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For Immediate Release: December 5, 2006

For more information please contact:
Claire Hughes, Director of Communications
518-369-6622

Prison Programs, Chaplaincies and Capacity Grants Top Year's Faith-Based Controversies

Roundtable's annual "State of the Law" report highlights the most important legal developments of 2006 affecting the federal Faith-Based and Community Initiative

Albany, N.Y. - The Bush Administration's Faith-Based and Community Initiative continued this year to face legal challenges that test its potential reach. Among the most significant cases in 2006 were those concerning prison programs, government chaplaincies, and grants to help faith-based organizations increase their ability to win government contracts, according to the Roundtable on Religion and Social Welfare Policy's annual "State of the Law" report.

Major controversies over the Initiative and related church-state issues involved both matters of legal procedure and substantive decisions handed down by judges, say George Washington University Law Professors Ira C. (Chip) Lupu and Robert W. Tuttle, the co-directors of legal research for the Roundtable and authors of the report.

"This year's most prominent developments provide a rich mix of procedural concerns, both administrative and judicial, and substantive outcomes," Lupu and Tuttle state in the report. "(P)rocess and substance interact in ways that profoundly shape the legal milieu in which the Faith-Based and Community Initiative proceeds."

The Faith-Based and Community Initiative is the federal effort to increase the social service work provided by religious groups, in partnership with government.

The report breaks down the most significant legal developments affecting the federal initiative into five main categories:

  • Guidance to faith-based organizations on how to work legally with the government.
     When a social service program receives direct financial support from the government, it must ensure that the funds are not used for religious activities in order to stay within the parameters of the law. Professors Lupu and Tuttle raise concerns about the adequacy of guidance given to faith-based organizations in this area, pointing to two developments of particular importance. One is a Government Accountability Office report that raised questions about faith-based grantees' understanding of the restrictions on the use of public funds and identified weaknesses in agencies' ability to monitor those grantees. The other is the settlement of a lawsuit that challenged the constitutionality of government grants to a faith-based sexual abstinence education program. The settlement agreement "represents the clearest and most complete legal guidance for faith-based grantees that has thus far been produced under the Faith-Based and Community Initiative," Lupu and Tuttle say.
     

  • Government grants to increase faith-based organizations' capacity.
    Such grants, like those through the federal Compassion Capital Fund, are at the heart of the Faith-Based and Community Initiative's goal of helping smaller religious and community-based entities improve their ability to deliver social welfare services. But a lawsuit filed in September raises serious questions about the constitutionality of capacity-building grants for organizations that provide explicitly religious services.
     

  • Faith-based programs in prisons.
    As a matter of substance, the year's most striking developments involve the role of faith-based organizations in the prison setting, according to Lupu and Tuttle. At least four major cases involving faith-based rehabilitation programs are pending in the federal courts. One of them, in Iowa, has already led to a sweeping opinion against the constitutionality of such a program, and a court order that the money spent on that program be returned to the state. The report discusses in depth that decision from Iowa, as well as a lawsuit that has been filed against the federal Bureau of Prisons regarding its faith-based programming.
     

  • Government chaplaincies.
    Only in certain special contexts - such as in the armed forces, prisons, and government-run hospitals - can the government make use of chaplains to offer religious services to those under its control. The report explores the scope and limits of government chaplaincy by examining the issues in Freedom From Religion Foundation v. Nicholson, a lawsuit that challenges the policy and conduct of the chaplaincy in VA hospitals.
     

  • The structure of lawsuits based on the U.S. Constitution's Establishment Clause,
    which prohibits the government from actively promoting religious belief. Issues relating to the structure of lawsuits pervasively influence the litigation concerning the Faith-Based and Community Initiative. Questions of who may challenge certain government actions, when those challenges must occur, and what remedies courts may order when the law is violated have been of recurring significance. The report examines these concerns, with a particular focus on prominent decisions that the U.S. Supreme Court has decided to hear, in one case, or could decide to hear.

The report also considers court decisions in Florida and Georgia that may influence policy toward faith-based organizations in those states.

Professors Lupu and Tuttle will present their report at the Roundtable's annual conference, today at the National Press Club in Washington, D.C.

"Determining whether and where lines can be drawn to separate religious activity from activity that can be supported by public funds, is complicated, subtle, and very much in flux," said Richard P. Nathan, co-director of the Rockefeller Institute of Government, which oversees the Roundtable's work. "Chip's and Bob's work is a vital component to our understanding of the shifting relationship between church and state, and how it affects the Faith-Based and Community Initiative."

The full 2006 State of the Law report is available at the Roundtable's web site: http://www.religionandsocialpolicy.org/docs/legal/reports/State_of_the_Law_2006.pdf.

The Roundtable is a project of the Rockefeller Institute of Government, based in Albany, N.Y. As an independent, nonpartisan research group, the Roundtable does not advocate any particular point of view, but addresses the need for a fuller, more balanced assessment of faith-based social services.

The Roundtable is supported by The Pew Charitable Trusts, which serves the public interest by providing information, advancing policy solutions and supporting civic life. Based in Philadelphia, with an office in Washington, D.C., The Trusts will invest $248 million in fiscal year 2007 to provide organizations and citizens with fact-based research and practical solutions for challenging issues.