Memorandum: The Constitutional Implications of Executive Order 13279, Equal Protection of the Laws for Faith-based and Community Organizations.
On December 12, 2002, President George W. Bush signed into law Executive Order 13279, entitled Equal Protection of the Laws for Faith-based and Community Organizations. This order granted faith-based organizations the right to apply for and receive federal funding, in order to assist them in their social service endeavors. By signing this order the president hoped to incentivize community service and create an environment conducive to greater participation in outreach activities that benefit our society. This motivation is illustrated in section two subsection b, where the order states, “The Nation's social service capacity will benefit if all eligible organizations, including faith-based and other community organizations, are able to compete on an equal footing for Federal financial assistance used to support social service programs”. In addition to this, President Bush was attempting to end what he deemed a form of religious discrimination, as shown in section two subsection c, “No organization should be discriminated against on the basis of religion or religious belief in the administration or distribution of Federal financial assistance under social service programs”. While both of these purposes are well intentioned and serve the greater good, per se, there are serious Constitutional implications that need to be addressed. In order to explore the legality of this order one needs to examine it under the light of the First Amendment, and while using a two prong system. The Supreme Court has protected religious freedom in two distinct ways, throughout its history, dividing it into two clauses; The Establishment Clause and the Free Exercise Clause. Executive Order 13279 has potential ramifications on both of these clauses. Two separate questions need to be asked. First, does giving federal financial assistance to faith-based organizations violate the Establishment Clause? Second, does refraining from giving federal financial assistance to faith-based organizations violate the Free Exercise Clause and constitute religious discrimination? In addition, do the stipulations put forth to balance the protections of these clauses succeed in a Constitutional manner? By examining the possible answers to these questions, as well as the ramifications to signing such an order into law and where future challenges may lay, we will be able to determine if the President had the Constitutional authority to enact this order.
In section two subsection d, the order states, “All organizations that receive Federal financial assistance under social services programs should be prohibited from discriminating against beneficiaries or potential beneficiaries of the social services programs on the basis of religion or religious belief. Accordingly, organizations, in providing services supported in whole or in part with Federal financial assistance, and in their outreach activities related to such services, should not be allowed to discriminate against current or prospective program beneficiaries on the basis of religion, a religious belief, a refusal to hold a religious belief, or a refusal to actively participate in a religious practice”. To summarize, the order attempts to protect those receiving the social services of the federally funded faith-based organization, from the dogma of the organization’s founding religion. Hence, we have created a situation where the government now has authority over the practices of a religious institution.
It is not inconceivable that the dogma of a religion may guide the individuals practicing it, even in a social services capacity, to favor or discount those they serve based upon the consumer’s faith or lack thereof. By not allowing a faith-based organization to reject those who don’t follow their beliefs, you are for all intents and purposes, forcing them to accept those whose lifestyles may conflict with said beliefs, thereby limiting their right to discretion based upon their religion and dictating to them how they must practice their faith within the capacity of social services. Therefore, it could be claimed that the government is effectively stifling the faith-based organization’s free exercise. This is especially evident when considering the fact that it’s the belief systems of these organizations that lead them into community service.
Historically, the government’s ability to limit the right of an individual’s free exercise has been subject to the Sherbert Test. First, we can establish that this stipulation in the order is applicable to individuals, not simply the ambiguous entity of the organization, as individuals are the proprietors of the services in question. The test states that the individual’s claim to their faith must be sincere and the government’s action must place a substantial burden on their ability to practice their faith. In addition, the test lays out conditions for the government, forcing it to have a compelling state interest in this restriction and ensuring that the restriction be the least onerous option for furthering said state interest. The first standard of the test would necessitate judicial interpretation, as it is not this office’s job to try questions of fact such as the sincerity of a citizen’s religious belief. It is also clear the government has a compelling interest in incentivizing social service and that when one considers the balancing act the President is attempting to achieve between the Establishment Clause and that of Free Exercise, the restrictions laid out in subsection d are the least onerous possible. The questions arise within the second standard of the Sherbert Test, that being of “substantial burden” on the individual. The President’s order would be subject to the court’s chosen definition of the term.
The courts have yet to proscribe a set standard when defining this term, however in Sephardi v. Town of Surfside, the court stated it is “[a]kin to significant pressure which directly coerces the religious adherent to conform his or her behavior accordingly” Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227. The court further upheld that standard in the case of Westchester Day Sch. v. Vill. of Mamaroneck, 504 F.3d 338, 349. Could the organization’s dependency upon the federal funding, ergo the individual’s dependency on said funding for their salary, be construed as coercive enough to constrict their behavior? Would the individual act in conflict with their religious beliefs, because of the prohibition in subsection d in order to receive these funds?
In light of these questions and the ambiguous and undefined nature of the terms utilized in the Sherbert Test, it can be assumed that this order, specifically section two subsection d, could face challenges by religious institutions. These challenges would have the legal basis of the Free Exercise Clause and could arise, when federal funds are withheld due to findings of discrimination on the basis of the religions or lifestyles of those receiving these services. Those challenging subsection d, could conceivably make the claim that by forcing them to service those whose lifestyles do not adhere to or conflict with the religion motivating them to engage in this service work, the government is effectively holding their free exercise hostage to their livelihood. Hence, potential violations of the Free Exercise Clause may arise and the order may be challenged on this basis.
The second question to consider in regards to free exercise is whether denying federal funds to faith-based organizations engaged in social services, while providing it for secular organizations engaged in similar work, is a form of religious discrimination. While on the surface, it appears to be, when one explores the issue deeper that may not be so. In actuality, the opposite might be true. The lack of federal funding in regards to faith-based organizations may be protecting it from the government and helping to maintain these religion’s freedoms. That which the government funds, it controls. As mentioned above, the funding is dependent upon a restriction of the respective church’s dogma and practices. By maintaining financial independence from the government, these organizations also maintain their right to provide the services as they see fit. This includes providing the services under the cloak or within the consideration of their faith.
In subsection e of section two, the order states, “The Federal Government must implement Federal programs in accordance with the Establishment Clause and the Free Exercise Clause of the First Amendment to the Constitution. Therefore, organizations that engage in inherently religious activities, such as worship, religious instruction, and proselytization, must offer those services separately in time or location from any programs or services supported with direct Federal financial assistance, and participation in any such inherently religious activities must be voluntary for the beneficiaries of the social service program supported with such Federal financial assistance”. This is an attempt to maintain a wall of separation between the social services being provided and the religious practices attached to the faith. However, some serious concerns can arise here.
First, the term “religious activity” is ambiguous, even with the attached examples of proselytization, worship and instruction. For instance, the act of serving the community in itself could be considered by these organizations as religious activity. Second, one must consider the nature of jobs in the social service arena. Many include community outreach, home based services and work with youth. One on one time with clients and a substantial amount of field work where supervisors are not able to monitor the employees, give those doing the outreach considerable autonomy. Therefore, the logistics of ensuring the actions of employees do not constitute “religious activity” could be difficult. Especially in light of the ambiguous nature of what religious activity entails. While this normally would not be of concern, the addition of federal funds creates a situation where employees who either intentionally or unintentionally promote the religions that have driven them into this work, would be a violation of the Establishment Clause. In essence, the government would be paying workers to promote their religions.
Historically, the courts have called on the Lemon Test to derive whether or not the government has violated the Establishment Clause. The test includes examining the following standards; for a law to comply with the Establishment Clause, it must have a secular purpose, have a predominantly secular effect and not foster “excessive entanglement” between government and religion. When looking at the order we can see that the President has a secular purpose, that being incentivizing social service work. In fact, he’s attempted to ensure that any violation of the Establishment Clause is inadvertent via prohibiting religious activity in subsection e. And while entanglements may arise, they will not be of an excessive nature. However, the concern lies in whether the effect of providing federal funding to faith-based organizations will be predominantly secular. With the concerns regarding the ambiguous definition of religious activity and the difficult nature of monitoring the actions of the employees of these faith based organizations, it is easy to conclude that although the use of the funding is secular the effect may not be. In fact, in the Lemon case, Chief Justice Warren Burger wrote, “Pervasively sectarian institutions were likely to add religious content to secular classes”. Lemon v. Kurtzman, 403 U.S. 602 (1971).
In light of the court’s adherence to the Lemon Test, it is easy to conceive that challenges to this executive order may arise based upon the Establishment Clause. Federal funds given to faith-based organizations, however secular in intention, may not produce a secular effect. Keeping in mind the difficulties of establishing what is religious activity and monitoring for said activity in the unique arena of social service work, it is not inconceivable that religious content may be added to these services while using the dime of the American taxpayer to provide these services
Continuing, a challenge to the Establishment Clause may also arise from section two subsection f. It states, “Among other things, faith-based organizations that receive Federal financial assistance may use their facilities to provide social services supported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, a faith-based organization that applies for or participates in a social service program supported with Federal financial assistance may retain religious terms in its organization's name, select its board members on a religious basis, and include religious references in its organization's mission statements and other chartering or governing documents”. This further exasperates the concerns arising from subsection e and mirroring Justice Burger’s ruling in the Lemon case. Although the funds may be secular, the effect of them may not.
In fact, this is a more clear cut threat to our freedom from religion. In subsection f, the order does not attempt to separate the federal funds from the faith at question in these organizations. It appears to embrace, whole heartedly, the intermingling of tax payer funds with the religions behind these services. By allowing for the use of religious facilities for the services provided by these funds, it is essentially using public funds in the upkeep of religious icons and environments. Furthermore, the presence of such dogmatic figures and setting is inherently religious and persuasive. Hence, it is easy to believe that this order can be challenged on the basis of the Establishment Clause.
Potential Consequences to the Republic:
Challenges based upon both the Free Exercise and Establishment Clauses would utilize our system of checks and balances, by providing a judicial check on this executive power, thereby limiting any consequences to the republic. However, the courts recent contraction of who has standing to bring cases based upon the Establishment Clause may limit the possible litigation of this order. In order for a plaintiff to bring an action he must show that an injury in fact has been done to him. Establishment Clause cases are unique in regards to standing because showing a particular individual has been injured can be complicated. Instead, the injury seems to be to the ideological concept of the separation of church and state.
Traditionally, the court has applied what is called the Flast Test, arising from the 1968 case Flast vs. Cohen, where the court granted tax payers standing to bring Establishment Clause cases in front of the court. Until recently the courts have broadly applied this test in order to hear the pivotal cases regarding freedom of religion. However, two recent cases have begun to narrow the scope of who has standing. In Hein vs. Freedom from Religion Foundation and Arizona Christian School Tuition Organization vs. Winn the Supreme Court has declined to hear cases involving Establishment Clause questions on the basis of lack of standing. They’ve created precedent that presents difficulties for ensuring the judicial review of this order. Without the utilization of the check of judicial scrutiny on executive orders, the balance of power amongst the three branches of government can be skewed. It also fails to safeguard the rights of the citizens in regards to Establishment Clause issues.
This presents a unique problem when considering whether this is in the best interest of the republic. The slippery slope concept, otherwise known as the parade of horrors objection or wedge principle, is defined as, “An argument that every relaxation of a constitutionally imposed restraint is an invitation to justify some other or further relaxation of that restraint”. (Volokh, UCLA Law Review) Because free exercise cases do not have the same issues surrounding standing that plague Establishment Clause cases, the order does not pose the same threat to the concept of freedom of religion, as it does to freedom from religion. The citizenry can more easily challenge what they consider a threat to the free practice of their faith, as an injured party is easy to define in regards to this clause. With the limits on standing being implemented by the Supreme Court, the greater threat is to the Establishment Clause.
First, we need to look at the situation as a whole. Federal funding is being given to faith-based organizations in order to promote their social service work. The social service work in question creates a work environment where monitoring employee’s behavior is difficult. Furthermore, the order allows for the services to be provided in inherently religious settings, and the funding can be applied to the upkeep of these settings. Religious activity by social service workers for faith-based organizations will be prohibited; however religious activity is difficult to define. Therefore, social service workers can inadvertently or intentionally, promote a specific faith, while being paid by funds provided by tax payers who have a Constitutional right to be free from religion.
The recent narrowing of those considered to have standing to bring this specific type of case in front of the court could mean that a judicial check of this order, or similar future ones, may not be feasible. It is therefore, imperative for the continuation of the republic that the legislative and executive branches take extra precautions to avoid the slippery slope in regards to the Establishment Clause cases. When looking at the big picture, one can see this order would accomplish the opposite of guarding the freedom from religion, and is indeed a violation of the Establishment Clause via back door channels. In actuality, it could open the door to further relaxation of the Establishment Clause.
James Madison stated in his ‘Memorial and Remonstrance Against Religious Assessments’, that the Establishment Clause was to forbid government, “To force a citizen to contribute even three pence of his property for the support of religion”. From the dawn of our country, the attempt to keep government separate from religion has played a pivotal role in our governance and legislation. An issue so close to the core of our freedom and foundation should not be passed in a manner where the ability of the citizenry to challenge it could be non-existent. It is concepts such as the freedom from religion that are most at risk from the slippery slope. Therefore, if initiated, this order could pose a potential threat to the republic in regards to the protection of the citizenry from the establishment of religion.
A final consideration should be placed on the promotion of one religion over another. Specific religions carry more weight and popularity within our country, and unfortunately within our legislature. One need only consider the current popular sentiment towards Islam. Would they be granted the same consideration as mainstream Christian religions? Keeping in mind the polarizing ability of religion, is this a policy that can be applied equally? Could this lead to the further disenfranchisement of Muslim individuals in our society? There are also fringe and fundamentalist sects, masquerading behind the protections of the First Amendment and calling themselves religions, for example the Westboro Baptist Church. What would be the reaction of tax payers should their money be given to a sect such as Westboro? What would the consequences of giving such hateful fundamentalists funds to further their destructive agenda?
To decide the Constitutionality of this order we need to revisit our original three questions. First, does allowing federal financial assistance to faith based organizations violate the First Amendment’s Establishment Clause? The answer is unequivocally yes. The purpose of the money may be secular; however the effect of the money is likely to promote the particular religion behind the organization. By examining the inherent religious environments where the order allows these services to be provided and provides for their upkeep, as well as understanding the ambiguous nature of the term “religious activity”, one can easily conclude that “three pence” of the citizen’s money will be contributing to a religious agenda.
The second question was whether refraining from providing federal funds to faith-based organizations for their social services constitutes religious discrimination and therefore a violation of free exercise? The answer is unequivocally no. In fact, the opposite may be true. By accepting funding from the government, these institutions will also be accepting limitations on their dogmatic principles and worship. By remaining free of said funding, these organizations can provide the services in any manner, religious included, they so choose to.
The final question asked whether the stipulations set forth in the subsections of this order balanced the rights of free exercise and establishment in a Constitutional manner. It is this author’s opinion, in light of the cases presented above, that the order has failed to protect either interest and thus has failed at balancing them. In reality, this order violates them equally when the intention was to protect them equally.
Furthermore, when dealing with issues so central and foundational to our freedoms in this country, traditional methods must be used in order to secure the rights of the people and the separation of powers. Any law that could, even in the most remote way, infringe upon the crucial right of the people to be free in and of their faiths should be passed through channels that allow for recourse and repeal of such law. By invoking this policy through an executive order, especially in light of standing issues regarding the litigation of this manner, the President is clearly overstepping his bounds.
It is thereby decided that Executive Order 132279: Equal Protection of the Laws for Faith-based and Community Organizations, is not based on Constitutional principles and in fact violates them. Thus, the President does not have the Constitutional authority to pass such an order.