Charitable Choice: Constitutional Issues and Developments Through the 106th Congress (CRS Report for Congress)
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| Release Date |
Dec. 27, 2000 |
| Report Number |
RL30388 |
| Report Type |
Report |
| Authors |
David M. Ackerman, American Law Division |
| Source Agency |
Congressional Research Service |
Summary:
Charitable choice seeks to expand the universe of religious organizations that can participate in
publicly funded social service programs. The establishment of religion clause of the First
Amendment has long been construed to allow religious organizations to participate in such
programs. But in the past it has generally been interpreted to require publicly funded religious social
services providers to be incorporated separately from their sponsoring religious institutions, to forego
religious activities and proselytizing in the publicly funded programs, and to remove religious
symbols from the premises where the services are provided. Charitable choice attempts to allow
religious organizations to retain their religious character and to employ their religious faith in
carrying out publicly funded programs.
Four charitable choice provisions have been enacted into law (although two overlap), and in the
106th Congress either the House or the Senate or a committee approved an additional seven. All of
these provisions state their purpose to be to allow religious organizations to participate as contractors
or grantees in publicly funded social service programs "on the same basis as any other
nongovernmental provider" without impairing their religious character. To protect their religious
character, the provisions direct that a religious grantee or contractor "shall retain ... control over the
definition, development, practice, and expression of its religious beliefs"; bar government from
discriminating against an applicant "on the basis that the organization has a religious character";
prohibit government from requiring such an organization to alter its form of governance or to remove
religious art and other symbols as a condition of eligibility; specify that religious contractors and
grantees can discriminate on religious grounds in their employment practices; and (with two
exceptions) allow such contractors and grantees to use their own funds to promote sectarian worship,
instruction, and proselytization in the funded programs.
But in part as the result of amendments adopted on the Senate floor during the welfare reform
debate, the charitable choice provisions also all require that the programs be implemented in a
manner consistent with the establishment clause; bar the use of public funds received directly by
religious organizations (but not indirectly, if the underlying program so allows) for "sectarian
worship, instruction, or proselytization"; and permit government to require religious grantees to be
separately incorporated from their sponsoring religious institution.
As a consequence of these various provisions, questions have been raised about the internal
consistency of the charitable choice measures and whether administering agencies can, in fact,
comply with all of their terms. Questions have also been raised about the constitutionality of
charitable choice under the establishment clause.
This report provides background on the concept of charitable choice, summarizes the provisions
and the legislative histories of the measures that have been approved, and examines the constitutional
issues raised by such measures. It concludes with a chart comparing the provisions of the measures
acted on to date. The report will not be updated.
