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LEGAL AFFAIRS - The Risk Is Not Establishing Religion, But Degrading It LEGAL AFFAIRS - The Risk Is Not Establishing Religion, But Degrading I...

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LEGAL AFFAIRS - The Risk Is Not Establishing Religion, But Degrading It

The folks who see incipient theocracy in every crucifix hanging on a federally financed soup-kitchen wall are in a lather about the sayings, prayings, and doings of Ayatollah George W. Bush. They have legitimate grounds for complaint. Consider the words with which a clergyman concluded Bush's swearing-in: "We respectfully submit this humble prayer in the name that's above all other names, Jesus, the Christ. Let all who agree say, `Amen.' "

Not a good start for a President already suspected of being too close to the this-is-a-Christian-nation crowd. What were people who do not agree that Christ is "above all other names" supposed to say? If a high school principal had invited a minister to say the same prayer at a football game, it would have been unconstitutional.

Then came the President's Jan. 22 order barring federal aid to international family-planning groups that have been using U.S. funds to promote contraception, while simultaneously using money from other sources to provide abortion counseling. The order is hard to justify as anything but a sop to the Religious Right: It seems less likely to prevent very many abortions than to blight and sometimes shorten lives in poor, AIDS-ravaged nations desperately in need of contraception programs. This is "pro-life"?

The logic underlying the Jan. 22 order also seems flatly inconsistent with the faith-based initiative that Bush announced on Jan. 29: First, the Administration says that financing a family-planning group's contraception program will effectively subsidize its abortion program because money is fungible. Then, the Administration suggests that financing a church's charitable program will not subsidize its religious program because money is not fungible. If the second assertion is right, the Jan. 22 order is perverse.

Bush's faith-based initiative raises more complex questions. I lose little sleep over the near certainty that the Bush initiative would add to the already considerable spillage of government aid into religious proselytizing. How much harm would that do? If a child of mine were a homeless addict, I would much prefer that she be pressured to read Bible passages, or converted to Judaism, Islam, or Holy Rollerism-or even that she join some weird cult-than that she languish in the gutter. Nor would I much care whether my daughter, once converted to Islam, was denied a job in a Catholic child care program on account of her faith.

Bush's initiative has great promise if designed with care, skill, and restraint. It could harness the enormous altruistic energies that are fostered by faith, thereby extending the benefits of faith-based programs to countless thousands who have not been helped by existing government programs and secular charities. The risk of inadvertently subsidizing some religious activities seems a small price to pay for the hope of improving the services and augmenting the resources available to help the homeless, the hungry, drug addicts, alcoholics, the mentally ill, victims of domestic violence, prisoners and their families, and others.

But the Bush initiative could do far more harm than good if it ends up fostering an ugly competition among religious organizations and secular charities for billions of dollars in grants, if it makes religious groups dependent on federal largesse, if it pays more for priestly comforts than for needed assistance, or if it spawns bureaucratic efforts to purge religious charities of religion. The consequence could be to degrade both the effectiveness of faith-based charities and the religious character of the sponsoring institutions.

The danger of official leverage over religious groups would be especially pronounced in the case of programs giving officials discretion to choose among various grant applicants, or to cut grantees off for suspected violations of grant conditions. The leverage is especially great when (as is already common) discretionary grants cover a portion of overhead costs, such as the expense of heating a church that hosts a government-financed after-school care facility, or the salary of a pastor who spends one-third of his time administering the facility. Churches may become more and more dependent on federal money, not only to finance their charitable work, but also to pay the pastors' bills and keep their churches open for worship. Not only would this put churches at the mercy of government bureaucrats, but it would also tempt more grant recipients and their allies to set up big Washington lobbying operations-as groups such as Catholic Charities have done-to keep the money flowing and the bureaucrats in line.

The threat of official interference with religious activities is enhanced by decades of splintered and inconsistent Supreme Court decisions that have sown confusion as to what varieties of government aid are constitutionally permissible, and what religious institutions must do to qualify. The mythical "wall of separation" between church and state is more like a poorly mapped minefield littered with traps.

The President has sought to avoid these traps by stressing that his initiative "honors the prohibition on the establishment of religion by requiring that government funds not be spent on inherently religious activities such as sectarian worship or proselytizing." This apparently means, for example, that the government could pay for a soup kitchen's bowls and soup, but not for its Bibles and crucifixes.

Fine. But what about overhead costs? And what about counseling programs that treat "needs and hurts ... so deep that they will only respond to a mentor's touch or a pastor's prayer," in Bush's eloquent words, such as prison ministries and drug treatment programs in which religious indoctrination plays an integral role? Will such programs be pressured to eliminate or to tone down their religious content in order to get or keep federal grants?

No, Bush implies, because every federally subsidized faith-based program must have a secular counterpart serving the same needs in the same area. When that is the case-so that nobody seeking charitable services has to submit to unwanted religious indoctrination-perhaps government funds could be spent on treatment that includes indoctrination.

If that is the assumption, the risk of judicial invalidation looms large. Any federal funding of a program that includes religious indoctrination would be attacked as revolutionary by a broad swath of libertarian and religious groups. And while the Supreme Court has become less hostile to government aid for the secular activities of religious institutions in recent years, its majority has ruled out "any use of public funds to promote religious doctrines [or] advance [a] religious message," in the words of Justice Sandra Day O'Connor.

Even if the Justices could be persuaded that the availability of secular alternatives legitimizes government funding of services with religious content, truly equivalent alternatives would not always-or even often-be available. And imagine a church-based drug treatment program that qualifies for a federal grant because there is a secular program down the street. If the secular alternative closes down, the church would presumably lose the federal money unless it purged its program's religious content.

Will we end up with a conservative's nightmare-hundreds of federal bureaucrats and judges policing thousands of faith-based programs all over the country, dictating whether crucifixes can be hung on walls, whether creches or menorahs can be put on tables, whether readings from the Bible or the Koran must be diluted by secular books such as Catcher in the Rye, whether Christmas carols must give way to "Frosty the Snowman," whether religious ornaments can be hung on trees?

In a supportive but cautionary "statement of principles," both Michael Horowitz of the Hudson Institute and Marvin Olasky, a leading exponent of faith-based charities, stress that the First Amendment "bars government from secularizing and controlling religious communities no less than ... from requiring citizens to engage in religious observance." Among their recommendations: Give priority to "formula" grants-such as money to buy a computer for every 20 students at a religious school-that give officials little discretion to discriminate between institutions; in the case of discretionary grants, ensure that "withdrawal of grant monies [will] have little or no impact on the financial well-being of the faith-based groups themselves," by financing only direct program costs, not overhead; subsidize services with religious content only when truly equivalent secular alternatives are available; and "bar unconditionally any government regulation or restriction of religious observance or promotion," such as "the form or frequency of prayers offered by or required of participants in faith-based grant programs." These are wise proposals. Whether they are politically feasible, or would survive judicial review, remains to be seen.

This is a promising but dangerous venture. If it is wrongly done, a warning by the Cato Institute's Michael Tanner could prove prophetic: "President Bush's proposal ... risks destroying the very things that make private charity so effective."

Stuart Taylor Jr. National Journal

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