An association's pursuit of its chosen purpose benefits the state when it leads the association to perform a function valued
by the state, that is, when the apparatus of government has endeavored to pursue the same purpose as the association or at
least has expressed the desirability of obtaining an objective embodied in the association's chosen purpose. Obviously, this
overlap is not present where the association is dedicated to a purpose that is not valued by the state (e.g., collecting comic
books) or where the purpose is antagonistic to the state's expressed values (e.g., establishing the racial superiority of
white people). But, in a wide array of contexts – such as education, substance abuse, or poverty – the overlap is clear.
Many of today's battles emanate from the privatization trend in public services over the last two decades. My purpose here
is not to evaluate the trend itself, but to take it as the premise against which the relationships between nonstate entities
and the government must be analyzed. The goal of Charitable Choice – making it easier for religious organizations to receive government funding without sacrificing their distinctive religious identities – is laudatory, but the devil is in the details. If the government
is required to fund religious providers without regard to the manner in which they provide the public service, we marginalize
the government's own role as market actor, subverting public values in the process. At the same time, if heavy-handed regulations
accompany all public funds, the government threatens the viability of the marketplace, eroding organizations’ capacity to
function as mediating structures and turning them into state agents. One key factor in determining the nature and scope of
the regulatory strings attached to funding is whether the money is directed to the organization by the state itself or by
individual beneficiaries via vouchers.
When the state selects private entities to provide essential services with public funds, the state is acting as a market participant,
unavoidably making normative claims with its funding decisions. There is no reason to disqualify the state from pursuing certain
values through its market participation and no obligation that the state should embrace values that defy those embraced by
the public as embodied in government policy. This stems primarily from the inescapable moral dimension of the funding decision
– there is no morally neutral way of dispensing a limited amount of funds to a potentially limitless number of providers.
There is no morally neutral resolution of the bitterly contested debate over whether or not the federal government should
fund embryonic stem cell research. If the Department of Defense awards a construction contract to a company that has never
employed racial minorities, the moral dimension is inescapable, regardless of the company's compliance with the technical
specifications of the work. In a democracy, the state acts as moral agent of the people. When the state makes funding decisions,
it is supporting, or withholding support from, a particular type of provider, acting as a consumer on behalf of the citizenry
on whose behalf it speaks. In constitutional terms, the government has substantial discretion to attach strings to its funding,
even to take moral positions vehemently opposed by the institutions funded.
46Obviously, the state is no ordinary consumer. Given its size, in many fields the state is not subject to the relevant market
dynamics; rather, it determines the relevant market dynamics through its expenditures. The state must be sensitive to the
impact of its participation, because it can effectively close down the marketplace by funding certain groups but not others,
particularly in fields where the funds represent a significant portion of available revenue (ranging from health care, to
scientific research, to social services such as “welfare to work” employment training). This realization should affect how
aggressively the state imposes contested moral values through its funding decisions.
Accountability, not conformity, should guide the state's relationship with funded organizations. The tools of accountability
should be geared toward ensuring that the public purpose underlying the funding is actually being met.
47 If a nonprofit corporation running a faith-based program for recovery from drug addiction proves to have less (measurable)
success than available secular programs, cutting off funding
is not a case of religious discrimination. It is a case of the state acting as agent of the people in furthering the objectives
of the funding program. This may be obvious, but the public rhetoric on this issue should reflect recognition that equal funding
to religious and secular providers is not a stand-alone public value underlying funding decisions; it is a secondary attribute
of a funding decision that otherwise carries out the purposes of the program effectively.
The process by which private actors fulfill public objectives is not a value-free zone, but the “process” values to be imposed
should be minimal, widely held, and fundamental to the American vision of an open, democratic society. For example, forbidding
a government-funded homeless shelter from refusing shelter to individuals on the basis of race hardly bespeaks of a state
bent on eradicating moral diversity. Such measures ensure that the process by which the public objective is met is accessible
to everyone. In many cases, it is not much of a stretch to transfer the antidiscrimination principle from a provider's beneficiaries
to a provider's employees. It is difficult to build a logical case for making public funds available for hiring only whites
to staff a homeless shelter, particularly in a society in which the racial composition of the staff has no readily discernible
connection to the provider's ability to serve the public purpose.
Beyond relatively easy cases like these, the inquiry quickly gets thorny. An expansive application of public values – even
antidiscrimination values – poses a significant obstacle to associational autonomy. This is most obvious for groups that accept
funds with strings attached; however, less direct threats face unfunded groups forced to compete against funded groups.
48 Religious discrimination in hiring by a religious organization that receives public funds is the most fertile ground for
exploration, as evidenced by its centrality to the real-world political debates in this area.
49Hiring policies at the Salvation Army
(“the Army”) have provided the grist for the most widely publicized of these conflicts, beginning from news reports in 2001
that the Army had reached a deal with the Bush Administration to allow employment discrimination against gays by religious
organizations in exchange for the Army's public support of the President's faith-based initiatives.
50 The ensuing controversy helped derail the proposed legislation, but the Army soon found itself under fire again for practicing
religious discrimination as a federally funded nonprofit corporation.
The story of Mary Jane Dessables, a former director of the Army's Social Services for Children agency (SSC) in New York City,
makes plain the tension between the Army's officers, who have ultimate authority over the organization and are strongly committed
to the religious beliefs underlying its mission, and the front-line employees, who tend to be professional social workers.
51 When Dessables worked at the Army's office in Buffalo, for example, she recalls that before sending a job candidate's resume
to the officers for approval, “my boss took the second page off because she had listed that she was a member of the Pro-Choice
Action Network,” and “that would not be a good thing for the officers to see.”
52 At SSC in New York City, by contrast, she asserts that the Army's officers tolerated agency practices that diverged from
the Army's religious beliefs, including the provision of birth control and facilitation of abortions. Dessables attributes
this inconsistency to the SSC's determination “that we were going to do best practices of social work, and if that conflicted
with the Salvation Army structure, we were still going to do best practices of social work.”
53 This was a relief to Dessables, who acknowledges that “[w]ithin the social work world, it is fairly well known that the Army
is a church with strong religious beliefs on contraception, abortion, and homosexuality.”
54 Indeed, according to Dessables, “[i]n graduate school, I had to defend the SSC all the time, saying that we are not like
that. We are not counseling against abortion. We are not withholding birth control. We are not discriminating against gays.”
55Dessables' comfort that her agency's practices were not consistent with the sponsoring organization's conservative religious
beliefs dissipated as the Army initiated efforts to integrate more fully the religious dimension of its mission with its ground-level
operations. Labeled a “One Army Concept,” the reorganization plan sought to ensure that “a reasonable number of Salvationists
along with other Christians [will be employed] because The Salvation Army is ‘not a Social Service Agency [but] a Christian
Movement with a Social Service program.’”
56 Although the previous employee manual had guaranteed “equal employment without unlawful discrimination as to…creed,” the
Army introduced a new manual providing for “equal opportunity for employment…except where prohibition on discrimination is
inconsistent with the religious principles of the Salvation Army.”
57 SSC employees were now required to acknowledge and support the Army's religious mission, which is to “preach the Gospel of
Jesus Christ.”
58The plan directed the Secretary of Social Services for Greater New York to “conduct all activities of his office with a view
to accomplishing the Army's fundamental purpose of proclaiming Jesus Christ as Savior and Lord, which purpose must find expression
in both the message proclaimed and the ministry of service performed.”
59 Much of the effort focused on personnel, as the Army asked the SSC supervisors to gather information from employees’ ministers
about their church attendance and standing.
60 When one longtime director resisted, he was escorted off the premises by security.
61This is not just a case of a religious organization clamoring to reclaim its roots. It is the case of a religious organization
that subsists on public funds clamoring to reclaim its roots. SSC receives 95% of its $50 million annual budget from government
entities.
62 This funding was a centerpiece of the lawsuit brought by Dessables and other employees against not only the Salvation Army,
but the federal government. The claims were steeped in the language of conscience, asserting that “Plaintiffs cannot, as a
matter of conscience and professional responsibility, sign a form stating that they would acknowledge and support The Salvation
Army's Evangelical Christian teachings.”
63 The court dismissed most of the claims against the federal government, reasoning that there was no basis for concluding that
“the employment practices of the Salvation Army may properly be attributed to the government defendants.”
64 The court found no intent to discriminate by the government in choosing to fund the Salvation Army because “the contracts
existed before the Salvation Army initiated the Reorganization Plan and they included provisions mandating that the Salvation
Army not engage in unlawful employment discrimination.”
65The facts of this case underscore the tension faced by the state when it chooses to fund certain organizations to provide
social services. By hiring without reference to religion, the Army hired employees who apparently felt greater loyalty to
their fellow social work professionals than to the contrary moral claims that animated the Army to enter the field (and hire
them) in the first place. At the same time, supporting such discriminatory practices with taxpayer dollars strikes many as
beyond the pale. To critics, tolerating such intrusive and exclusionary employment practices is one thing; financially empowering
them with public funds is quite another.
It will always be tempting to use the strings attached to funding as a way to enlist private actors in public projects.
66 As Jody Freeman points out, private actors need not be viewed simply as “menacing outsiders whose influence threatens to
derail legitimate ‘public’ purposes,” for they are “also regulatory resources capable of contributing to the efficacy and
legitimacy of administration.”
67 Freeman is remarkably candid in acknowledging that she sees privatization, not “as a means of shrinking government,” but
as “a mechanism for expanding government's reach into realms traditionally thought private.”
68 The “public/private engagement” can enhance “state power while simultaneously augmenting private power,” as “agencies may
extend their influence to matters and actors that they could not otherwise lawfully reach.”
69The problem is that this state aggrandizement, however noble its aims, threatens to marginalize the religious and moral convictions
on which a private provider's devotion to the common good is based. To the extent that the strings attached to state funding
render providers morally fungible, the cost cannot be measured simply in the number of providers who choose autonomy over
the level of public service made possible by funding, but must also count the providers who choose the path of homogeneity,
valuing continued funding over autonomy. These providers essentially make themselves accountable to the collective norms pursued
by the state, rather than the conscience-driven norms of their constituents.
As noted previously, state funding decisions are laden with moral claims, and nothing in this book should be read as presuming
that the state is wedded to a position of moral neutrality. Rather, this book is premised on a more nuanced question: Under
what circumstances can the state assert moral claims as a marketplace actor without shutting down the marketplace itself?
When the state funds an organization that includes as part of the public service a moral claim that conflicts with an essential
public value, the message can easily be attributed to the state based on its decision to fund that particular provider.
70 If the moral claims expressed by the provider are tangential to the public service, there is less reason to deny funding
because there is less risk of attribution.
For example, the Salvation Army's theological views, which include a belief that homosexuality is immoral, should not categorically
preclude its affiliated social service agencies from receiving government funds. However, if the Salvation Army were to operate
an AIDS hospice in which residents were asked to repent from any homosexual conduct as part of making peace with God, the
government would not be overreaching morally to deny funding to such a program. In its role as a marketplace
actor embodying public values, the state can ensure that its functions are carried out in keeping with those values. But,
in its concurrent role as marketplace facilitator, the state overreaches if it requires all funded organizations to conform
their overall moral identities to public norms. Obviously, it will not always be easy to distinguish between the moral claims
made as part of a provider's public function and the moral claims otherwise embedded in the provider's identity, but the demarcation
is essential for maintaining venues of conscience without rendering the state an amoral shell.
The state may also ensure that the social service providers it chooses to fund allow equal access to those funds – whether
by individuals who need the funded services or by individuals who seek the funded employment. Although the state's legitimate
interest in ensuring access does not justify heavy-handed state requirements that the organization promote messages that are
in tension with its mission,
71 the state can require that formal barriers to access be removed. If this makes it more difficult to compete in the marketplace
for certain discriminatory groups who must give up funding because they reject the equal access norm, so be it. Conscience's
vitality requires the maintenance of venues in which countercultural convictions can find shared expression and purpose; it
does not require that those venues be given state-subsidized platforms. The vitality of conscience must be measured by an
organization's freedom to remain faithful to their mission, not by their marketplace success. If the Ku Klux Klan
were somehow able to open and operate an effective homeless shelter that served and was staffed by whites only, it should
not expect to receive public funds.
As a marketplace actor, the state is free to include within its moral claims a prohibition on funding the Salvation Army pursuant
to the equal access norm. However, in light of the principled distinction between the Army's hiring discrimination and other
forms of hiring discrimination, and given the importance of mission-sensitive hiring to a vibrant marketplace of social service
providers, the state should decline to do so. Religious discrimination in hiring should not preclude public funding of religious
organizations because allowing religious organizations to consider religion in hiring does not stack the deck in favor of
religion. An exemption in this case gives religious organizations the same ability to pursue their missions that secular organizations
enjoy. Planned Parenthood
will not, and should not, lose access to public funds by requiring employees to affirm the cause of reproductive rights.
Amnesty International should not lose funding by declining to hire a pro-death penalty advocate. The Ku Klux Klan should not
receive public funds with a whites-only hiring requirement, but a requirement that all employees indicate support for the
Klan's mission (including a belief in the racial superiority of whites) should not be similarly
disqualifying.
72 The Salvation Army
should be able to hire employees who share its commitment to proclaiming “the Gospel of Jesus Christ.” Conditioning funds
on an organization's willingness to sacrifice its identity as a community of shared belief unnecessarily excludes the groups
that place the highest value on their shared beliefs and unwisely homogenizes the rest.
Religious organizations are exempt from Title VII's prohibition on religious discrimination in hiring, and their acceptance
of public funds does not negate the rationale for that exemption. If anything, the rationale is even stronger when public
funds are involved. As the state pushes more of its functions to nonstate entities, its funding decisions can reshape entire
fields and determine a given organization's competitive viability. If only secular organizations are permitted to hire consistently
with their missions and maintain funding eligibility, the marketplace in those fields could quickly skew against religious
organizations. The state, in its conscience-friendly role as marketplace facilitator, should permit funded organizations to
hire individuals who share the moral or religious claims that motivate the organization's entry into the public service arena
in the first place.
The importance of this specific exemption notwithstanding, the state does not overreach by imposing more general nondiscrimination
hiring and service norms, demanding effective and efficient performance of the publicly valued task, and distancing itself
from moral claims that conflict with public values. An association may find it difficult to thrive in the marketplace without
public funding, but it should proceed cautiously, counting the cost of becoming more reliant on – and responsive to – the
state, rather than the constituents whose moral claims provide the association's very reason for existence.
The conscience-squelching dangers of direct government funding are partly alleviated through a voucher system, presently used
for services such as childcare, substance abuse recovery, and education. When individual beneficiaries of government programs
are allowed to choose where to spend government funds, the state is acting as a marketplace facilitator. Rather than entrusting
the state with the responsibility of selecting particular providers that most deserve funding, individuals are empowered to
bring the dictates of their own consciences to bear on the choice of provider. Within broad limits, the supply of state-funded
providers should be allowed to reflect individuals' moral and religious preferences.
73Three factors make voucher programs more amenable to conscience than direct funding programs. First, the relationship between
the state and the funded provider is more attenuated, and attribution of the provider's moral claims to the state less likely,
when the beneficiary chooses the provider. There is thus less danger that individuals will perceive their moral claims as
being opposed or rendered superfluous by the monolithic state's espousal of public norms. Second, the state's actual impact
on the marketplace is not as stark when responsibility to direct the funds is dispersed among many individual moral agents.
With vouchers, prospects for conscience do not rely as squarely on the state's capability of self-restraint; market mechanisms
will more naturally bring the moral identities of providers in closer conformity with the moral identities of beneficiaries.
Third, when providers are dependent on being selected by individual beneficiaries, grass roots accountability develops; that
is, the organization's moral identity is defined from the bottom up, which is the benchmark of an effective mediating function.
The most serious threat posed by a direct funding program – that providers become morally homogeneous agents of the government
rather than venues for the living out of divergent moral convictions – becomes less pressing.
The state's role is not completely erased, however. In approving an organization as an eligible recipient of vouchers, the
state must ensure that the organization will accomplish the public purpose effectively. Because government funds are involved,
the government should have reasonable discretion to inject its own view of effectiveness into those requirements. Unlike the
direct funding context, the state should not be as concerned with the substantive moral claims expressed by a provider in
a voucher system, even when the claims are part of the service provided. If the operators of an otherwise effective AIDS hospice
held bible studies for residents in which they expressed theologically conservative views on scriptural passages discussing
homosexuality, the state's role as marketplace facilitator counsels in favor of maintaining the hospice's eligibility for voucher funds.
This assumes that 1) the voucher program includes viable alternative hospices at which such bible studies would not occur;
and 2) beneficiaries are informed of the moral claims reflected in a hospice's operation prior to selecting one. If options
are lacking, of course, then the empowerment promised by vouchers is illusory.
The “process” values – those public norms governing the openness and accessibility of a funded program – remain relevant even
with vouchers. Such values do not define the substance of the services eligible for funding; instead, they forbid funded providers
from negating citizens’ eligibility to act as market participants. As with direct funding, providers' resistance to those
norms will become more heated with the norms’ expansion.
Consider the case of the adult day care center in Minnesota operated by a conservative church and funded in part by government
money. A transgendered individual was turned away from the center on the ground that his presence was inconsistent with the
church's beliefs.
74 Government officials wisely ended their funding of the center based on the nondiscrimination requirements of the funding
legislation. It makes no difference whether participants are excluded by an organization funded directly by the state or as
part of a voucher program. Either way, the individual has been excluded from publicly funded services for reasons deemed illegitimate
by the public. Deferring to these expressions of the collective conscience does not elevate the state as moral arbiter, but
simply sets the ground rules of a functioning, publicly funded marketplace.
The differences between vouchers and direct funding should not be understated. Vouchers provide a more fertile ground for conscience because as part of a
viable market, they entail the voluntary and mutual embrace of mission by beneficiaries and providers. In this regard, vouchers
reflect the communal nature of conscience while avoiding the mistake of equating communal formation with collective imposition.
With vouchers in hand, beneficiaries can become part of a conscience-shaped community in a way that is not feasible when funding
decisions rest exclusively with the state.
In the absence of funding, government regulation of an association's pursuit of a shared moral purpose becomes most dangerous
because it represents the removal of a particular moral claim from the marketplace completely. Moral claims, as divergent
from the mainstream as they might be, provide the foundations for venues in which conscience can be lived out. Unhinged from
funding, the state's naked assertion of authority over morally divergent groups becomes a straight power play. It is no longer
a question of taxpayers subsidizing practices that create tension with foundational public norms; it is a question of the
state using a failure to adhere to those public norms as justification for shutting down a group's market participation entirely.
Especially when state regulation is not limited to guaranteeing access to essential public goods and services,
75 the viability of conscience is imperiled.
One noteworthy recent example of this is the enforcement of a Massachusetts law requiring that adoption
agencies not discriminate against same-sex couples as
potential parents for placement purposes. Rather than include same-sex couples in its adoption services, Catholic Charities
decided to end its services in light of binding Church teaching. In enacting this law,
76 the state was not acting as market participant, seeking to influence Catholic Charities’ moral identity through the provision
or withholding of funds.
77 Nor was the state acting as a check to ensure that public services are performed competently. There was no allegation that
Catholic Charities’ discrimination against same-sex couples had compromised the quality or effectiveness of its adoption work
– unless the failure to abide by the nondiscrimination norm is, by definition, equated with a lack of competence. It is not
as though the exclusion of same-sex couples from the pool of adoptive parents compromised the pool's quality to such an extent
that there was a meaningful impact on the best interests of adopted children.
Provided that birth parents were informed of the organization's discriminatory policy, and that they could have chosen other
agencies that did not exclude same-sex couples, the state should have allowed the marketplace to function. Note that this
does not mean that Massachusetts officials needed to remain on the sidelines completely; they could have publicly criticized
Catholic Charities’ policy while continuing to ensure that no state funding made its way to the organization. The legislature
could have prohibited discrimination by the state's own adoption agency, sending a powerful message and perhaps recalibrating
the industry norm as the largest adoption services provider. Other citizens and the myriad associations to which they belong
could have boycotted, protested, and otherwise brought attention to the discrimination in hopes that Catholic Charities would
eventually change its position. Such a bottom-up approach to social change provides even more avenues for individuals to act
on conscience. Instead, Massachusetts shut down any potential market-driven moral interaction by elevating its nondiscrimination
norm as a collective trump. Instead of Catholic Charities responding to the demands of its constituents, it was left to pay
heed to the dictates of the state.
Admittedly, certain state dictates are prudent in an endeavor as undeniably public as the placement of children with adults
other than their biological parents. For example, suppose that Catholic Charities excluded not same-sex couples as adoptive
parents, but nonwhite couples. Leaving this moral stance to operate freely within the marketplace would ignore the fact that
the public discourse on race
has extended over many years and has resulted in what can readily be perceived as a broad consensus on the moral illegitimacy
of racial discrimination. No comparable conversation on sexual orientation has yet occurred. In other words, the normative
claim for freedom of conscience on sexual orientation is qualitatively different than a similar claim on race given the degree
to which moral claims related to sexual orientation remain contested.
78 It is not that the state should not stake out positions on moral controversies until they are conclusively resolved; it is
just that they should resist shutting down opposing view points so early in the conversation.
More glaring examples of the state's moral overreaching came recently in California and New York, where the legislatures enacted
measures requiring all employers to include contraceptives
in their employee health care coverage. An exemption for religious employers was drawn so narrowly that Catholic Charities
fell outside its scope. The law was upheld by the courts,
79 and thus employers in that state are required to subsidize the use of products that they find fundamentally immoral. In this
regard, the legislation embodies the hollowed-out vision of conscience that dominates today's discourse and obliges the state
to favor the individual in any contest against group authority. It is, of course, a woefully simplistic view of the conditions
necessary for conscience to flourish. Catholic Charities did not foreclose the use of contraceptives by any individual: If
an employee desired to use them, she could have paid for them herself; if she considered it important not to have to pay for
them, she could have chosen another employer. On this point, the New York Court of Appeals asserted, “when a religious organization
chooses to hire nonbelievers it must, at least to some degree, be prepared to accept neutral regulations imposed to protect
those employees’ legitimate interests in doing what their own beliefs permit.”
80Left unaddressed is the organization's interest in serving as a communal embodiment of a distinctive set of beliefs. It is
not as though the statute protects the individual against being coerced in her exercise of conscience; it goes much farther and protects the individual against being inconvenienced in her exercise of conscience, but at the cost of erasing another venue where countercultural moral claims can be integrated
into the life of the community. The state does not honor conscience simply by empowering individual preference; in its relational
dimension, conscience requires a recognition that group authority matters and that the authority of individual preference
cannot be unfettered.