What is to be done?

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Now that I’ve established my separationist bona fides up around the Americans United and ACLU level, I’d like to take a walk back through some of the complexities the administration confronts as it wades into faith-based social service provision, department of hiring.

First, it is a mistake to imagine that hiring discrimination by faith-based providers is some new Bushian thing under the sun. Communities have long depended on such providers–Catholic Charities, Lutheran and Jewish family services, the Salvation Army, etc.–to do critical social service work with public funds, and if you think the people running those agencies haven’t always belonged to their respective faith communities, think again. That’s not to say that they have functioned in order to proselytize recipients (or patients, think hospitals), or that they have insisted on hiring only their own kind. To the contrary. But over the years, what were private charities began to do the work of the state, with public funds, and few noticed or cared exactly how they conducted themselves internally. Thanks to Charitable Choice and its progeny, we’re now noticing, and caring.

Second, the law in these matters really is complicated. If you don’t want to take my word for it, ask an experienced church-state litigator, like Marc Stern of the American Jewish Congress, or Melissa Rogers of Wake Forest (just appointed to the OFANP advisory board), or Georgetown’s Marty Lederman, now in the Obama DOJ’s Office of Legal Counsel. Doing away with the Bush executive orders in the name of the principle of no faith-based hiring discrimination would not re-seal this can of worms.

Finally, the political cross currents are fierce. The center-right religious folks who have from the outset been the biggest supporters of faith-based initiatives (see Esbeck, Carl), represent some of the most plausible Obama allies among religious conservatives, and they really will walk if they don’t come away with something on the hiring front. Strong church-state separationists may have nowhere else to go politically, but they will be bitter indeed if Con law prof Obama simply gives faith-based organizations a free hand to discriminate with public funds.

So what should the administration do? Kumbaya and we’ll let the lawyers work out the details case by case won’t cut it. If I ran the show, I’d do three things.

1. Public education. Get one of those lawyers and maybe an experienced social service professional or two to make clear to the public just how faith-based social service programs work in America. This is a subject about which a lot more is known now than then 10 years ago, and one about which the public is woefully ignorant. More light would lower the temperature.

2. Programs. So far, the OFANP roll-out has had less in the way of programmatic specfics than the initial promise advanced by the Obama campaign last summer. Where, for example, is that $500 million summer education program that was supposed to be the centerpiece of the new initiative? Focusing on what is to be done can help resolve questions about how it is to be done.

3. Rules. There need to be some more actual rules governing the behavior of faith-based organizations operating with government funds. All agree with the principle that they can’t use those funds to proselytize, but what exactly does that mean? And how is it to be enforced? On the hiring front, it ought to be possible to acknowledge, for example, that the directorship of a local faith-based service provider can be restricted to members of the faith in question, say by requiring that a certain percentage of the director’s salary be provided by non-governmental funds. What about preferences for providers that pledge to hire on a non-discriminatory basis?

Three things are clear. First, faith-based service provision is not going away, whether there’s an office in the White House or not. Second, there’s no way to go back to the quiet old ways of doing business. And third, sooner or later, the Obama administration is going to have to lay out a modus operandi.