Berkley Center

Yesterday Senator Obama delivered a bold address in which he spoke of establishing a “Council for Faith-Based and Neighborhood Partnerships.” This endeavor, he emphasized, “will be a critical part of my administration.”

I am not a legal scholar, but a mere biblical exegete. This disqualifies me from commenting authoritatively or even insightfully on the legality of this proposal--a proposal made by a politician who, incidentally, knows his constitutional law.

Still, Obama's plan strikes me as deeply problematic on both theoretical and practical grounds. Those who may be familiar with my work know that I have been very critical of Old School Secular Liberalism, seeing it as out of ideas and energy. But what I am about to say is going to make me sound so Old School Secular Liberal.

So be it.

“Excessive entanglement”—The idea that the Constitution prohibits “excessive government entanglement” with religion emerged most noticeably from the United States Supreme Court’s 1971 Lemon v. Kurtzman decision. This ruling has been the scourge of religious conservatives who wish to see religion play a greater role in the public square.

I too, admittedly, have often found the logic of Lemon to be a bit baffling. But assuming that Obama does not wish to alter any existing laws to put his program through, I can’t see how he doesn’t run afoul of Lemon. In Obama’s own words:

I will empower the nonprofit religious and community groups that do understand how this process works to train the thousands of groups that don't. We'll "train the trainers" by giving larger faith-based partners like Catholic Charities and Lutheran Services and secular nonprofits like Public/Private Ventures the support they need to help other groups build and run effective programs. Every house of worship that wants to run an effective program and that's willing to abide by our constitution - from the largest mega-churches and synagogues to the smallest store-front churches and mosques - can and will have access to the information and support they need to run that program.

But how will the federal government not entangle itself with religion by following these protocols? It will be training trainers to subsequently train representatives of, presumably, every religious group in America (“from the largest mega-churches and synagogues to the smallest store-front churches and mosques”) to submit proposals for federal funding for faith-based outreach that will be, in turn, vetted by the federal government?

Obama's plan doesn’t merely entangle the government and religion, it sets the two into a lengthy, complex, and costly bureaucratic symbiosis in which each serves as the other’s “enabler.” What the government can’t (or won’t) fix, it will delegate to a Church. The funding that a Church lacks to fix what it (and it alone) wants to fix, it will seek from the government.

Religion or Religions? One could counter that as long as the government excessively entangles itself in a way that neither "advances" nor "inhibits" (to invoke Lemon) any one religious group then no constitutional provisions are violated. As long as it treats all religion equally, it can excessively entangle itself as much as it wants.

Fair enough. But here we get to a problem with very the language of faith-based initiatives: they assume the existence of an abstract entity known as “religion” when in reality our government must deal with particular religions.

And religions, strange as it may sound, are actually very different from one another. This is where the idea of the government treating all groups the same becomes unmanageable. Put simply, some religious groups adhere to beliefs that will disqualify them from President Obama’s ecumenical largesse.

Here is one scenario. In his speech Obama laid down this groundrule: “if you get a federal grant, you can't use that grant money to proselytize to the people you help and you can't discriminate against them - or against the people you hire - on the basis of their religion.”

But what to do with religious groups for whom proselytizing is part and parcel of their theological mission and self-understanding? I know of, for example, more than a few types of Evangelicals who believe it is of the utmost importance that they devote their lives to bringing people to Christ. (And remind me to tell you one day of the Jews from the Chabad movement who once booted-up and invaded a soccer field I was playing on, running alongside the perplexed footballers asking each one “Are you Jewish?”).

Certain religious groups in the United States are unabashedly focussed on converting others--it's part of their faith. When the federal government stipulates that it will withhold funding from a group that proselytizes--as indicated by Obama's ground rules above-- is it not, ironically, discriminating against that group on the basis of its religion?

Too, the government ought be very suspicious of a missionizing group that takes the funding and swears to lay off the soul-saving. It will need to devote resources to make sure that this never happens--something that will require surveillance and monitoring and like, you know, entanglement.

That's enough from Professor B's Catalogue of Potential First Amendment Litigation Disasters. The broader point I am making is that the diversity and particularity of religious groups in America makes it very hard (and labor intensive) for the government to treat them all equally—a state of affairs which validates the Founders’ good sense to keep Church and State separate.

I will follow up on this issue in the coming weeks. In the meantime the reader might consider picking up former Bush staffer David Kuo’s Tempting Faith—a cautionary tale about faith-based initiatives. I hope folks in the Obama camp have taken the time to look it over.