Legal Analysis

Monitoring and Analyzing Legal Developments

Efforts are underway at federal, state and local levels to involve faith-based organizations in the provision of a wide variety of social services, financed in whole or in part by government. Whatever its social potential, such support raises fundamental constitutional questions about the relationship between faith-inspired institutions and the state, which remains a source of great uncertainty and heated conflict. American church-state law will not merely be implicated in the debate over charitable choice; it will inevitably be remade in ways that will affect our understanding of this part of our constitutional tradition for generations to come.

The contours of church-state law have changed dramatically in the past thirty years. In the early 1970's, the separationist vision of church and state was at its zenith; government benefits to, and burdens upon, religious enterprise were always constitutionally questionable. By the end of the 1990's, however, separationism had been challenged or repudiated in a number of court decisions, and a new vision emerged emphasizing government neutrality as between religion and nonreligion , where government-created benefits for and burdens upon religious entities are viewed as acceptable so long as they are matched by comparable treatment of secular analogues. This transformation is incomplete, however, and there remain some vital arguments as to why and how separationism and neutrality may quite properly be made to co-exist, each in its own proper place.

Questions on church-state law have considerable and immediate implications for policymakers. Federal and state administrative law and the law of government contracts depend in large measure on principles in constitutional law. As these principles change or are perceived to change, there will be momentum and opportunity to alter other bodies of law in response. A situation of this sort will produce many layers of complexity and many possibilities for confusion, honest mistake, or manipulation.

Considerations of law are also highly relevant in helping social scientists and policy analysts to frame questions about the optimum public investment in charitable choice. Programs that "work," but that courts will not tolerate, are not likely to be good options for government or religious organizations to choose. Inversely, if the programs that courts will tolerate will not produce high quality service or will rend the fabric of religious communities, charitable choice becomes a problematic path.

As a core service for government decisionmakers and others interested in these issues, The Roundtable on Religion and Social Welfare Policy researches, tracks, and analyzes legal developments in government aid to faith-based social welfare organizations, involving federal and state constitutional and statutory law. The Roundtable's legal research:

  • interprets the significance of broader constitutional law developments, such as aid to non-public schools, for charitable choice;
  • identifies settled areas of constitutional law that form accepted parameters of aid to FBOs;
  • assesses where legislative schemes or agency rules fail to reflect such parameters - either out of reluctance or over-eagerness to include religious providers in social welfare programs;
  • focuses on continuing areas of uncertainty, such as religious selectivity in employment decisions.
  • serves as a thorough and nonpartisan clearinghouse for the broader public - including the media and legal scholars - interested in the interaction of government and religious social service providers.

The Roundtable's legal research is directed by Professor Ira C. Lupu, the F. Elwood and Eleanor Davis Professor of Law at George Washington University School of Law. One of the nation's foremost scholars on the religion clauses of the First Amendment, Lupu has authored more than 20 law review articles on various aspects of religion and the law. Joining him as co-director is Robert Tuttle, Professor of Law at George Washington, who also holds a master's degree from the Lutheran School of Theology and a Ph.D. in religious ethics from the University of Virginia. Tuttle has served on the national board of the Evangelical Lutheran Church in America's Division for Church in Society, and as legal counsel for the Lutheran Bishop of Washington, DC.