Post-Secular State Paper

Gwendolyn Yvonne Alexis, Ph.D., J.D.Faith-Based Participation in Civil Societies Consultative Workshop

The Post-Secular State and Religious Liberty: The FBOizationof Immigrant Integration

Introduction

(3) Neither the enjoyment of civil or political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be advantaged by reason of adherence or nonadherence to a particular religious denomination or philosophical creed.

Article 33, §3 of German Basic Law

This excerpt from Germany’s Constitution (Grundgesetz) bodes

ill for governmental outsourcing of social services delivery to the

religious sector – a trend that has become more prevalent as a

result of “the retrenchment of the welfare state” from fulfilling

its traditional role of providing for the economic and social well-

being of the citizenry.1 Like the German constitution cited above,

most of the pedigreed and fledgling democracies of Europe have

adopted constitutions that protect religious liberty as a

fundamental right; and this includes the right to be ‘free from

religion’ as a prerequisite to obtaining a taxpayer’s rightful

share of government entitlements. However, when faith-based

1Justin Beaumont and Paul Cloke, Faith-Based Organisations and Exclusion in European Cities (Bristol, UK: Policy Press, 2012), 3.

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organizations (FBOs) step in to fill the void left by the

retreating welfare state, those in need of social assistance will

invariably be forced to “get religious” or go without needed help.

In what follows, I hope to sound an alarm to the newly

integrated Europe to steer clear of FBOs as a “quick fix” to the

problem of waning state services in inner cities plagued by rising

numbers of marginalized inhabitants. Starting in the last quartile

of the Twentieth Century, an influx of laborers, asylum seekers,

refuges and migrating peoples signaled the end of Europe’s long

spring as a continent of relatively homogeneous, culturally

isolated countries. Indeed, the 47 states with membership in the

Council of Europe (COE) are now multicultural and religiously

diverse societies. And, by virtue of their COE membership, these

countries share a commitment to the democratic principles set forth

in the European Convention on Human Rights (“the Convention”).2

Religious freedom is one of the fundamental freedoms provided for in

2 “Considering that the aim of the Council of Europe is the achievement of greater unity between its members and that one of the methods by which that aim is to be pursued is the maintenance and further realization of human rights and fundamental freedoms.” Preamble, Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, 213 U.N.T.S. 221 (hereafter, “Convention”).

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the Convention;3 and the thesis of this paper is that becoming

dependent on FBOs as the primary providers of social services in

societies that are no longer religiously homogeneous will have a

detrimental effect on religious freedom. This paper is organized

under the following three main topic headings: (1) History of FBOs

in the U.S.; (2) Civil Society and Religion; and (3) Religious

Minorities and Political Action.

History of FBOs in the U.S.

The pattern for what can only be considered an unholy

alliance of church and state was ironically established in the

U.S., a country originally founded as a secular state with a

Constitution (First Amendment) that calls for maintaining a wall of

separation between church and state.4 The progenitor of

legislation clearing the way for all subsequent executive-branch

3 Convention, art. 9(1).

4 “… I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State.” Thomas Jefferson, letterdated January 1, 1802 (addressed to leadership of Danbury, CT, Baptists). Copy of letter set forth in article, “A Wall of Separation,” by James Hutson, Chief of Manuscript Division, Library of Congress. Available at: http://www.loc.gov/loc/lcib/9806/danbury.html.

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courting of the religious sector was “Charitable Choice,” a 1996

initiative that piggybacked massive welfare reform in the U.S.

during the Clinton Administration.5 Welfare reform was

accomplished by means of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 which President Clinton

described as “ending welfare as we know it.” Indeed, the Act

reversed a long-standing policy in the U.S. of providing assistance

to needy families for as long as there were dependent children

under 18 years of age in the household. Under the 1996 welfare

reform, welfare became “Temporary Aid for Needy Families” (TANF),

with the emphasis on “temporary.” Under TANF, eligibility for

welfare was only in two-year stints at which time recipients lost

their benefits and had to enter the workforce. To prevent on-and-

off again recidivism by the hard core unemployed, there was a lifetime

cap of five years on the public dole.

Needless to say, getting the adults of 5 million welfare-

dependent families job-ready within two years was the kind of

5 “Charitable Choice,” 1996 Welfare Reform Law, Public Law 104-193. 22 Aug. 1996. 110 Stat. 2105.

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miracle for which one needs assistance from a greater power;6 and

this is where the religious sector fit in. Being of the view that

welfare dependency is a moral failing, 7 the Republican Senator

from Missouri, John Ashcroft, argued before Congress that the

churches alone were equipped to accomplish the necessary moral

rehabilitation. And, in any event, noted Ashcroft, state welfare

agencies lacked credibility with the marginalized populations who

had been subsisting on welfare year after year.8 So, the die was

cast for outsourcing social services delivery from state agencies

6 The total number of American individuals (not families) on welfare in 1996 was12.6 million. Michael Tanner and Tad Dehaven, “TANF and Federal Welfare” (Sep.2010), CATO Institute, 8 Sep 2013, http://www.downsizinggovernment.org./hhs/.

7 “By focusing on the small numbers of the poor who are cocaine addicted, or violent, or regularly involved in crime, the impression left by many media articles in the mind of middle America is that those who are poor are morally and behaviorally deficient. Most Americans are surprised to learn that poor single mothers receive less cash assistance than twenty years ago, and work more. Given these inaccurate images, the political success of efforts to cut cash assistance and increase work requirements is not surprising." Rebecca M. Blank, It Takes a Nation: A New Agenda for Fighting Poverty (Princeton: Princeton Univ. Press, 1997), 225.

8 Then U.S. Senator Ashcroft was a driving force in pushing the Charitable Choice initiative through Congress. Moreover, undeterred by the apparent state endorsement of religion, Ashcroft felt it was important that FBOs be allowed to remain true to their spiritual mission: “One of my goals in proposing the 'Charitable Choice' provision was to encourage faith-based organizations to expand their involvement in the welfare reform effort by providing assurances that their religious integrity would be protected." Ashcroft quoted in Amy Sherman, "Implementing 'Charitable Choice,'" Philanthropy (January/February 1999), 14-19.

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to the religious sector. Following the Clinton Administration,

President George W. Bush took up the outsourcing banner, issuing an

Executive Order in January 2001 creating a White House Office of

Faith-Based and Community Initiatives to cultivate contacts with

the religious sector and to spread the news that religious groups

could become third-party contractors with the government and

receive public funds for providing the necessary social services to

get welfare recipients ready to enter the workforce:

Section 1. Policy. Faith-based and other community organizations areindispensable in meeting the needs of poor Americans and distressedneighborhoods. [...] The paramount goal is compassionate results, and private and charitable community groups, including religious ones, should have the fullest opportunity permitted by law to compete on a level playing field, so long as they achieve valid public purposes, such as curbing crime, conquering addiction, strengthening families and neighborhoods, and overcoming poverty.9

Following in Bush’s footsteps, President Obama has also

continued this courting of the religious sector albeit it with a

slight change of name for his recruitment office; namely, The White

9 President George W. Bush, Executive Order No. 13198 (29 January 2001), Washington D.C.: White House. 8 Sep 2013. http://georgewbush-whitehouse.archives.gov/news/releases/2001/01/20010129-2.html.

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http://georgewbush-whitehouse.archives.gov/news/releases/2001/01/20010129-2.html

http://georgewbush-whitehouse.archives.gov/news/releases/2001/01/20010129-2.html


House Office of Faith-based and Neighborhood Partnerships.

Nevertheless, the function of the office is the same, “to form

partnerships between the Federal Government and faith-based and

neighborhood organizations to more effectively serve Americans in

need.”10 Hence, starting with the Clinton Administration in 1996

and continuing through the present second term of the Obama White

House, there has been a steady erosion of the wall separating

church and state by means of faith-based initiatives that colonize

the poor under the religious sector. The immediate and

irreversible effect of this type of colonization has been to make

religious affiliation a prerequisite to obtaining needed social

services that are no longer being made available on an impartial

secular basis by any branch of government at the national or local

level. 11 Hence patronizing one or the other religious service

10“Office of Faith-Based and Neighborhood Partnerships,” White House. 8 Sep 2013.http://www.whitehouse.gov/administration/eop/ofbnp.

11 “Communitarians believe that safeguards need to be in place to protect the individual’s free exercise of religious rights under the Constitution. Social service should not be provided as a quid pro quo for religious adherence; secular alternatives should also be available.” ”Delivery of Social Services through Faith-Based Organizations,” The Communitarian Vision: Faith-Based SocialServices, 9 Sep 2013, http://communitariannetwork.org/communitarian-vision/faith-based-social-

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http://communitariannetwork.org/communitarian-vision/faith-based-social-services/


http://www.whitehouse.gov/administration/eop/ofbnp


provider becomes a fait accompli. The absence of choice for

impoverished persons who lack the resources to exert their own will

is particularly egregious and amounts to violation of their freedom

of conscience and of thought in addition to denying them religious

freedom. There is every indication that faith-based initiatives in

Europe will similarly deprive impoverished, marginalized, and

powerless populations of their freedom of thought, conscious, and

religion.12

Civil Society and Religion

In Democracy in America, Alexis de Tocqueville observed that

the democratizing process is greatly aided by a vibrant civil

society.13 According to Tocqueville, a vibrant civil society holds

the state in check, making it accountable to the people.

Tocqueville also noted that religious groups constituted one of the

most vibrant components of civil society in early America. Indeed,

services/.

12 Recent studies indicate that with the retreat of the welfare state in Europe, FBOs are expected to play a greater role in “combating poverty, social exclusion, and general distress in cities across Europe.” (Beaumont and Cloke 2012)

13 (Tocqueville 1835/1998).8





the spirituality of the American people was noted in several

chapters of Tocqueville’s tome.14 This dynamic was, of course,

missing in Middle and Eastern Europe during much of the Twentieth

Century when the countries of Central and Eastern European were

shackled by a totalitarian Russian regime that stifled the

formation of civil society and discouraged religious belief and

religious institutions. Hence, it is not surprising that the

pubescent democracies of Central and Eastern Europe are eager to

follow the lead of the pedigreed democracies of Western Europe in

turning to FBOs as a solution to the waning welfare state.

However, danger lurks in utilizing the religious sector as an arm

of the government – a fact that was recognized by Tocqueville:

If it be easy to see that it is more particularly important in democratic ages that spiritual opinions should prevail, it is not easy to say by what means those who govern democratic nations may make them predominate. I am no believer in the prosperity any more than in the durability of official philosophies; and as to state religions, I have always held that if they be sometimes of momentary

14 It is worth noting that Tocqueville was in America at the time of the Second Great Awakening (1790s -1840s) which was a period of immense spirituality in theU.S. This could explain Tocqueville’s feeling that some Americans manifested sort of fanatical spiritualism: “Here and there in the midst of American society you met with men full of a fanatical and almost wild spiritualism, which hardly exists in Europe. From time to time strange sects arise which endeavor to strike out extraordinary paths to eternal happiness. Religious insanity is verycommon in the United States.” (Tocqueville 1835/1998), 240.

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service to the interests of political power, they always sooner or later become fatal to the church.15

Alas, the state is irresistibly drawn to the religious

sector because religion has long been associated with moral uplift.

And, moral uplift is complementary to the state’s role of

protecting the public and promoting the general welfare. “Honest

and law-abiding citizens need less policing and their activities

require less regulation.”16 Hence, states are, in particular,

drawn to religious traditions that encourage compassion and

generosity as this means the state will not have to go it alone in

delivery of social services to the needy and in promoting the

general welfare. This is what Tocqueville is referring to in the

above excerpt when he notes that established (state) religions are

of “momentary service to the interests of political power.”

15 (Tocqueville 1835/1998), 246.

16 Gwendolyn Yvonne Alexis, “The Legislative Route to Activating Faith Communities: Swedish and American Parallels,” 16 TKRS 2/2003, 97-119, 104. Available at: < http://www.kifo.no/index.cfm?id=267351> 10 Sep 2013.

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http://www.kifo.no/index.cfm?id=267351


A forgotten piece of American history is the fact that in

the early days of the American Republic, Protestantism was the

established religion throughout New England; and Protestant clergy

were supported by mandatory religious taxation. Article III of the

Massachusetts Constitution of 1780 was typical; it provided for a

church tax so that each parish in the Commonwealth could support “a

public protestant teacher of piety, religion and morality.” Why

Protestant? The Chief Justice of the Massachusetts Supreme Court

had occasion to explain why in a lawsuit brought by a disgruntled

minister of a different Christian denomination to have the taxes of

his church members utilized to pay his salary rather than being

used to pay the salary of the minister of the establishment church:

In selecting a religion, the people were not exposed to the hazard of choosing a false and defective religious system. Christianity had long been promulgated, its pretensions and excellencies well known, and its divine authority admitted. … And this religion as understood by Protestants, tending by its effects to make every man submitting to its influence, a better husband, parent, child, neighbor, citizen andmagistrate, was by the people established as a fundamental and essential part of their Constitution.

….Justice Theophilus Parsons in the Barnes case17

17 Thomas Barnes v. The Inhabitants of the First Parish in Falmouth, 6 Mass. 401 (1810).

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Needless to say, Judge Parsons ruled against the Plaintiff. It is

to be expected that when the state has a definite societal role in

mind for the religious sector, only those religious traditions that

can be counted on to fulfill the role anticipated will earn the

imprimatur of the state.

In the U.S., this inconvenient truth was put to the test

with Charitable Choice during the Bush Administration when it was

made clear that the Bush White House would not entertain bids from

the Wiccans (a 20th Century witchraft religion) for third-party

government contracts to provide job-readiness services to welfare

recipients under Charitable Choice.18 Invariably, in recruiting

FBOs to fill in the gaps in social services left by a retreating

welfare state, the European states will be influenced by certain

preconceived notions of what a religion looks like. Whether these

are based on the current dominant religious denomination in their

country or – in the case of Central and Eastern Europe -- on a

previously predominant religion in their country, certain FBOs will

18 “Charitable Choice Legislation Could Subsidize Religious Bigotry, Sponsor Concedes," (April 6, 2000) Americans United, 10 Sep 2013 <https://www.au.org/media/press-releases/charitable-choice-legislation-could-subsidize-religious-bigotry-sponsor>.

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have a tougher time than others in fitting into the country’s

religious stereotype. Since the September 11, 2001, attack on the

World Trade Center, there has been a backlash against Muslims or

those who appear to be Muslim.19 As a result there has been only a

halted acceptance of Islam as part of the religious landscapes of

America and Europe. It is doubtful that Islamic FBOs will compete

on a level playing field with the FBOs of other denominations in

terms of winning third-party government contracts for social

services delivery.

It can be expected, however, that Muslim FBOs will -- as

will Hindu FBOs or Sikh FBOs, etc. -- attempt to gain acceptance in

their host countries by closely resembling the home-grown religious

product. FBOs serve both sacred and secular roles in the growing

Diasporas of non-Christian peoples who have migrated to the

predominantly Christian immigrant host nations that have received

the greatest population inflows as a result of the post-1965

19 Gwendolyn Yvonne Alexis, “Not Christian, but Nonetheless Qualified: The Secular Workplace – Whose Hardship?” Journal of Religion and Business Ethics, JRBE, 3:1, 12. (July 9, 2012). Available at: <http://via.library.depaul.edu/jrbe/vol3/iss1/1>. 10 Sep 2013

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http://via.library.depaul.edu/jrbe/vol3/iss1/1


migration wave. In their secular roles, FBOs serve as mediating

structures between the immigrants and the greater society –a

society which is new and “foreign” to the newly arrived. The

church building is sacred space where new immigrants can experience

the familiar by engaging in religious rites and rituals with those

with whom they share a common history, culture, language, and

faith – sacred space where they can reaffirm a shared identity with

like believers. In drawing on the secular role of FBOs for its own

purposes, the state must be careful not to “become fatal”

(borrowing Tocqueville’s terminology) to the church and its

creation of the sacred.20 As I have pointed out at length

elsewhere,21 religion-friendly legislation (RFL) that seeks to

strengthen the role of the religious sector in the public sphere

merely serves to elevate the status of the majority religion in a

country. This is because in enacting laws to befriend religion,

20 “The strength of congregations remains the heartfelt sermons preached regularly, not the mission statements and bylaws they produce to legitimate themselves to the state.” Robert Wuthnow, Producing the Sacred: An Essay on Public Religion (Urbana: University of Illinois Press, 1994), 163.

21 (Alexis, Legislated Isomorphism of Immigrant Religions: Lessons from Sweden 2013).

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the legislature inevitably fashions laws that provide government

entitlements only to religious groups resembling the state’s

predominant religious denomination. Hence, a type of coerced

isomorphism results because the newer immigrant religions seek to

conform to the stereotypical guidelines for religion and religious

practice in the host country. And this is counterproductive in

terms of achieving religious pluralism:

One is not a member of a mosque. All Muslims are one large denomination expanding the globe. … But the initiative to help in collection of church dues shows that it is the perspective of the Church of Sweden that guides laws.

Hüseyin Ayata, IKUS, Islamic Culture Center in Sweden22

Religious Minorities and Political Action

Like the welfare recipients who were being booted off of

welfare in the U.S., the population that is being targeted for help

by FBOs in the newly integrated Europe is marginalized from the

mainstream white European majority. They are not white Christian

Europeans; they are minorities, either ethnic or religious

22 Translation from Swedish by author. As quoted by Ivan Garcia in “Sverige blirmångreligiöst: Samma regler för all trossamfund när kyrkan skiljs från staten” [Religious Pluralism in Sweden: The same rules for all faiths when church and state separate], Sesam 26 (July 7, 1999).

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minorities. Additionally, they are highly visible minorities,

easily identifiable by the color of their skin, their ethnicity,

their mother tongue, or by their religiously motivated grooming and

apparel preferences. Uncut and braided hair, Beards, yamaka,

turbans, hijabs, saris, etc. identify them as “the other” – not

Western, not Christian, not white. And, just as the Black Church

has been a welcoming fortress for African-Americans since the days

of slavery – a place of refuge and a place to regroup and re-arm to

wage the battle for acceptance (if not integration) into the

profane world lying outside of the sacred canopy; the “immigrant

religions” arriving with the tide of post-1965 migrants can serve

as both safe harbors and tools of transition that help them become

fully integrated members of their new homelands. However, the

welcoming arm being extended to FBOs by the retreating welfare

state is a double-edged sword.

I have discussed how the very existence of RFL serves to

increase the currency of a society’s predominant religion, which

serves as the model for both religion and “religious practice”.

The coercive effect of this has been noted in the U.S. where all

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religions become congregational without regard to whether they were

organized religions before being transplanted to the diaspora.23

In the U.S., the tax law influences the organizational format since

all religious organizations seeking tax-exempt status under the

Internal Revenue Code are required to adopt a corporate format,

elect a board of directors, and hold annual meetings.24 With

Islam, having to meet this bureaucratic requirement has the effect

of undermining a basic theological tenet of Islam; i.e., that there

should be no hierarchical structures in that one communicates

directly with Allah, without the need for an intermediary.

An additional problem with RFL is that it incentivizes group

formation on the basis of religious identity, rather than on the

basis of some other shared goals that might be more conducive to

engaging in productive activism. In 2005, an expansive study was

conducted in Sweden to examine “pervasive structural

discrimination” against ethnic and religious minorities living in

23 Diana Eck, head of the Pluralism Project at Harvard University has been tracking the ways in which immigrant religions change in the American context. See, Diana Eck, “The Multireligious Public Square,” in One Nation Under God? Religion and American Culture (Eck 1999), 3.

24 Internal Revenue Code §501(c)3.

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the country.25 Based upon the results of the study, a report was

issued recommending that the Swedish state allocate funds to

strengthen civil society so that ethnic and religious minorities

are empowered to better their own situation by participating in the

political process. Interestingly, the report noted that

mobilization of civil rights groups in the UK, Canada and the US

had helped to combat discriminatory treatment of minorities in

these countries:

The development of various measures for counteracting discrimination in the USA, Canada and Great Britain has been stimulated by organisations in civil society. They have succeeded in mobilizing those affected, in developing the necessary knowledge base and making demands.

The most prominent tools in these countries for counteractingdiscrimination, including structural discrimination, have beendeveloped in a process that combined political leadership, strongcivil society organisations that gathered those affected, and a focus on changing behavior. The process resulted in stronger laws, institutions and policies—such as anti-discrimination clauses in public contracts (contract compliance).26

25 Det Blågula Glashuset—Strukturell Diskriminering I Sverige [The blue-yellow glass house: Structural discrimination in Sweden ], (Stockholm: SOU, 2005), 56. < http://www.regeringen.se/sb/d/108/a/46188>.

26 Ibid, 51.

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Moving beyond Sweden, the Open Society Foundations (“the

Society”) is a nonprofit organization with the avowed purpose of

“protecting and improving the lives of people in marginalized

communities.” It commissioned major research projects focusing on

Muslims in Europe; and in 2007, the Society received separate

reports on the status of Muslims in the following European

countries: Sweden, Denmark, Belgium, France, Germany, the

Netherlands and the UK.27 It became clear from these reports that

stigmatized and marginalized groups, even when politically active,

lack the political and social clout on their own to end the

discriminatory treatment to which they are being subjected. Their

numbers are so small that they cannot vote anyone out of office;

and coalitions with other larger groups are difficult to form

because of their pariah status. Not willing to give up, the

Society has taken on the mission of strengthening the rule of law

and advancing respect for, “human rights, minorities, and a

27 “Muslims in EU Cities: Background Research Reports,” (2007) Open Society Foundations, 11 Sep 2013 http://www.opensocietyfoundations.org/reports/muslims-eu-cities-background-research-reports.

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diversity of opinions.”28 Additionally, through its project, At Home

in Europe, the Society engages in advocacy to ensure equal rights

and social cohesion in a climate of political tension and “rapidly

expanding diversity.”29 Finally, through the Open Society Justice Institute,

the Society is using law and litigation to promote human rights and

to “protect and empower people around the world” and maintaining a

“Case Watch” to monitor the cowardice of the European Court of

Human Rights in dealing with France’s 2004 ban on the hijab.30

It is indeed ironic that I end this paper by promoting a

more active role for the judiciary in securing equal rights for

religious minorities in the newly integrated Europe. However, my

purpose in this paper was to shed light on the foolhardiness of

casting the fate of society’s marginalized and excluded to FBOs

which have not yet secured validation of their own claims to a

28“About Us: Mission and Values,” Open Society Foundations. 11 Sep 2013. <http://www.opensocietyfoundations.org/about/mission-values>.

29 “Projects: At Home in Europe,” (Feb 6, 2013) Open Society Foundations. 11 Sep 2013. <http://www.opensocietyfoundations.org/projects/home-europe>.

30 “Open Society Justice Initiative,” Open Society Foundations. 11 Sep 2013. http://www.opensocietyfoundations.org/about/programs/open-society-justice-initiative.

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http://www.opensocietyfoundations.org/about/programs/open-society-justice-initiative

http://www.opensocietyfoundations.org/about/programs/open-society-justice-initiative


stake in the European religious landscape. I take comfort in the

fact that Noted Constitutional Scholar Jacob Landynski was a strong

supporter of judicial intervention to protect the individual

liberties of vulnerable minorities:

In other words, ordinarily the political system is adequate to defend individual liberties. When it is not, the Court's role must be redefinedto allow broader judicial review as a substitute for the political review which these groups [vulnerable minorities] were unable effectively to obtain.

…Jacob Landynski, Editor, The Living U.S. Constitution31

31 (Padover 1995), 64.

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****

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