A seemingly minor proposal buried in the Federal Register is sparking debate over the extent to which separation of religion and state should be maintained beyond American borders.
At issue is an attempt by the U.S. Agency for International Development (USAID) to ease existing regulations to allow funding for the construction and upkeep of religious institutions overseas.
The agency claims that current restrictions infringe on its ability to carry out its mission, which is to provide American-funded development aid to countries in need. But civil rights activists are crying foul, arguing that the proposed change represents a departure from the First Amendment’s Establishment Clause.
The debate also encompasses the broader issue of defining permitted government activity in an era of increased acceptance of faith-based institutions as legitimate providers of government-funded social services. With the endorsement of government-religious partnerships by both Republican and Democratic administrations to varying degrees, all sides are struggling to shape the new guidelines for federal support for services provided by religious institutions.
Civil rights advocates were quick to notice the proposed amendment to USAID’s funding guidelines posted in the Federal Register on March 25. The amendment suggested a change in the 2004 rules that govern the use of USAID funds for faith-based organizations. These rules, while allowing religious organizations to compete on an equal basis for USAID funding, explicitly prohibit the use of U.S. government funds for the “acquisition, construction, or rehabilitation of sanctuaries, chapels,” or any other houses of worship.
Now, USAID, through its Center for Faith-Based and Community Initiatives, is arguing that these restrictions go beyond the requirements of the U.S. Constitution’s Establishment Clause and “interfere with the ability of USAID to effectively implement the bilateral foreign assistance programs of the United States.”
The agency instead is proposing a five-question test for determining the eligibility of overseas religious institutions to receive funding for construction. These criteria include requirements that such institutions have a secular purpose for their activity and that they be available to all without reference to religion.
An agency spokesman would not provide examples of situations in which USAID is seeking to fund the building of such religious institutions overseas.
Bill Corcoran, president and CEO of ANERA (America Near East Refugee Aid) the largest American charity working in the Middle East to provide aid to Palestinians, said that in his years of working on the issue he has not encountered the need to use government money to fund the building of mosques or other houses of worship. “That would be new for me,” he said. While some work has been done in the past to repair schools or hospitals run by religious groups, Corcoran said, no funding has been provided for structures defined as places of worship.
Critics of the proposed change argue that it represents more than a mere adjustment of regulations. In a May 9 letter to USAID, a group of scholars called for the withdrawal of the proposed amendment. The change would “bring about a dramatic shift in the federal government’s policies,” the scholars wrote. Among the signatories of the letter are Melissa Rogers, who chaired President Obama’s Advisory Council on Faith-Based and Neighborhood Partnerships, and Rabbi David Saperstein, director of the Reform Movement’s Religious Action Center, who was a member of the council. The advisory council put out guidelines for the use of federal money for funding services provided by religious groups.
Robert Tuttle, a professor of law and religion at George Washington University who also signed the letter, told the Forward that he believes the proposed change would be “a departure from the current U.S. policy” and that it represents a “significant change of course in the interpretation of the Establishment Clause.”
The Anti-Defamation League, in a May 6 letter to USAID, opposed the change, stating, “If the federal Establishment Clause stands for anything, it most certainly stands for the principle that our government does not implement taxes or use tax dollars to build houses of worship, chapels and other religious structures.”
A key question posed by the USAID move is whether there is a distinction between funding religious institutions domestically and using U.S. taxpayer dollars to pay for religious institutions overseas. The language put forward by USAID does not address this issue, which is in dispute among legal scholars.
But the agency has come under scrutiny in the past for using taxpayer dollars to fund religious projects overseas. In 1988, the Washington Jewish Week reported that USAID was funding Orthodox Jewish and Catholic religious institutions overseas. The American Civil Liberties Union took the issue to court and won on both the district and federal appeals court levels.
Herman Schwartz, the lawyer who represented the ACLU at the time, was later asked by the U.S. State Department to help formulate regulations to ensure that all funds sent overseas meet constitutional requirements. Schwartz, who is now a professor of law at American University in Washington, said it was clear then, as it is now, that there is no difference between using federal funds for religious activities in the United States or overseas.
“Citizens do not have to pay taxes to support the establishment of religion whether it is here or abroad,” he said.
Schwartz also questioned the need for a new USAID regulation, given the agency’s stipulation that money would go only to fund the construction of religious buildings that are used for secular services. “If it is not used for religious purposes, then what kind of a house of worship is it?” he asked.
Critics of the proposed regulatory change hope USAID will either amend or abandon its effort.
If funding is ultimately granted under the new rule, civil rights groups could try to challenge it in court. But Tuttle, the George Washington University law professor, warns that the courts would be likely to reject their legal standing to do so. “There is no real threat of ‘we will sue you’ here,” Tuttle said.
Andrew Bailey, a spokesman for USAID, told the Forward, “We take all comments received very seriously and will give them careful consideration before taking any next steps in this process.”
Contact Nathan Guttman at email@example.com