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Guidance to Faith-Based Organizations Partnering With Government

Publisher: The Roundtable on Religion and Social Welfare Policy

Roundtable News Articles
Roundtable Interviews
Roundtable Legal Analyses

Among the most critical questions for faith-based organizations interested in accepting government money to provide social services is this: Exactly what activities can government fund - and what activities must it not fund - to be in compliance with the law?  

The Bush Administration said that religious charities could not use tax money to support "inherently religious activities." In a document entitled "Guidance to Faith-Based and Community Organizations on Partnering with the Federal Government," it told potential faith-based and community partners: " Basically, it means you can not use any part of a direct Federal grant to fund religious worship, instruction, or proselytization." That document recommended religious groups set up separate nonprofit arms to receive funds for providing social services, and that it separate its religious activities from its secular ones, "in time or location."

But that guidance did not prove sufficient to prevent lawsuits, most of which questioned the permissibility of activities that have been funded with tax dollars. Questions especially arise in programs that have a primary secular purpose - such as substance abuse treatment or prisoner rehabilitation - but are provided with some degree of religious content.

When the government provides funds to religious organizations, it is responsible for ensuring the money is not diverted to religious use. That’s the standard set down by former Supreme Court Justice Sandra Day O’Connor in a 2000 case known as Mitchell v. Helms. The standard encompasses three distinct requirements:

1) The permissible and impermissible uses of government aid must be clearly articulated to faith-based grantees.

2) Government must ensure that grantees agree to comply with the restrictions on government aid.

3) Government must monitor grantees’ conduct to ensure they comply with the rules.

In fact, however, the government has not done a consistent job of providing guidance and monitoring compliance, according to a report released in June 2006 by the Government Accountability Office, the investigative arm of Congress. A number of programs, in fact, did not expressly provide grantees with information about restrictions on the use of government funds.

And when state governments provide guidance on permissible activities to faith-based contractors, they typically duplicate the federal guidance language, or direct religious charities to the federal documents, according to the Roundtable’s scan of state commitment to faith-based and community initiatives.
(Click here to access the Roundtable’s research on Faith-Based Initiatives and the States.)

One potential model for providing guidance, however, emerged from the settlement in a 2006 lawsuit involving government funding for a sexual abstinence education program known as the Silver Ring Thing. The settlement agreement included a letter from the U.S. Department of Health and Human Services to Silver Ring Thing officials, detailing the "Safeguards Required" for the program to operate legally. The Roundtable’s legal experts believe that document could serve as a model for other programs, as well.

Other legal conflicts in the last several years have highlighted the question of just what the definition of "religious activity" is, in relation to programs that are supported with government funds. These include Christianson v. Leavitt, involving a marriage educator that chose to change the content of its programs from a Bible-based curriculum to a strictly secular one in order to receive government grants. That lawsuit drew attention to an issue (which went unanswered) about the government’s practice of providing funds through the Faith-Based and Community Initiative to help small religious groups grow. The question raised was whether that practice is legal, if the organization’s government-funded growth will ultimately support the group’s religious activities as well as its secular social service programs.

The Roundtable's co-directors of legal research, Professors Ira C. Lupu and Robert W. Tuttle, have written and discussed the issue of guidance in reports and at conferences hosted by the Roundtable and by the White House Office of Faith-Based and Community Initiatives. The Roundtable has also produced news stories covering these topics for readers interested in a more general overview. These are available below.

Roundtable News Articles

Pennsylvania County Settles Lawsuit Challenging Faith-Based Prison Program, April 3, 2007

Faith-Based Organizations Serve Important Role, But Need Guidance, Dec. 12, 2006

Judge Dismisses Lawsuit Against Federally Funded Marriage Program, March 27, 2007

Embattled Marriage Program Claims Tax Money Never Funded Religion, Jan. 30, 2007

Marriage Program Charged With Using Tax Money to Spread Christian Message, Sept. 12, 2006

Lawsuit Settlement Pulls HHS Funding for Silver Ring Thing Abstinence Program, Feb. 28, 2006

HHS Suspends Funding for "Silver Ring Thing" Abstinence Program, Aug. 23, 2005

Legal Environment for Faith-Based Initiative Still Has Pitfalls, Dec. 14, 2005

ACLU Launches Latest Faith-Based Suit, May 17, 2005

Changing a Word Clarifies Proposed Federal Rule Making, Sept. 9, 2003

Roundtable Interview

Q&A on Guidance and Monitoring of Faith-Based Organizations That Receive Government Funds, October 14, 2008

An Interview with Chip Lupu and Bob Tuttle on Changes in Rules Governing the Faith-Based and Community Initiative, July 1, 2008

Law Professor Robert W. Tuttle Discusses the Settlement of the Silver Ring Thing Case, March 7, 2006

An Interview with Chip Lupu and Bob Tuttle on Changes in Rules Governing the Faith-Based and Community Initiative, July 1, 2008

Law Professor Robert W. Tuttle Discusses the Settlement of the Silver Ring Thing Case,
March 7, 2006

Roundtable Legal Analyses

Analyses of Guidance in general:

Constitutional Change and Responsibilities of Governance Pertaining to the Faith-Based and Community Initiative, presented at the White House Office of Faith-Based and Community Initiatives’ Conference, June 27, 2008

The State of the Law 2006 report

Transcript of Professor Lupu and Tuttle’s presentation at the Roundtable’s 2006 conference
(Go to pages 22-24, and page 33, for Professor Tuttle’s discussion on guidance.) 

Developments in the Faith-Based and Community Initiatives: Comments on Notices of
Proposed Rulemaking and Guidance Document, January 2003

Legal Analysis of Final Rules and Notices of Proposed Rulemaking Concerning the
Faith-Based Initiative, Published Oct. 9, 2003

Analyses of specific lawsuits:

Dismissal in Christianson v. Leavitt, Published March 27, 2007

Original Complaint in Christianson v. Leavitt, Published Sept. 19, 2006

Settlement of ACLU of Massachusetts v. Leavitt (the Silver Ring Thing case),
Published March 7, 2006

Original complaint in ACLU of Massachusetts v. Leavitt, Published May 31, 2005

Freedom From Religion Foundation, Inc, (and others) vs. Montana Office of
Rural Health (and others), Published Nov. 1, 2004