This paper, originally presented as the Annual Lecture at DePaul University's Church/State Center, addresses the many constitutional issues raised by President George W. Bush's Faith-Based and Community Initiative. Part I of the paper provides the political and legal background of the Initiative, up to and including the recent flurry of Executive Branch activity to implement it. Part II of the paper constructs the constitutional prism through which we believe the Initiative, like all constitutional questions relating to religion, should be viewed. In particular, we analyze the law of the Religion Clauses in terms of the constitutional distinctiveness or non-distinctiveness of religion and religious institutions. In some circumstances, constitutional principles mandate non-distinctive treatment of religion. The access of private religious voices to the public forum is a good example. In other circumstances, constitutional principles mandate wholly distinctive treatment of religion. The prohibition on government endorsement of sectarian messages is a good example. In all other circumstances, government is free to exercise discretion to treat religion and its secular analogues similarly or dissimilarly, though that discretion is frequently bounded in particular ways. Locke v. Davey, and Corp. of Presiding Bishop v. Amos, are good examples of such discretion being exercised in permissible ways. Relying on this complex prism of constitutional distinctiveness, Part III of the paper returns to the Faith-Based and Community Initiative, and analyzes the issues it has spawned. Part III discusses comprehensively 1) the differences between direct and indirect government financing of faith-based organizations, and the substantive and procedural requirements imposed by the Constitution with respect to each; 2) the Administration's regulatory approach to the Initiative, and the failures of guidance associated with its efforts; 3) the lower courts' treatment of the lawsuits that have arisen out of the Initiative; and 4) the thorny issue of whether the Constitution requires, permits, or forbids the possibility of faith-based hiring by religious organizations engaged in government-financed social services.
Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1 (2005).