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Jewish World Review Feb. 13, 2001 / 20 Shevat, 5761

Nat Hentoff

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What a web! -- IN ESTABLISHING a White House Office of Faith-Based and Community Initiatives, George W. Bush has stepped into a minefield of constitutional problems. Billions of dollars of federal funds will be made available to religious organizations and charities that provide such services as homeless shelters, soup kitchens and treatment programs for drug addicts and alcoholics.

The government, the president says, "cannot and will not fund religious activities." Only the social services will be paid for by public funds. However, former Indianapolis mayor Stephen Goldsmith, who will have an important role in this new, expanded merger of the secular and the sectarian, said last year that a homeless shelter receiving public funds can insist that a person in need of shelter pray once a day for his bed.

Further blurring the line between church and state, the president's advisers told the Jan. 31 New York Times that "any religious group, including controversial organizations like the Church of Scientology and the Nation of Islam" would be allowed "to compete for government money if their social services programs had proven results."

However, both the Nation of Islam's religious and social activities are pervaded by anti-Semitism.

Accordingly, many Jewish taxpayers will surely be protesting the allocation of their tax dollars to Minister Louis Farrakhan. This hardly helps to unite the nation. If this and other such protests become politically uncomfortable for the president, Farrakhan or the Church of Scientology may be banished. But this leads to a problem noted by Wendy Kaminer of Radcliffe College on PBS's NewsHour with Jim Lehrer: "When the government gets involved in funding sectarian activities, it inevitably comes under pressure to favor popular religions and to discriminate against very unpopular religions. Government bureaucrats will be talking about the difference between legitimate and illegitimate religions. That's very dangerous."

It is dangerous because it violates the free exercise of religion clause of the First Amendment. Another problem addressed only in part by Stephen Goldsmith, who has been speaking for the president on this issue, is, as he puts it: "Government can fund the shelter, it shouldn't fund the Bibles."

But money is fungible. Is there going to be pervasive government auditing to check for the misuse of government funds? "It is possible," Goldsmith concedes, "to move the money on the other side of the line." Before government funds arrive, money already budgeted for the soup kitchen can be freed for a purely sectarian purpose.

This constitutional minefield raises the most fundamental objection to the Bush plan. These new, broad entanglements between church and state will inevitably require much more government regulation of faith-based social services. Until now, the practice has generally been to have a division devoted to social services totally separate from religious activities -- as is the case with the Catholic Charities organization.

Early v. Dicenso (1971) was a Supreme Court case involving parochial school teachers who received a salary supplement from the state. Those teachers were forbidden to teach any courses in religion, and could use only texts that were found in public schools. Chief Justice Warren Burger, hardly an enemy of religion, ruled that "a comprehensive and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment (Establishment Clause) obeyed."

The president may not be well-versed in why we have an Establishment Clause in the First Amendment. Brent Walker, executive director of the Baptist Joint Committee, knows why. He opposes George W. Bush's program "precisely because of our religious conviction and our desire to maintain religious freedom. How can religion raise a prophet's fist against government with its other hand open for a handout?" How free can any religious organization be with government bureaucrats continually overseeing whether it is legally using public funds?

An especially illuminating debate on this subject was on PBS's Jan. 29 edition of "NewsHour" with Jim Lehrer. The guests included Stephen Goldsmith, the Rev. Floyd Flake, and opponents of Bush's plan. When I asked for a transcript, a spokeswoman for "NewsHour" said I would never, ever, again get anything from the program because I'd written something "nasty" about Lehrer. What I wrote, in this column, was about his inept performance in the televised presidential debates. My appraisal was joined by reporters and editors of all political faiths.

I was rather surprised that "NewsHour," financed in part by public funds, would punish the free exchange of ideas. Maybe I should have said that my request for a transcript was faith-based.

JWR contributor Nat Hentoff is a First Amendment authority and author of numerous books. Send your comments to him by clicking here.


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