Faith-based victory! Senate approves scaled-back CARE Act without controversial church-state provisions--but other fights remain.

U.S. Senator Rick Santorum had reached the end of his rope.

For more than three years, Santorum has been promoting legislation that would give taxpayer money to "faith-based" organizations so they can run social services. Despite procedural moves, press conferences and behind-the-scenes lobbying, the bill hasn't moved an inch in the Senate, where it bogged down over concerns about church-state separation and government funding of religious discrimination.

On March 27, Santorum, a Pennsylvania Republican, sounded retreat. He scaled back the bill and stripped it of its controversial provisions dealing with separation of church and state. What's left is a dramatically different bill from what Santorum and U.S. Sen. Joseph I. Lieberman (D-Conn.) originally introduced. As it reads now, the bill, known as the CARE (Charitable Aid, Recovery and Empowerment) Act focuses on tax breaks designed to make charitable giving more attractive to Americans, especially those who don't itemize on their tax forms.

"I would have liked to have gotten the whole enchilada," Santorum said during a press conference announcing the deal, "but, in the United States Senate this year, you're lucky to get anything, and I'll take anything. We just thought it was a great trade-off."

Democrats in the House and Senate signaled their intention to sign off on the new version of the bill, which was approved by the Senate on a 95-5 vote April 9. Under the compromise, Republicans who favor the faith-based initiative have agreed not to attempt to reinstate the controversial provisions when the bill reaches the House of Representatives.

Americans United Executive Director Barry W. Lynn hailed the developments.

"This is a huge step in the right direction," said Lynn. "This shows that members of Congress can increase resources for all charities without violating the Constitution. This is a wise compromise that will greatly increase this bill's chance of passage."

The compromise ended this session's first major congressional skirmish over the faith-based initiative with a whimper instead of a bang, but advocates of church-state separation are well aware that more battles lie ahead.

White House officials, determined to see some version of the initiative pass this year, grudgingly accepted the compromise. But it was clear they were not pleased with the development. Just one month before the compromise was announced, James Towey, director of the White House Office of Faith-Based and Community Initiatives, told Congressional Quarterly Weekly that the White House considers passage of legislation essential.

"The steps the administration has taken through executive orders don't have the same effect as changes in law," Towey observed. "We have always sought a change in the law. That is the best way to go."

Bush administration officials are fond of asserting that they can implement much of the faith-based initiative through executive orders and regulatory changes, but Towey's comments indicate that the White House is acutely aware of the limitations of those strategies. Most importantly, they don't guarantee a permanent change: A future president could undo executive orders and regulatory alterations with a few pen strokes; laws, by contrast, are much harder to overturn or repeal.

With so much at stake, Towey quickly signaled that the Bush administration has no intention of dropping its efforts to promote the right of religious groups to discriminate in faith-based programs. He pledged to pursue that goal through other avenues.

"This is really more of a legislative strategy issue--what you can do now versus what you can do later," Towey told the Associated Press. "The president remains committed to ending discrimination against faith-based groups. There are going to be debates this year on faith-based [issues]. You can set your watch on that."

Critics said Towey's use of the term "discrimination" was ironic. Opponents of the faith-based initiative insist that it's the White House that wants to promote discrimination. Under current civil rights laws, publicly funded organizations are not permitted to discriminate on the basis of race, gender or religion. Bush's initiative would scale back those regulations for faith-based groups.

Under the Bush/Santorum plan, a faith-based organization would have the right to limit hiring according to its religious beliefs, tenets and practices. Thus, a home for troubled juveniles run by fundamentalist Christians could refuse to hire anyone who is not "born again" or who refuses to sign a statement of faith. Organizations that oppose homosexuality could refuse to hire gays and lesbians--yet still receive taxpayer funds.

Advocates of church-state separation oppose the faith-based initiative because it would violate religious liberty. It's often overlooked that the plan would run roughshod over the nation's civil rights laws as well. Increasingly, the civil rights issue is coming to the fore--and in time it may prove to be the Achilles' heel of the faith-based initiative.

At issue is a simple question: Should faith-based groups be permitted to take tax funding yet still discriminate on the grounds of religion when hiring staff? Bush, Towey, Santorum and their supporters say yes. They insist that allowing faith-based groups to discriminate on the grounds of religion when hiring would level the playing field and give these organizations increased access to public money.

Critics call that argument nonsensical. They note that religious groups can receive tax funding to provide social services now, as long as they are willing to meet certain government regulations that non-religious groups abide by, including refraining from discrimination. Giving faith-based groups the right to discriminate in federal law, opponents argued, would be a form of preferential treatment, not a leveling of the playing field.

Leaders of the nation's civil rights community have also been alarmed over the attempt to use the faith-based initiative to roll back anti-discrimination laws, arguing that changing federal law to affirmatively allow discrimination would be a giant step backwards. Since 1964, discrimination on certain grounds has been banned in public accommodations. The law contains an exemption for houses of worship in their private activities, but it has never been interpreted to say that religious groups can engage in discrimination when providing services to the public with taxpayer money.

The attempt to alter civil-rights law is of special interest to several African-American lawmakers in Congress. During a March 25 congressional hearing on proposed changes to the Department of Housing and Urban Development's (HUD) rules for working with faith-based groups, black legislators sharply questioned the administration's approach.

"My concern is trying to figure out exactly why these proposed changes are being offered," said Rep. David Scott (D-Ga.). "Of what value is it, and why would we want to remove the requirement that employment discrimination not be funded by government?"

Rep. Maxine Waters (D-Calif.) said faith-based groups should not expect to receive tax funding with no government oversight.

"If you dip your hand in the public till, don't be surprised if a little democracy rubs off," she quipped.

Other opponents of the faith-based initiative in the House have been hammering at the discrimination issue for more than three years. Among the most vocal are Rep. Robert C. Scott (D-Va.), Rep. Chet Edwards (D-Texas) and Rep. Barney Frank (D-Mass.).

In November of 1999, Scott, who represents Virginia's tidewater area, offered particularly strong remarks on the floor of the House explaining why allowing religious groups to discriminate with tax dollars is wrong.

"There was a time when some Americans, because of their religion, were not considered qualified for certain jobs," he said. "In fact, before 1960, it was thought that a Catholic could not be elected president. And before the civil rights laws of the 1960s, people of certain religions routinely suffered invidious discrimination when they sought employment. Fortunately, the civil rights laws of the 1960s put an end to that practice, and we no longer see signs suggesting that those of certain religions need not apply for jobs.... This bill grants a new exemption and would allow religious bigotry to be practiced with the use of federal funds. That is wrong."

Edwards raised similar objections in June of 2000, remarking, "For the first time in this country's history, we would be saying that faith-based organizations could receive federal funds and then put up a sign saying no Jews, Catholics or Methodists need apply for a federally funded job."

The objections raised by Scott and Edwards remain relevant. A dispute over civil rights language, not church-state separation, sealed the fate of the CARE Act. GOP leaders in the Senate were wary of scheduling a debate on the bill after Democrats promised to offer a series of amendments designed to protect civil rights by barring discrimination by faith-based groups. Sens. Richard Durbin (D-Ill.) and Jack Reed (D-R.I.) spearheaded the effort to ensure that the measure barred employment bias by publicly funded organizations.

After meeting with Santorum, both Durbin and Reed expressed optimism over the reconstituted bill. Under the compromise, the legislation would allocate an additional $1.4 billion to the states for social service spending and alter the tax code in several ways that might spur charitable giving. An additional provision allocates $150 million for "technical assistance" to help houses of worship and other community organizations better understand the federal grant proposal process.

Durbin outlined his concerns during an April 8 speech on the Senate floor.

"Over the past two years, President Bush and his faith-based initiative have repeatedly eroded 200 years of carefully protected separation between church and state," Durbin said. "It appears that what the president wants to achieve with this initiative is to fundamentally change the historic balance in the relationship between government and religion that our founding fathers struck over 200 years ago."

Barring a rebellion by Religious Right allies in the House of Representatives, the scaled-back measure should get through the lower chamber as well. The House in July of 2001 passed a much more sweeping faith-based bill, the Community Solutions Act (H.R. 7.), but it became a non-starter in the Senate. In late March of this year, House Majority Leader Tom DeLay (R-Texas) told reporters he felt "very good" about the retooled version of the CARE Act and predicted swift passage.

AU's Lynn cautioned that these developments, while positive, do not spell the end of the faith-based initiative. Frustrated with the lack of progress in Congress, Bush has been moving to implement as much of the initiative as possible through executive orders and regulatory changes at the federal level. These attempts continue.

In addition, supporters of the faith-based initiative in Congress are expected to try to add language giving religious groups the right to discriminate to other social-service bills.

Attempts are already under way to rewrite regulations governing contracts issued by several federal agencies that are responsible for the provision of social services, such as HUD, the Veterans Administration and the Department of Health and Human Services. Proponents of the faith-based approach have vowed to add similar language to other bills. In December, Bush issued an executive order exempting religious groups that receive federal contracts from civil rights laws.

In mid March, the Roundtable on Religion and Social Welfare Policy, a project of the Nelson A. Rockefeller Institute of Government in Albany, N.Y., published a story quoting an anonymous House Republican aide who said language guaranteeing faith-based organizations the right to discriminate would be inserted in all legislation that deals with the faith-based initiative.

"We want the language and the law to be consistent throughout," the aide said.

The language has already appeared in some bills. In March, for example, Congress began considering a job training bill that would amend existing federal law to allow faith-based organizations to accept federal money yet still discriminate. A House committee deliberated over the legislation, the Workforce Reinvestment and Adult Education Act of 2003, late in the month, spending the better part of a day debating the question of anti-discrimination language.

Rep. Chris Van Hollen (D-Md.) offered an amendment to strike provisions of the bill giving faith-based groups the right to discriminate on religious grounds. It was defeated on a party-line vote of 22-18, but the debate was surprisingly spirited.

"We simply cannot turn back the clock on civil rights in this country," said Van Hollen in a press statement. "I believe the American people would be appalled if billions of dollars in federal job training programs could be diverted to job training programs which hire only Christians or only Jews. It's a strange irony that job training providers that are supposed to help all people find jobs could deny a job to an individual based on religion."

Days later, another House panel began deliberating reauthorizing a bill funding AmeriCorps and VISTA, two popular national service programs. The original bill, which contains language barring discrimination by religious groups, dates back to the presidency of the first George Bush. Nevertheless, congressional Republicans were determined to remove the provision.

During an April 1 hearing on the bill, University of Missouri law professor Carl Esbeck, a long-time critic of church-state separation, presented a novel argument before the House Committee on Education and the Workforce's subcommittee on select education: Esbeck asserted that religious groups must retain the right to discriminate even when receiving tax funding. Otherwise, he said, it would violate church-state separation by getting the government too involved in the affairs of houses of worship.

Previous Republican administrations have had no problem approving language insisting that recipients of federal aid abide by anti-discrimination provisions. Why is the Bush administration so eager to change the rules?

Part of the answer may be that the administration, aware that the GOP now controls the White House and both chambers of Congress, is less interested in compromise. The Religious Right, an important part of the GOP constituency, is also applying pressure, seeing an opportunity to substantially undermine the separation of church and state.

Many religious social service providers have said they have no desire to discriminate with public funds and are willing to accept language barring such discrimination. Leading religious groups, including President Bush's own United Methodist denomination, have expressed opposition to any rollback of employment protections. Religious Right groups, however, are forcing the issue on behalf of fundamentalist-oriented groups that want the right to deny jobs to anyone who fails their theological litmus test.

Just a few days after Santorum's announcement, Focus on the Family's "Citizenlink" email newsletter bemoaned the compromise and urged readers to call Santorum's office and demand that the discriminatory language be reinstated.

The Family Research Council's Ken Connor was also angry. Writing in FRC's "Washington Update" e-mail bulletin, Connor accused Republicans of selling out.

"Not even faith remains in the faith-based initiative, as anti-discrimination protections to allow groups to maintain their religious character have been dropped at the insistence of Democrats," Connor asserted. "The initiative has been reduced to a mere tax credit for non-itemizers. Here is a lesson on how not to deal with Democrats. Instead of planting the faith-based flag on the high ground of principle and fighting for a genuine bill, Republican sponsors labored to appease Democrats with concession after concession. In the end, the Democrats proved faithless, reneging on every agreement and demanding more concessions. GOP sponsors were so desperate to pass a bill they gave away too much too soon. Sometimes it's worth having a fight on principle, even if the prospects of victory appear remote. This was one of those occasions."

The FOF publication quoted Joe Loconte, who promotes faith-based initiatives for the Heritage Foundation, who said, "Yes, it is regrettable that the radical left despises the values and beliefs of religious charities. That's why these religious liberty protections were stripped from this initiative."

AU's Lynn criticized this type of inflammatory and divisive rhetoric.

"What's really regrettable," Lynn asserted, "is that some far-right groups insist that houses of worship have a legal right to take tax dollars and engage in blatant forms of discrimination--and that they have the unmitigated gall to call that 'religious liberty.'"

Continued Lynn, "We as a society decided long ago that discrimination is wrong. Faith-based organizations that want tax money should be willing to drop discriminatory policies and endorse the nation's commitment to equality. If they aren't willing to do that, they can take a pass on the money."

The possibility of taxpayer-funded religious discrimination is uniting opponents of the faith-based initiative. Two years ago, Americans United helped form the Coalition Against Religious Discrimination (CARD), an umbrella organization that brings dozens of religious, public policy and educational organizations together to address the discrimination issue. Members include the NAACP, the Unitarian Universalist Association, the National Education Association, the National Association of Social Workers, the National PTA, the Baptist Joint Committee on Public Affairs, the Friends Committee on National Legislation, the American Academy of Pediatrics and American Baptist Churches, USA. (For a full list of CARD members, see www.stopreligiousdiscrimination.org.)

Despite the temporary victory in the fight over the Santorum bill, Americans United and the other members of the CARD coalition know they have a fight on their hands.

Lynn vowed that Americans United will remain diligent.

"This victory will be the first of many," Lynn said. "The Religious Right and its allies in Washington would like to tear down the church-state wall and pave the way for government-sponsored religious discrimination. We have no intention of allowing them to turn back the clock on any of our fundamental rights."