Should political liberals be compassionate conservatives? Philosophical foundations of the faith-based initiative

Social Philosophy and Policy

Volumn 21, Issue 1, 2004, Pages

  Tomasi, John ^a  

^a BROWN UNIVERSITY   (United States)

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EID: 3042644920     PISSN: 02650525     EISSN: None     Source Type: Journal    
DOI: 10.1017/s0265052504211141     Document Type: Review

References (65)

1. Charles E. Larmore, Patterns of Moral Complexity (New York: Cambridge University Press, 1987). Charles E. Larmore, "Political Liberalism," Political Theory 18, no. 3 (1990): 339-60; and John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
2. Charles E. Larmore, Patterns of Moral Complexity (New York: Cambridge University Press, 1987). Charles E. Larmore, "Political Liberalism," Political Theory 18, no. 3 (1990): 339-60; and John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
3. Charles E. Larmore, Patterns of Moral Complexity (New York: Cambridge University Press, 1987). Charles E. Larmore, "Political Liberalism," Political Theory 18, no. 3 (1990): 339-60; and John Rawls, Political Liberalism (New York: Columbia University Press, 1993).
4. See Marvin Olasky, Compassionate Conservatism: What It Is, What It Does, and How It Can Transform America (New York: Free Press, 2000). This book includes a foreward by then-Governor George W. Bush.
5. For a wide survey of negative reactions to Bush's proposal, see "Faith-Based Folly: Americans Say 'Not So Fast'," Americans United for Separation of Church and State, April 2001, available on-line at http://www.au.org/churchstate/cs4015.htm [accessed February 2003].
6. Title VII of the 1964 Civil Rights Act carves out an exemption from antidiscrimination law that allows religious organizations to make employment decisions based on religion. The Welfare Reform Act of 1996 says that this exemption is preserved even for religious organizations that become federal contractors (see 42 U.S.C. § 604a [2001]). For an example of the vehement reaction in some quarters against Bush's executive order, see "Bush Faith-Based Effort Gives Official Blessing to Religious Discrimination: President Circumvents Congress, Allows Tax Dollars to Go to Religious Groups That Discriminate," Americans United for Separation of Church and State, December 12, 2002; available on-line at http:// www.au.org/press/pr021212.htm [accessed February 2003].
7. For example, if the compassionate conservative program is to avoid religious coercion of recipients, secular service providers must be available alongside faith-based ones for all the goods mandated by egalitarian justice. Satisfying this proviso within the contemporary American context would probably require an increase in public spending - and thus in governmental power - far beyond current levels.
8. See Alan Brownstein, "Constitutional Questions about Charitable Choice," in Derek H. Davis and Barry Hankins, eds., Welfare Reform & Faith-Based Organizations (Waco, TX: J. M. Dawson Institute of Church-State Studies, Baylor University, 1999). A test of the employment question at the level of state funding is Pedreira v. Kentucky Baptist Homes for Children, 186 F. Supp. 2d 757 (W.D. KY 2001) (employee was fired because her admitted homosexual lifestyle violated the organization's religious values). In the case of Davey v. Locke, 299 F.3d 748 (college student denied state scholarship money because he chose to major in theology), the U.S. Supreme Court will consider whether religious citizens sometimes have a right to receive public funding. I am currently writing an article about the issues underlying the Davey case, arguing that egalitarian versions of liberalism generate extensive positive religious freedom rights such as those at issue in Davey. Egalitarian liberalism thus requires a far more substantial mixing of church and state than do more minimalist, classical conceptions of liberalism. My article is provisionally entitled "Locke v. Davey v. Locke."
9. Compared to most forms of ethical liberalism, a political conception of liberalism may well "enhance the ability of religious commitment to alter the nature of the state." This phrase is from Stephen Carter, who is skeptical of liberalism's ability in this regard, though Carter does not discuss political liberalism. See Stephen L. Carter, "Liberalism's Religion Problem," First Things 121 (2002): 21-32.
10. My exposition of political liberalism in this section draws from the first chapter of my book Liberalism Beyond Justice: Citizens, Society, and the Boundaries of Political Theory (Princeton, NJ: Princeton University Press, 2001), 3-10.
11. Larmore's exposition of this idea has been especially influential. See Charles E. Larmore, The Morals of Modernity (New York: Cambridge University Press, 1996), 123.
12. For example, Raz and Kymlicka defend conceptions of autonomy that give increasing place to the demands of a person's history or (unchosen) social context of choice. See Joseph Raz, "Facing Diversity: The Case of Epistemic Abstinence," Philosophy and Public Affairs 19, no. 1 (1990): 3-46; and Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (New York: Oxford University Press, 1994). See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995).
13. For example, Raz and Kymlicka defend conceptions of autonomy that give increasing place to the demands of a person's history or (unchosen) social context of choice. See Joseph Raz, "Facing Diversity: The Case of Epistemic Abstinence," Philosophy and Public Affairs 19, no. 1 (1990): 3-46; and Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (New York: Oxford University Press, 1994). See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995).
14. For example, Raz and Kymlicka defend conceptions of autonomy that give increasing place to the demands of a person's history or (unchosen) social context of choice. See Joseph Raz, "Facing Diversity: The Case of Epistemic Abstinence," Philosophy and Public Affairs 19, no. 1 (1990): 3-46; and Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (New York: Oxford University Press, 1994). See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995).
15. Larmore, The Morals of Modernity, 129, 130.
16. Carl Esbeck's defense of political autonomy and his attack on autonomy as a personal ideal is a striking example of this attitude in the context of Establishment Clause jurisprudence: "Unleashing personal religious choice as the core value of the Establishment Clause-is not being elevated here as good theology, just good jurisprudence.... [F] or observant Jews and Christians, religious liberty consists not in doing what we choose, but in the freedom to do what we ought.... [B]elief and practice are understood in terms of truth, not choice." See Carl H. Esbeck, "A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers," Emory Law Journal 46, no. 1 (1997): 1-42; see esp. note 98.
17. John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971), 572.
18. Ibid., 575.
19. John Rawls, "Introduction to the Paperback Edition," Political Liberalism (New York: Columbia University Press, 1996), xlii.
20. See especially Raz, "Facing Diversity."
21. For an argument that political liberalism conceptually collapses into ethical liberalism on these grounds, see Eamonn Callan, "Political Liberalism and Political Education," Review of Politics 58, no. 1 (1996): 5-33. For an argument that the civic educational requirements of the two metapolitical views converge as a matter of practice, see Amy Gutmann, "Civic Education and Social Diversity," Ethics 105, no. 3 (1995): 557-59. I offer a defense of political liberalism's distinctness in light of Callan's and Gutmann's critiques in John Tomasi, "Civic Education and Ethical Subservience: From Mozert to Santa Fe and Beyond," Moral and Political Education, (NOMOS XLII), Steve Macedo and Yael Tamir, eds. (New York: New York University Press, 2001).
22. For an argument that political liberalism conceptually collapses into ethical liberalism on these grounds, see Eamonn Callan, "Political Liberalism and Political Education," Review of Politics 58, no. 1 (1996): 5-33. For an argument that the civic educational requirements of the two metapolitical views converge as a matter of practice, see Amy Gutmann, "Civic Education and Social Diversity," Ethics 105, no. 3 (1995): 557-59. I offer a defense of political liberalism's distinctness in light of Callan's and Gutmann's critiques in John Tomasi, "Civic Education and Ethical Subservience: From Mozert to Santa Fe and Beyond," Moral and Political Education, (NOMOS XLII), Steve Macedo and Yael Tamir, eds. (New York: New York University Press, 2001).
23. For an argument that political liberalism conceptually collapses into ethical liberalism on these grounds, see Eamonn Callan, "Political Liberalism and Political Education," Review of Politics 58, no. 1 (1996): 5-33. For an argument that the civic educational requirements of the two metapolitical views converge as a matter of practice, see Amy Gutmann, "Civic Education and Social Diversity," Ethics 105, no. 3 (1995): 557-59. I offer a defense of political liberalism's distinctness in light of Callan's and Gutmann's critiques in John Tomasi, "Civic Education and Ethical Subservience: From Mozert to Santa Fe and Beyond," Moral and Political Education, (NOMOS XLII), Steve Macedo and Yael Tamir, eds. (New York: New York University Press, 2001).
24. The definitive exegetical statement of this point is offered by my colleague David Estlund. See David Estlund, "The Survival of Egalitarian Justice in John Rawls's Political Liberalism," Journal of Political Philosophy 4, no. 1 (1996): 68-78.
25. Olasky traces the role of this distinction in America from its roots in colonial times, describing, for example, how Ben Franklin criticized a British welfare act on just this ground when Franklin visited London in 1776. See Marvin Olasky, The Tragedy of American Compassion (Washington, DC: Regnery Gateway, 1992), generally; on Franklin, see p. 43. On the wider historical importance of the poverty/pauperism distinction, see Gertrude Himmelfarb, "Welfare and Charity: Lessons from Victorian England," in Transforming Welfare: The Revival of American Charity, Jeffrey Sikkenga, ed. (Grand Rapids, MI: Acton Institute, 1997), 27-33.
26. Olasky traces the role of this distinction in America from its roots in colonial times, describing, for example, how Ben Franklin criticized a British welfare act on just this ground when Franklin visited London in 1776. See Marvin Olasky, The Tragedy of American Compassion (Washington, DC: Regnery Gateway, 1992), generally; on Franklin, see p. 43. On the wider historical importance of the poverty/pauperism distinction, see Gertrude Himmelfarb, "Welfare and Charity: Lessons from Victorian England," in Transforming Welfare: The Revival of American Charity, Jeffrey Sikkenga, ed. (Grand Rapids, MI: Acton Institute, 1997), 27-33.
27. While this is the true condition of every person in society, average citizens typically have enough material and educational advantages that their flawed condition does not become publicly obvious. This is not so for the worst-off members of society.
28. Olasky, The Tragedy of American Compassion, 101-4.
29. See Stephen V. Monsma, When Sacred and Secular Mix: Religious Nonprofit Organizations and Public Money (Lanham, MD: Rowman & Littlefield, 1996).
30. Olasky describes both of these examples at length. On the Front Porch Alliance, see Olasky, Compassionate Conservatism, 61-91; on the Texas pre-release program, see 23-57.
31. This Cleveland program led to the important Supreme Court case Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The Court upheld the constitutionality of the Cleveland school voucher program, which many see as having cleared the constitutional ground for wider aspects of the Faith-Based Initiative. For constitutional analysis, see Ira Lupu and Robert Tuttle, "Sites of Redemption: A Wide-Angle Look at Government Vouchers and Sectarian Service Providers," The Journal of Law and Politics (forthcoming).
32. In a sense, charitable choice merely expands an existing system by which taxpayers subsidize religious groups. Half of all charitable giving from individuals goes to church groups and is tax deductible. Church groups are also generally exempt from sales taxes and local property taxes. According to Olasky, each level of government has long seen merit in such arrangements, and such arrangements have rarely caused conflicts or jeopardized the liberty of churches. "Offering of tax-free status has allowed governments to support the general welfare" (Olasky, Compassionate Conservatism, 87).
33. Consider this sentiment from Sister Connie Driscoll, head of a 125-bed shelter for women and children in Chicago: "The only way I would take government funding is over my very cold dead body. We simply don't like the government. We don't like their interference and all their nonsense - you can't do this, you can't do that" (Pittsburgh Post-Gazette, January 28, 2001, as quoted by Americans United for Separation of Church and State, "Faith-Based Folly: Americans say 'Not So Fast'" (available on-line, URL provided at note 3 above).
34. Consider this sentiment from Sister Connie Driscoll, head of a 125-bed shelter for women and children in Chicago: "The only way I would take government funding is over my very cold dead body. We simply don't like the government. We don't like their interference and all their nonsense - you can't do this, you can't do that" (Pittsburgh Post-Gazette, January 28, 2001, as quoted by Americans United for Separation of Church and State, "Faith-Based Folly: Americans say 'Not So Fast'" (available on-line, URL provided at note 3 above).
35. Quoted in Olasky, Compassionate Conservatism, 32.
36. The proviso that secular social service options always be available to recipients of aid is fundamental to the moral and constitutional plausibility of the Faith-Based Initiative. It is the satisfaction of this proviso that enables the initiative to avoid being religiously coercive of recipients. There are difficult questions concerning precisely what it means for the proviso to be satisfied.
37. Olasky, Compassionate Conservatism, 192 (emphasis mine).
38. In this essay I do not consider what means of implementing the compassionate conservative agenda might be constitutionally appropriate in the United States. I note that Olasky, at least, thinks this should be a matter for the national legislature: "Congress should draft a law concerning faith-based organizations that bars unconditionally any government regulation or restriction of religious observance or promotion." Marvin Olasky, "How Much Risk? Conservative Reaction to Bush's Faith-Based Initiative" [accessed on-line at http://www.capitalresearch.org/ publications/cc/2001/0104.htm, April 2001, p. 5 of 9].
39. Olasky writes, "The compassionate conservative goal is to offer a choice of programs: Protestant, Catholic, Jewish, Islamic, Buddhist, atheist. Some programs may emphasize education, some family, some work. Compassionate conservatives make sure that no one is placed in a particular type of program against his will, but they also try to make sure that religious people are free to communicate their values" (Olasky, Compassionate Conservatism, 18-19). They explicitly reject schemes for the establishment, or even for a multiple establishment, of religion (ibid., 98). The aim of compassionate conservatism is to give "all organizations, religious or atheistic, the opportunity to propose values-based ... programs" (ibid., 55).
40. Olasky writes, "The compassionate conservative goal is to offer a choice of programs: Protestant, Catholic, Jewish, Islamic, Buddhist, atheist. Some programs may emphasize education, some family, some work. Compassionate conservatives make sure that no one is placed in a particular type of program against his will, but they also try to make sure that religious people are free to communicate their values" (Olasky, Compassionate Conservatism, 18-19). They explicitly reject schemes for the establishment, or even for a multiple establishment, of religion (ibid., 98). The aim of compassionate conservatism is to give "all organizations, religious or atheistic, the opportunity to propose values-based ... programs" (ibid., 55).
41. Olasky writes, "The compassionate conservative goal is to offer a choice of programs: Protestant, Catholic, Jewish, Islamic, Buddhist, atheist. Some programs may emphasize education, some family, some work. Compassionate conservatives make sure that no one is placed in a particular type of program against his will, but they also try to make sure that religious people are free to communicate their values" (Olasky, Compassionate Conservatism, 18-19). They explicitly reject schemes for the establishment, or even for a multiple establishment, of religion (ibid., 98). The aim of compassionate conservatism is to give "all organizations, religious or atheistic, the opportunity to propose values-based ... programs" (ibid., 55).
42. Rawls, Political Liberalism (hardcover ed., 1993), 15, 303.
43. Olasky, Compassionate Conservatism, 98. Compassionate conservatism is based squarely on the liberal principle of legitimacy - the principle that governmental power is legitimate only if exercised on the basis of principles that are acceptable to those who are subject to it. In asserting their right of religious freedom, they can be understood as demanding that their society be organized according to a conception of justice that adheres to this principle too.
44. That secular programs promote moral and not just political autonomy is a constant theme among compassionate conservatives. Speaking of the professionalized programs associated with the Great Society, Olasky writes, "Programs that declared themselves 'compassionate' were often the opposite, because most tended to emphasize individual autonomy. Even those organizations that struggled to inculcate moral values accepted the notion that neither marriage nor reliance on family, church or traditional voluntary organizations which might be dominated by 'patriarchal values' - should or could be encouraged. 'About the only thing you can rely on is your personal feeling about what makes sense for you,' one resource directory declared.... Instead of emphasizing affiliation and bonding, many programs stressed bread alone" (Olasky, The Tragedy of American Compassion, 201; see also 175, 193, 203, 206, 208, 212, 225).
45. David Beito, "Fraternal Societies as an Alternative to the Welfare State," in Transforming Welfare, 34-49.
46. Olasky estimates that each taxpaying American family currently pays some $5,600 each year for poverty-fighting programs of various kinds: "[S]o much money is now drained into taxes that many people have little left to give" (Olasky, Compassionate Conservatism, 187). In Olasky's view, civil society in America has been so crowded out by Great Society-style programs (especially regarding the service of the most needy) that the natural order will not rebuild itself any time soon. See also the discussion in Monsma, When Sacred and Secular Mix, 50-58; and in Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracies (Lanham, MD: Rowman & Littlefield, 1997), 15-50.
47. Olasky estimates that each taxpaying American family currently pays some $5,600 each year for poverty-fighting programs of various kinds: "[S]o much money is now drained into taxes that many people have little left to give" (Olasky, Compassionate Conservatism, 187). In Olasky's view, civil society in America has been so crowded out by Great Society-style programs (especially regarding the service of the most needy) that the natural order will not rebuild itself any time soon. See also the discussion in Monsma, When Sacred and Secular Mix, 50-58; and in Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracies (Lanham, MD: Rowman & Littlefield, 1997), 15-50.
48. Olasky estimates that each taxpaying American family currently pays some $5,600 each year for poverty-fighting programs of various kinds: "[S]o much money is now drained into taxes that many people have little left to give" (Olasky, Compassionate Conservatism, 187). In Olasky's view, civil society in America has been so crowded out by Great Society-style programs (especially regarding the service of the most needy) that the natural order will not rebuild itself any time soon. See also the discussion in Monsma, When Sacred and Secular Mix, 50-58; and in Stephen V. Monsma and J. Christopher Soper, The Challenge of Pluralism: Church and State in Five Democracies (Lanham, MD: Rowman & Littlefield, 1997), 15-50.
49. Michael W. McConnell, "Old Liberalism, New Liberalism, and People of Faith," in Christian Perspectives on Legal Thought, Michael W. McConnell et al., eds. (New Haven, CT: Yale University Press, 2001), 21. See also Carl H. Esbeck, "Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause," Notre Dame Journal of Law, Ethics and Public Policy 13, no. 2 (1999): 285; and Carter, "Liberalism's Religion Problem," 21-32.
50. Michael W. McConnell, "Old Liberalism, New Liberalism, and People of Faith," in Christian Perspectives on Legal Thought, Michael W. McConnell et al., eds. (New Haven, CT: Yale University Press, 2001), 21. See also Carl H. Esbeck, "Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause," Notre Dame Journal of Law, Ethics and Public Policy 13, no. 2 (1999): 285; and Carter, "Liberalism's Religion Problem," 21-32.
51. Michael W. McConnell, "Old Liberalism, New Liberalism, and People of Faith," in Christian Perspectives on Legal Thought, Michael W. McConnell et al., eds. (New Haven, CT: Yale University Press, 2001), 21. See also Carl H. Esbeck, "Myths, Miscues, and Misconceptions: No-Aid Separationism and the Establishment Clause," Notre Dame Journal of Law, Ethics and Public Policy 13, no. 2 (1999): 285; and Carter, "Liberalism's Religion Problem," 21-32.
52. Samuel Freeman has coined the term "high liberalism" to describe egalitarian liberalism in the Rawlsian vein. See Samuel Freeman, "Illiberal Libertarians: Why Libertarianism is not a Liberal View," Philosophy and Public Affairs 30, no. 2 (2001): 105-51. I offer a response from a libertarian perspective in Tomasi, Liberalism Beyond Justice, 108-25. I regret that, through an editing error on my part, the citations to Freeman's work in my discussion are inadequate (especially at 112-12). While standing by my response, I strongly recommend Freeman's fine article.
53. Samuel Freeman has coined the term "high liberalism" to describe egalitarian liberalism in the Rawlsian vein. See Samuel Freeman, "Illiberal Libertarians: Why Libertarianism is not a Liberal View," Philosophy and Public Affairs 30, no. 2 (2001): 105-51. I offer a response from a libertarian perspective in Tomasi, Liberalism Beyond Justice, 108-25. I regret that, through an editing error on my part, the citations to Freeman's work in my discussion are inadequate (especially at 112-12). While standing by my response, I strongly recommend Freeman's fine article.
54. On this distinction and Rawls's rejection of neutrality of effect as a constraint, see Rawls, Political Liberalism (hardcover ed., 1993), 193-94; and Larmore, Patterns of Moral Complexity, 126 n. 6.
55. On this distinction and Rawls's rejection of neutrality of effect as a constraint, see Rawls, Political Liberalism (hardcover ed., 1993), 193-94; and Larmore, Patterns of Moral Complexity, 126 n. 6.
56. I develop this idea of an "ethical background culture" in my Liberalism Beyond Justice, 11ff.
57. This, at least, is Rawls's view: "A Theory of Justice was a comprehensive doctrine of liberalism" (Rawls as interviewed by Bernard O. Prusak, "Politics, Religion, and the Public Good," Commonweal, September 25, 1998, 13).
58. See Rawls, Political Liberalism (hardcover ed., 1993), 328.
59. I discuss ways to formulate such a third principle of justice in Tomasi, Liberalism Beyond Justice, 100-4. The seminal exposition of this idea, to which I am much indebted, is Burleigh Wilkins, "A Third Principle of Justice," Journal of Ethics 1, no. 4 (1997): 355-74.
60. I discuss ways to formulate such a third principle of justice in Tomasi, Liberalism Beyond Justice, 100-4. The seminal exposition of this idea, to which I am much indebted, is Burleigh Wilkins, "A Third Principle of Justice," Journal of Ethics 1, no. 4 (1997): 355-74.
61. I have in mind the emerging school of "even-handedness" or "neutrality" that seems to be replacing "no-aid separationism" as the core concept of religious liberty. See Ira C. Lupu "The Lingering Death of Separationism," George Washington Law Review 62 (1994): 230; Esbeck, "A Constitutional Case"; and Esbeck, "Myths, Miscues, and Misconceptions." For helpful analysis, see Douglas Laycock, "The Underlying Unity of Separation and Neutrality," Emory Law Journal 46, no. 1 (1997): 43-74.
62. I have in mind the emerging school of "even-handedness" or "neutrality" that seems to be replacing "no-aid separationism" as the core concept of religious liberty. See Ira C. Lupu "The Lingering Death of Separationism," George Washington Law Review 62 (1994): 230; Esbeck, "A Constitutional Case"; and Esbeck, "Myths, Miscues, and Misconceptions." For helpful analysis, see Douglas Laycock, "The Underlying Unity of Separation and Neutrality," Emory Law Journal 46, no. 1 (1997): 43-74.
63. For an introductory constitutional defense of the idea that faith-based organizations can become federal contractors and yet retain their right to use religious criteria when making employment decisions, see Carl H. Esbeck, "Isn't Charitable Choice Government-Funded Discrimination?" Center for Public Justice, available on-line at http://cpjustice.org/stories/ storyreader$375 [accessed at February 2003]. A fascinating account of the constitutional difficulties with such a position is offered by Laura Mutterperl, "Employment at (God's) Will: The Constitutionality of Antidiscrimination Exemptions in Charitable Choice Legislation," Harvard Civil Rights-Civil Liberties Law Review 37, no. 2 (2002): 389-445. More generally, see Martha Minow's fine essay, "Partners, Not Rivals? Redrawing the Lines Between Public and Private, Non-Profit and Profit, Secular and Religious," Boston University Law Review 80, no. 4 (2000): 1061-94.
64. For an introductory constitutional defense of the idea that faith-based organizations can become federal contractors and yet retain their right to use religious criteria when making employment decisions, see Carl H. Esbeck, "Isn't Charitable Choice Government-Funded Discrimination?" Center for Public Justice, available on-line at http://cpjustice.org/stories/ storyreader$375 [accessed at February 2003]. A fascinating account of the constitutional difficulties with such a position is offered by Laura Mutterperl, "Employment at (God's) Will: The Constitutionality of Antidiscrimination Exemptions in Charitable Choice Legislation," Harvard Civil Rights-Civil Liberties Law Review 37, no. 2 (2002): 389-445. More generally, see Martha Minow's fine essay, "Partners, Not Rivals? Redrawing the Lines Between Public and Private, Non-Profit and Profit, Secular and Religious," Boston University Law Review 80, no. 4 (2000): 1061-94.
65. For an introductory constitutional defense of the idea that faith-based organizations can become federal contractors and yet retain their right to use religious criteria when making employment decisions, see Carl H. Esbeck, "Isn't Charitable Choice Government-Funded Discrimination?" Center for Public Justice, available on-line at http://cpjustice.org/stories/ storyreader$375 [accessed at February 2003]. A fascinating account of the constitutional difficulties with such a position is offered by Laura Mutterperl, "Employment at (God's) Will: The Constitutionality of Antidiscrimination Exemptions in Charitable Choice Legislation," Harvard Civil Rights-Civil Liberties Law Review 37, no. 2 (2002): 389-445. More generally, see Martha Minow's fine essay, "Partners, Not Rivals? Redrawing the Lines Between Public and Private, Non-Profit and Profit, Secular and Religious," Boston University Law Review 80, no. 4 (2000): 1061-94.