Charitable Choice

Charitable Choice is a set of statutory parameters attached to a social service program with the purpose of making the government more welcoming to all faith-based social service providers. The provision first appeared in the federal comprehensive welfare reform act of 1996. A year later Charitable Choice was extended to welfare-to-work assistance, was next incorporated into the Community Services Block Grant Act of 1998, and finally was made part of the Substance Abuse and Mental Health Services drug treatment programs reauthorized in late 2000. Before the adoption of this provision, it was widely believed that faith-based charities could receive government aid only if the funds were administered by a separately incorporated nonprofit that was secular in its program operations.

When George W. Bush assumed the Presidency in January 2001, he incorporated Charitable Choice as an integral part of a much broader and more ambitious White House Faith-Based & Community Initiatives. By executive order issued December 12, 2002, the President directed that several federal departments ensure nondiscriminatory treatment toward faith-based charities in all the welfare programs they administered.

Charitable Choice interweaves three fundamental principles. First, it imposes on government the duty to refrain from discriminating on the basis of religion with respect to the eligibility of providers seeking to deliver services under one of the government’s welfare programs. Rather than examining the nature of the service provider with an eye to excluding those thought overly religious, Charitable Choice requires officials to focus on the nature of the services and the means by which they are provided. The relevant inquiry is not ‘‘Who are you?’’ but ‘‘What can you do?’’ Faith-based providers are not to be preferred, merely allowed to compete on the same basis as all other providers.

Second, the provision imposes on government the duty to refrain from intruding into the religious autonomy of faith-based organizations (FBOs). Charitable Choice extends a guarantee that in religious matters each FBO that competes for funding ‘‘shall retain its independence’’ including ‘‘control over the definition, development, practice, and expression of its religious beliefs.’’ Government-funded FBOs continue to be subject to general regulation, of course, and must provide an accounting for public monies received. The guarantee, rather, is that FBOs retain their religious independence from regulations imposed solely as a consequence of receiving the government assistance. There are also specific safeguards from demands to remove religious symbols at an FBO’s facility and from regulations requiring FBOs to adjust the makeup of their governing board. A private right of action vests in FBOs to enforce these guarantees.

Third, Charitable Choice imposes on both government and participating FBOs the duty to refrain from abridging certain religious rights of the ultimate beneficiaries of these welfare programs. When the form of the funding is direct to the social service provider, each beneficiary is empowered with a choice. Beneficiaries who want to receive their services from an FBO may do so—assuming, that is, that an FBO has qualified for a grant. On the other hand, if a beneficiary has religious objections to receiving services from an FBO, then the government is required to provide equivalent alternative services. This is the ‘‘choice’’ in Charitable Choice. When a beneficiary selects an FBO receiving direct funding, the provider cannot discriminate against the beneficiary on the basis of religion.

Charitable Choice is based on an Establishment Clause that accords with the principle of ‘‘neutrality.’’ In such a view, when government secures social services without regard to religion, then neither provider nor beneficiary has to alter their religious behavior to do business with the government. Thus the Establishment Clause is understood as minimizing the government’s influence over the religious choices made by individuals. Because many beneficiaries freely choose to receive their services from an FBO, it is religionneutral for the government to provide aid to FBOs on the same basis as other providers. When beneficiaries elect an FBO and receive the secular benefit of the service for which the welfare program is designed, the government is not advancing religion but merely responding to the choices freely made by its citizens. That other voluntarily activities, including religious activities, occur at the FBO is not properly a governmental concern.

Charitable Choice contemplates funding that is structured to be either direct (that is, where the government awards grants to charities who in turn provide services to qualifying beneficiaries) or indirect (that is, where the provider which ultimately receives the government’s aid is selected by the beneficiary, such as with vouchers). When the form of the assistance is indirect, the regulations promulgated under Charitable Choice incorporate the Supreme Court’s approach to school vouchers and the case of Zelman v. Simmons-Harris. Conversely, when the form of the assistance is direct, then the regulations follow the approach upheld in Mitchell v. Helms. Consistent with Mitchell, the regulations require that no inherently religious activities such as worship or proselytizing take place within the funded program. If any such activities are conducted on a voluntary basis by a participating FBO, then the activities must be separated, by time or location, from the funded program. By following the Court’s guidance in Zelman and Mitchell, the regulations are calculated to rebuff critics who argue that Charitable Choice violates the Establishment Clause.

To reduce regulatory entanglement, Charitable Choice safeguards the freedom of FBOs to employ staff of like-minded faith. The ability to restrict employees and volunteers to those of shared faith is said to be central to maintaining the organization’s essential religious character. As Justice William Brennan wrote in his concurring opinion in Corporation of Presiding Bishop v. Amos, ‘‘Determining that certain activities are in furtherance of an organization’s religious mission, and that only those committed to that mission should conduct them, is thus a means by which a religious community defines itself.’’

The ability of FBOs to consider religion when hiring, a right set out in } 702(a) of Title VII of the Civil Rights Act of 1964, is cross-referenced in Charitable Choice. It was initially assumed that the guarantee of religious ‘‘independence’’ in Charitable Choice overrides conflicting nondiscrimination procurement rules at the state and local level. The latter becomes important if the federal welfare funds involved are administered through the states. That Charitable Choice enables FBOs to compete for funding, whereas retaining the right to staff on a religious basis has become controversial and is largely the reason that attempts to further expand Charitable Choice have stalled in the U. S. Senate. The question of overriding state and local procurement rules is debated in the literature, but as of this writing no court has been asked to pass on the issue.

CARL H. ESBECK

References and Further Reading

• Ackerman, David M. Public Aid to Faith-Based Organizations (Charitable Choice) in the 107th Congress: Background and Selected Legal Issues. Library of Congress, Congressional Research Service, Report RL31043, August 19, 2003
• Esbeck, Carl H., Stanley W. Carlson-Thies, and Ronald J. Sider. The Freedom of Faith-Based Organizations to Staff on a Religious Basis. Wash., DC: Center for Public Justice, 2004, available at https://www.cpjustice.org/publications/charitable_choice/resources.pdf
• Laycock, Douglas. The Constitutional Role of Faith-Based Organizations in Competitions for Federal Social Service Funds. Testimony Before the House Subcommittee on the Constitution, Committee on the Judiciary, 107th Cong., June 7, 2001, available at <https://www.house. gov/judiciary/72981.pdf>
• Lupu, Ira C., and Robert W. Tuttle. Government Partnerships with Faith-Based Service Providers: The State of the Law. Wash., DC: Roundtable on Religion and Social Welfare Policy, December 2002, available at <https://www.religiousandsocialpolicy.org/docs/legal/reports/12-4-2002_state_of_the_law.pdf>
• White House Office of Faith-Based and Community Initiatives. Protecting the Civil Rights and Religious Liberty of Faith-Based Organizations: Why Religious Hiring Rights Must Be Preserved, June 23, 2003, available at <https://www.whitehouse.gov/government/fbci/booklet.pdf>

Cases and Statutes Cited

• Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987) 
• Mitchell v. Helms, 530 U.S. 793 (2000) (plurality opinion) 
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002) 
• Charitable Choice as applicable to the Temporary Assistance for Needy Families (TANF) Program, 42 U.S.C. } 604a, and regulations thereto, 68 Fed. Reg. 56449 (Sept. 30, 2003), codified at 45 C.F.R. pt. 260 
• Charitable Choice as applicable to the Community Service Block Grant (CSBG) Act, 42 U.S.C. } 9920, and regulations thereto, 68 Fed. Reg. 56466 (Sept. 30, 2003), codified at 45 C.F.R. pt. 1050 
• Charitable Choice as applicable to THE Substance Abuse and Mental Health Services Administration (SAMHSA) Drug Treatment Programs, 42 U.S.C. } 300x-65 and 42 U.S.C. } 290kk, and regulations thereto, 68 Fed. Reg. 56429 (Sept. 30, 2003), codified at 42 C.F.R. pts. 54 and 54a 
• Executive Order 13279, issued December 12, 2002, Equal Protection of the Laws for Faith-Based and Community Organizations and Permitting Religious Staffing by Faith- Based Federal Contractors, 67 Fed. Reg. 77141 (Dec. 16, 2002) 
• The Civil Rights Act of 1964, } 702(a) of Title VII, 42 U.S. C. } 2000e-1(e) 

See also Discrimination by Religious Entities That Receive Government Funds; Establishment Clause Doctrine: Supreme Court Jurisprudence; Title VII and Religious Exemptions