Compassion Inaction: Why President Bush's Faith-Based Initiatives Violate the Establishment Clause
The Administration's Faith-Based Initiatives would fail a constitutional challenge under the Establishment Clause of the First Amendment. Applying the three-pronged test developed in Lemon v. Kurtzman and Zelman v. Simmons-Harris, this Comment concludes that the Initiatives, (1) though purportedly secular, have been enacted for a sectarian purpose and are not neutral toward religion; (2) are coercive and fail to fulfill the condition of private choice because the rural poor, such as those in Franklin County, Washington, whom the Initiatives target, realistically cannot choose between non-religious and sectarian service providers; and (3) to the extent that Initiative funded programs can be kept separate from sectarian influence, they constitute impermissibly excessive entanglement between government and religion. Therefore, federal taxpayers, whose tax dollars fund Faith-Based Initiative programs such as the Compassion Capital Fund for Lourdes Hospital, a Catholic run facility in eastern Washington, have a cause of action under the First Amendment and should succeed in challenging the Initiatives under the Establishment Clause test. Additionally, this Comment identifies serious problems with the Initiative program in light of public policy interests. That this complicated and expansive funding program provides inadequate guidance to religious service providers, lacks transparency in its operations, and contains no obvious oversight provisions, not only undermines the Administration's purported purposes, but also indicates that the program is ripe for abuse. As it crosses the limit of permissible government entanglement with religion, the Bush Administration acknowledges that it is toying with a “delicate” constitutional balance of interests. Yet, it has not demonstrated the capacity to safeguard this balance. Today, as poor Americans become poorer and the national debt continues to rise, we must invoke the Constitution to prevent the Executive branch from oppressing the rural poor, America's most vulnerable demographic sector, with state-sponsored religious coercion that negatively impacts recipients' health and wellbeing. To allow such religious oppression undercuts the intent of the framers of the First Amendment. Part II of this Comment describes one rural Washington community that is indicative of the population that the Initiatives purport to target: the poor and underserved. The policy and structure of the Initiatives are outlined in Part III, including funding streams that reach these rural Washington State residents through Catholic run healthcare programs in Franklin County. In Part IV this Comment briefly surveys the history of Supreme Court Establishment Clause jurisprudence and identifies the test applicable to this set of facts. Part V scrutinizes these Initiative programs under the combined Lemon and Zelman test, and Part VI concludes that the Initiatives entail a government establishment of religion and, therefore violate the First Amendment to the United States Constitution.
Martha A. Boden, Compassion Inaction: Why President Bush's Faith-Based Initiatives Violate the Establishment Clause, 29 SEATTLE U. L. REV. 991 (2006).