“He thus embraced the heart of a program, established early in the Bush administration, that critics say blurs the constitutional separation of church and state. Mr. Obama made clear, however, that he would work to ensure that charitable groups receiving government funds be carefully monitored to prevent them from using the money to proselytize and to prevent any religion-based discrimination against potential recipients or employees.”
When I read this story, I immediately thought of Nussbaum, whose new book on religious liberty which I recently finished. It is a good read, and I recommend people interested in both the philosophical and legal aspects of this debate to read it.
To me, Obama misses the real reason why faith-based initiatives violate the establishment clause (and here I’m borrowing liberally from Nussbaum): the violation has nothing to do with separation, because if we take the concept of separation literally, the end result would be absurd. For example, if a church is not located on state property and does not use state services, such as utilities, then it cannot receive things like police protection when it gets broken in. Obviously, this is a ludicrous idea.
The real reason why faith-based initiatives violates the establishment clause is equality, because as Nussbaum argues:
“More generally, dissenters simply did not accept the suggestion that an established church, financed by taxpayer money, could treat citizens equally. As they saw it, the minute one church, rather than another, hooked up with state power and state money, members of other religions–or that large group of Americans, at least 85 percent, who had no church membership–were treated as lower in status. This was not simply a likely consequence of financial establishment, it was a meaning expressed in the very fact of such an establishment.” (85)
Obama’s justification for continuting faith-based inititiaves is consequentialist: it is premised on the assumption that religious charities will give out aid equally. But the issue, as Nussbaum argues, is not whether aid is distributed equally. Rather, the issue is about whether state-sponsored faith-based initiatives give one religious group more official status than the other, or even if it prefers religion over non-religion.
Therefore, religious charities under a faith-based initiative regime could be non-discriminatory and non-prosyletizing, but that is still a violation of the establishment clause: because the very act of using official state power to sponsor one religious group over another, or one denomination over another, or even religion over non-religion, is itself already inherently unequal.
Why is this treatment inherently unequal? Because the state is by nature public. It is important to note that no one is being asked to leave their religious convictions at the door when they enter the public realm (Obama certainly does not). Rather, what is being asked is that once people enter the public sphere, they must appeal to reasons that everyone can accept, and this rules out religious/sectarian reasons (borrowing from John Rawls now). The state, because it is public, cannot show any preference toward any particular religion, or preference for religion over non-religion. But this is exactly what a faith-based initiative does: it explicitly connects the state to particular religious denominations, and to religion over non-religion.
Now, whether religious charities perform better than non-religious charities is an empirical matter, and a consequentialist argument for faith-based initiatives can be plausibly made if the evidence bears out. But, as Nussbaum argues, and as I’m inclined to agree with her, the language of the establishment clause is not to be interpreted in a consequentialist manner.