1. Problems in Political Theory: The American Religious Nonprofit in the Public Sphere
Cody Phillips
Professor Müller
POL 981
5 January 2016

2. Phillips 1
Introduction
In recent years, religious belief has made its way into the public discourse in a very
real way. Political candidates run on religious platforms, voters collectivize and casts votes
around religious lines, and pastors, churches and religious organizations make political
statements based on their beliefs and seek to bring their work into the public square. In his
piece “Between Naturalism and Religion,” Jürgen Habermas states,
“during the period since the end of World War II all European countries, with the
exception of Ireland and Poland, have been gripped by a wave of secularization that
goes hand in hand with modernization. For the United States, by contrast, all survey
data indicate that the comparatively large proportion of devout and religiously active
citizens has remained constant over the past six decades.”1
In the face of religion decreasing in importance internationally, it has actually continued to
hold a place of serious importance in many American’s daily lives. Gallup’s report on
religion that they’ve conducted annually since 1948 indicates that fifty-two percent of
Americans still qualify religion in their own life as “very important,” which is only down six
percent from 1992.2
And beyond merely its role in daily, private life, religion maintains a
strong presence in the public sphere. Gallup additionally found that “Fifty-seven percent of
Americans say that religion can answer all or most of today’s problems,” which, although
down from the eighty-two percent who answered similarly in 1957, still speaks volumes
about the impact of religion and its perceived role in addressing the problems that arise in
1
Habermas “Between Naturalism and Religion,” 116.
2
“Religion.” Gallup Historical Trends, 2015.2
“Religion.” Gallup Historical Trends, 2015.

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American politics.3
Highly religious groups, including those who answered that they attend
church weekly and that religion is very important to them, answered that religion can answer
today’s problems at rates of eighty-four and eighty-two percent, respectively.
As religious zeal remains prevalent in the U.S, the movements have become
increasingly political. Religious fundamentalists no longer see their religion as something
that ought to be saved for their specific day of worship or something that is restricted to their
home and private lives; instead, their religion is pervading their public lives as well. Voters
and politicians increasingly have taken stands against religiously motivated issues such as
evolution being taught in schools, abortion, the death penalty, homosexual marriages.
Habermas contextualizes this data as he states that the “significance of religions used for
political ends has increased throughout the world…Religious traditions appear to be
sweeping away with undiminished strength the thresholds hitherto upheld between
‘traditional’ and ‘modern’ societies, or at least to be leveling them.”4
Clearly religion still
holds an important place in American society as the majority of American citizens still
ascribe to some religious beliefs and often allow those beliefs an important place in
determining the answers to society’s and politics' major problems.
Beyond merely an understanding of religion’s importance in American society, any
political theory discussion regarding religion’s place in the public arena must begin with the
Constitution and an understanding of the way in which all American jurisprudence stems
from this document. Specifically, any discussion concerning the place of religion within our
society must start with the two Religion Clauses in the beginning of the First Amendment
which state “Congress shall make no law respecting an establishment of religion, or
3
Newport, “Majority Still Says Religion Can Answer Today’s Problems," Gallup
4
Habermas “Between Naturalism and Religion,” 116.

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prohibiting the free exercise thereof.” These two clauses provide the framework for all
religious cases in the United States, as the Constitution is the foundational code of
governance for the national government and the standard for all legal cases from district to
the Supreme Court. Yet, in no way, shape, or form do these two clauses provide a
comprehensive answer to every legal issue that arises regarding religion in American society.
Therefore, in order to determine the normative conclusion for religion’s place in the public
square as it relates to religious nonprofits working in conjunction with state or the national
government, we must look to more than just the letter of the law as is written in the
Constitution. As we explore religion’s importance in public life and with an understanding of
the unique place of the religious nonprofit in American society, it becomes clear that state
and the national governments may support and sponsor religious nonprofits inasmuch as they
avoid discrimination against those organizations for being religious.
The Nondiscrimination Theory
This idea of nondiscrimination flows directly out of the understanding that the United
States is a religiously plural society, one where its citizens ascribe to myriad religious
doctrines. Christopher Eisgruber and Lawrence Sager make this abundantly clear in
delineating their “hands-off approach to religious doctrine,” under which the purpose of the
Religion Clauses of the Constitution is “not to protect religion per se, but to protect
Americans from a certain kind of governmental malfeasance that proceeds against the
backdrop of a religious and religiously diverse society.”5
Because of the sheer number of
beliefs, creeds, and doctrines that various individuals hold throughout the U.S, what is meant
by “religion” and what falls under the protection of the Religion Clauses has become an
5
Eisgruber and Sager, “Does It Matter What Religion Is?”, 811.

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incredibly difficult thing to establish; what constitutes religious liberty is harder to determine
now than ever. It is clear from the wording of the Establishment Clause that
“disestablishment requires the government to abstain from promulgating official versions of
religious doctrine. If the Courts were to resolve controversies about religious doctrine, they
would be doing exactly what disestablishment proscribes—identifying one or another version
of religious truth as the government’s preferred or official view.”6
Courts, when called upon
to determine who is in the wrong in specific cases where religious beliefs are paramount,
may never rule in such a way as to determine which belief system or doctrine is “correct,” or
they would be falling into a form of establishment as they legislate which view falls most in
line with the government’s principles.
Sager and Eisgruber present two specific cases in which this exact pattern of
disestablishment—or ‘hands-off approach’—was determined by the Supreme Court. In the
case of Thomas v. Review Board, Eddie Thomas, a worker in a munitions foundry, refused to
accept a new job assignment of building tank turrets because he said it conflicted with his
beliefs as a Jehovah’s Witness. Even though he had held a previous position in the foundry
and even though a friend who was also a Jehovah’s Witness had accepted his new position,
Thomas applied for unemployment, citing his religious liberty to do so.7
The State of Indiana
refuted Thomas’ claims initially, because nowhere in the doctrine of Jehovah’s Witnesses
does it deny its members the ability to work in a weapons factory. So the court ruled that
Thomas’ beliefs were illegitimate reasons to not work. However, when the case was referred
to the Supreme Court, the justices determined that “religious beliefs need not be acceptable,
6
Ibid 812
7
Thomas v. Review Bd., 450 U.S 707 (1981) at 710-12, accessed in Sager and Eisgruber 812.

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logical, consistent or comprehensible to others in order to merit First Amendment
protection…Courts are not arbiters of scriptural interpretation.”8
Later, the Court ruled similarly in the case of Frazee v. Illinois Department of
Employment Sec. Frazee refused to work on Sundays because, as a Christian, he determined
that his faith required him to take Sunday off as a day of complete rest and worship.9
The
state of Illinois found that he shouldn’t be allowed to collect unemployment because many
other Christians worked on Sundays, and not working on Sundays didn’t seem to be an actual
hard doctrine of Christianity; however, the Supreme Court ruled that since Frazee sincerely
believed in his conviction against working on Sunday, his religious liberty allowed him to
not work. Ultimately, the Court ruled that individual citizens are “the ultimate authorities
on—sovereign over—their own religious beliefs”—not the state or anyone else.10
Eisgruber and Sager provide an important caveat to this nondiscrimination approach
in order to limit religious sects from taking advantage of each other under the protection
granted them by a phenomenological approach to religious liberty. The Free Exercise Clause
“prohibits the government only from imposing certain kinds of burdens, and any
interpretation of the Clause must say which burdens these are. The interpretation we propose
replies, burdens of a kind that are historically associated with religious persecution.”11
The
Free Exercise Clause, therefore, explicitly prohibits any type of coercion by a religious
organization or individual. Consequently, the state may support religious individuals and,
likewise, religious organizations that seek to act on their specific religious values as long as
8
Ibid at 714-16
9
Frazee v. Illinois Department of Employment Sec., 489 U.S 829 (1989) at 830, accessed in
Sager and Eisgruber 814.
10
Eisgruber and Sager, “Does It Matter What Religion Is?”, 815.
11
Ibid 832.

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they avoid providing opportunities for those entities to promote religious persecution.
Therefore, the state must avoid two types of discrimination in its dealings with religious
nonprofits. Primarily, the state must never deny a religious nonprofit access or support for the
sole reason of its religious beliefs, and additionally, it must be careful to not promote
coercion or persecution by supporting a religious entity that ascribes to beliefs or engages in
activities that deny any other group or individual their own religious liberty under the
Constitution.
Therefore, the Courts set a precedent that it is the government’s role to pursue a
policy of substantive neutrality to ensure that citizens feel secure in their beliefs and don’t
feel incentivized by the state to pursue a belief system, in one way or another, but are able to
freely and actively pursue their beliefs and the actions those beliefs prescribe in order to
make good on the Constitution’s guarantee of religious liberty. 12
This neutrality is necessary
because it is important to keep in mind that “America’s religious heterogeneity means that
any religious group will be a minority in parts of the country.”13
Even though Gallup reported
in 2014 that “the U.S remains a largely Christian nation, with over three-quarters of
Americans identifying as Protestant, Catholic or Mormon,”14
the state must not rule based on
a majority in the case of religion. This is the essence of the nondiscrimination theory behind
the idea of there being a separation between church and state in the United States. At first
glance, responding to citizens attempting to act on their religion sounds merely like the state
listening to their constituents and allowing democracy to work. Nicholas Wolterstorff even
argues for this idea of legislating based on religious belief in Religion in the Public Square,
12
Ibid 824
13
Ibid 813
14
Newport, “Three-Quarters of Americans Identify as Christian,” Gallup.

8. Phillips 7
as he states, “it belongs to the religious convictions of a good many religious people in our
society that they ought to base their decisions concerning fundamental issues of justice on
their religious convictions. They do not view it as an option whether or not to do it.”15
We
have seen that often it is incredibly difficult to separate private religious beliefs and secular
practices because voting patterns and every other type of political action are simply secular
manifestations of personal beliefs for many American citizens. It is therefore often difficult
for many citizens of religious belief to articulate their religious beliefs in a secular manner,
both practically and ideologically. Wolterstorff provides a justification that “even the
political legislator should be permitted to make use of religious arguments,” because they too
may have difficulty separating their privately held beliefs from their justifications for public
actions.16
This, however, is not enough reason to allow legislators and, consequently, the
state, to discriminate against the minority religious groups or nonbelievers in the American
society. In the specific case of legislators, it may very easily lead to issues concerning state
actors acting specifically on behalf of one sect or group of believers. This type of sponsorship
obviously strays from the intent of the Establishment Clause of the Constitution under which
no religious group should have undue ability to establish their own religion within the
American society via the state or government processes.
This understanding of the Religion Clauses flows out of the definition of a liberal
democracy and its role in creating the type of society that will provide for the long-term
success of the nation. Robert Audi makes this clear in his delineation of the role of a liberal
democracy—like the United States—in relation to its citizens in his piece “Moral
Foundations of Liberal Democracy, Secular Reasons, and Liberal Neutrality toward the
15
Wolterstorff in Religion in a Public Square, p. 105 accessed in Habermas p.128
16
Ibid p. 107, accessed in Habermas p.133

9. Phillips 8
Good.” He begins by describing two commitments of a liberal democracy to its citizens,
since every liberal democracy ought to be a government that is committed to the good of its
society, its voting population. These two commitments, the libertarian and egalitarian
commitments, stipulate that a liberal democracy look out first for the freedom of citizens, and
additionally for their basic political equality, in order to “respect the autonomy and political
rights of persons.”17
These are the two “moral obligations” of a liberal democracy that enable
it to ensure the good of every individual citizen, which should be a given. Audi continues,
“if democracy may be conceived as a government of, by, and for the people, none of
this should be controversial…It does not view the political structure of society as
subordinated to the good of a sovereign, to a class of society, or even to the glory of
God, if that is conceived as incompatible with the earthly flourishing of people in
society. Religious ideals and other normative standards may inspire a liberal
democracy, but it must not subordinate the welfare of individuals to that of any
privileged person(s), any deity, or, especially, any abstraction.”18
The United States was set up as a nation specifically committed to creating a political
structure that would be different than all the nations at the time, in that it was a government
dictated by the people. Because of this goal, the government has specific limitations and
specifications on what kind of society it ought to create in order to provide this type of
environment for its citizens.
Here we get to the root of the issue at stake. Audi argues that the ultimate goal of a
liberal democracy is to promote the wellbeing of the citizen, primarily his or her autonomy
17
Audi, “Moral Foundations of Liberal Democracy, Secular Reasons, and Liberal Neutrality
toward the Good,” 198.
18
Ibid 198-199

10. Phillips 9
and liberty, and that in the pursuit of that liberty, it is essential to ensure that no privilege is
given to any religion that may hinder individual freedom. However, he additionally
acknowledges that a moral standard in society is essential to the flourishing of the institutions
that bring about this beneficial society under which each citizen is able to thrive individually
and collectively. So, there is a clear call on the United States government to create the type of
society that will promote religious freedom for its citizens, but additionally a clear call for
that government to create a society under which flourishing can take place. A “public
morality” is necessary to bring about that end, but how does this perception of morality fit
with theories about religion’s place in the public sphere?
The Importance of Public Morality
A common thread of endorsement of a public morality runs through many political
theorists writing about the place of religion in the American society. They acknowledge that
for a society to function, there must be common decencies, a code of law based on a common
understanding of right and wrong, and structures of civil society, like family, to promote
ideals of citizenship. Rawls writes in The Law of the Peoples that
“in a democratic regime the government’s legitimate interest is that public law and
policy should support and regulate, in an ordered way, the institutions needed to
reproduce political society over time. These include the family (in a form that is just),
arrangements for rearing and educating children, and institutions of public health
generally.”19
Rawls acknowledges that in a liberal democracy—one dependent on its citizenry to be active
in their communities, active in the political realm and active in the economy—family is an
19
Rawls, “The Idea of Public Reason Revisited,” 147.

11. Phillips 10
incredibly important institution for providing the necessary structure to create the next
generation of citizens. “The family,” Rawls continues, “ is part of the basic structure [of
society], since one of its main roles is to be the basis of the orderly production and
reproduction of society and its culture from one generation to the next.”20
It is essential to the
functioning of a democratic society that the family is nurtured and provided everything
necessary for flourishing. Out of a desire for self-preservation and continuation of the state as
it is, the government ought to encourage that flourishing.
Audi comments on the importance of the government’s role in creating this moral
society for its citizens in order to promote flourishing as well, as he speaks of a universal
code of ethics, or a universally agreed-upon set of moral codes in society that all citizens
ought to follow and the government ought to promote. Such principles or duties of
citizenship include “fidelity, reparation for one’s wrong-doing, justice, gratitude,
beneficence, self-improvement, and non-injury,” as well as two more prima facie ethics for
citizens, “to enhance and preserve freedom,” and “to treat people respectfully in the manner
of our actions.”21
He proposes a set of codes that, when all citizens and legislators abide by
them, simply create a society that functions best for the good of all. And he states that these
principles are accessible to everyone because they are intuitive in the American society, a
kind of “ethical common-sensism.”22
If there is such a universally agreed-upon moral code
for society that all citizens ought to follow and the government ought to promote in order to
sustain society and extend the life of the state, how is it possible to balance this responsibility
against the state’s responsibility to not discriminate against any one religion? It seems that
20
Ibid 147
21
Audi, “Moral Foundations of Liberal Democracy, Secular Reasons, and Liberal Neutrality
toward the Good,” 200
22
Ibid 200

12. Phillips 11
Audi and others do a lot of work to gain the benefits of accepting the morals that flow from
the tenets of the major religions in the U.S, while seeking to still keep that religion out of the
public sphere and not impinge on nonbelievers rights. Indeed, Audi promotes a theory of
“limited neutrality,” by which the government ought to pursue doctrines that limit harms in
society, including “the needs of the sick or unemployed, which are widely seen to necessitate
substantial taxation of those who are financially well-off.”23
This doctrine states that the
government should seek to promote the wellbeing of all of its citizens, based on an
understanding of a common, public morality; however, that doctrine cannot flow out of one
line of belief or one specific religion, because that type of promotion would ultimately be a
form of discrimination.
If a public morality is essential for a sustainable and productive society, however,
why shouldn’t the government simply promote values that come out of a Judeo-Christian
worldview—the system of beliefs that still holds a majority in the U.S?24
Aside from this
type of promotion possibly discriminating against minority religions or nonbelievers, this
theory additionally holds to recent data from a September 30, 2015 Gallup report. A slim
majority of those polled, 51%, stated that the government should not favor any particular set
of values, and should stay away from promoting ‘traditional values’ in our society, which
“was a shift from pre-2005, when Americans consistently favored the government’s
promoting traditional values.”25
Therefore, the national public has begun to agree with Audi
in acknowledging that it is not the government’s place to promote a set of traditional values.
We know, however, that public morality is essential to the flourishing of the American
23
Ibid 206
24
“Religion.” Gallup Historical Trends, 2015
25
Jones, “Fewer in U.S Want Government to Promote Traditional Values,” Gallup.

13. Phillips 12
society. It functions as the best sort of law enforcement, because as citizens accept a
universal moral code, they accept a common mode of interaction and will be less inclined to
steal, cheat, lie or otherwise seek to immorally or illegally get ahead. Additionally, this type
of morality influences altruistic actions, which are extremely beneficial to society. If the
American government, however, ought to promote this type of society in order to bring about
the long-term success and survival of the nation, but ought not advocate one specific doctrine
of religion itself, how may it accomplish its duty as a state?
Robert George’s theory of public morality in The Clash of Orthodoxies works as an
important foil to Robert Audi’s theories as he provides an answer to this question. He
demonstrates how the national government has usurped a lot of the authority and power that
was originally intended for the states. The national government, George states,
“is not a government of general jurisdiction; it is not constitutionally authorized to
exercise police powers. On the contrary, it is a government of delegated and
enumerated powers. Where the states are generally authorized to act for the sake of
the common good, enjoying the authority to act except to the extent that their
jurisdiction is constitutionally limited, the federal government may, as a constitutional
matter, act only where it has been constitutionally delegated the power to act.”26
This is how the separation of powers was supposed to play out as defined in the Constitution
by the Framers; it never should have been able to legislate in such a way as to define a type
of society because it never was supposed to legislate apart from where it was explicitly given
power to act. As the national government—Congress and the Executive branch—has taken
more and more authority and exercised more control over society via the commerce clause,
26
George, “The Concept of Public Morality,” 97.

14. Phillips 13
executive orders, and amendments, it has changed this power structure. The National
Government was never supposed to be able to legislate to define how society was supposed
to look or function at a moral level, but George provides multiple examples of how this has
changed, beginning with Prohibition and the 18th
Amendment.27
As the national government
took some of the policing power that was supposed to be reserved for the states, they defined
for the nation a moral stance on alcohol. While the 21st
amendment ultimately overturned this
decision and ended Prohibition, it was in itself another example of the legislative body
making a decision for the public morality. The government had realized over the course of
the twenty-four years that alcohol was illegal, that enforcement of the policy was nearly
impossible. Government corruption was rampant and gang violence, illegal distilleries and
other forms of societal depravity rained supreme. Therefore, they overturned their previous
decision in order to provide a healthier social atmosphere surrounding the distribution and
consumption of alcohol.
A more recent example of the government utilizing their expanded powers to regulate
a public morality is in determining Internet access laws in order to decrease the ability of
children to access explicit materials online. Additionally, the national government continues
to stand by laws regulating prostitution across state lines and child pornography. This type of
public morals legislation, George notes, “regulates the behavior of individuals—citizens and
those residing permanently or temporarily within the government’s jurisdiction. It limits their
choices and behaviors.”28
Such legislation demonstrates a commitment by the national
government to creating the type of moral society that leads to flourishing. This is in line with
Audi’s understanding of limiting harms, as well, as George states that “public moral laws,
27
Ibid 99
28
Ibid 100

15. Phillips 14
like health and safety regulations, regulate private conduct insofar as it harms, or threatens to
harm, the public interest.”29
These laws work to protect the moral fiber of society, and in
doing so, actually protect the health and wellbeing of individuals. Therefore, the state ought
to regulate public morality in some ways because in doing so, they protect the wellbeing of
the society at large. Yes, the state has responsibilities and limits on the way in which it can
enact this protection of society, namely the freedom of religion found in the Religion
Clauses, but in cases of individuals who believe that their freedoms and ability to choose
under the Constitution allow them to engage in behavior that ultimately is damaging to the
society as a whole, the government has acted and should continue to act to limit such
behavior.
The type of behaviors that ought to be regulated by the government in the name of
public morality and societal flourishing, however, is difficult to define. George demonstrates
how the pursuit of public morality, although similar to the pursuit of public health, ought to
go beyond merely the regulation of behaviors that directly affect other citizens, like the
regulation of factories or businesses that produce carcinogenic smoke.30
In the case of
fornication and sexual vices, for example, George states that, although many people view
such practices as private matters that ought not be regulated by the government, the trouble
“is that fornication is one of those vices that, when widely practiced, tolerated, and
inevitably, accepted, has very big and very public consequences—consequences that
provide a perfectly intelligible reason for legal proscription, or, short of that, non-
coercive public efforts to discourage it.”31
29
Ibid 100
30
Ibid 91-92
31
Ibid 103

16. Phillips 15
Pornography, polygamy, and other apparently private vices are totally justified in being
limited by the government already, and ought to continue to be so limited. We have seen that
a liberal democracy’s primary concern ought to be the state of its society and provision for
the wellbeing, freedom, and health of its citizens. George provides examples and
explanations of how this goal of liberal democracy can be carried out by a general protection
of values that largely flow from religious belief.
A problem now arises, however, of how it can be possible to reconcile this
understanding of the government’s responsibility to pursue societal flourishing by fostering
some type of public morality, with the Constitutional responsibility to not discriminate
against any religion by promoting any one doctrine of values or beliefs. Hidden in Eisgruber
and Sager’s nondiscrimination theory lies a solution. As I delineated above, these theorists
advocate for strict equality of treatment and opportunity between religious majorities and
minorities, as well as between religious believers and nonbelievers.32
This egalitarianism, as
theorist Cécile Laborde writes, actually demonstrates an implicit understanding of the unique
importance of religion in society, as “their analysis fails to explain, or takes for granted, or
implicitly smuggles in assumptions about the specialness and uniqueness of religion.”33
Eisgruber and Sager acknowledge deeply held religious convictions as being on the same
level as other deep personal issues such as medical disabilities, and, as Laborde notes, check
32
Eisgruber and Sager, “Does It Matter What Religion Is?”, 826. I touched on this above,
emphasizing court examples of Thomas and Frazee, but additionally, they provide examples
of Muslim policemen in Newark, NJ who challenged the rule that policemen need to be
cleaned shaven on the grounds of their religion. Because the department had already given
exceptions to policemen with medical conditions/skin disorders that made shaving extremely
painful, Eisgruber and Sager argue that it would be a failure by the courts in their
commitment to equality if an exception also wasn’t granted to the Muslim policemen.
33
Laborde, “Equal Liberty, Nonestablishment, and Religious Freedom.” 63.

17. Phillips 16
their strong evaluations of these issues “against wider moral standards.”34
Laborde continues
to acknowledge the importance of protecting religion and such wide moral standards as he
states:
“their normative status merely derives from the fact that individuals closely identify
with them, recognize them as theirs, on grounds of their ‘deep,’ ‘serious,’ ‘spiritual’
nature. Call this the depth criterion. It is because religious commitments are deep that
they (sometimes) deserve special protection in law; and this protection extends to
nonreligious, comparably deep commitments.”35
This so called “depth criterion” reasonably demonstrates that religious commitments are
special in their place in society and ought to be protected as essential, not only because of
their place in an individual’s liberty, but also for their role in creating a society that enables
flourishing.
The Role of the Nonprofit in America
We have seen that religious convictions are essential to a majority of American
citizens, and that religious values maintain a critical place in American society; yet, these
realities still don’t allow for blatant promotion or advocacy of a certain religion—especially
of a majority religion—by the U.S government. There must be a specific way by which the
U.S government is able to both promote public morality and maintain personal liberty in a
way that is mutually beneficial. I propose that the formation of the nonprofit sector in the U.S
provided the answer to this question, because religion has been at the core of nonprofit work
since the very beginning, but nonprofits have been institutionalized in such a way as to
provide strict criteria for achieving government support.
34
Ibid 65
35
Ibid 65

18. Phillips 17
Although we now understand the religious nonprofit under the very broad definition
of the 501(c) designation in the Internal Revenue Tax Code, the history of the American
nonprofit provides far greater understanding for its significance in enabling the American
government to function as it was originally intended to. From the outset of the establishment
of colonies in America in the seventeenth and eighteenth centuries, the institution of the
church played a primary role in communities, as Peter Dobkin Hall lays out in his piece The
Nonprofit Sector: A Research Handbook.36
However, the church rarely worked alone in
promoting the public welfare, as partnerships formed between the government and these
early “values-based” operations, which were largely parochial at the start, but increasingly
became community-based as the nation grew. Hall notes that “although colonial governments
and municipalities collected taxes and enacted laws, they usually entrusted the actual tasks of
caring for the poor, healing the sick, and educating the ignorant to families who could
provide these services at the lowest cost.” For example, many early almshouses—
organizations to provide for the poor “were contracted out to managers who could operate
them at the lowest cost to the public.”37
This type of contractual understanding between
colonies or early states and primitive not-for-profit charitable organizations was largely
executed out of necessity, as the newly formed government could only perform essential
tasks, and left welfare largely up to the general public, most of whom were still steeped in an
understanding of public morality. This government, however, was also built on a deep
36
Hall, “A Historical Overview of Philanthropy, Voluntary Associations, and Nonprofit
Organizations in the United States, 1600-2000,” 34.
37
Ibid 34

19. Phillips 18
mistrust of “the hazard of ‘factions’—associations representing special interests,” as Madison
states in his tenth essay of the Federalist Papers.38
By the mid-18th
century, the philanthropic or politically-minded rich began to
collectivize in order to assert themselves and utilize their wealth to promote the good of
society, and to advocate for or perform the actions and services that the government was
growing unable to perform as the nation grew. Without these organizations, the government,
“though de jure the servant of the people, was de facto the master of the people—since
without intermediary collectivities, the people had no way of making their influence felt,
save at election time.”39
Hall notes that on Tocqueville’s visit to America in the 1830s, he
noted this new collectivization around specific values occurring en masse, particularly with
the temperance movement, as “’a hundred thousand men had bound themselves publicly to
abstain from spirituous liquors.’” He continues, “it is probable that if these hundred thousand
men had lived in France, each of them would singly have memorialized the government to
watch the public houses all over the kingdom.’”40
Temperance provides invaluable insight into the definition of religious values in the
U.S. While temperance, equality, and even education all began as “religious values,”—that
is, values predominantly endorsed and instituted by religious believers, organizations and
churches—each of these values found new, secular representation when collectivization and
the nonprofit sector came about in the late nineteenth and early twentieth century. While
religious justifications for education, equality and temperance stem from the desire to create
a society that is reflective of a moral code from a supreme being, namely God, a secular
38
Ibid 35
39
Ibid 36
40
Alexis de Tocqueville 1945, 2:110, accessed in Hall 37

20. Phillips 19
justification for these very same ideals flow out of a practical understanding of the
implications of a society without equality or education or temperance. The line between
religious and secular values, therefore, is extremely difficult to determine when it comes to
organizations working in the public sphere. What we do know, however, is that the
government has consistently supported both religious and secular organizations working to
pursue these values over the course of the past century.
During Reconstruction, for example, the Freedmen’s Bureau and the man tasked with
executing the plans of Reconstruction, General Oliver Otis Howard, had money, land and
authority, but lacked personnel. To fill this gap in governmental resources, Howard invited
philanthropic, charitable volunteers from the North—both those with religious motivations
and secular, utilitarian ones—to help the Bureau enact its specific policies of education, job
training, and rehabilitation for freed slaves.41
While Reconstruction ultimately failed, it
provided a framework for partnerships between nonprofits working in promoting social
welfare and the government. As the Secretary of Commerce in the 1920s, Herbert Hoover
provided opportunities for partnerships between the government and nonprofit or voluntary
organizations in order to bring about civic betterment and achieve an ideal he termed the
“associative state.” For example, Hoover “used the Building and Housing Division of the
Department of Commerce to address the problems of unemployment and substandard
housing by stabilizing the construction industry, building new markets by overcoming
resistance to mass production and standardization, fostering city planning and zoning
activities and promoting the ‘spiritual values’ inherent in widespread home ownership,” in
partnership with an organization known as Better Homes in America. He secured operating
41
Ibid 40

21. Phillips 20
funds from private foundations and partnered with an organization that served to efficiently
implement necessary infrastructure reforms, but additionally promoted religious values that
fed a productive public morality, without using billions in national expenditures. 42
Hoover’s
ideology set the stage for FDR’s policy during the Great Depression. In order to provide jobs,
welfare support, and sustainable economic and social stimulus, Roosevelt greatly expanded
the power of the national government, but he also took more cost-effective action to support
preexisting, nonprofit organizations. As Hall states, “not only did federal tax policies
encourage private support for charitable institutions, but government at all levels depended
on the private organizational infrastructure both for policy expertise and to provide services
at the community level.”43
In 1954, these precedents were codified as part of the 1954
Internal Revenue Code, which provided tax breaks for nonprofits, as well as made all
donations to such organizations tax-deductible. This trend continued through the end of the
20th
century as “direct federal subsidies to nonprofits increased dramatically from about $30
billion in 1974 to just under $160 billion in 1994,” largely on the heels of conservatives
pursuing policies to shrink big-government.44
Clearly government support of nonprofits—religious or otherwise—has long been
acknowledged as an essential and effective policy for providing efficient solutions to
problems in society. For example, religious and secular nonprofits working in social and
family services flourished during the Reagan and Bush administrations as these
administrations extended funding to many private groups working to do the essential jobs
that few others would do and that no market was able to support. Specifically, “federal courts
42
Ibid 49
43
Ibid 50
44
Ibid 54

22. Phillips 21
issued a series of decisions ordering that the mentally disabled be deinstitutionalized and
placed in small community-based facilities. Unable or unwilling to create and operate such
facilities themselves, the states encouraged private groups to provide residential, educational,
and rehabilitative services to the retarded and mentally ill.”45
Such programs have continued
into the 21st
century, incentivized by government subsidies, and have even trickled into other
rehabilitative jobs in society, as the government has clearly seen the institutional and
financial benefits of allowing value-motivated groups and individuals to promote the social
welfare. Clearly, religious nonprofits provide essential functions in society. But how may a
liberal democratic government constitutionally provide support for religious organizations in
such a way as to avoid violating the Religion Clauses and violating the premise of
nondiscrimination by providing undue support to a singular organization of specific beliefs?
Laborde provides the key. He argues that under the Constitution, the U.S
government has the burden of treating each citizen fairly in providing equal status in society.
Specifically, “regarding state funding…religious groups pursuing public-interest activities
must not be treated differently from non-religious groups merely because they are
religious.”46
Therefore, under this interpretation of the establishment clause, religious
nonprofits ought to be able to pursue the public good—as the institution of the 501(c)3
nonprofit was created to do—without having to change their rhetoric or their goals based on
their religious beliefs, inasmuch as that rhetoric and goals do not coerce or promote
persecution of others. Laborde also clarifies this point in order to affirm that along the lines
of promoting equal freedom for each citizen, the government must be careful to not overstep
in providing funding to religious groups. “Instead of no funding, egalitarians advocate ‘even-
45
Ibid 56
46
Laborde. “Equal Liberty, Nonestablishment, and Religious Freedom.” 57.

23. Phillips 22
handed’ funding,” which allows for funding to religious organizations as long as it is in-kind
with the market rate for that funding.47
In other words, government funding or support may
be provided as long as the religion of the organization had nothing to do with the funding
being given, but the money was given based on the provision of equal goods or services.
Putting It All Together
In order to draw all of these theories together and come to a conclusion, let me
provide the recent example of Prison Fellowship Ministries (PFM), an evangelical Christian
nonprofit working in prison rehabilitation in a few states across the nation. PFM came to the
fore in the discussion regarding religious nonprofits’ place in the public sphere because of the
2006-2007 court case Americans United v. Prison Fellowship Ministries, Iowa. In this case,
Americans United for Separation of Church and State, a nonprofit advocating against
government cooperation with religious groups, argued that the Department of Correction in
Iowa had unconstitutionally partnered with an offshoot program of PFM in Iowa state prisons
that crossed the line nondiscrimination.
The partnership between the Iowa DOC and InnerChange Freedom Initiative (IFI)—
the affiliate ministry of PFM—had originated out of the DOC’s understanding of their
inability to adequately address the sheer numbers of inmates in Iowa state prisons, as more
than 8500 inmates—over three times the number such prisons were designated to house
when the DOC was created—were housed in nine different facilities across the state.
Winnifred Fallers Sullivan notes in her book Prison Religion: Faith Based Reform and the
Constitution, that a state-commissioned report produced by the Durrant group found that
47
Ibid 57

24. Phillips 23
“90 percent of Iowa prisoners suffer from substance abuse problems, and 30 percent
suffer from mental health problems. Treatment capacity is only 1,894 places in
substance-abuse programs in any year for a prison population of 8,877. Mental health
services are not meeting current professional standards and are grossly underfunded
and understaffed.”48
Changes were immediately necessary, but state resources were lacking. The state Director of
the medium security facility at Newton, Iowa, Walter Kautzky stated in his deposition in the
case that on completing and filling the facility in 1997, the state was “looking for anybody
that might help us put these offenders into some sort of productive activities. We were
looking for a way, a very low-cost way, to utilize and put some activities in place within a
very, very large, and very, very new prison where there were literally no activities.”49
Here is where the state put out a call for help, in 1998, in the form of a “Request for
Proposal” for an in-prison, values-based program in order to fill this void and provide
answers for the individuals for whom the state was responsible. The state deemed this values-
based program to be the best answer to the cyclical nature of many of the criminals in the
Iowa state prisons, but needed a solution that posed minimal costs to the state. This call was
quickly answered by InnerChange Freedom Initiative, an affiliate organization of Prison
Fellowship Ministry, an outspoken prison relief ministry that had previously worked in Texas
state prisons providing bible studies and personal counseling and aid to prisoners. The bid
that they submitted to fill the role and provide the programs as delineated by the Iowa DOC,
“which was made following visits by IFI personnel to the Newton facility, was the only bid
48
Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution
(New Jersey: Princeton University Press, 2009, 20.
49
Ibid 21-22

25. Phillips 24
that was found to meet state specifications.”50
The DOC subsequently turned over control of
Unit E—a large wing of the Newton facility that had previously been used as an “honor
ward” for well-behaved prisoners—to IFI and awarded them a contract worth $300,000 of
state money annually for nonsectarian costs. This money was awarded annually until the trial
in 2007, although in the beginning of the 2005 contract year, the state moved to a voucher-
like system of funding, where they awarded money per prisoner, per day in order to distribute
money in a more egalitarian manner. Just as the money and space was awarded in an
egalitarian manner, so too were prisoners assigned to the IFI ward in Unit E. Larry
Lipscomb, the Iowa DOC officer in charge of Unit E, reported in a memo regarding IFI’s
programs, that offenders
“must volunteer for the program being fully aware of the requirements and the Christ-
centered, biblically based curriculum. The objectives of Inner-Change are to create
and maintain a corrections environment in which productive work, human dignity,
self-worth, responsibility, and accountability are among the key values taught to
inmates; to provide training and work-skill related programs relevant to the current
and future needs of inmates, including continuity of services after release; to address
the holistic needs of inmates, by providing opportunities for spiritual growth and
character development; and to involve volunteers and community resources in this
program.”51
Clearly, this contract was created and instituted in a manner that had the interests of every
state prisoner who would be interacting with the state-supported rehabilitation programs run
50 Ibid 24
51
Larry Lipscomb memo to DOC staff at Newton Correctional Facility from American's
United For Sep. V. Prison Fellowship. S.D Iowa Vol. 432. (2006). In Sullivan, page 26

26. Phillips 25
by IFI at heart. Not only was the contract awarded on a free-market basis, based on specific
features and programs, to the bid that most clearly fit the needs of the prisoners in the
facility, but also it took into consideration the religious preferences of the prisoners in
assigning individuals to the program.
In practice, IFI presented great rehabilitation and programming opportunities for
prisoners in the Newton facility, as Sullivan notes in her delineation of the case. IFI offered a
“comprehensive pre-release and post-release program, and it did so for considerably less
money than the state could afford on its own.”52
Whereas other state programs were
backlogged, and prisoners had to apply for each program individually, IFI offered anger
management, substance abuse, job assistance and counseling programs all in Unit E. And IFI
achieved results. Multiple prisoners testified in court to the impact of IFI programs in the
Newton facility, and in their personal experiences. Catholic prisoner, Michael Bauer, who
left the program because he didn’t feel that his personal religious beliefs were consistent with
IFI’s methods, admitted, “I believe in anything that will help men become men, to become
responsible adults, to stop crime, to stop the victimization of others.”53
Robert Robinson, an
ex-con and a member of IFI’s programs confided that “any problem that I had, [IFI] was
there…Going through the program, the tools, the discipline, the fellowship, I mean—the
discipleship. I mean, all that in the program equipped me for who I am now, and a part of
society.”54
IFI achieved successful results while working in Newton to rehabilitate and
reinstitute prisoners into society as productive citizens. However, as the court case
52
Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution
(New Jersey: Princeton University Press, 2009), 24
53
Bauer Testimony from.
54
Robinson Testimony from American's United For Sep. V. Prison Fellowship. Accessed in
Sullivan 60

27. Phillips 26
determined in 2007, that success often came at the price of overstepping their bounds as a
partner organization to the state of Iowa.
Ultimately, the District Court ruled the state of Iowa to be in violation of the
Establishment Clause because of their support for IFI’s programs, which were found to be
coercive and explicitly evangelical in their approach. This coercion occurred in the form of
convincing inmates to participate in the program by offering extra benefits—including better
toilets, lockable doors to cells, and a “more spacious,” “more comfortable,” “much nicer”
environment than the alternative Units in the Newton facility.55
After signing up for the
program and the corresponding courses—anger management, substance abuse, etc.—
prisoners often found that such courses were steeped in evangelical Christian doctrine and
methodology, and discovered that the standard to remain in the program was tantamount to
giving up their personal freedom of religion. Sullivan notes that in many cases in Unit E, “the
language used to measure prisoner’s success moved back and forth between that of Bible-
believing Christians and that of the corrections community as if they measured the same
thing.” (58). Prisoners were evaluated based on principles of the “Fruit of the Spirit,” with
some inmates being released from the program for offenses such as pride, “an unteachable
spirit,” or demonstrating a “Messiah complex.” Prisoners who refused to submit themselves
to the religious beliefs and methods of IFI felt entirely discriminated against, because they
were unable to access the better programs and facilities without laying aside their own
convictions. These types of religious justifications for assessment and evaluation clearly
break away from the egalitarian way in which IFI attained their position in the prison and the
programs they had promised to institute. Although the state was promoting a public morality
55
From Prisoner testimony in American's United For Sep. V. Prison Fellowship, from
Sullivan 38-39.

28. Phillips 27
and some elements for societal flourishing in its sponsorship of IFI, it had also fallen into
sponsorship of establishment practices that discriminated against inmates of particular non-
evangelical beliefs.
This is the key for understanding the place of the religious nonprofit in the public
sphere. Religious organizations like Prison Fellowship Ministries and InnerChange Freedom
Initiative are essential to the flourishing of society, and may not be forced out of
opportunities to work in the public sphere—based on nondiscrimination theory—but they
must provide opportunities for flourishing that are accessible and helpful to all members of
society. The court injunctive in the Americans United case recommended two scenarios in
order to both achieve the beneficial results of a values-based prison rehabilitation program
and to also allow for personal religious liberty. Either, the religious organization should make
necessary changes to its program in order to become a “private choice program…by
disassociating all state aid to InnerChange through an arrangement that would mean
InnerChange and Prison Fellowship would offer an off-site program while incurring all the
costs of programming, i.e., building, salaries, supplies, and equipment” in order to provide
equal access and opportunities for individuals of all faiths. Or, the court recommended that
the “Dept. of Corrections to set up a similar, secular values-based program, or other religion-
based programs, as alternatives to the InnerChange program.”56
The problem, therefore, is
not the explicit partnership between the state and the religious organization, nor is it the
values-basis of the rehabilitation programs, as both these elements exemplify a state working
correctly in its role of pursuing a society that promotes flourishing. Rather, issues arise when
the state endorses and therefore chooses a specific set of values for individuals, rather than
56 From the section V.B of American's United For Sep. V. Prison Fellowship

29. Phillips 28
allowing for personal choice and free exercise of religious liberty. Therefore, we have seen
that as a liberal democracy seeking to provide opportunities for flourishing for its citizens,
the United States is completely justified in providing opportunities for religious nonprofits to
work in the public sphere, albeit under the restriction of nondiscrimination in order to
promote equality of opportunity, access, and expression.

30. Phillips 29
Bibliography
American's United For Sep. V. Prison Fellowship. 432 F. Supp.2d 862 (S.D. Iowa 2006) Vol
432. 2006. https://casetext.com/case/americans-united-for-sep-v-prison-fellowship
Audi, Robert. “Moral Foundations of Liberal Democracy, Secular Reasons, and Liberal
Neutrality toward the Good.” Notre Dame Journal of Ethics and Public Policy, no.
19 (2005): 197-218, http://scholarship/law.ned.edu/ndjlepp/vol19/iss1/7
Audi, Robert and Nicholas Wolterstorff. Religion in the Public Square: The Place of
Religious Convictions in Political Debate. Maryland: Rowman & Littlefield
Publishers, 1997.
Habermas, Jürgen. “Religion in the Public Sphere: Cognitive Presuppositions for the ‘Public
Use of Reason’ by Religious and Secular Citizens,” Between Naturalism and
Religion, 114-147, Cambridge: Polity Press, 2008.
Hall, Peter Dobkin. “A Historical Overview of Philanthropy, Voluntary Associations, and
Nonprofit Organizations in the United States, 1600-2000.” In The Nonprofit Sector:
A Research Handbook, Second Edition, edited by Walter W. Powell and Richard
Steinberg, 32-65. New Haven, CT:Yale University Press, 2006.
Jones, Jeffrey M. “Fewer in U.S Want Government to Promote Traditional Values,” Gallup,
September 30, 2015, http://www.gallup.com/poll/185948/fewer-government-
promote-traditional-
values.aspx?g_source=morality&g_medium=search&g_campaign=tiles
Laborde, Cécile. “Equal Liberty, Nonestablishment, and Religious Freedom.” Legal Theory,
20 (2014). 52-77.
Newport, Frank, “Majority Still Says Religion Can Answer Today’s Problems," Gallup June,
27, 2014, http://www.gallup.com/poll/171998/majority-says-religion-answer-today-
problems.aspx
Newport, Frank. “Three-Quarters of Americans Identify as Christian,” Gallup. December 24,
2014. http://www.gallup.com/poll/180347/three-quarters-americans-identify-
christian.aspx
Rawls, John. “The Idea of Public Reason Revisited,” The Law of Peoples, 129-180.
Massachusetts: Harvard University Press, 1999.
“Religion.” Gallup Historical Trends, Gallup (2015)
http://www.gallup.com/poll/1690/religion.aspx
Robert P. George, “The Concept of Public Morality,” The Clash of Orthodoxies: Law,
Religion, and Morality in Crisis, 92-109. Delaware:ISI Books (2001),

31. Phillips 30
Sullivan, Winnifred Fallers. Prison Religion: Faith-Based Reform and the Constitution
Princeton, NJ: Princeton University Press, 2009.
This paper represents my own work in accordance with university regulations
X Cody Phillips 1/5/16