Charitable Choice and the Establishment Clause

Jonathan Friedman

Georgetown University Law Center; Class of 1998

As the need for social services grows, government organizations have begun involving private and religious charities to provide such services. While religious charities have always received substantial revenues from government sources, there is a concern that a little known provision in the new federal welfare law, known as Charitable Choice, allowing religious organization to provide services in an openly sectarian way, violates the Establishment Clause of the First Amendment.

While the Supreme Court has said that government funds should not flow to ?pervasively sectarian? entities, the Court has also said that the government may allow faith-based providers to participate in federal programs that have the valid public purpose of providing a social service. Brown v. Kendrick is the single most important Court decision for analyzing the constitutionality of the Charitable Choice provisions of the welfare act.

Assuming a facial challenge to the Charitable Choice clause, Justice O?Connor?s vote is likely to decide the Charitable Choice issue. The Court will likely invalidate Charitable Choice provisions that allow contract arrangements between governments and faith-based providers while upholding voucher programs. In the end, the court may uphold the constitutionality of Charitable Choice, but to do so it must move well beyond its current view of the Establishment Clause.

Vol. V, No. 1, p. 103 (1997)

 

Revised July 17, 2003 (MD)