Social Services and the First Amendment

Second Quarter 1998

by Carl E. Esbeck

(This article is excerpted with permission from "A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers," Emory Law Journal, vol. 46, no. 1, Winter 1997, which was first presented at a Center for Public Justice workshop, August 2-3, 1996. Carl Esbeck is professor of law at the University of Missouri-Columbia.)

An interpretation of the United States Constitution's First Amendment religion clauses from the standpoint of "neutrality theory" approaches the debate over the Establishment Clause from an altogether different angle than does that of "separationist theory" According to neutrality theory, when government provides benefits to enable activities that serve the public good, such as education, health care, or social services, there should be neither discrimination in eligibility based on religion, nor exclusionary criteria requiring these charities to engage in self-censoring or otherwise water down their religious identity as a condition for program participation. The neutrality model allows individuals and religious groups to participate fully and equally with their fellow citizens in America's public life, without being forced either to shed or disguise their religious convictions or character. The theory is not a call for preferential treatment for religion in the administration of publicly funded programs. Rather, when it comes to participation in programs of aid, neutrality merely lays claim to the same access to benefits, without regard to religion, enjoyed by others. Finally...the neutrality principle rejects the three assumptions made by separationist theory: that the activities of faith-based charities are severable into "sacred" and "secular" aspects, that religion is "private" whereas government monopolizes "public" matters, and that governmental assistance paid to service providers is aid to the providers as well as aid to the ultimate beneficiaries.

Should separationism eventually be dislodged from its place as the controlling paradigm, it will be said that this change began in 1981 with the Supreme Court's decision in Widmar v. Vincent. In Widmar, a state university permitted student organizations to hold their meetings in campus buildings when the facilities were not being used for other purposes. However, student religious organizations were specifically denied such access. The university maintained that the denial was required because it could not support religion by providing meeting space for worship, prayer, and Bible study, consistent with a no-aid interpretation of the Establishment Clause. A group of students brought suit, first pointing out that the university had voluntarily created a limited public forum generally open to student expression. Having dedicated the forum, the students argued that expression of religious content could not be singled out for discrimination. A near-unanimous Supreme Court agreed. Most significantly, the Court held that the Establishment Clause did not override the Free Speech Clause as long as the creation of the forum had a secular purpose. Religious groups were just one of many student organizations permitted into the forum. As long as the circumstances were such that the university did not appear to be placing its power or prestige behind the religious message, the Establishment clause was not a problem.

The Widmar approach was dubbed "equal access," and in 1984 Congress extended the same equality-based right to students enrolled in governmental secondary schools. Following recent free speech victories equal treatment has indeed become the normative rule of law concerning private speech of religious content or viewpoint. This equality-based rule is instrumental to neutrality theory.

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Should the Court in the future permit a legislature to design welfare programs that confer direct assistance without regard to religion, it would be following a rule of equal treatment as to religion. However, exemptions from burdens and equal treatment as to benefits have a common thread that ties the two together. In following an equality-based rule as to benefits, equality is not an end in itself but a means to a higher goal. That goal is the minimization of the government's influence over personal choices concerning religious beliefs and practices. The goal is realized when government is neutral as to the religious choices of its citizens. Thus, whether pondering the constitutionality of exemptions from regulatory burdens or of equal treatment as to benefit programs, in both situations the integrating principle is neutralizing the impact of governmental action on personal religious choices. From that common axis, it makes sense to agree with the Court's holding...that religious exemptions from legislative burdens are consistent with the Establishment Clause, and, on the other hand, to insist that the Establishment Clause permits the equal treatment of religion when it comes to financial benefits.

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Rightly interpreted, the Establishment Clause does not require that faith-based providers censor their religious expression and secularize their identity as conditions of participation in a governmental program. So long as the welfare program has as its object the public purpose of society's betterment—that is, help for the poor and needy—and so long as the program is equally open to all providers, religious and secular, then the First Amendment requirement that the law be neutral as to religion is fully satisfied.

The Underlying Unity of Separation and Neutrality

by Douglas Laycock

The following is excerpted with permission from "The Underlying Unity of Separation and Neutrality," Emory Law Journal, vol. 46., no. 1, Winter, 1997. Douglas Laycock is professor of law and associate dean of research at the University of Texas School of Law.

Professor Esbeck's labels for the two conflicting theories in the Supreme Court are "separationism" and "neutrality" I think that these are the wrong labels, and that it is both a theoretical and tactical mistake to contrast these labels so sharply. To frame the universe of possibilities this way is to make the Court's doctrine seem more hostile than it is to Professor Esbeck's substantive position. It concedes the rhetorical benefits of the separationist label to those who do indeed believe that separation requires discrimination against religion; it suggests that neutrality requires repudiation of the separation of church and state. Neither the Court nor the American people are likely to accept such a repudiation, nor should they. Separation has important benefits that neither Professor Esbeck nor I are willing to abandon.

The central meaning of separation is to separate the authority of the church from the authority of the state so that "no religion can invoke government's coercive power and no government can coerce any religious act or belief." This separation is essential to the religious liberty of the numerically dominant faith, if any, and to the religious liberty of dissenters and non-believers.

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So-called separationism that would privilege secular beliefs and bar religious arguments from public debates mistakes freedom of speech and the working of democracy for establishment. It distorts constitutional provisions that protect the people from the government into provisions that protect the government from the people. And separation that subordinates or marginalizes religion is hard to reconcile with the historical fact that evangelical Christians demanded the Establishment Clause as well as the Free Exercise Clause.

...A better set of labels for the two competing theories in the Court's cases would be the "no-aid" theory and the "nondiscrimination" theory. Steven Monsma calls the two theories the "no-aid" theory and the "equal access" or "equal treatment" theory. The no-aid theory would forbid any government conduct that aids religion, and it would most especially and most stringently forbid financial aid. What I am calling the nondiscrimination theory would forbid government to discriminate either in favor of religion or against religion.

Each of these theories is said by its supporters to be consistent with neutrality; the disagreement is over the baseline from which to measure neutrality. It is fair to say that the Court has rarely discussed its choice of baseline, and that justices of all persuasions have sometimes appeared inconsistent in their choice of baseline. But the implicit baselines of the two theories are readily identifiable. In the no-aid theory, the baseline is government inactivity, because doing nothing neither helps nor hurts religion. Any government aid to religion is a departure from that baseline, and thus a departure from neutrality. In the nondiscrimination theory, the baseline is the government's treatment of analogous secular activities; a government that pays for medical care should pay equally whether the care is provided in a religious or a secular hospital. In this theory, any discrimination against religion is a departure from neutrality.

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I have argued that the no-aid and nondiscrimination theories each attempt to implement both neutrality and separation. I have also argued that the attempt to confine the no-aid and nondiscrimination theories to separate spheres has collapsed; we must find some deeper criterion for choosing between them. This criterion must be found in the underlying purposes that unite neutrality and separation. Professor Esbeck has identified the underlying criterion, but he has failed to unify the concepts....

When Professor Esbeck favors separation on some issues, and neutrality on other issues, we have additional evidence that these two theories are not as opposed as he claims. Something unites them, as I have said. This something eventually appears in his article: The "goal is the minimization of the government's influence over personal choices concerning religious beliefs and practices."