Faith-based providers face legal obstacles

First Amendment litigators point to Boston summer camp

Washington, D.C. – President Bush’s initiative to expand partnerships between government and faith-based providers of social services drew a predictable response from many quarters. Groups advocating an absolute separation of church and state were quick to criticize the President’s legislative proposals, including the establishment of a White House Office of Faith-Based and Community Initiatives. The Center for Individual Rights (CIR), which has litigated key cases testing the limits on government funding of religious entities, defended the constitutional soundness of Bush’s proposals. But CIR warned that changes in the legal landscape are needed if Bush’s initiative is to be a success.

“By ensuring that faith-based providers can apply for federal funding on an equal footing with secular providers, the President’s initiative fulfills the First Amendment’s prohibition on discrimination against religion,” said Curt Levey, CIR’s Director of Legal & Public Affairs. “But for Bush’s program to succeed, the Supreme Court must put a final nail in the coffin of the ‘pervasively sectarian’ doctrine, which bars public funding of entities deemed too religious, even where the funded activities are secular,” Levey added. He explained that “the doctrine’s resistance to definition and virtual requirement for intrusive government investigation often makes partnerships between government and religious providers unworkable.”

To illustrate the problem, Levey pointed to Keys of Life, a Boston summer camp which serves inner-city youth. Many of the camp’s counselors were employed through SummerWorks, a Boston program which provides summer jobs for low-income teenagers, using federal and state funds. Although Keys of Life is run by Mason Cathedral Church, it complies with all of SummerWorks’s secular requirements. Nonetheless, in the summer of 1999, after a successful 7-year relationship, the city of Boston suddenly objected to the camp’s publicly-funded counselors being exposed to religious symbols and voluntarily participating in the Lord’s Prayer. That summer, Boston officials conducted a series of intrusive inspections and subjected the camp to an ever-changing list of restrictions on religious activity. Ultimately, the city forced the funded counselors to leave Keys of Life. Mason Cathedral, represented by CIR and co-counsel Timothy Mauser of Boston’s Mauser & Mauser, is suing Boston officials for First Amendment and equal protection violations.

“Given the confusion created by the ‘pervasively sectarian’ doctrine, it’s not surprising that Boston officials kept changing the rules of the game,” explained Mr. Levey. “President Bush promised religious providers this week that government funding won’t be accompanied by pressure to de-emphasize their faith,” he added. “But as long as the legal landscape permits and even encourages the treatment Keys of Life received, this promise cannot be kept, and participation of faith-based providers will be difficult.”