Reviewed by Keith J. Pavlischek
When he began his research on religious nonprofit organizations and their relationship to government, Stephen Monsma could hardly have foreseen the wide-ranging political changes that would make it essential reading. The central lesson to be learned from Monsma's study is that while those in the political arena are growing to appreciate the indispensable role of religious nonprofit organizations, serious legal and constitutional obstacles still exist for these organizations.
Perhaps the most promising aspect of the welfare reform debate has been the renewed attention to nongovernmental "mediating structures" in general, and to religious institutions in particular. This has given rise to a host of legislative provisions and proposals: the "Charitable Choice" provision of the Welfare Reform Act of 1996, for instance, prohibits states that contract for services from discriminating against agencies simply because they are religious. Two ambitious social legislative packages currently under consideration in Congress-Sen. Dan Coats' "Project for American Renewal" and the "Community Renewal Project" sponsored by Reps. Jim Talent and J. C. Watts-explicitly draw upon the resources and talents of "faith-based" service providers. Governor George Bush of Texas has created a task force on faith-based programs; Governor John Engler of Michigan has lauded the effectiveness of faith-based charities following Michigan's termination of its general assistance program; and recent Maryland legislation specifically includes the contribution of religious organizations in its plan to get more families off welfare.
This flurry of political activity and increased intellectual attention, however, has proceeded in the almost total absence of careful scholarly research into the religious nonprofit sector. The legal and constitutional context in which religious organizations operate is muddled and often hostile, but Stephen Monsma has now come to argue that solutions exist. Monsma, who teaches at Pepperdine University in California, is the author of Positive Neutrality (1993) and Pursuing Justice in a Sinful World (1984). While teaching at Calvin College in Michigan, he served as a Democratic state senator. But he later broke with the Democratic Party and began to concentrate his scholarly work on church-state relations.
Using a nationwide survey of 766 nonprofit organizations, Monsma documents the extent and nature of government funds flowing to religiously based nonprofit organizations. He discovers that most religiously based nonprofits receiving public funds are religious in more than a nominal sense. While acknowledging that some organizations have become secularized, Monsma demonstrates that even highly religious organizations receive surprisingly large amounts of public funds. He also discovers that most nonprofits report relatively little overt pressure on their religious practices from government, separationist watchdog organizations such as the ACLU, or the press.
Despite these heartening findings, Monsma concludes that "there are warning signs on the horizon indicating their religious autonomy is in an unsafe, precarious position." A minority-among the more highly religious nonprofits, a sizable minority-experience pressures to compromise their religious character. While relatively few organizations are confronted directly, many do experience indirect threats to religious liberty from legal and bureaucratic inconsistencies: "What one nonprofit is allowed to do, another is not allowed to do; what leads one nonprofit to endure public censure or law suits, another does as a matter of course with no controversy; what some nonprofit officials are concerned they should not or legally cannot do, others do openly and have done so for years."
Monsma's study focuses on three types of nonprofits: child service agencies, international relief and development agencies, and religious colleges and universities. We need more detailed research into organizations focused on drug abuse, elderly and handicapped care, job training, homeless shelters, and the like before we can tell just how representative his sample is. Moreover, Monsma's study concentrates almost exclusively on organizations that are relatively well- established. Agencies with greater experience dealing with governmental bureaucracies and pressures can more easily defend themselves against governmental encroachment. More attention to smaller agencies might provide a broader picture-and might reveal a greater wariness toward government funding.
Monsma, in any case, is not concerned only with presenting the data. As a church-state scholar, he is concerned to give an historical account of the reasons for the muddled government funding of religious nonprofit service agencies, and to offer theoretical prescriptions to allow nonprofits to function for the public good without compromising their autonomy as religious institutions.
To highlight the legal confusion surrounding religious nonprofits, Monsma invites the reader to imagine two scenes. In one, a teacher in a religious middle school is using a map purchased with funds from the state government. In the other, a child, removed from her home due to suspected child abuse by a live-in boyfriend of her mother, has been placed by a faith-based agency in the home of a deeply religious couple for temporary foster care, paid for by the state government. Before putting the child to bed at night the foster mother seeks to quiet the child's fears by assuring that God is watching over her, and leads her in a simple prayer. Under present legal principles, the teacher is violating church-state separation, while the foster mother is not. This, of course, doesn't make much sense-but in the field of church-state jurisprudence, common sense is an uncommon virtue.
Monsma is not the first to note that the root of the problem lies in the dubious "no-aid" provision articulated by the court in Everson v. Board of Education (1947): "No tax in any amount, large or small, can be levied to support any religious activities or institutions." But Everson's no-aid dogma is hard to square with the amount of public money currently being channeled-constitutionally-to religious nonprofits: a surprising 75 percent of the annual social services budget of the New York Roman Catholic archdiocese comes from government sources; 92 percent of Lutheran Social Ministries revenues comes from public funds; and the government gave a total of $19.3 million to World Vision, an evangelical relief and development organization.
"One of the best-kept secrets in the United States," says Monsma, "is
that when it comes to public money and religious nonprofit
organizations, sacred and secular mix." Mons ma's accounting for this
remarkable inconsistency between church-state theory and practice is right on target. For the most part, he argues, the constitutional and legal issues that relate to the receipt of public funds and the autonomy of religious institutions were forged within the context of the debate over aid to parochial schools, which in turn cannot be separated from the deep-seated anti-Catholicism that motivated it. After documenting the extent of the anti-Catholic prejudice that underwrote the Court's "no aid to religion" statements, Monsma concludes that the Supreme Court, supported by policy elites and to a large extent the general public, simply did not want tax money to support the Catholic hierarchy's attempt to maintain a separate school system.
And yet, Monsma explains, "The problem was that the same elites wanted public money to flow to-from their point of view-the nonthreatening, less Catholic, and more mainstream colleges and universities, hospitals, disaster relief agencies, child service agencies, homeless shelters, and a host of other educational and social service nonprofit organizations." This initiated "a series of legal principles of dubious constitutional merit."
Faced with the impossibility of the "no-aid-to-religion" ideal, the courts have retreated to a position that permits public money to go to religious organizations so long as the money supports secular services and programs and the organizations are not themselves "pervasively sectarian." Monsma argues the "pervasively sectarian" standard is based on a sacred-secular dualism fundamentally flawed in its assumption that one can disentangle the "sacred" and "secular" aspects of a parochial school kindergarten class, a family counseling center, or a Christian drug treatment program. Moreover, it fails to understand the ways in which basic values, perspectives, and presuppositions underlie all intellectual explorations, counseling theories and practices, approaches to complex social needs, and other such activities.
Not only is the "pervasively sectarian" doctrine philosophically suspect, it is inevitably discriminatory: "For the Court to interpret the First Amendment so as to favor programs rooted in a secularly based faith commitment over ones rooted in a religiously based faith commitment is to disadvantage religion." This, in Monsma's view, runs afoul of the free exercise of religion as guaranteed in the First Amendment: "If, to receive the normal benefits of public policies that similar, secularly based organizations are receiving, a religious nonprofit organization must downplay or give up certain of its religious practices, public policy is interfering with its free exercise of religion." Monsma warns that religious nonprofits that accept government funds on this basis do so at their peril. An agency can't concede that the largest part of its work is "secular" and then expect to defend its right to hire employees in accordance with its religious character.
Apart from a few extreme separationists, writes Monsma, no one wants public funding of religiously based social organizations to end, largely because these agencies are so effective. But massive legal and practical confusion reigns. To resolve this church-state conundrum, Monsma advocates developing with more precision the "equal treatment" line of judicial reasoning. The key to Monsma's position-which he calls "positive neutrality"-"is that government does not recognize, accommodate, or support any one particular religion over any other nor religious or secular worldviews and groups over one another."
Monsma suggests only three basic conditions that the programs and activities of nonprofit agencies would have to meet in order to be eligible for public funds. First, funds could not go to activities and programs that are primarily "other worldly" in nature, by which he means "those that are oriented towards religious worship or teaching, affirming, and celebrating core religious beliefs." At the same time, if the government decides that an activity like drug treatment is worth funding, it cannot rule out funding a drug treatment program simply because it has a strongly religious orientation. Moreover, the government could not override the freedom of the organization to hire counselors in agreement with its religious beliefs, practices, and counseling philosophy.
One must ask whether Monsma's "this worldly" or "other worldly" rhetoric is all that helpful. While he insists that "this condition is clearly distinguishable from the current sacred-secular bifurcation that says only activities and programs of religious nonprofits of a secular nature can be funded," one cannot help but wonder if it reintroduces as many problems as the sacred-secular dualism and "pervasively sectarian" rhetoric that he rightly criticizes. I would suggest that it is sufficient to say that worship services, classes in religious doctrine, and the like would, as Monsma says, "have no similar or parallel programs and activities sponsored by secularly based organizations or operated by government itself." If a program, such as drug treatment, is of "public benefit to society" and a nonreligious organization is eligible for funds (or if a government program already exists or is being considered), then a religiously based program would also be eligible. The additional talk of "this worldly" and "other worldly" seems unnecessary.
Monsma also argues that public funds should not go to nonprofits that teach hatred or intolerance or in other ways work to destroy the social fabric fundamental to civil society. (This would rule out such groups as the Ku Klux Klan or neo-Nazi societies, although there will still be hard cases, such as the Nation of Islam.) And he suggests, finally, that nonprofits must be willing to submit to certain limited reviews and licensing standards to ensure that the publicly funded services are in fact being provided. Religious and secular nonprofits would be treated identically in this regard.
Few now dispute the crucial role to be played by mediating structures in the revitalization of civil society. But the appropriate governmental role in this process has not yet been determined. Believing that private citizens can carry the load, libertarian critics want the government out of the welfare business altogether, and thus are not interested in having government empower nonprofits, religious or otherwise. Extreme separationists are altogether too enthusiastic over keeping the public square naked. Many leaders in the religious nonprofit sector similarly subscribe to the understandable yet false presumption that the receipt of public money necessarily means the organization must alter its religious character. What they fear, most policy elites and strict separationist ideologues insist upon: secularization as a condition for government funds. Ironically, by preemptively disarming themselves, these religious believers end up playing right into the hands of the separationists. Monsma, to his great credit, tells us why such preemptive capitulation is not the order of the day.