Problems in Political Theory: The American Religious Nonprofit in the Public Sphere

Cody Phillips

Professor Müller POL 981

5 January 2016

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Introduction

In recent years, religious belief has made its way into the public discourse in a very

real way. Political candidates run on religious platforms, voters collectivize and casts votes

around religious lines, and pastors, churches and religious organizations make political

statements based on their beliefs and seek to bring their work into the public square. In his

piece “Between Naturalism and Religion,” Jürgen Habermas states,

“during the period since the end of World War II all European countries, with the

exception of Ireland and Poland, have been gripped by a wave of secularization that

goes hand in hand with modernization. For the United States, by contrast, all survey

data indicate that the comparatively large proportion of devout and religiously active

citizens has remained constant over the past six decades.”1

In the face of religion decreasing in importance internationally, it has actually continued to

hold a place of serious importance in many American’s daily lives. Gallup’s report on

religion that they’ve conducted annually since 1948 indicates that fifty-two percent of

Americans still qualify religion in their own life as “very important,” which is only down six

percent from 1992.2 And beyond merely its role in daily, private life, religion maintains a

strong presence in the public sphere. Gallup additionally found that “Fifty-seven percent of

Americans say that religion can answer all or most of today’s problems,” which, although

down from the eighty-two percent who answered similarly in 1957, still speaks volumes

about the impact of religion and its perceived role in addressing the problems that arise in

1 Habermas “Between Naturalism and Religion,” 116. 2 “Religion.” Gallup Historical Trends, 2015. 2 “Religion.” Gallup Historical Trends, 2015.

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American politics.3 Highly religious groups, including those who answered that they attend

church weekly and that religion is very important to them, answered that religion can answer

today’s problems at rates of eighty-four and eighty-two percent, respectively.

As religious zeal remains prevalent in the U.S, the movements have become

increasingly political. Religious fundamentalists no longer see their religion as something

that ought to be saved for their specific day of worship or something that is restricted to their

home and private lives; instead, their religion is pervading their public lives as well. Voters

and politicians increasingly have taken stands against religiously motivated issues such as

evolution being taught in schools, abortion, the death penalty, homosexual marriages.

Habermas contextualizes this data as he states that the “significance of religions used for

political ends has increased throughout the world…Religious traditions appear to be

sweeping away with undiminished strength the thresholds hitherto upheld between

‘traditional’ and ‘modern’ societies, or at least to be leveling them.”4 Clearly religion still

holds an important place in American society as the majority of American citizens still

ascribe to some religious beliefs and often allow those beliefs an important place in

determining the answers to society’s and politics' major problems.

Beyond merely an understanding of religion’s importance in American society, any

political theory discussion regarding religion’s place in the public arena must begin with the

Constitution and an understanding of the way in which all American jurisprudence stems

from this document. Specifically, any discussion concerning the place of religion within our

society must start with the two Religion Clauses in the beginning of the First Amendment

which state “Congress shall make no law respecting an establishment of religion, or

3 Newport, “Majority Still Says Religion Can Answer Today’s Problems," Gallup4 Habermas “Between Naturalism and Religion,” 116.

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prohibiting the free exercise thereof.” These two clauses provide the framework for all

religious cases in the United States, as the Constitution is the foundational code of

governance for the national government and the standard for all legal cases from district to

the Supreme Court. Yet, in no way, shape, or form do these two clauses provide a

comprehensive answer to every legal issue that arises regarding religion in American society.

Therefore, in order to determine the normative conclusion for religion’s place in the public

square as it relates to religious nonprofits working in conjunction with state or the national

government, we must look to more than just the letter of the law as is written in the

Constitution. As we explore religion’s importance in public life and with an understanding of

the unique place of the religious nonprofit in American society, it becomes clear that state

and the national governments may support and sponsor religious nonprofits inasmuch as they

avoid discrimination against those organizations for being religious.

The Nondiscrimination Theory

This idea of nondiscrimination flows directly out of the understanding that the United

States is a religiously plural society, one where its citizens ascribe to myriad religious

doctrines. Christopher Eisgruber and Lawrence Sager make this abundantly clear in

delineating their “hands-off approach to religious doctrine,” under which the purpose of the

Religion Clauses of the Constitution is “not to protect religion per se, but to protect

Americans from a certain kind of governmental malfeasance that proceeds against the

backdrop of a religious and religiously diverse society.”5 Because of the sheer number of

beliefs, creeds, and doctrines that various individuals hold throughout the U.S, what is meant

by “religion” and what falls under the protection of the Religion Clauses has become an

5 Eisgruber and Sager, “Does It Matter What Religion Is?”, 811.

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incredibly difficult thing to establish; what constitutes religious liberty is harder to determine

now than ever. It is clear from the wording of the Establishment Clause that

“disestablishment requires the government to abstain from promulgating official versions of

religious doctrine. If the Courts were to resolve controversies about religious doctrine, they

would be doing exactly what disestablishment proscribes—identifying one or another version

of religious truth as the government’s preferred or official view.”6 Courts, when called upon

to determine who is in the wrong in specific cases where religious beliefs are paramount,

may never rule in such a way as to determine which belief system or doctrine is “correct,” or

they would be falling into a form of establishment as they legislate which view falls most in

line with the government’s principles.

Sager and Eisgruber present two specific cases in which this exact pattern of

disestablishment—or ‘hands-off approach’—was determined by the Supreme Court. In the

case of Thomas v. Review Board, Eddie Thomas, a worker in a munitions foundry, refused to

accept a new job assignment of building tank turrets because he said it conflicted with his

beliefs as a Jehovah’s Witness. Even though he had held a previous position in the foundry

and even though a friend who was also a Jehovah’s Witness had accepted his new position,

Thomas applied for unemployment, citing his religious liberty to do so.7 The State of Indiana

refuted Thomas’ claims initially, because nowhere in the doctrine of Jehovah’s Witnesses

does it deny its members the ability to work in a weapons factory. So the court ruled that

Thomas’ beliefs were illegitimate reasons to not work. However, when the case was referred

to the Supreme Court, the justices determined that “religious beliefs need not be acceptable,

6 Ibid 812 7 Thomas v. Review Bd., 450 U.S 707 (1981) at 710-12, accessed in Sager and Eisgruber 812.

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logical, consistent or comprehensible to others in order to merit First Amendment

protection…Courts are not arbiters of scriptural interpretation.”8

Later, the Court ruled similarly in the case of Frazee v. Illinois Department of

Employment Sec. Frazee refused to work on Sundays because, as a Christian, he determined

that his faith required him to take Sunday off as a day of complete rest and worship.9 The

state of Illinois found that he shouldn’t be allowed to collect unemployment because many

other Christians worked on Sundays, and not working on Sundays didn’t seem to be an actual

hard doctrine of Christianity; however, the Supreme Court ruled that since Frazee sincerely

believed in his conviction against working on Sunday, his religious liberty allowed him to

not work. Ultimately, the Court ruled that individual citizens are “the ultimate authorities

on—sovereign over—their own religious beliefs”—not the state or anyone else.10

Eisgruber and Sager provide an important caveat to this nondiscrimination approach

in order to limit religious sects from taking advantage of each other under the protection

granted them by a phenomenological approach to religious liberty. The Free Exercise Clause

“prohibits the government only from imposing certain kinds of burdens, and any

interpretation of the Clause must say which burdens these are. The interpretation we propose

replies, burdens of a kind that are historically associated with religious persecution.”11 The

Free Exercise Clause, therefore, explicitly prohibits any type of coercion by a religious

organization or individual. Consequently, the state may support religious individuals and,

likewise, religious organizations that seek to act on their specific religious values as long as

8 Ibid at 714-16 9 Frazee v. Illinois Department of Employment Sec., 489 U.S 829 (1989) at 830, accessed in Sager and Eisgruber 814. 10Eisgruber and Sager, “Does It Matter What Religion Is?”, 815. 11 Ibid 832.

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they avoid providing opportunities for those entities to promote religious persecution.

Therefore, the state must avoid two types of discrimination in its dealings with religious

nonprofits. Primarily, the state must never deny a religious nonprofit access or support for the

sole reason of its religious beliefs, and additionally, it must be careful to not promote

coercion or persecution by supporting a religious entity that ascribes to beliefs or engages in

activities that deny any other group or individual their own religious liberty under the

Constitution.

Therefore, the Courts set a precedent that it is the government’s role to pursue a

policy of substantive neutrality to ensure that citizens feel secure in their beliefs and don’t

feel incentivized by the state to pursue a belief system, in one way or another, but are able to

freely and actively pursue their beliefs and the actions those beliefs prescribe in order to

make good on the Constitution’s guarantee of religious liberty. 12 This neutrality is necessary

because it is important to keep in mind that “America’s religious heterogeneity means that

any religious group will be a minority in parts of the country.”13 Even though Gallup reported

in 2014 that “the U.S remains a largely Christian nation, with over three-quarters of

Americans identifying as Protestant, Catholic or Mormon,”14 the state must not rule based on

a majority in the case of religion. This is the essence of the nondiscrimination theory behind

the idea of there being a separation between church and state in the United States. At first

glance, responding to citizens attempting to act on their religion sounds merely like the state

listening to their constituents and allowing democracy to work. Nicholas Wolterstorff even

argues for this idea of legislating based on religious belief in Religion in the Public Square,

12 Ibid 824 13 Ibid 813 14 Newport, “Three-Quarters of Americans Identify as Christian,” Gallup.

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as he states, “it belongs to the religious convictions of a good many religious people in our

society that they ought to base their decisions concerning fundamental issues of justice on

their religious convictions. They do not view it as an option whether or not to do it.”15 We

have seen that often it is incredibly difficult to separate private religious beliefs and secular

practices because voting patterns and every other type of political action are simply secular

manifestations of personal beliefs for many American citizens. It is therefore often difficult

for many citizens of religious belief to articulate their religious beliefs in a secular manner,

both practically and ideologically. Wolterstorff provides a justification that “even the

political legislator should be permitted to make use of religious arguments,” because they too

may have difficulty separating their privately held beliefs from their justifications for public

actions.16 This, however, is not enough reason to allow legislators and, consequently, the

state, to discriminate against the minority religious groups or nonbelievers in the American

society. In the specific case of legislators, it may very easily lead to issues concerning state

actors acting specifically on behalf of one sect or group of believers. This type of sponsorship

obviously strays from the intent of the Establishment Clause of the Constitution under which

no religious group should have undue ability to establish their own religion within the

American society via the state or government processes.

This understanding of the Religion Clauses flows out of the definition of a liberal

democracy and its role in creating the type of society that will provide for the long-term

success of the nation. Robert Audi makes this clear in his delineation of the role of a liberal

democracy—like the United States—in relation to its citizens in his piece “Moral

Foundations of Liberal Democracy, Secular Reasons, and Liberal Neutrality toward the

15 Wolterstorff in Religion in a Public Square, p. 105 accessed in Habermas p.12816 Ibid p. 107, accessed in Habermas p.133

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Good.” He begins by describing two commitments of a liberal democracy to its citizens,

since every liberal democracy ought to be a government that is committed to the good of its

society, its voting population. These two commitments, the libertarian and egalitarian

commitments, stipulate that a liberal democracy look out first for the freedom of citizens, and

additionally for their basic political equality, in order to “respect the autonomy and political

rights of persons.”17 These are the two “moral obligations” of a liberal democracy that enable

it to ensure the good of every individual citizen, which should be a given. Audi continues,

“if democracy may be conceived as a government of, by, and for the people, none of

this should be controversial…It does not view the political structure of society as

subordinated to the good of a sovereign, to a class of society, or even to the glory of

God, if that is conceived as incompatible with the earthly flourishing of people in

society. Religious ideals and other normative standards may inspire a liberal

democracy, but it must not subordinate the welfare of individuals to that of any

privileged person(s), any deity, or, especially, any abstraction.”18

The United States was set up as a nation specifically committed to creating a political

structure that would be different than all the nations at the time, in that it was a government

dictated by the people. Because of this goal, the government has specific limitations and

specifications on what kind of society it ought to create in order to provide this type of

environment for its citizens.

Here we get to the root of the issue at stake. Audi argues that the ultimate goal of a

liberal democracy is to promote the wellbeing of the citizen, primarily his or her autonomy

17 Audi, “Moral Foundations of Liberal Democracy, Secular Reasons, and Liberal Neutrality toward the Good,” 198. 18 Ibid 198-199

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and liberty, and that in the pursuit of that liberty, it is essential to ensure that no privilege is

given to any religion that may hinder individual freedom. However, he additionally

acknowledges that a moral standard in society is essential to the flourishing of the institutions

that bring about this beneficial society under which each citizen is able to thrive individually

and collectively. So, there is a clear call on the United States government to create the type of

society that will promote religious freedom for its citizens, but additionally a clear call for

that government to create a society under which flourishing can take place. A “public

morality” is necessary to bring about that end, but how does this perception of morality fit

with theories about religion’s place in the public sphere?

The Importance of Public Morality

A common thread of endorsement of a public morality runs through many political

theorists writing about the place of religion in the American society. They acknowledge that

for a society to function, there must be common decencies, a code of law based on a common

understanding of right and wrong, and structures of civil society, like family, to promote

ideals of citizenship. Rawls writes in The Law of the Peoples that

“in a democratic regime the government’s legitimate interest is that public law and

policy should support and regulate, in an ordered way, the institutions needed to

reproduce political society over time. These include the family (in a form that is just),

arrangements for rearing and educating children, and institutions of public health

generally.”19

Rawls acknowledges that in a liberal democracy—one dependent on its citizenry to be active

in their communities, active in the political realm and active in the economy—family is an

19 Rawls, “The Idea of Public Reason Revisited,” 147.

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incredibly important institution for providing the necessary structure to create the next

generation of citizens. “The family,” Rawls continues, “ is part of the basic structure [of

society], since one of its main roles is to be the basis of the orderly production and

reproduction of society and its culture from one generation to the next.”20 It is essential to the

functioning of a democratic society that the family is nurtured and provided everything

necessary for flourishing. Out of a desire for self-preservation and continuation of the state as

it is, the government ought to encourage that flourishing.

Audi comments on the importance of the government’s role in creating this moral

society for its citizens in order to promote flourishing as well, as he speaks of a universal

code of ethics, or a universally agreed-upon set of moral codes in society that all citizens

ought to follow and the government ought to promote. Such principles or duties of

citizenship include “fidelity, reparation for one’s wrong-doing, justice, gratitude,

beneficence, self-improvement, and non-injury,” as well as two more prima facie ethics for

citizens, “to enhance and preserve freedom,” and “to treat people respectfully in the manner

of our actions.”21 He proposes a set of codes that, when all citizens and legislators abide by

them, simply create a society that functions best for the good of all. And he states that these

principles are accessible to everyone because they are intuitive in the American society, a

kind of “ethical common-sensism.”22 If there is such a universally agreed-upon moral code

for society that all citizens ought to follow and the government ought to promote in order to

sustain society and extend the life of the state, how is it possible to balance this responsibility

against the state’s responsibility to not discriminate against any one religion? It seems that

20 Ibid 14721 Audi, “Moral Foundations of Liberal Democracy, Secular Reasons, and Liberal Neutrality toward the Good,” 200 22 Ibid 200

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Audi and others do a lot of work to gain the benefits of accepting the morals that flow from

the tenets of the major religions in the U.S, while seeking to still keep that religion out of the

public sphere and not impinge on nonbelievers rights. Indeed, Audi promotes a theory of

“limited neutrality,” by which the government ought to pursue doctrines that limit harms in

society, including “the needs of the sick or unemployed, which are widely seen to necessitate

substantial taxation of those who are financially well-off.”23 This doctrine states that the

government should seek to promote the wellbeing of all of its citizens, based on an

understanding of a common, public morality; however, that doctrine cannot flow out of one

line of belief or one specific religion, because that type of promotion would ultimately be a

form of discrimination.

If a public morality is essential for a sustainable and productive society, however,

why shouldn’t the government simply promote values that come out of a Judeo-Christian

worldview—the system of beliefs that still holds a majority in the U.S?24 Aside from this

type of promotion possibly discriminating against minority religions or nonbelievers, this

theory additionally holds to recent data from a September 30, 2015 Gallup report. A slim

majority of those polled, 51%, stated that the government should not favor any particular set

of values, and should stay away from promoting ‘traditional values’ in our society, which

“was a shift from pre-2005, when Americans consistently favored the government’s

promoting traditional values.”25 Therefore, the national public has begun to agree with Audi

in acknowledging that it is not the government’s place to promote a set of traditional values.

We know, however, that public morality is essential to the flourishing of the American

23 Ibid 20624 “Religion.” Gallup Historical Trends, 2015 25 Jones, “Fewer in U.S Want Government to Promote Traditional Values,” Gallup.

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society. It functions as the best sort of law enforcement, because as citizens accept a

universal moral code, they accept a common mode of interaction and will be less inclined to

steal, cheat, lie or otherwise seek to immorally or illegally get ahead. Additionally, this type

of morality influences altruistic actions, which are extremely beneficial to society. If the

American government, however, ought to promote this type of society in order to bring about

the long-term success and survival of the nation, but ought not advocate one specific doctrine

of religion itself, how may it accomplish its duty as a state?

Robert George’s theory of public morality in The Clash of Orthodoxies works as an

important foil to Robert Audi’s theories as he provides an answer to this question. He

demonstrates how the national government has usurped a lot of the authority and power that

was originally intended for the states. The national government, George states,

“is not a government of general jurisdiction; it is not constitutionally authorized to

exercise police powers. On the contrary, it is a government of delegated and

enumerated powers. Where the states are generally authorized to act for the sake of

the common good, enjoying the authority to act except to the extent that their

jurisdiction is constitutionally limited, the federal government may, as a constitutional

matter, act only where it has been constitutionally delegated the power to act.”26

This is how the separation of powers was supposed to play out as defined in the Constitution

by the Framers; it never should have been able to legislate in such a way as to define a type

of society because it never was supposed to legislate apart from where it was explicitly given

power to act. As the national government—Congress and the Executive branch—has taken

more and more authority and exercised more control over society via the commerce clause,

26 George, “The Concept of Public Morality,” 97.

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executive orders, and amendments, it has changed this power structure. The National

Government was never supposed to be able to legislate to define how society was supposed

to look or function at a moral level, but George provides multiple examples of how this has

changed, beginning with Prohibition and the 18th Amendment.27 As the national government

took some of the policing power that was supposed to be reserved for the states, they defined

for the nation a moral stance on alcohol. While the 21st amendment ultimately overturned this

decision and ended Prohibition, it was in itself another example of the legislative body

making a decision for the public morality. The government had realized over the course of

the twenty-four years that alcohol was illegal, that enforcement of the policy was nearly

impossible. Government corruption was rampant and gang violence, illegal distilleries and

other forms of societal depravity rained supreme. Therefore, they overturned their previous

decision in order to provide a healthier social atmosphere surrounding the distribution and

consumption of alcohol.

A more recent example of the government utilizing their expanded powers to regulate

a public morality is in determining Internet access laws in order to decrease the ability of

children to access explicit materials online. Additionally, the national government continues

to stand by laws regulating prostitution across state lines and child pornography. This type of

public morals legislation, George notes, “regulates the behavior of individuals—citizens and

those residing permanently or temporarily within the government’s jurisdiction. It limits their

choices and behaviors.”28 Such legislation demonstrates a commitment by the national

government to creating the type of moral society that leads to flourishing. This is in line with

Audi’s understanding of limiting harms, as well, as George states that “public moral laws,

27 Ibid 9928 Ibid 100

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like health and safety regulations, regulate private conduct insofar as it harms, or threatens to

harm, the public interest.”29 These laws work to protect the moral fiber of society, and in

doing so, actually protect the health and wellbeing of individuals. Therefore, the state ought

to regulate public morality in some ways because in doing so, they protect the wellbeing of

the society at large. Yes, the state has responsibilities and limits on the way in which it can

enact this protection of society, namely the freedom of religion found in the Religion

Clauses, but in cases of individuals who believe that their freedoms and ability to choose

under the Constitution allow them to engage in behavior that ultimately is damaging to the

society as a whole, the government has acted and should continue to act to limit such

behavior.

The type of behaviors that ought to be regulated by the government in the name of

public morality and societal flourishing, however, is difficult to define. George demonstrates

how the pursuit of public morality, although similar to the pursuit of public health, ought to

go beyond merely the regulation of behaviors that directly affect other citizens, like the

regulation of factories or businesses that produce carcinogenic smoke.30 In the case of

fornication and sexual vices, for example, George states that, although many people view

such practices as private matters that ought not be regulated by the government, the trouble

“is that fornication is one of those vices that, when widely practiced, tolerated, and

inevitably, accepted, has very big and very public consequences—consequences that

provide a perfectly intelligible reason for legal proscription, or, short of that, non-

coercive public efforts to discourage it.”31

29 Ibid 10030 Ibid 91-92 31 Ibid 103

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Pornography, polygamy, and other apparently private vices are totally justified in being

limited by the government already, and ought to continue to be so limited. We have seen that

a liberal democracy’s primary concern ought to be the state of its society and provision for

the wellbeing, freedom, and health of its citizens. George provides examples and

explanations of how this goal of liberal democracy can be carried out by a general protection

of values that largely flow from religious belief.

A problem now arises, however, of how it can be possible to reconcile this

understanding of the government’s responsibility to pursue societal flourishing by fostering

some type of public morality, with the Constitutional responsibility to not discriminate

against any religion by promoting any one doctrine of values or beliefs. Hidden in Eisgruber

and Sager’s nondiscrimination theory lies a solution. As I delineated above, these theorists

advocate for strict equality of treatment and opportunity between religious majorities and

minorities, as well as between religious believers and nonbelievers.32 This egalitarianism, as

theorist Cécile Laborde writes, actually demonstrates an implicit understanding of the unique

importance of religion in society, as “their analysis fails to explain, or takes for granted, or

implicitly smuggles in assumptions about the specialness and uniqueness of religion.”33

Eisgruber and Sager acknowledge deeply held religious convictions as being on the same

level as other deep personal issues such as medical disabilities, and, as Laborde notes, check

32 Eisgruber and Sager, “Does It Matter What Religion Is?”, 826. I touched on this above, emphasizing court examples of Thomas and Frazee, but additionally, they provide examples of Muslim policemen in Newark, NJ who challenged the rule that policemen need to be cleaned shaven on the grounds of their religion. Because the department had already given exceptions to policemen with medical conditions/skin disorders that made shaving extremely painful, Eisgruber and Sager argue that it would be a failure by the courts in their commitment to equality if an exception also wasn’t granted to the Muslim policemen. 33 Laborde, “Equal Liberty, Nonestablishment, and Religious Freedom.” 63.

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their strong evaluations of these issues “against wider moral standards.”34 Laborde continues

to acknowledge the importance of protecting religion and such wide moral standards as he

states:

“their normative status merely derives from the fact that individuals closely identify

with them, recognize them as theirs, on grounds of their ‘deep,’ ‘serious,’ ‘spiritual’

nature. Call this the depth criterion. It is because religious commitments are deep that

they (sometimes) deserve special protection in law; and this protection extends to

nonreligious, comparably deep commitments.”35

This so called “depth criterion” reasonably demonstrates that religious commitments are

special in their place in society and ought to be protected as essential, not only because of

their place in an individual’s liberty, but also for their role in creating a society that enables

flourishing.

The Role of the Nonprofit in America

We have seen that religious convictions are essential to a majority of American

citizens, and that religious values maintain a critical place in American society; yet, these

realities still don’t allow for blatant promotion or advocacy of a certain religion—especially

of a majority religion—by the U.S government. There must be a specific way by which the

U.S government is able to both promote public morality and maintain personal liberty in a

way that is mutually beneficial. I propose that the formation of the nonprofit sector in the U.S

provided the answer to this question, because religion has been at the core of nonprofit work

since the very beginning, but nonprofits have been institutionalized in such a way as to

provide strict criteria for achieving government support.

34 Ibid 65 35 Ibid 65

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Although we now understand the religious nonprofit under the very broad definition

of the 501(c) designation in the Internal Revenue Tax Code, the history of the American

nonprofit provides far greater understanding for its significance in enabling the American

government to function as it was originally intended to. From the outset of the establishment

of colonies in America in the seventeenth and eighteenth centuries, the institution of the

church played a primary role in communities, as Peter Dobkin Hall lays out in his piece The

Nonprofit Sector: A Research Handbook.36 However, the church rarely worked alone in

promoting the public welfare, as partnerships formed between the government and these

early “values-based” operations, which were largely parochial at the start, but increasingly

became community-based as the nation grew. Hall notes that “although colonial governments

and municipalities collected taxes and enacted laws, they usually entrusted the actual tasks of

caring for the poor, healing the sick, and educating the ignorant to families who could

provide these services at the lowest cost.” For example, many early almshouses—

organizations to provide for the poor “were contracted out to managers who could operate

them at the lowest cost to the public.”37 This type of contractual understanding between

colonies or early states and primitive not-for-profit charitable organizations was largely

executed out of necessity, as the newly formed government could only perform essential

tasks, and left welfare largely up to the general public, most of whom were still steeped in an

understanding of public morality. This government, however, was also built on a deep

36 Hall, “A Historical Overview of Philanthropy, Voluntary Associations, and Nonprofit Organizations in the United States, 1600-2000,” 34. 37 Ibid 34

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mistrust of “the hazard of ‘factions’—associations representing special interests,” as Madison

states in his tenth essay of the Federalist Papers.38

By the mid-18th century, the philanthropic or politically-minded rich began to

collectivize in order to assert themselves and utilize their wealth to promote the good of

society, and to advocate for or perform the actions and services that the government was

growing unable to perform as the nation grew. Without these organizations, the government,

“though de jure the servant of the people, was de facto the master of the people—since

without intermediary collectivities, the people had no way of making their influence felt,

save at election time.”39 Hall notes that on Tocqueville’s visit to America in the 1830s, he

noted this new collectivization around specific values occurring en masse, particularly with

the temperance movement, as “’a hundred thousand men had bound themselves publicly to

abstain from spirituous liquors.’” He continues, “it is probable that if these hundred thousand

men had lived in France, each of them would singly have memorialized the government to

watch the public houses all over the kingdom.’”40

Temperance provides invaluable insight into the definition of religious values in the

U.S. While temperance, equality, and even education all began as “religious values,”—that

is, values predominantly endorsed and instituted by religious believers, organizations and

churches—each of these values found new, secular representation when collectivization and

the nonprofit sector came about in the late nineteenth and early twentieth century. While

religious justifications for education, equality and temperance stem from the desire to create

a society that is reflective of a moral code from a supreme being, namely God, a secular

38 Ibid 35 39 Ibid 36 40 Alexis de Tocqueville 1945, 2:110, accessed in Hall 37

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justification for these very same ideals flow out of a practical understanding of the

implications of a society without equality or education or temperance. The line between

religious and secular values, therefore, is extremely difficult to determine when it comes to

organizations working in the public sphere. What we do know, however, is that the

government has consistently supported both religious and secular organizations working to

pursue these values over the course of the past century.

During Reconstruction, for example, the Freedmen’s Bureau and the man tasked with

executing the plans of Reconstruction, General Oliver Otis Howard, had money, land and

authority, but lacked personnel. To fill this gap in governmental resources, Howard invited

philanthropic, charitable volunteers from the North—both those with religious motivations

and secular, utilitarian ones—to help the Bureau enact its specific policies of education, job

training, and rehabilitation for freed slaves.41 While Reconstruction ultimately failed, it

provided a framework for partnerships between nonprofits working in promoting social

welfare and the government. As the Secretary of Commerce in the 1920s, Herbert Hoover

provided opportunities for partnerships between the government and nonprofit or voluntary

organizations in order to bring about civic betterment and achieve an ideal he termed the

“associative state.” For example, Hoover “used the Building and Housing Division of the

Department of Commerce to address the problems of unemployment and substandard

housing by stabilizing the construction industry, building new markets by overcoming

resistance to mass production and standardization, fostering city planning and zoning

activities and promoting the ‘spiritual values’ inherent in widespread home ownership,” in

partnership with an organization known as Better Homes in America. He secured operating

41 Ibid 40

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funds from private foundations and partnered with an organization that served to efficiently

implement necessary infrastructure reforms, but additionally promoted religious values that

fed a productive public morality, without using billions in national expenditures. 42 Hoover’s

ideology set the stage for FDR’s policy during the Great Depression. In order to provide jobs,

welfare support, and sustainable economic and social stimulus, Roosevelt greatly expanded

the power of the national government, but he also took more cost-effective action to support

preexisting, nonprofit organizations. As Hall states, “not only did federal tax policies

encourage private support for charitable institutions, but government at all levels depended

on the private organizational infrastructure both for policy expertise and to provide services

at the community level.”43 In 1954, these precedents were codified as part of the 1954

Internal Revenue Code, which provided tax breaks for nonprofits, as well as made all

donations to such organizations tax-deductible. This trend continued through the end of the

20th century as “direct federal subsidies to nonprofits increased dramatically from about $30

billion in 1974 to just under $160 billion in 1994,” largely on the heels of conservatives

pursuing policies to shrink big-government.44

Clearly government support of nonprofits—religious or otherwise—has long been

acknowledged as an essential and effective policy for providing efficient solutions to

problems in society. For example, religious and secular nonprofits working in social and

family services flourished during the Reagan and Bush administrations as these

administrations extended funding to many private groups working to do the essential jobs

that few others would do and that no market was able to support. Specifically, “federal courts

42 Ibid 49 43 Ibid 50 44 Ibid 54

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issued a series of decisions ordering that the mentally disabled be deinstitutionalized and

placed in small community-based facilities. Unable or unwilling to create and operate such

facilities themselves, the states encouraged private groups to provide residential, educational,

and rehabilitative services to the retarded and mentally ill.”45 Such programs have continued

into the 21st century, incentivized by government subsidies, and have even trickled into other

rehabilitative jobs in society, as the government has clearly seen the institutional and

financial benefits of allowing value-motivated groups and individuals to promote the social

welfare. Clearly, religious nonprofits provide essential functions in society. But how may a

liberal democratic government constitutionally provide support for religious organizations in

such a way as to avoid violating the Religion Clauses and violating the premise of

nondiscrimination by providing undue support to a singular organization of specific beliefs?

Laborde provides the key. He argues that under the Constitution, the U.S

government has the burden of treating each citizen fairly in providing equal status in society.

Specifically, “regarding state funding…religious groups pursuing public-interest activities

must not be treated differently from non-religious groups merely because they are

religious.”46 Therefore, under this interpretation of the establishment clause, religious

nonprofits ought to be able to pursue the public good—as the institution of the 501(c)3

nonprofit was created to do—without having to change their rhetoric or their goals based on

their religious beliefs, inasmuch as that rhetoric and goals do not coerce or promote

persecution of others. Laborde also clarifies this point in order to affirm that along the lines

of promoting equal freedom for each citizen, the government must be careful to not overstep

in providing funding to religious groups. “Instead of no funding, egalitarians advocate ‘even-

45 Ibid 56 46 Laborde. “Equal Liberty, Nonestablishment, and Religious Freedom.” 57.

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handed’ funding,” which allows for funding to religious organizations as long as it is in-kind

with the market rate for that funding.47 In other words, government funding or support may

be provided as long as the religion of the organization had nothing to do with the funding

being given, but the money was given based on the provision of equal goods or services.

Putting It All Together

In order to draw all of these theories together and come to a conclusion, let me

provide the recent example of Prison Fellowship Ministries (PFM), an evangelical Christian

nonprofit working in prison rehabilitation in a few states across the nation. PFM came to the

fore in the discussion regarding religious nonprofits’ place in the public sphere because of the

2006-2007 court case Americans United v. Prison Fellowship Ministries, Iowa. In this case,

Americans United for Separation of Church and State, a nonprofit advocating against

government cooperation with religious groups, argued that the Department of Correction in

Iowa had unconstitutionally partnered with an offshoot program of PFM in Iowa state prisons

that crossed the line nondiscrimination.

The partnership between the Iowa DOC and InnerChange Freedom Initiative (IFI)—

the affiliate ministry of PFM—had originated out of the DOC’s understanding of their

inability to adequately address the sheer numbers of inmates in Iowa state prisons, as more

than 8500 inmates—over three times the number such prisons were designated to house

when the DOC was created—were housed in nine different facilities across the state.

Winnifred Fallers Sullivan notes in her book Prison Religion: Faith Based Reform and the

Constitution, that a state-commissioned report produced by the Durrant group found that

47 Ibid 57

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“90 percent of Iowa prisoners suffer from substance abuse problems, and 30 percent

suffer from mental health problems. Treatment capacity is only 1,894 places in

substance-abuse programs in any year for a prison population of 8,877. Mental health

services are not meeting current professional standards and are grossly underfunded

and understaffed.”48

Changes were immediately necessary, but state resources were lacking. The state Director of

the medium security facility at Newton, Iowa, Walter Kautzky stated in his deposition in the

case that on completing and filling the facility in 1997, the state was “looking for anybody

that might help us put these offenders into some sort of productive activities. We were

looking for a way, a very low-cost way, to utilize and put some activities in place within a

very, very large, and very, very new prison where there were literally no activities.”49

Here is where the state put out a call for help, in 1998, in the form of a “Request for

Proposal” for an in-prison, values-based program in order to fill this void and provide

answers for the individuals for whom the state was responsible. The state deemed this values-

based program to be the best answer to the cyclical nature of many of the criminals in the

Iowa state prisons, but needed a solution that posed minimal costs to the state. This call was

quickly answered by InnerChange Freedom Initiative, an affiliate organization of Prison

Fellowship Ministry, an outspoken prison relief ministry that had previously worked in Texas

state prisons providing bible studies and personal counseling and aid to prisoners. The bid

that they submitted to fill the role and provide the programs as delineated by the Iowa DOC,

“which was made following visits by IFI personnel to the Newton facility, was the only bid

48 Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution (New Jersey: Princeton University Press, 2009, 20. 49 Ibid 21-22

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that was found to meet state specifications.”50 The DOC subsequently turned over control of

Unit E—a large wing of the Newton facility that had previously been used as an “honor

ward” for well-behaved prisoners—to IFI and awarded them a contract worth $300,000 of

state money annually for nonsectarian costs. This money was awarded annually until the trial

in 2007, although in the beginning of the 2005 contract year, the state moved to a voucher-

like system of funding, where they awarded money per prisoner, per day in order to distribute

money in a more egalitarian manner. Just as the money and space was awarded in an

egalitarian manner, so too were prisoners assigned to the IFI ward in Unit E. Larry

Lipscomb, the Iowa DOC officer in charge of Unit E, reported in a memo regarding IFI’s

programs, that offenders

“must volunteer for the program being fully aware of the requirements and the Christ-

centered, biblically based curriculum. The objectives of Inner-Change are to create

and maintain a corrections environment in which productive work, human dignity,

self-worth, responsibility, and accountability are among the key values taught to

inmates; to provide training and work-skill related programs relevant to the current

and future needs of inmates, including continuity of services after release; to address

the holistic needs of inmates, by providing opportunities for spiritual growth and

character development; and to involve volunteers and community resources in this

program.”51

Clearly, this contract was created and instituted in a manner that had the interests of every

state prisoner who would be interacting with the state-supported rehabilitation programs run

50Ibid 24 51 Larry Lipscomb memo to DOC staff at Newton Correctional Facility from American's United For Sep. V. Prison Fellowship. S.D Iowa Vol. 432. (2006). In Sullivan, page 26

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by IFI at heart. Not only was the contract awarded on a free-market basis, based on specific

features and programs, to the bid that most clearly fit the needs of the prisoners in the

facility, but also it took into consideration the religious preferences of the prisoners in

assigning individuals to the program.

In practice, IFI presented great rehabilitation and programming opportunities for

prisoners in the Newton facility, as Sullivan notes in her delineation of the case. IFI offered a

“comprehensive pre-release and post-release program, and it did so for considerably less

money than the state could afford on its own.”52 Whereas other state programs were

backlogged, and prisoners had to apply for each program individually, IFI offered anger

management, substance abuse, job assistance and counseling programs all in Unit E. And IFI

achieved results. Multiple prisoners testified in court to the impact of IFI programs in the

Newton facility, and in their personal experiences. Catholic prisoner, Michael Bauer, who

left the program because he didn’t feel that his personal religious beliefs were consistent with

IFI’s methods, admitted, “I believe in anything that will help men become men, to become

responsible adults, to stop crime, to stop the victimization of others.”53 Robert Robinson, an

ex-con and a member of IFI’s programs confided that “any problem that I had, [IFI] was

there…Going through the program, the tools, the discipline, the fellowship, I mean—the

discipleship. I mean, all that in the program equipped me for who I am now, and a part of

society.”54 IFI achieved successful results while working in Newton to rehabilitate and

reinstitute prisoners into society as productive citizens. However, as the court case

52 Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution (New Jersey: Princeton University Press, 2009), 24 53 Bauer Testimony from. 54Robinson Testimony from American's United For Sep. V. Prison Fellowship. Accessed in Sullivan 60

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determined in 2007, that success often came at the price of overstepping their bounds as a

partner organization to the state of Iowa.

Ultimately, the District Court ruled the state of Iowa to be in violation of the

Establishment Clause because of their support for IFI’s programs, which were found to be

coercive and explicitly evangelical in their approach. This coercion occurred in the form of

convincing inmates to participate in the program by offering extra benefits—including better

toilets, lockable doors to cells, and a “more spacious,” “more comfortable,” “much nicer”

environment than the alternative Units in the Newton facility.55 After signing up for the

program and the corresponding courses—anger management, substance abuse, etc.—

prisoners often found that such courses were steeped in evangelical Christian doctrine and

methodology, and discovered that the standard to remain in the program was tantamount to

giving up their personal freedom of religion. Sullivan notes that in many cases in Unit E, “the

language used to measure prisoner’s success moved back and forth between that of Bible-

believing Christians and that of the corrections community as if they measured the same

thing.” (58). Prisoners were evaluated based on principles of the “Fruit of the Spirit,” with

some inmates being released from the program for offenses such as pride, “an unteachable

spirit,” or demonstrating a “Messiah complex.” Prisoners who refused to submit themselves

to the religious beliefs and methods of IFI felt entirely discriminated against, because they

were unable to access the better programs and facilities without laying aside their own

convictions. These types of religious justifications for assessment and evaluation clearly

break away from the egalitarian way in which IFI attained their position in the prison and the

programs they had promised to institute. Although the state was promoting a public morality

55 From Prisoner testimony in American's United For Sep. V. Prison Fellowship, from Sullivan 38-39.

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and some elements for societal flourishing in its sponsorship of IFI, it had also fallen into

sponsorship of establishment practices that discriminated against inmates of particular non-

evangelical beliefs.

This is the key for understanding the place of the religious nonprofit in the public

sphere. Religious organizations like Prison Fellowship Ministries and InnerChange Freedom

Initiative are essential to the flourishing of society, and may not be forced out of

opportunities to work in the public sphere—based on nondiscrimination theory—but they

must provide opportunities for flourishing that are accessible and helpful to all members of

society. The court injunctive in the Americans United case recommended two scenarios in

order to both achieve the beneficial results of a values-based prison rehabilitation program

and to also allow for personal religious liberty. Either, the religious organization should make

necessary changes to its program in order to become a “private choice program…by

disassociating all state aid to InnerChange through an arrangement that would mean

InnerChange and Prison Fellowship would offer an off-site program while incurring all the

costs of programming, i.e., building, salaries, supplies, and equipment” in order to provide

equal access and opportunities for individuals of all faiths. Or, the court recommended that

the “Dept. of Corrections to set up a similar, secular values-based program, or other religion-

based programs, as alternatives to the InnerChange program.”56 The problem, therefore, is

not the explicit partnership between the state and the religious organization, nor is it the

values-basis of the rehabilitation programs, as both these elements exemplify a state working

correctly in its role of pursuing a society that promotes flourishing. Rather, issues arise when

the state endorses and therefore chooses a specific set of values for individuals, rather than

56From the section V.B of American's United For Sep. V. Prison Fellowship

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allowing for personal choice and free exercise of religious liberty. Therefore, we have seen

that as a liberal democracy seeking to provide opportunities for flourishing for its citizens,

the United States is completely justified in providing opportunities for religious nonprofits to

work in the public sphere, albeit under the restriction of nondiscrimination in order to

promote equality of opportunity, access, and expression.

Phillips29

Bibliography

American's United For Sep. V. Prison Fellowship. 432 F. Supp.2d 862 (S.D. Iowa 2006) Vol 432. 2006. https://casetext.com/case/americans-united-for-sep-v-prison-fellowship

Audi, Robert. “Moral Foundations of Liberal Democracy, Secular Reasons, and Liberal

Neutrality toward the Good.” Notre Dame Journal of Ethics and Public Policy, no. 19 (2005): 197-218, http://scholarship/law.ned.edu/ndjlepp/vol19/iss1/7

Audi, Robert and Nicholas Wolterstorff. Religion in the Public Square: The Place of

Religious Convictions in Political Debate. Maryland: Rowman & Littlefield Publishers, 1997.

Habermas, Jürgen. “Religion in the Public Sphere: Cognitive Presuppositions for the ‘Public Use of Reason’ by Religious and Secular Citizens,” Between Naturalism and Religion, 114-147, Cambridge: Polity Press, 2008.

Hall, Peter Dobkin. “A Historical Overview of Philanthropy, Voluntary Associations, and

Nonprofit Organizations in the United States, 1600-2000.” In The Nonprofit Sector: A Research Handbook, Second Edition, edited by Walter W. Powell and Richard Steinberg, 32-65. New Haven, CT:Yale University Press, 2006.

Jones, Jeffrey M. “Fewer in U.S Want Government to Promote Traditional Values,” Gallup,

September 30, 2015, http://www.gallup.com/poll/185948/fewer-government-promote-traditional-values.aspx?g_source=morality&g_medium=search&g_campaign=tiles

Laborde, Cécile. “Equal Liberty, Nonestablishment, and Religious Freedom.” Legal Theory,

20 (2014). 52-77.

Newport, Frank, “Majority Still Says Religion Can Answer Today’s Problems," Gallup June, 27, 2014, http://www.gallup.com/poll/171998/majority-says-religion-answer-today-problems.aspx

Newport, Frank. “Three-Quarters of Americans Identify as Christian,” Gallup. December 24,

2014. http://www.gallup.com/poll/180347/three-quarters-americans-identify-christian.aspx

Rawls, John. “The Idea of Public Reason Revisited,” The Law of Peoples, 129-180.

Massachusetts: Harvard University Press, 1999. “Religion.” Gallup Historical Trends, Gallup (2015)

http://www.gallup.com/poll/1690/religion.aspx Robert P. George, “The Concept of Public Morality,” The Clash of Orthodoxies: Law,

Religion, and Morality in Crisis, 92-109. Delaware:ISI Books (2001),

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Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution

Princeton, NJ: Princeton University Press, 2009.

This paper represents my own work in accordance with university regulations

X Cody Phillips 1/5/16