Separating Charity and State

Why should taxpayers be forced to support charitable groups?

Shortly after taking office, George W. Bush created an office of faith-based initiatives, making it easier for religious groups to receive federal funds in order to minister to the poor, conduct emergency relief operations, and perform similar good works.

Social conservatives cheered. But many liberal skeptics objected on constitutional grounds. His efforts were "a bold assault on the separation of church and state," wrote Ellen Willis in The Nation. Bush had "punched a dangerous hole in the wall between church and state," argued The New York Times, declaring that the "initiative runs counter to decades of First Amendment law." Church/state groups sued. Progressives fumed.

Clearly, those who criticized the Bush initiative hate the poor, believe people slammed by natural disasters should just suck it up, and think compassion is for losers. Right? Of course not. Bush's critics didn't object to helping the unfortunate. They objected to how the administration went about it.

You could say much the same about Virginia Attorney General Ken Cuccinelli, who has caused considerable alarm with an advisory opinion he issued earlier this year—at a legislator's request—about state aid to charitable groups. Virginia's constitution clearly prohibits allocating public funds to charities, and Cuccinelli's opinion said so.

This is not a point of arcane contention. The constitution prohibits "any appropriation of public funds" for "any charitable institution which is not owned or controlled by the commonwealth." A.E. Dick Howard, who led the commission that rewrote the state constitution, says Cuccinelli "got it right—the language is pretty plain. The concern from the [drafting] committee was that if you open the floodgates and you give money to some, they all stand in line queuing up and asking for money. They were trying to save the General Assembly from themselves."

Nice try, but it didn't work. For years, lawmakers simply ignored the rules. But once Cuccinelli produced his opinion, they no longer could. In the wake of the AG's finding, state agencies froze various funds while contracts were rewritten.

Now a new concern has arisen. Cultural groups that historically have received state funding—until the recent recession, anyway—worry they no longer will be eligible, either. "It's our worst fear," a director of the Wolf Trap Foundation for the Performing Arts told The Washington Post a few days ago. From 2004 to 2008, Wolf Trap—one of a laundry list of non-state agencies to enjoy the state's largess—received more than $3.5 million from Virginia taxpayers.

Doling out money to non-state agencies is a bipartisan activity, and members of both parties are trying to figure out how they can continue doing what the constitution plainly says they may not do. "Many of these organizations and institutions provide an enhanced quality of life for Virginians," says Republican Senate Minority Leader Tommy Norment.

Nobody disputes that—just as (nearly) nobody disputes the assertion that America's churches, synagogues, and mosques greatly enhance the quality of life in the United States. The fact that they improve the quality of life, however, does not —or at least should not—override constitutional constraints on what the government may do. Henrico Del. Jimmie Massie is right to suggest lawmakers should not "do cartwheels around the constitution."

Doing cartwheels around the constitution, however, is precisely what so many would like to do whenever they think the ends justify the means. Indeed, throughout the Bush years liberals complained loudly about how conservatives in the Bush administration felt the war on terror justified constitutional contraventions such as warrantless wiretaps, indefinite detention without trial, and even torture.

The response from those on the right sometimes gave the impression that they felt it was worth trashing the constitution if doing so would save the nation. Now, some in Virginia seem to give the impression that it's worth trashing the constitution to save the Chatham Train Depot and the Steamboat Era Museum in Irvington.

Cuccinelli's critics have called his opinion on state aid to charities draconian, ultraconservative, irrelevant, politically motivated, and probably much worse. The one thing they have not called it—because they cannot—is the only thing that would really matter: incorrect.

A Barton Hinkle is a columnist at the Richmond Times-Dispatch. This article originally appeared at the Richmond Times-Dispatch.