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Will churches be required to form separate 501(c)(3) nonprofit organizations in order to operate federally funded programs?  Various news stories are reporting that the President's Advisory Council on Faith-Based and Neighborhood Partnerships will recommend that requirement.  

It is the true that the Advisory Council has narrowly voted--13 to 12--to recommend that churches should be required to establish "separate corporations" if they seek federal funds to provide social services.  The goal is to preserve church autonomy and the required separation between the institutions of church and state.  

But note that the Council has yet to decide whether to accept the recommendations as a whole--that vote is still a week away.  More important, note that this is only a recommendation:  the administration may or may not accept it. And note especially this:  the recommendation is not that churches must establish a separate 501(c)(3) organization. 501(c)(3) designation is a particular tax-exempt status that has to be gained from the IRS, and obtaining that determination usually takes a significant amount of time, effort, and money.  Rather, the recommendation is for a separate (nonprofit) corporation.  That kind of organization is formed under state, not federal, law, and is normally much easier and quicker to create.  

Churches already often create separate organizations to offer services to the community, particularly if those services will be supported by government funds.  A separate organization keeps government monitors out of the church's business, avoids having inappropriate government restrictions applied to the house of worship, and makes it easier for staff and volunteers to keep their focus on offering social services instead of worship services.  Corporate donors, foundations, and many government programs often already require a separate organization.  

But some churches worry that a separate nonprofit organization may drift away from the church and from the faith.  Moreover, as stressed by those on the Advisory Council's Reform of the Office taskforce who opposed the new requirement, the government can often achieve its legitimate oversight responsibilities in other ways, and a church may reasonably decide in particular circumstances that it can preserve its autonomy through some other mechanism, such as separate bank accounts or creating a separate operating division within the overall church organization.  These experts proposed that instead of requiring a separate organization, the federal government should compile a list of all of the different ways that churches can appropriately structure their relationship with government, and then promote those varied methods to churches seeking funds.  They pointed out the proposed new requirement would end some currently flourishing partnerships.  And the requirement would impose perpetual costs--not just the cost of first establishing the new organization but also the continuing burden of maintaining a separate board of directors and separate accounting records, a separate human resources policy and insurance policy, etc.  That's quite a burden, particularly if a separate organization is not constitutionally required.  And particularly if the federal funds involved are minimal and would be come to the church only for a short while.  Should an entire separate organization be required to make it possible for a small congregation to receive $1,000 to defray its expenses for conducting an outreach to neighborhood families to draw mothers-to-be into a public health program?  That was an actual successful program operated by a New Jersey county.

Additional notes:

• Extreme church-state separationists have often promoted the requirement of a separate nonprofit organization as the magical way to strip every hint of religion out of a service program that uses government funds.  Yet neither the rules for nonprofit incorporation under state law nor those for designation as a 501(c)(3) charity under federal law require secularism.  The separate organization established by a church could--should--be just as religious, in its own way--relevant to social services--as the church itself.  (Services funded by government grants cannot include inherently religious activities such as prayer and proselytizing.)
  

• Good thing the recommendation isn't for actual 501(c)(3) status--a costly and time-consuming requirement.  Indeed, the Unlevel Playing Field report of the Bush White House named it as a distinct "barrier" inhibiting partnerships between government and nonprofit organizations that officials operating federal programs have often required proof of 501(c)(3) status even if the congressional statutes governing a program only required participating organizations to be "nonprofits."  To relieve this burden, the Bush administration actually published regulations, e.g., for SAMHSA programs that require officials to accept a variety of ways for applicants to prove their nonprofit status without having IRS 501(c)(3) status.  

• Most federal funds are awarded to private organizations (secular and faith-based nonprofits, businesses) by state and local governments, who fund many of their services with federal dollars.  Programs operated by states, cities, or counties may award very small amounts of government funds in an effort to engage grassroots organizations or to ensure widespread availability of the services.  Yet the requirement of a separate organization would follow the federal funds, no matter which government awards the grants.  Possibly the requirement would be enforced even for non-financial federal support--e.g., receipt of a small amount of surplus agricultural commodities, acceptance of an old computer donated by a federal agency, etc.  

• Churches interested in the pros and cons of establishing a separate nonprofit organization, and how to do it, should consult Joy Skjegstad's clear and empathetic guide, Starting a Nonprofit at Your Church (Alban Institute, 2002).
  

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The President's Advisory Council on Faith-Based and Neighborhood Partnerships voted  strongly not to require that all religious symbols, religious art, and other religious messages be stripped away or hidden in rooms where federally funded services are delivered.  Some are worried that the presence of such symbols might lead a person wrongly to believe that the government approves of the religious messages.  Some worry that a person who has had a negative experience with religion or with a particular faith might not be so well served if the place of service carries obvious religious messages.  

Yet government-funded services are delivered in a wide range of settings that convey a variety of non-governmental messages. And the Council supports the idea of guaranteeing an alternative provider if a beneficiary objects to a particular organization.  Some faith-based grassroots organizations that collaborate with government to serve the needy do not even have available a set of specialized rooms separate from worship or Sunday School spaces.  Most Council members thought religious organizations should be able to partner with the government without first hiding their religious identities--and should be encouraged to be sensitive to beneficiaries who might find religious symbols troubling.

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The Obama faith-based initiative was launched a year ago, and various news reports (including this one by Adelle Banks, who quotes your editor) have cited critics who say that the initiative has not done much, and also extreme church-state separationists who blame the initiative for not having overturned the equal treatment rules that were introduced during the Clinton and Bush administrations.  

The Brookings Institution recently held a thoughtful and thought-provoking conference to assess the first year of the Obama initiative and to look into the future (audio and video are available here).  One panel of top experts discussed social science research on faith-based services; the other panel considered church-state issues.

Joshua DuBois, director of the White House Office of Faith-Based and Neighborhood Partnerships gave the keynote address (which is also posted on the White House faith-based webpages here). This is a serious talk that places the faith-based initiative in the context of the President's commitment to a nation in which religion is not relegated to the sidelines.  

DuBois also contrasted the Obama initiative with the Bush years, and gave the following as its guiding vision:

"to connect with faith-based and other neighborhood organizations on specific challenges confronting our communities, and partner with those groups to strengthen their good work.  Critically, this support may not always be through federal grants.  We do not measure our success based on how many dollars flow to faith-based organizations.  Instead, we measure our success based on the impact that our partnerships with faith-based and other neighborhood groups have on individuals, families and communities across the country."

That stress on the nonfinancial ways that the government can interact with and support the work of secular and faith-based nonprofit organizations, and the emphasis on real results for people and communities, are all to the good, underscoring themes already present during previous administrations.  

But the intent to work with those organizations particularly on "specific challenges confronting our communities" is troubling.  There is every reason, when the relationship can be rightly structured, for the government and nongovernmental groups to collaborate to deal with important needs and opportunities.  Yet nongovernmental groups do not necessarily see the same challenges that government officials identify, nor are they necessarily inspired to respond to those challenges the way the government would.  In the name of making partnerships flourish, the Obama faith-based initiative could end up restricting the creativity and independence of nonprofit organizations as those organizations become narrowly harnessed to the federal government's priorities and methods.  Worse, without care, a vision of positive collaboration could turn into a nightmare of nongovernmental organizations co-opted to be cheerleaders for the federal agenda.  To avoid those problems the Obama faith-based initiative must stress the independent role and vigor of the nongovernmental sector--its independent and diverse contribution to the common good.

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The Washington, DC, same-sex marriage law has not even gone into operation yet, but it has already had one sad, negative consequence for children.  The DC law has an inadequate exemption for religious organizations that are committed to the historic conception of marriage.  In the legislative process, advocates of redefining marriage in order to end what they regarded as a discriminatory practice brushed aside as a hollow and cruel threat the warning that their bill would force Catholic institutions in the city to break long-standing service collaborations.  It was no hollow threat.  Because of the inadequate religious freedom protections in the impending DC same-sex marriage law, Catholic Charities DC has been forced to end its decade-old partnership with the city to provide foster care and adoption services.  Catholic Charities arranged with another nonprofit to take over its program, transferring to the other agency not only the children and families but also the staff that has been serving them.  So "continuity of care" has been assured.  But the DC government's poorly designed effort to deal with our society's diversity has resulted yet again in diminishing the diversity of services in our society, curtailing the Catholic option in this area of human services.  But perhaps that is not a mere unintended negative side effect . . .

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Will Extremists Undo Jefferson's Support for Religious Freedom
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Extreme church-state separationists often cite Thomas Jefferson's metaphor of a wall between church and state to argue for a secular public square that excludes religious viewpoints and religious institutions.  But driving all religious institutions to the margins of society would be a betrayal of Jefferson's convictions.

Rev. Larry Snyder, president of Catholic Charities USA, and a member of the President's Advisory Council on Faith-Based and Neighborhood Partnerships, spoke at the recent Brookings Institution conference evaluating the first year of the Obama faith-based initiative (see story above).  He noted that Catholic Charities traces its start to 1727 when a dozen Ursuline nuns came from Paris to New Orleans and established an orphanage, hospital, school, and a mission to prostitutes.  However, when President Jefferson concluded the Louisiana Purchase, transferring New Orleans to the United States and the Ursuline work to the jurisdiction of the non-religious US government, the sisters wrote to him, seeking assurance that their mission and property would be safe.  

President Jefferson wrote back that they need have no fear that their property was at risk.  The principles of the US Constitution, he said, were a "sure guaranty" to them that their mission "will be permitted to govern itself according to its own voluntary rules without interference from the civil authority."  

Strong and encouraging words, indeed.  But pointing to the growing threats to the religious character of faith-based organizations these days, Father Snyder rightly asked whether it is time to elevate Jefferson's words again and to "once again assure faith-based organizations that we will live up to Thomas Jefferson's protection."