Should Religious Groups Get Public Money?

Jan. 25, 2005 — -- Some of the little girls have never dreamed of planning their weddings, but they've envisioned the details of their funerals. They've been to so many of their friends' funerals that they figure it may be the only time they are honored.

Then there's the 12-year-old boy who said he'd never considered going to college or getting a good job. Where he's from, it's not expected of anyone.

They're some of the hopeless youngsters Jon Gibson has encountered through his work with MentorKids USA, a nonprofit Christian group that works primarily with children whose parents are in prison.

There are thousands of children in the Phoenix area whom MentorKids hopes to help "lead productive lives by staying in school, by avoiding crime and avoiding substance abuse," said Gibson, president of the group.

MentorKids USA also hopes to lead children to Christianity through the mentoring they receive, and that has placed the group at the center of an ongoing controversy over whether federal money should be granted to religious groups that provide social services and whether this practice crosses the line separating church and state.

But how to remedy the situation is unclear. Appeasing watchdogs while still funding religious groups would invite what one constitutional expert called a "damned if you do, damned if you don't" situation: to ease concerns of directly funding religion would require more government oversight, but increased monitoring of faith-based organizations would create exactly the type of constitutional crisis that civil libertarians hope to avoid.

New Office, New Rules

When President Bush first ran for the White House in 2000, he promised to change federal rules to allow "faith-based organizations" to apply for federal funds for their social services, a move that pleased his conservative base but riled those who monitor church-state separation.

When Congress, wary of constitutional tangles, would not pass legislation doing so, he created the White House Office of Faith-Based and Community Initiatives by executive order in December 2002. His action eliminated rules forbidding faith-based groups from being eligible to apply for funding.

White House spokesman Trent Duffy noted that 16 states, including several with Democratic governors, have created faith-based offices, and the goal is to broaden the program to even the local level "to get more people into the game."

Groups applying for funds must explain how they will be used for nonreligious social services, and regulations forbid their use for "inherently religious" activities such as worship, instruction or proselytizing, according to guidelines provided by the office. Recipients are advised to separate those activities "in time or location" from the government-funded services and to carefully account for their use of the money.

According to a review of such funding by The Associated Press, faith-based organizations were awarded $1.17 billion in 2003 -- about $14.5 billion was spent on social programs that qualify for faith-based grants in five federal departments. The total is expected to grow.

And that has groups like the Freedom From Religion Foundation on edge. It already has filed several lawsuits, including one against the Department of Health and Human Services claiming, among other things, that MentorKids USA violates rules for funding both by requiring mentors to be Christian and by teaching children about the religion.

"It's just a patently, blatantly religious-views program," said Annie Laurie Gaylor, co-president of the FFRF. "That's fine if it's done privately, but it should not have been a candidate for public funding."

Kevin Theriot, senior litigation counsel for the Alliance Defense Fund, which is representing MentorKids, said history is on their side. "The legislature has held on many occasions that if the benefit is given to a large number of groups, including religious groups, there's no constitutional crisis," he said. "They're participating on the same basis as other secular organizations. There's clearly no merit to [the lawsuit]."

Crossing a Line?

The MentorKids USA Web site makes the group's mission clear: "to locate, train and empower mentors to be the presence of Christ to kids facing tough life challenges through one-to-one relationships." It also explains its hiring of only Christian mentors: "The most valuable aspect of what we have to offer is the love of Jesus Christ … it is important to us that our mentors are equipped to share the good news of who Jesus is and how He can provide a future and a hope for anyone."

Gibson said, however, that the group never misused the grant it received from the government -- a total of $225,000 due to be completed in one more installment -- which covers less than a third of MentorKids' overall costs. "We never wanted to take money under false pretenses -- grab money slated for secular goals and use it for our goals," he said.

"We set up and maintain separate accounting so we can track dollar for dollar where the funds go," he said, adding that they've been used for such things as background checks on mentors and case managers who match children with mentors and make sure they meet regularly.

After the suit was filed, HHS reviewed MentorKids USA's case and suspended its funding until it comes in compliance with federal rules, according to Wade Horn, assistant secretary for children and families for HHS, which is responsible for its grant under the Mentoring Children of Prisoners Program.

"We wanted to make sure, as with all faith-based grantees, that they were adhering to two very important principles," Horn said. "First is that they not use federal funds to proselytize, and second that they do not discriminate in the delivery of services based on a client's personal faith perspective."

Gibson said MentorKids USA has enough safeguards in place and is confident that once it provides corrective information the group will be in compliance. "We encourage our mentors to share their faith," he said. "They also are instructed to defer if a child is not interested or willing to discuss it, and that child will still receive all the benefits of our program."

However, on Jan. 11, District Judge John C. Shabaz took things a step further, ruling that HHS vacate continued funding to MentorKids USA, including its final grant payment, because the group has used federal funds to advance religion in violation of the Establishment Clause of the Constitution. Horn said HHS lawyers are determining whether Shabaz's decision would prevent funding even if MentorKids USA corrects its practices.

What's Next?

Though the initial ruling was in the favor of FFRF, the suit also seeks that HHS stop funding all activities until it can ensure the constitutionality of the groups it funds, a request that Shabaz denied. Gaylor maintains the department should increase monitoring of grant recipients, adding, "They have nothing in place that is accountable to taxpayers that our money is not being misused to fund religion."

Horn said there is a monitoring process, including reports to HHS and periodic department visits when resources allow, and that any possible rule violations are investigated promptly. "If concerns are raised … we are diligent in taking a look at those," he said.

Seeking further oversight is likely an uphill battle and would create many more constitutional crises, said Robert O'Neil, a professor of law who teaches church-state issues at the University of Virginia.

"If there is no government oversight, programs may sound good on paper but act differently," he explained. "And if there is more monitoring, then government is playing a role in determining how organizations can behave with regard to religious activities … we don't usually empower government to tell religious institutions especially clergy -- what they can and can't do."

This is likely why no government program like this has existed in the past, but O'Neil said the controversy stems from more than the initial creation of the Office of Faith-Based and Community Initiatives. The problems he sees are the use of executive order to do what Congress refused to do; an increase in the amount of money going toward programs and available to religious institutions; and the extension to areas of historic preservation for buildings that are "actively used for purposes of worship."

Horn noted, however, that groups like Catholic Charities and Lutheran Social Services have received federal funds for decades, and the president's action merely opened the option to many more religious organizations. "There's nothing wrong with the federal government providing funding to faith-based organizations so long as the faith-based organizations understand that there are obligations that come with the receipt of federal funds," he said.

Where the legal challenges will end, ultimately, is unclear. "The Supreme Court has scrupulously avoided ever really addressing it," O'Neil said.

Gaylor intends to take the fight as far as it can go. "It's a victory that they suspended the funding," she said, "but we want so much more here, and taxpayers deserve so much more."