Choice affirms that faith-based organizations may not be discriminated against, and secures the religious autonomy and integrity of those that cooperate with government welfare programs.

Q/ What activates the Charitable Choice rules concerning faith-based providers?

A/ If a state chooses to use federal welfare funds to contract with, or to provide vouchers redeemable by, any nongovernmental social-service provider, then the state must comply with the Charitable Choice requirement not to discriminate against faith-based providers.

Q/ To what programs does Charitable Choice apply?

A/ The provision applies when states enter into purchase-of-service contracts or voucher arrangements with independent-sector organizations under the new Temporary Assistance for Needy Families program (the replacement for AFDC). Charitable Choice also applies to the Supplementary Security Income (SSI) program, and to the food stamps and Medicaid programs, to the extent that states administer these programs using contracts or vouchers with nongovernmental providers.

Q/ What kinds of services can faith-based organizations provide under Charitable Choice?

A/ The new federal welfare law aims to help beneficiaries become self-sufficient, rather than simply give them checks. A wide range of assistance services will be necessary, many of which can be effectively provided by faith-based organizations. Examples are job-search, job-readiness, and job-skills training programs; community service positions; GED and ESL programs; nutrition and food-budgeting advice; second-chance or maternity homes for expectant unmarried minors who cannot live with their own parents; abstinence education; drug-treatment services; and health clinics.

Q/ How does Charitable Choice protect the religious integrity of faith-based providers?

A/ Religious providers who accept government funds to help the poor retain their autonomy as independent organizations, in control of the practice and development of their religious mission, their organizational structure, and their choice of officers and directors. They have the right to maintain a religious environment by displaying religious art, scripture, religious apparel, and other symbols. They retain their right to use religious criteria in hiring, firing, and disciplining employees, while remaining subject to other anti-discrimination laws. They can limit the scope of fiscal audits by segregating federal funds into a separate account.

Q/ How does Charitable Choice protect the religious liberty of beneficiaries?

A/ A faith-based provider may not discriminate against a beneficiary on the basis of religion, a religious belief or the beneficiary's refusal to actively participate in a religious practice. A beneficiary who objects to receiving services from a faith-based provider has the right to obtain services from another organization.

Participation by Faith-based Providers

Q/ May a state refuse to enter into contract or voucher arrangements with faith-based providers?

A/ If a state elects to use federal welfare funds to provide services solely through its own governmental agencies, not utilizing any independent providers, then it has not violated the anti-discrimination requirement of Section 104 by not involving faith-based providers.

Q/ May a state ever refuse to enter into contract or voucher arrangements with a particular faith-based provider?

A/ A state that chooses to involve nongovernmental organizations may not discriminate against faith-based providers due to their religious character. However, having given such organizations the opportunity to compete, the state must then utilize its usual criteria in order to decide whether any particular organization will be awarded a contract or be allowed to redeem vouchers.

Q/ May a state exclude churches or other overtly religious organizations from eligibility?

A/ No. States may not rule any organization out of consideration simply on the basis of its religious character.

Q/ May a state exclude faith-based providers from participation if the state's constitution prohibits the flow of government funds to religious organizations?

A/ No. All federal welfare funds are subject to the Charitable Choice provision, and states choosing to involve nongovernmental providers must follow the provision s rules regarding non-discrimination against faith-based organizations. If necessary, a state may keep its own funds separate to expend them in accordance with its restrictive constitutional provision, while allowing federal funds to flow to religious organizations to serve the poor. The intent of Congress, however, in enacting Charitable Choice, is to maximize the involvement of faith-based organizations in ~he delivery of government-funded welfare services.

Protections for Faith-based Providers

Q/ May a state require that a faith-based organization attenuate or modify its religious convictions or its religious style of providing services as a condition of participation?

A/ No. The Charitable Choice provision explicitly provides that participating faith-based organizations retain their right to control "the definition, development, practice, and expression" of their religious convictions. However, faith-based organizations may not require beneficiaries to actively participate in religious activities in order to receive services. Further, faith-based providers may not use contract funds to pay for worship services, sectarian instruction, or proselytization, so as to avoid the appearance of governmental promotion of the provider's religious doctrines. No such restriction is necessary in the case of vouchers, where it is the beneficiary who selects the service provider, not the government.

Q/ May a faith-based organization use religious principles as part of contracted services?

A/ In counseling beneficiaries concerning the need for changes in behavior or attitudes, some organizations use principles originating in a religious tradition. Such principles may not be prohibited simply due to their religious roots. Many current laws, such as the prohibitions on murder and robbery, have their origins in religious teachings. So long as a public purpose is served by the principles being taught, such as instilling the virtues of responsibility, self-control, care for dependents, and work, a faith-based organization may use principles rooted in its belief system.

Q/ May a state require a religious organization such as a church to create a separate nonprofit corporation to accept federally funded contracts or vouchers?

A/ A religious organization may choose to form a separate 501(c)(3) corporation to carry out federally funded programs. Separate incorporation may facilitate control of the use of federal funds and shield the main organization from some federal employment laws. Separate incorporation will also shield the main organization from fiscal audits of the use of the federal funds. (However, the Charitable Choice provision allows an organization to limit audits simply by establishing a separate account to receive and disburse the federal funds.) Nevertheless, some organizations may believe that forming a 501(c)(3) entity violates its own doctrines regarding internal governance. In such a case, a state may not require the religious organization to form a separate entity.

Q/ May a state or locality require that the governing board of a faith-based provider reflect the ethnic, gender, or cultural diversity of the community or beneficiaries?

A/ No. Such matters of internal governance are under the control of the faith-based organization.

Q/ May a state or locality require faith-based providers to hire employees without regard to their religion and to refrain from imposing religious behavioral codes on the employees?

A/ No. Participating faith-based organizations, notwithstanding their receipt of federal funds, retain their exemption under Title VII of the Civil Rights Act of 1964, which permits employment discrimination on the grounds of religion. (Organizations with fewer than 15 full-time employees are not subject to the nondiscrimination requirements of Title VII.) Providers remain subject to other federal anti-discrimination laws and to state and local anti-discrimination laws.

Q/ How can participating faith-based organizations legally secure their Charitable Choice rights?

A/ Faith-based providers that believe their Charitable Choice rights have been violated may sue the alleged governmental violator in state court, asking the court to order compliance with the law. No money damages can be claimed.

Protecting the Rights of Beneficiaries

Q/ How does Charitable Choice protect the religious liberty of beneficiaries who object to faith-based services?

A/ The chief protection for beneficiaries exists in their choice of providers. Beneficiaries who receive vouchers can make their own decision about which provider to utilize. In the case of contracts, states are required to ensure that there is an alternative for beneficiaries who object to receiving services from a faith-based provider. The state must ensure that a comparable service is available in a timely manner from another provider. States should ensure that potential beneficiaries are aware of the religious or non-religious character of each provider, of the choices available to them, and of their right to an alternative should they object to the religious character of a provider.

Q/ May faith-based providers require beneficiaries to take an active part in a religious practice or to convert to the organization's system of beliefs, as a condition of receiving service or as part of the assistance that is offered?

A/ No. Religious organizations may not compel beneficiaries to actively participate in a religious practice. However, beneficiaries may be expected not to disrupt or disturb such practices, as such behavior may interfere with the faith-based provider's autonomy or its control of its mission. Beneficiaries have access to an alternative provider and may be deemed to have consented to the religious characteristics and practices of a provider from whom they accept service.

Q/ May a state contract with a faith-based organization to be the sole provider of services in an area of the state?

A/ Yes, under certain conditions. Nothing prohibits a state from choosing to contract with a faith-based organization to be the sole provider of services in a particular area. However, Charitable Choice does require that a state ensure that an alternative provider is available to a beneficiary who objects to the religious character of a provider. If there is such an objection, the state would have to ensure that it could provide an equivalent service itself or that an acceptable provider outside of the area can provide an equivalent and accessible service to the beneficiary in a timely manner.

Q/ If a state chooses to provide services by means of vouchers, is it required to ensure that at least one of the providers eligible to redeem the vouchers is not a faith-based provider?

A/ No, but it would be wise to do so. States are free to allow redemption of vouchers with any combination of eligible providers, whether faith-based or non-religious. However, the state is required to ensure that a beneficiary who objects to the religious character of a provider has access to another provider. Therefore, a state using a voucher program should consider including at least one non-religious provider in its list of eligible providers. Otherwise it must ensure that it could provide an equivalent service itself or that an acceptable provider outside of the area can provide an equivalent and accessible service to the beneficiary in a timely manner.

Q/ Is a state required to ensure that a beneficiary desiring faith-based services has access to a provider of the same religion?

A/ No. If the state chooses to provide services through nongovernmental providers, it must allow faith-based providers to compete for contracts or for eligibility to redeem vouchers. Further, the state is required to ensure that a beneficiary who objects to a faith-based provider has access to another provider. However, a beneficiary has no right to receive services from a faith-based provider that reflects his or her own religious beliefs. Charitable Choice intends to expand the participation of faith-based providers in government-funded welfare to fulfill the public purpose of more effectively serving the poor and needy. It is not a program to ensure that religious groups will receive government funds nor that beneficiaries will receive services guided by some particular religious faith.

Q/ How can beneficiaries legally secure their rights under Charitable Choice?

A/ Beneficiaries who believe their Charitable Choice rights have been violated may sue the alleged governmental violator in state court, asking the court to order compliance with the law. No money damages can be claimed.

Constitutional Issues

Q/ Does Charitable Choice violate the establishment clause of the First Amendment?

A/ No. There is no violation if government funds are expended for general public purposes, even if the provider of the services is a faith-based organization. Government here is not aiding religion. Rather, it is aiding beneficiaries by means of nongovernmental organizations, some of which may be faith-based. The U.S. Supreme Court has never ruled against a social-welfare program on the ground that some religious organizations participate in the program.

Q/ Does Charitable Choice violate the rights of taxpayers who disagree with the beliefs of faith-based organizations that receive federal funding to provide welfare services?

A/ No. The U.S. Supreme Court has held that there is no free-exercise right to object when general tax revenues are used to assist beneficiaries by means of programs that, among others, include faith-based providers.

Q/ Will Charitable Choice turn religious organizations into mere departments of government?

A/ No. Charitable Choice explicitly provides that participating faith-based organizations remain autonomous. To ensure this result, it incorporates specific protections for their autonomy and religious character with regard to their right to develop, maintain, and express their religious beliefs; to maintain their chosen form of internal governance; to operate their personnel policy in accordance with their religious convictions; to maintain a religious environment; and to confine external fiscal audits by segregating federal funds in separate accounts.

Q/ Will Charitable Choice cause the secularization of faith-based organizations that decide to participate?

A/ Each organization must make its own judgment about the
risks and benefits of cooperating with government in the programs subject to Charitable Choice. Charitable Choice is designed to eliminate or minimize existing pressures to secularize by providing a range of legal and practical protections for the religious character and autonomy of organizations that choose to take part.

Q/ Will Charitable Choice make faith-based organizations dependent on government funds and thus creatures of government policy?

A/ Charitable Choice only expands the opportunity for such organizations to provide welfare services with government funding, while protecting their integrity and autonomy if they choose to do so. Each organization will have to make its own judgment about how to protect itself from a destructive dependency on government funding (or any other source of income).

Q/ Does Charitable Choice violate the religious freedom of beneficiaries by its intent to involve faith-based organizations in providing welfare services?

A/ No. Charitable Choice requires that states ensure that there is an alternative provider for beneficiaries who object to receiving services from a faith-based provider. It protects equally the religious freedom of beneficiaries who desire to receive services from a faith-based provider and beneficiaries who object to receiving services from such a provider.

Q/ Does the Constitution allow churches or other religious organizations to receive federal funds?

A/ Yes. When a variety of organizations, not limited to faith-based agencies, are equally eligible to take part in a federally funded program that has the valid public purpose of providing a social service, it is not a constitutional violation if a faith-based provider receives federal funds to provide such a service. Although the Supreme Court has disallowed certain federal funding for religious K-12 schools, it has not ruled social-welfare programs unconstitutional simply on the ground that faith-based organizations participate in them.

Q/ Does Charitable Choice require states to engage in unconstitutionally intrusive monitoring of the activities of faith-based providers to ensure compliance with its rules?

A/ No. In deciding which providers should receive contracts or be made eligible to redeem vouchers, a state should not inquire into the religion of a provider, but instead should focus on its record or prospects of successfully providing an authorized service. Just as with other providers, a state should determine whether a faith-based provider's program fulfills the valid public purpose of the contract or voucher. Further, a state may audit only government-provided funds, which shields both the faith-based organization and the state from unnecessary and unconstitutional monitoring of the other activities and aspects of the provider.