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. 12 0333-4-12 ch12:Layout 1 10/29/09 3:42 PM Page 181CHARITABLE CHOICE: THE HIDDEN CONSENSUS 181It is not that there is never any nonsectarian alternative to church-basedsocial services.It is only that as a structural matter and by comparison withthe case of schools this is less likely to be the case.And so even with propos-als that would send state funds to a church-based social service provider onlyto the extent that clients choose to use it, if the client has no nonsectarianalternative available, then it cannot be said that it is his choice that determinestheir disposition.Using the constitutional doctrine that governs school choiceas a template, it would seem that far less circuit-breaking far less privatechoice exists in charitable choice.And so the money, as a general statement,remains public, subject to constitutional strictures.PURPOSES: DIRECT ISSUESA circuit breaker, of course, is strictly necessary only if the money is goingdirectly to parochial, sectarian purposes.That is because, in rendering themoney no longer public but private, the circuit breaker avoids (recall the SocialSecurity recipient donating to his church) constitutional problems.If, however,the money is going exclusively to public, secular purposes whether inparochial schools or church-based social service providers then a circuitbreaker is not constitutionally necessary: public money can legitimately flowto such ends.13 But here arises a second structural difference between parochialschools and churches offering social services.It is much easier to carve out arealm of purely public, secular activities activities that even public moneycould legitimately directly support in parochial schools than in church-basedsocial services.True, church food pantries can easily bracket out any sectarian elementfrom the services they offer, just as parochial school cafeterias can.But whenwe move on to verbal services teaching in the case of education, counsel-ing pregnant teenagers, say, in the case of social services what is sectarian ineducation can more readily be bracketed out, without spilling into the secular.Government money for math tutorials or English textbooks in parochialschools, for example, need not in any way support a sectarian message, insteadfunding entirely a public purpose: the purpose of training children in lan-guage and mathematics.But government money for church-based drug orteen-pregnancy counseling is more likely to be funding programs into whicha sectarian element would more naturally creep; hence it is more likely tocomprise constitutionally prohibited public money for private, parochial pur-poses.14 As Isaac Kramnick and R.Laurence Moore write, a teenager receivingpregnancy counseling in a church.vehemently opposed to abortion.is far 0333-4-12 ch12:Layout 1 10/29/09 3:42 PM Page 182182 WELFAREmore likely to be susceptible to covert religious indoctrination than a non-Catholic studying algebra in a parochial classroom. 15Individuals on both sides of the charitable choice divide agree with thiskind of observation.Wade Matthews, a retired foreign service officer who ispresident of the Sarasota and Manatee chapter of Americans United for theSeparation of Church and State, says that in the case of social services, the sec-tarian element is more difficult to separate.out.A math course probablyis not going to have any tinge of religious content. 16 Suzanne Yack of the Vol-unteer Florida Foundation, the state s faith-based initiative, believes the same:it is much less easy, Yack says, to tease apart secular and sectarian it sextraordinarily difficult in charitable choice as opposed to school choice. 17Robert Linthicum is president of Partners in Urban Transformation, a LosAngeles based organization that trains staff for on-the-ground agenciesworking among the poor, combining a faith-based approach with SaulAlinsky-style activism.Linthicum says that there is very much a distinctionbetween school instruction separating secular and sectarian and the blur incounseling between the theological and the community approach.Churches and FBOs have not figured out how to detach the theology fromtheir community ministering. 18So to sum up thus far: First, government dollars flowing to religious insti-tutions in the realm of welfare are more liable, in comparison with those in therealm of education, to be considered public funds rather than the monies ofprivate consumers.That is because they do not, as a rule, flow to churchesthrough the free choices of circuit-breaking private individual welfare recipi-ents.Second, the drug-counseling or life-coaching purposes to which thatpublic money is put are in comparison with the math or language curricu-lum supported in parochial schools more plausibly considered private, ormore pointedly, parochial.That is because, as a general statement, the secularwelfare services that churches provide are more naturally permeable to sectar-ian influence.So, compared with state aid to parochial schools, which on thewhole displays neither of these characteristics, state funding for faith-basedsocial welfare services seems more vulnerable to the charge that it amounts topublic money for private, that is, parochial, purposes.IS THERE A DEBATE HERE?But to the extent that state aid to churches dispensing welfare services fits thisdescription, it provokes little controversy about its constitutional illegitimacy.Conservatives every bit as much as liberals agree that so understood as pub- 0333-4-12 ch12:Layout 1 10/29/09 3:42 PM Page 183CHARITABLE CHOICE: THE HIDDEN CONSENSUS 183lic money flowing directly to religious institutions for programs into whichsectarian elements seep charitable choice would violate the EstablishmentClause.That is why President George W.Bush s charitable choice rules prohib-ited public support for parochial purposes, so understood.They state explicitlythat no public money may be spent on social services that involve any form of sectarian worship, instruction, or proselytization. The degree of consensusthat exists on this point is illustrated by John J.DiIulio s recollection that,when he set up the White House Office of Faith-Based Initiatives for Bush,I tried to hire Julie Segal, who was the legislative counsel for AmericansUnited for Separation of Church and State, I tried to hire her to work inthe White House Office.Now, why would the director of the new faith-based and community initiatives office.try to hire somebody fromAmericans United for Separation of Church and State? Answer: I knewthat if it got by Julie, it would certainly get by anybody else.19Charitable choice, DiIulio emphasizes, is utterly constrained by black-letterlanguage that says, No [public] funds shall be used for religious instruction,sectarian worship, and so on.It s black-letter language. 20Any disagreement, then, is not about principle but about practice, or, moreexactly, about whether this black-letter principle can be put into practice.21But when one turns to the level of practice the grass-roots level ofimplementation one finds a relatively quiet front
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