Tony Perkins struck a cocksure tone in reaction to a federal court’s dismissal of a legal action challenging government funding of a “faith-based” marriage counseling program.
Perkins, head of the Family Research Council, crowed that the Northwest Marriage Institute (NMI) and its attorneys had “successfully convinced the court that religious groups – that provide valuable social services cannot be treated like ‘second-class citizens’” and that such groups could “provide valuable social services” using public dollars.
The Religious Right leader’s take on the outcome in Christianson v. Leavitt, however, proves disingenuous upon a close reading of the decision.
In reality, on March 20, U.S. District Judge Franklin Burgess concluded that federal funding of NMI is permissible only because the group had yanked all religious references from its formerly “Bible-based” program. If the group had persisted in peddling religious counseling with the support of public funds, there would be a clear constitutional violation, wrote Burgess.
In fall 2006, Americans United, representing taxpayers in Washington state, sued the Department of Health and Human Services (HHS) and NMI over several federal grants to the religious group.
Based in Vancouver, Wash., the Institute received federal funds totaling $97,750 in 2005. Some of the grant money came from the HHS’s Compassion Capital Fund, which is used to help religious groups offer social services. Subsequently, HHS also awarded something called a Healthy Marriage Demonstration Grant totaling $246,000. That grant is renewable in the same amount for four years, thus propelling public funding to more than $1 million.
Americans United argued in its lawsuit that the public funds were used by NMI to further its pervasively sectarian marriage counseling and were, therefore, a violation of the First Amendment principle of church-state separation.
“Governmental cash aid is being diverted into the coffers of a religious organization,” stated AU’s lawsuit.
In September 2006, not long after the litigation was lodged, the Religion News Service quoted NMI founder Bob Whiddon Jr., a former minister in the fundamentalist Church of Christ, as saying, “We are a faith-based organization and we do provide faith-based counseling…. I use the Bible as my counseling manual.”
Whiddon had also boasted of the religious nature of his work in other venues. In a 2002 newsletter, Widdon asserted, “God designed marriage. He created it…. He wrote the rules on how it is to function well.”
NMI materials were also laden with Bible references. For instance, a quiz on the group’s Web site asked, what does it mean when “the Bible says that the ‘husband is head of the wife’?” Another online document claimed that “65 percent of all who live in Oregon and 67 percent of all who live in Washington have no connection to any church,” so there is a “great need” to “take biblical marriage education and biblical marriage-counseling to the communities.”
In his 15-page ruling, Burgess dismissed Americans United’s lawsuit only because Whiddon’s group had reconfigured its marriage counseling courses. Indeed, Burgess concluded that it would be unconstitutional for NMI to offer religion-based marriage counseling with public dollars.
“An absolute in Establishment Clause jurisprudence is the prohibition against government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith,” wrote the judge.
Citing Whiddon’s testimony, Burgess noted that “beginning in April 2005 and culminating in the formal change in its mission statement in October 2006, The Marriage Institute shifted its mission from providing Bible-based marriage workshops and counseling to providing marriage workshops without religious references. This change was prompted by a desire to qualify for operational funding from the federal government.”
The secularization of the religious program didn’t stop Religious Right groups from celebrating the court’s dismissal of the lawsuit.
Like the FRC’s Perkins, the Alliance Defense Fund (ADF) lauded the Christianson ruling, claiming in a press release that “Christian groups are not second-class citizens that have to give up their religious identity to receive federal funds.”
The ADF, whose founders include James Dobson and other religious broadcasters, represented the Marriage Institute in its legal battle with Americans United. In a press release on the Christianson case, ADF Legal Counsel Tim Chandler lauded it as a victory and took a swipe at Americans United.
“Faith-based organizations such as the Northwest Marriage Institute are making a positive difference and should not be harassed by groups like Americans United that pursues a radical, separatist agenda. This was obviously an end-run to deny all faith-based organizations the right to apply for government funds to assist those in need.”
Some might wonder whether the ADF attorneys carefully read the Burgess opinion or whether they were merely trumpeting what they wanted from the opinion, which was a holding that would permit faith-based organizations to run government-funded social services steeped in religion.
But Whiddon’s group was able to retain the federal grants only because it fundamentally changed the operation.
George Washington University Law school professors Ira C. Lupu and Robert W. Tuttle reiterated that fact in a March 27 analysis for the Roundtable on Religion and Social Welfare Policy. Judge Burgess, they said, “reasoned that the federal grants to NMI would have violated” the separation of church and state “if NMI had continued its religious programs of marriage education.”
Indeed, Burgess noted that NMI gave its final religion-based workshop in April 2006 “and is no longer offering Bible-based workshops.”
The group’s course material was also scrubbed of religiosity, Burgess noted. And its counseling material also included a notice that since “this project is made possible because of federal grant funds, there will be no religious content included in the written materials or workshop presentations.”
Dena Spilker Sher, an attorney and Equal Justice Works Fellow with Americans United who led the legal charge against NMI funding, said the lawsuit upheld longstanding principles of church-state law.
“When we brought the lawsuit,” Sher said, “the marriage institute was all about pushing a Bible-based counseling program. The group no longer offers that religious program. It is running a secular program and that is the only reason the lawsuit is still not pending against the group.”
Barry Christianson, an Americans United member and lead plaintiff in the case, told Church & State that although he was disappointed the case did not produce “a sorely needed precedent,” he was nonetheless pleased the case sparked an immediate result.
“We stopped a publicly funded, pervasively sectarian program in its tracks and forced the Northwest Marriage Institute to clean up its act,” said Christianson, a partially disabled Vietnam veteran. “Furthermore, we have a ruling that reaffirms that public monies cannot directly fund a patently religious program.
“More importantly,” continued Christianson, “this lawsuit puts all applicants for faith-based funding on notice that they are being watched when going after our taxpayer dollars. That to me is a win, one more step to ending these faith-based funding charades for good.”
Burgess made it clear in his opinion that if the court’s sole concern was with “the Institute’s initial Bible-based marriage counseling, it would have no difficulty in finding a violation” of the separation of church and state.
He added, “Without question, prior to the change in mission and award of the federal grants, the Institute was pervasively sectarian.”
Americans United Executive Director Barry W. Lynn lauded the ruling for upholding key First Amendment principles and chided the Marriage Institute for its apparent willingness to dump religion in exchange for government dollars.
“As an ordained minister,” Lynn said, “I am always a little surprised when ministries give up their religious witness in exchange for 30 pieces of government silver. But apparently Northwest Marriage Institute decided to do just that.”
Despite the clear ruling from Burgess, the ADF was still convinced that it had a major victory on behalf of the “faith-based” agenda, insisting in a press release that “the judge saw that this lawsuit did not have merit and quickly dismissed the latest attempt to prevent Christians from participating in publicly funded programs.”
But law professors Lupu and Tuttle noted that the decision in Christianson reaffirmed longstanding precedent that bars direct public funding of religious work.
Tuttle asserted that the “most important point in the case is that it reaffirms the strong bar against using direct government funds for programs that have religious content.”
ADF’s insistence that religious groups can receive federal funds without dropping their religious identity may be true, but misleading. If religious groups want to use public funds to run social services, such as a marriage counseling program, they must do so without references to religion.