A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers

This Article will refer to separationism as based on older assumptions. The Court\u27s presuppositions concerning the nature and contemporary value of religion and the proper role of modem government underlie what will be referred to as a traditional analysis of the case law. Part I is a partial overview of the Supreme Court\u27s cases since Everson, and has the goal of making the strongest arguments-within the framework of separationism-for the constitutionality of governmental welfare programs that permit participation by faith-based social service providers. Part II is about separationism\u27s major competitor, a theory centered on the unleashing of personal liberty to the end that, with minimal governmental interference, individuals make their own religious choices. This theory has come to be called the neutrality principle.7 Neutrality theory surfaced most obviously in 1981 when the Supreme Court handed down its decision in the free speech and religion case of Widmar v. Vincent.! Religious neutrality as a model for interpreting the Establishment Clause is based on what will be termed new assumptions. The aim of the new assumptions is to minimize the effects of governmental action on individual or group choices9 concerning religious belief and practice. When the dispute is over a welfare program in which faith-based social service providers desire to participate, the neutrality principle requires government to follow a rule of minimizing the impact of its actions on religion, to wit: all service providers may participate in a welfare program without regard to religion and free of eligibility criteria that require the abandonment of a provider\u27s religious expression or character. Thus, Part II consists of a realignment of the Supreme Court\u27s cases along a new axis, with the goal of making the strongest arguments-within the framework of these new assumptions-for the constitutionality of governmental programs of aid which permit full and equal participation by faith-based social service providers