The United States Agency for International Development published a proposed rule change in the Federal Register back in March that startled many legal scholars and civil libertarians. The agency, which is responsible for doling out the State Department's economic and humanitarian assistance throughout the world, wanted to update two paragraphs in a federal regulation governing who is eligible for U.S. aid money overseas.
USAID funds, the updated rule proposes, may in the future be used "for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities" — in other words, to build and repair churches, mosques, synagogues or religious schools.
It's easy to see why the agency might find this a smart use of soft power, especially in an era when the U.S. is trying hard to convince Muslims that it's not at war with them — it just happens to be inside three of the of the countries where many of them live. What better way to show solidarity than to help rebuild, say, mosques that have been heavily shelled in sectarian fighting in Iraq?
The idea may be as much a practical necessity as a shift in ideology. How else could USAID support education in countries where the only schools are religious ones? And how could it develop stable social infrastructure in small towns or rural areas where the only community center is a house of worship?
The problem, though, is that these practical development goals conflict with a bedrock American value back home: the separation of church and state.
"We were surprised by the proposed rule," said Dena Sher, legislative counsel for the American Civil Liberties Union in Washington, "because it was such a deviation from well-established constitutional law that prohibits government funds from being used to construct houses of worship."
Taxpayer dollars are clearly not permitted to build or repair religious buildings in the U.S. (with a few narrow exceptions in cases involving disaster recovery, historic preservation and downtown redevelopment). So how could that same money be spent differently overseas? Were the founders really only concerned with staving off state religion within our own borders?
USAID was vague in its proposal. Based on its legal review, the agency wrote in the federal register, it had concluded that the existing ban — outlined in a 2004 Bush-era rule — stretches beyond what's required by the Establishment Clause and hamstrings the agency's ability to pursue U.S. interests overseas.
"In particular," USAID responded in a statement this week, "we are concerned that the current rule improperly restricts USAID relief, rehabilitation and reconstruction responses to disasters and complex humanitarian emergencies overseas; development of assistance activities in the education sector overseas; and cultural and historical preservation efforts overseas."
Among those who disagree have been the ACLU, the Anti-Defamation League, and a group of law professors at Wake Forest, Georgetown, George Washington University, Columbia and Brigham Young. All submitted comments on the proposed rule before this week's deadline, urging USAID to reconsider.
"USAID is not free to disregard Supreme Court precedents, even if it believes they reflect outdated interpretations of the First Amendment," wrote Melissa Rogers, director of the Center for Religion and Public Affairs at Wake Forest University School of Divinity, along with five colleagues.
USAID has outlined parameters for how this newly freed money could be spent. It would have to be made available to a wide range of organizations — religious and nonreligious — with religiously neutral selection criteria. And it would have to have a "secular purpose" and further a development objective.
But critics of the idea contend that this new test pushes the boundaries of what's supported in case law — and even contradicts the stated policy of other arms of the federal government.
"It doesn't measure the whole picture," Sher said. "It doesn't look at whether [the money] would be perceived as conveying a message that the government favors or prefers a religion. It doesn't look at whether it would have the effect of supporting the inculcation of religious belief. It doesn't look at whether the funding is actually used for religious purposes. There are other factors that courts consider — neutrality is one of them, but it by itself is not sufficient."
USAID says that it is currently reviewing public comments on the rule. If it goes forward with the change, or a similar version of it, the clash of foreign-policy goals and constitutional precedent will likely wind up in another forum — a courtroom.