The FCLs worked to implement Charitable Choice within a somewhat evolving federal policy context and within differing state circumstances. 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 to additional federal programs. Further, the implementation of equal treatment principles has been advanced by executive order. Issued in January 2001, Executive Order 13199 created 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 (CFBCI) in five cabinet agencies. Ultimately, 12 centers were created in federal agencies. In August 2001, a White House report titled Unlevel Playing Field concluded 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. A 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 all federally funded social services to the extent allowed by law. In 2003, DHHS issued regulations covering the application of Charitable Choice to its programs.
Under the new regulations, FBOs whose services are funded by programs covered by Charitable Choice can maintain their religious character as long as they do not infringe on the religious freedom of service recipients. More specifically, FBOs are no longer required to remove religious art or symbols and can retain religious standards for organizational governance and hiring. Those receiving direct government funding are forbidden from using government funds for inherently religious activities, such as religious instruction, worship, or proselytizing, and are forbidden from discriminating against clients on the basis of their religion or lack of religion, or to require participation in religious activities. The responsible public funding agency is required to ensure that clients objecting to the religious nature of the provider are offered an alternative provider. Finally, Charitable Choice provisions generally do not preempt state laws or constitutional provisions.
This has opened up eligibility for public grant or contracting partnerships to some religious organizations that, prior to Charitable Choice, would have been ineligible.
The implementation of Charitable Choice and equal treatment principles at the federal level has not been static, however, and the broader Faith-Based and Community Initiative (FBCI) has taken shape in the states. One director of the White House OFBCI 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, followed by a phase with a more narrow emphasis on carrying out regulatory reforms and leveling the playing field. That phase in turn was followed by the most recent period, during which the focus again broadened, this time to facilitate partnerships with grassroots faith-based and community organizations to address key social problems. This apparent ebb and flow between explicitly emphasizing access for faith-based groups and implementing Charitable Choice regulations, on the one hand, and working broadly to build 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.
The laws surrounding the federal FBCI and Charitable Choice have also evolved over time. Since the enactment of PRWORA and the promulgation of Charitable Choice regulations, court cases have further shaped the way Charitable Choice is defined and implemented, and individual federal agencies have provided more specific guidance on permissible and impermissible activities (see Lupu and Tuttle, 2008).