The Charitable Choice provisions, part of the broad Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, were intended to level the playing field for FBOs as they competed with other service providers for TANF funding. Since the enactment of PRWORA, Charitable Choice has expanded: similar provisions were added to the U.S. Department of Labors now-defunct Welfare-to-Work (WtW) program in 1997, to DHHSs Community Services Block Grant (CSBG) program in 1998, and to several programs funded by the Substance Abuse and Mental Health Services Administration (SAMHSA), the largest of which was the SAPT block grant, in 2000.
In January 2001, Executive Order 13199 was issued, creating the White House Office of Faith-Based and Community Initiatives (OFBCI). Executive Order 13198, issued the same day, created Centers for Faith-Based and Community Initiatives (CFBCIs) in five cabinet agencies: DHHS, Housing and Urban Development, Education, Labor (DOL), and Justice. DHHS and DOL were required to review policies and practices governing TANF and WtW funding covered by Charitable Choice and to work to ensure compliance with Charitable Choice provisions. Each agencys CFBCI was also required to perform a department-wide audit to identify all existing barriers to the participation of faith-based and other community organizations in the delivery of social services through the department. This review included but was not limited to regulations, rules, orders, and procurement, other internal policies and practices, and outreach activities that either facially discriminated against or otherwise discouraged or disadvantaged the participation of faith-based and other community organizations in federal programs.
In August 2001, a White House report titled Unlevel Playing Field summarized the audits, concluding that while no faith-based service group has an automatic right to obtain federal funding both faith-based and community organizations should have an equal opportunity to obtain such funding, if they choose to seek it. Issued in 2002, Executive Order 13279, Equal Protection of the Laws for Faith-based and Community Organizations, essentially extended the equal treatment principles of Charitable Choice to those federally funded social service programs not already covered by it, to the extent permissible by law. This included services and programs directly administered by the federal government, as well as those administered by states and localities but drawing on federal funds.
In 2003, DHHS issued regulations covering the application of Charitable Choice to its programs.
Essentially, the regulations established that FBOs providing services funded by programs covered by Charitable Choice would be able to preserve their own religious character as long as they did not infringe on the religious freedom of service recipients. This opened up eligibility for public grant or contracting partnerships to some religious organizations that, prior to Charitable Choice, would have been ineligible. Although there were some variations across programs, basically the Charitable Choice rules specified that:
- FBOs were no longer required to remove religious icons, symbols, and scripture while delivering services funded by the federal government and could retain religious standards for organizational governance.
- FBOs receiving federal funds could hire on the basis of religion unless otherwise prohibited by law.
- FBOs receiving direct government funding were forbidden to use government contracts or grants for inherently religious activities, such as religious instruction, worship, or proselytizing.
- FBOs receiving direct government funding were forbidden to discriminate against prospective or current clients on the basis of their religion or lack of religion or to require participation in religious activities as a condition of receiving federally funded services.
- The public agency responsible for funding had to ensure that clients objecting to the religious nature of the provider were offered an alternative provider to which they did not object on religious grounds.
- Charitable Choice provisions would not preempt state laws or constitutional provisions that restrict the use of state funds for religious organizations.
The implementation of Charitable Choice and equal treatment principles at the federal level has not been static, however, and the broader FBCI has taken shape at the state level as well. Jay Hein, the director of the White House OFBCI at the time of the FCL study, described in an interview the evolution of the offices work and the federal initiative using the metaphor of an hourglass (Roundtable on Religion and Social Welfare Policy, 2008). The first phase of the FBCI was broad and wide-reaching, he said, adding, the President had a very big vision that was on display in the early days. That phase was followed by a period with a more narrow emphasis on implementing the vision and carrying out regulatory reforms and leveling the playing field, according to Hein. This was followed by the most recent period, in which the focus broadened again, this time to facilitate partnerships with faith-based and community organizations to address key social problems. In this most recent period, [as director] I was able to grow partnerships to take on these different policy pursuits, he said, play[ing] to my strengths to consider new strategies for stubborn social problems and to work within the agencies for more effective partnerships. We expanded our strategies all across government and into the states When we see human need, well care and well respond by looking for faith-based and community groups.
This apparent ebb and flow between explicitly emphasizing access for faith-based groups and implementing the Charitable Choice regulations, on the one hand, and promoting partnerships with both faith-based and community organizations to solve pressing social problems, on the other was a pattern that this study found echoed at the state level as well. One state FCL staff member interviewed for the FCL study noted that, Jay Hein put the community back in FBCI. The relatively broad approach that the White House OFBCI was taking by 2007 seemed consistent with the approach many states were taking by that time. The OFBCI itself reflected this in its website description of the role of state liaisons or offices for faith-based and community initiatives:
the White House Office of Faith-Based and Community Initiatives works with States and localities to assist them in engaging grassroots organizations in addressing critical needs in their communities. Several States have either an office or a liaison for faith-based and community organizations in the Governor's office, a State agency, or a Governor-appointed foundation. These positions provide information and resources to faith-based and community organizations about partnering with the State government to provide social services.
The law surrounding the federal FBCI and Charitable Choice has evolved over time as well. Since enactment of PRWORA and the promulgation of Charitable Choice regulations, court rulings have shaped the parameters of how Charitable Choice is defined and how it may be implemented, and individual federal agencies have provided more guidance on permissible and impermissible activities (see Lupu and Tuttle, 2008). After the settlement of one court case, American Civil Liberties Union of Massachusetts v. Leavitt, DHHS issued guidance on appropriate and inappropriate spending of grant funds for sexual abstinence programs for minors. In this 2008 guidance memo to Healthy Marriage Initiative grantees, DHHS specified that curriculum materials are required to be neutral with respect to religion; further, the memo gave examples of program curricula that would not be eligible for direct government funding because they included religious content (Lupu and Tuttle, 2008).