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Pew Forum on Religion & Public Life.

Legal Analysis

Efforts at federal, state and local levels to involve faith-based organizations (FBOs) in the provision of a wide variety of social services, financed in whole or in part by government, have raised fundamental constitutional questions.

Government benefits to, and burdens upon, religious enterprise were always constitutionally questionable. But the contours of church-state law have changed dramatically since the early 1970s, when the separationist vision of church and state was at its zenith. By the end of the 1990s, separationism had been challenged or repudiated in a number of court decisions, and a new vision emerged, emphasizing government neutrality between religion and non-religion. In this view, government-created benefits for and burdens upon religious entities are acceptable so long as secular organizations are treated comparably.

Into the first decade of the 21st century, regulatory changes made by the Bush Administration, as well as a series of pivotal court rulings, continued to move constitutional interpretations away from a strict separatist view of church-state relations, opening the door more widely to collaborations between government and religious charities. But they have not settled every contentious question in this area of the law.

Questions about church-state law have considerable implications for policymakers. Federal and state administrative law and the law of government contracts depend in large measure on principles in constitutional law. As these principles change or are perceived to change, they create momentum and opportunity to alter other bodies of law in response.

Considerations of law are also highly relevant in helping social scientists and policy analysts to frame questions about the optimum public investment in partnerships between government and religious charities. Programs that "work," but that courts will not tolerate, are not likely to be good options for government or religious organizations to choose. Inversely, if the programs that courts will tolerate do not produce high quality service or will rend the fabric of religious communities, serious problems arise in efforts to expand such partnerships.

As a core service for government decision-makers and others interested in these issues, The Roundtable on Religion and Social Welfare Policy researched, tracked, and analyzed legal developments in government aid to faith-based social welfare organizations, involving federal and state constitutional and statutory law. The Roundtable's legal research:

  • interpreted the significance of broader constitutional law developments, such as aid to non-public schools, on the inclusion of faith-based organizations in social service programs;
  • identified settled areas of constitutional law that formed accepted parameters of aid to FBOs;
  • assessed where legislative schemes or agency rules failed to reflect such parameters – either out of reluctance or over-eagerness to include religious providers in social welfare programs;
  • focused on areas of uncertainty, such as when and whether tax-supported religious organizations have the right to base employment decisions on faith.
  • served as a thorough and nonpartisan clearinghouse for the broader public - including the media and legal scholars - interested in the interaction of government and religious social service providers.

The Roundtable's legal research was co-directed by Professor Ira C. Lupu, the F. Elwood and Eleanor Davis Professor of Law at George Washington University School of Law. One of the nation's foremost scholars on the religion clauses of the First Amendment, Lupu has authored numerous law review articles on various aspects of religion and the law. Joining him as co-director was Robert Tuttle, Professor of Law and the David R. and Sherry Kirschner Berz Research Professor of Law and Religion at George Washington, who also holds a master's degree from the Lutheran School of Theology and a Ph.D. in religious ethics from the University of Virginia. Tuttle has served on the national board of the Evangelical Lutheran Church in America's Division for Church in Society, and as legal counsel for the Lutheran Bishop of Washington, DC.