Bush strategists try sneak attack of church-state rules

Under cover of a foreign war, the Bush administration has quietly escalated the battle for its faith-based agenda at home.

Even more ominous for Jewish guardians of church-state separation, the White House has altered the battlefield — outflanking a balky Congress and opening up multiple fronts that could overwhelm opposing forces.

The Bush administration is shifting to executive action to enact major parts of its faith based initiative — a shift applauded by Orthodox groups but regarded as the biggest breach of the church-state wall yet by liberal Jewish activists.

For such activists, the shift threatens to neutralize their strongest political asset, Congress. Even during periods of Republican control, the big Democratic minority has been able to erect enough roadblocks to prevent a church-state rout.

But Orthodox groups say the flanking maneuver could result in a more level playing field that will allow religious groups, including Jewish groups, to compete for funds.

The strategy is "a way to circumvent the legislative process, and to be able to put into effect the President's plan, which has become the domestic bedrock of his administration," said Abba Cohen, Washington director for Agudath Israel of America, which supports expanded government funding for religious groups.

The reasons for the change aren't hard to fathom. Despite the return to full GOP control, a host of faith-based bills have languished in Congress.

Last week, the Senate passed the Charity Aid, Recovery and Empowerment Act of 2003 (CARE), once the gleaming centerpiece of the Bush administration's faith-based agenda.

But the bill that cleared the Senate was only a ghost of the original. Last year, facing stiff Democratic opposition, GOP leaders stripped out the "charitable choice" provisions, which would have relaxed rules for government grants to religious groups. Last month they yanked almost all the remaining controversial provisions, including ones allowing discrimination in hiring by grantees.

Now, the Senate version of CARE is just a tax bill that offers some new incentives to charitable giving. Orthodox groups had hoped for more. Liberals were pleased.

On the school voucher front, only one bill is in the hopper — a demonstration project for the District of Columbia. There are the usual assortment of school prayer resolutions and amendments, but none is likely to see the light of day.

But the lack of action on the legislative front belies a dramatic shift in administration strategy. With little fanfare, the administration is moving forward in a number of departments to implement charitable choice and other elements of its faith-based agenda without legislation.

In recent weeks the Anti-Defamation League has filed critical comments on at least five new programs initiated by federal departments that open the door to government aid to religious groups.

A particularly dramatic example: proposed Department of Housing and Urban Development rules that could lead to the use of taxpayer dollars for building church and synagogue buildings. The HUD rules also would create a new type of social service voucher, without restrictions against proselytization.

That pattern is being repeated throughout the executive branch, where officials are writing new rules striking down barriers to funding for programs run by religious charities and eliminating restrictions on how that money can be used.

The administration is also quietly changing the rules on religion in public schools.

At the Department of Education, guidelines for schools on navigating the church-state line developed by the Clinton administration have been rewritten by its successor.

The new guidelines include warnings to school districts that they will jeopardize their government funding if they prevent "constitutionally protected" prayer in public schools — a somewhat ambiguous term that religious conservatives around the country are expected to exploit. Missing, too, is language preventing student prayer before captive audiences.

Jewish groups have little input.

"They propose a rule, they open it up for comment, we comment — and they do what they want," said a prominent Jewish church-state advocate. "Then you go right to litigation."

But litigation is expensive; the new administration thrust means lawsuits in wholesale lots.

A sweeping Supreme Court ruling against key pillars of the charitable choice concept could effectively thwart the administration push, but that could take years. By then, the court could be far more conservative than the current one, which is already narrowly divided on church-state issues.

Jewish church-state groups face another big challenge because of last year's Supreme Court ruling affirming the constitutionality of Cleveland's school voucher program.

Already, voucher advocates in more than two dozen states are working to revoke so-called "Blaine Amendments," which prohibit the use of state money to support sectarian schools. Once that barrier is removed, Jewish activists expect a flood of voucher proposals, and once again, Jewish church-state groups will be stretched thin.

But voucher programs are still down the road, and there is one huge obstacle in the way: the epidemic of state budget crises, which means few states will be able to afford new education spending of any kind.