Inside the White House Conference on Faith-Based Initiatives: Avoiding a Lawsuit


Second of two parts on the White House Office of Faith-Based and Community Initiatives Minneapolis conference.

The White House Office of Faith-Based and Community Initiatives Conference in Minneapolis Thursday offered attendees a look at how the federal government can partner with religious organizations and several trainings on how to acquire those funds. Perhaps the most important part of the conference was teaching the attendees, as well as state officials, the legal responsibilities that faith-based groups face in accepting government funds.

For one, those responsibilities are constitutional. The First Amendment’s Establishment Clause is recognized as a barrier to any religious activity paid for by the government. A large part of the faith-based initiatives program — and Thursday’s conference — was to help faith-based organizations navigate those constitutional restrictions, although critics of the initiative say that isn’t likely.

Barry Lynn of Americans United for the Separation of Church and State testified in front of Congress about that very issue. “The president has repeatedly stated his desire to fund groups that permeate their programs with an all-encompassing religious element. In fact, he often argues that this religious component is what makes these programs successful. In light of this, claims by the administration that tax funds will not be used to promote the spread of religion ring hollow.”

The legal expertise at the conference came from Steve McFarland, director of the faith-based office at the Department of Justice.

Previously, McFarland was director of the Christian Legal Society’s Center for Law and Religious Freedom and led the Coalition for the Free Exercise of Religion. He helped then-Sen. John Ashcroft, R-Mo., draft the Charitable Choice provision in the Welfare Reform Act, which was the direct precursor to the faith-based initiatives program. He was also vice president for program and partnership development for Prison Fellowship International until 2005.

Prison Fellowship ran a taxpayer-funded faith-based program in Iowa that a judge said was “intended to indoctrinate…inmates into the Evangelical Christian belief system. The state has literally established an Evangelical Christian congregation within the walls of one of its penal institutions, giving the leaders of that congregation… authority to control the spiritual, emotional, and physical lives of hundreds of Iowa inmates.” Prison Fellowship was ordered to repay $1.5 million in taxpayer money. An appeal to that decision is currently pending.

McFarland has ample experience advocating the inclusion of faith in government. It was fitting that he ran the workshop for state grant administrators on how to balance the church-state divide.

“The president believes, and I agree that faith-based groups should be welcome partners, not second-class citizens but welcome partners with the government with full and equal participation,” McFarland told the workshop attendees.

The basic rule of thumb provided at the conference was “No God-talk on Uncle Sam’s dime.”

Religious organizations can leave religious symbols or icons, messaging and religious materials in place as long as they were purchased with private funds. Organizational employees are free to invite clients to participate in religious activities, even on federal time, as long as the activity occurs in a different time or place than the federally funded program. Religious activities can even occur in the area of a federally funded program, as long as the client has the option to leave or decline to participate.

McFarland explains it like this: “The Islamic center can have a publicly funded abstinence program and then they can say that concludes the [Department of Health and Human Services] funded seminar this morning. In the same room, at the same location, in half an hour, we are going to start a privately funded discussion about what the Koran says about abstinence. You are welcome to stay for that. If not, you are free to go.”

But what if a client brings up a religious question during the federally funded program?

“If someone asks a question: What does the Bible say about abstinence, can I answer it? Yes. You can answer briefly, but it can not turn into sermon, prayer session or Bible study,” McFarland said.

A member of the workshop audience was curious about the legal drama associated with the WHOFBCI, specifically a case that was decided by the Supreme Court in June.

“That case, which the named defendant was [White House Office of Faith-Based and Community Initiatives Director] Jay Hein, this was a lawsuit brought by a group that described themselves as agnostics and atheists, the Freedom From Religion Foundation of Wisconsin, and they sued to prevent White House conferences like we are having right now,” McFarland told the crowd. “They said that this violates the First Amendment to be able to tell faith-based and secular organizations how their taxpayer money is available to them. Obviously, that’s a pretty biased description of the lawsuit, but I think it was pretty frivolous.”

The Supreme Court found that the FFRF did not have standing to sue the White House, partially because the White House expenditures did not originate with an act of Congress. Justice Sam Alito wrote “lowering the taxpayer standing bar to permit challenges of purely executive actions “would significantly alter the allocation of power at the national level.”

The decision was an excellent one, McFarland told the audience. “I don’t want to spent my time dealing with nuisance lawsuits by folks who want to shut down the whole initiative. I’d rather be talking about how to help people in need.”

The workshop then shifted to what state officials can do in the process of granting and auditing faith-based programs in their state, and how they can create a level playing field for them.

“There is no more or less oversight” between faith-based organizations and secular organizations receiving federal funds, as it would not be a level playing field, McFarland said. A report by the Government Accountability Office (PDF) agreed that they both receive the same oversight, a fact that may put some faith-based groups in the same trouble as Prison Fellowship International.

The GAO conducted a report of the faith-based initiatives in 10 government departments. Out of 13 faith-based groups that offered voluntary religious services, four did not understand that those services must not occur with taxpayer money. The report read, “For example, one FBO official told us that she discusses religious issues while providing federally funded services if requested by a participant and no other participants object, and a few told us that they pray with beneficiaries during program time if requested by the beneficiary.” Beneficiaries are the clients, or people in need, whom the government is funding the program to help.

McFarland explained many of the legal pitfalls that faith-based groups may encounter. Religious supplies cannot be purchased with federal money. No clients can be turned away, even if the organization finds them “undesirable.” If the program has religion interwoven throughout, it would not be a candidate for federal funds without significant changes to the program. “I would really hope that nobody changes what works to chase the federal bucks, because then you are prostituting yourself.”