Court Decisions

Various organizations that object to greater collaboration between government and faith-based social service providers have challenged the faith-based initiative or particular contracts or grants awarded to faith-based organizations. The challenges that succeed are the ones that convince a court that the government officials or faith-based organizations involved have violated the requirements of the law or the regulations. Although such adverse decisions gain wide press coverage as defeats for the faith-based initiative, they actually uphold the specific rules and concepts of the initiative. They also demonstrate clearly, though, just how important it is that both officials and organizations fully understand the principles and the details of the law and that officials adequately monitor all of their collaborations with private partners. A few of the key decisions, pro and con, are briefly summarized here.

InnerChange Freedom Initiative and Prison Fellowship Ministries

On June 2, 2006, a federal court ruled against the State of Iowa's contract with the InnerChange prisoner rehabilitation program being offered in Iowa's Newton Correctional Facility in collaboration with Prison Fellowship Ministries (much of the funding was private). The program was challenged by Americans United for Separation of Church and State as violating the Establishment Clause of the First Amendment (Americans United v. Prison Fellowship Ministries). The court ruled that the program was indeed illegal as operated because, in violation of the rule that applies when government funding is "direct" religious elements were not kept separate from the government-funded activities. The judge rejected the argument that the funding was, in effect, "indirect" (and thus there was no requirement to separate out religious elements) because the prisoners voluntarily choose the InnerChange program. There was no parallel secular alternative, although prisoners could take part in a number of other services helpful for rehabilitation. The judge not only ruled that the program must end but also, in an unprecedented decision, that all state money awarded to InnerChange over the years must be paid back to the government. The decision has been appealed.

Trial testimony indicates that InnerChange positively affected prisoners. The judge, rather than requiring the end of the program and repayment of the funds, should have required the state to reconfigure its rehabilitation offerings so that prisoners would have a fair choice between InnerChange and a secular alternative, with payment geared to prisoners served, thus fitting with the requirements for "indirect" funding. The repayment requirement is chilling for any faith-based organization contemplating collaboration with the government. The state was quite pleased with the actual services that InnerChange was providing; if it had configured the payment and service-delivery system to fit the "indirect" rather than "direct" rules, its contract with the faith-based prisoner rehabilitation program would have been upheld.

The Silver Ring Thing

The federal Department of Health and Human Services agreed on Feb. 22, 2006, not to provide any further funding to a faith-based abstinence education program, The Silver Ring Thing. The grant had been challenged by the American Civil Liberties Union of Massachusetts (ACLU v. Leavitt). In the settlement, HHS agreed that, despite warnings, Silver Ring Thing had illegally included religious activities in the government-funded training it provided. In working with SRT, HHS produced a list of "Safeguards Required" before SRT could be entrusted with government funds.

The "Safeguards Required" document adopts an extremist tone about the requirement that inherently religious elements must be kept separate from services "directly" funded by government. It insists, for example, that religious activities be held in a "completely different site" or an a "completely different day"—as if another site or another day could somehow not be different. Perhaps the firm talk was thought necessary given apparently ignored warnings. These "Safeguards Required" should not become the standards applicable to all grantees and contractors. HHS should instead devise a clear but respectful set of principles.

It is vital that faith-based organizations that operate service programs that incorporate religious activities (e.g., prayer, Bible stories, instruction in religious principles) carefully determine whether and how they can offer a program without such elements before they seek a government grant or contract (the rules for "indirect" government support do not include this separation requirement). Separation is the rule when the funding is "direct"; it will not do to seek government funding for a program originally designed to be infused with faith which has only been minimally changed by offering a few opt-out exercises. Instead, take seriously the requirement that when the government directly supports a program, the program must be able to serve a diverse audience, including people of different faiths or no religion. Provide the best possible help, leaving religious activities and discussion out of it. And then, respectfully, invite the participants, if they wish, to attend an additional program you offer without charge if they are attracted to a faith-based approach.

Faith Works Milwaukee

The State of Wisconsin was sued in federal court for awarding government funds to Faith Works Milwaukee, a faith-based drug treatment program providing services to ex-prisoners (Freedom from Religious Foundation v. McCallum). The federal district court judge made three rulings. She ruled that because some of the government funds had been used for counseling that included religion, the state's contract with Faith Works was unconstitutional. However, she upheld the funding that went to Faith Works by means of vouchers. And she also upheld a specialized form of contract that the state had created, in which (as with a voucher) Faith Works only got paid when a client, who had a choice of several options, decided that he or she wanted faith-based drug treatment services. Such "beneficiary-choice" contracting, the judge held, is a form of "indirect" funding and thus the services it supports can legitimately include religious activities. This decision was upheld by the federal 7th Circuit Court of Appeals.

This case received much press attention because the organization was started by an outspoken supporter of the Bush faith-based initiative, the organization was praised by George W. Bush on the campaign trail, and the initial ruling, covering just part of the funding, declared the conventional contract to be unconstitutional. Unfortunately, the press did not pay the same attention to the ruling about the constitutionality of the voucher funding or the unprecedented ruling validating "beneficiary choice" contracting. For more on this important alternative to both conventional contracts and to vouchers, see the Beneficiary Choice page.

Notre Dame AmeriCorps Education Award Program

The University of Notre Dame has a grant from the federal Corporation for National and Community Service (CNCS) to operate a program through which AmeriCorps volunteers teach secular subjects in religious schools. On their own time, the volunteers may take part in religious activities or even teach religious subjects. After performing a year of service, the volunteers receive an award to use for their own college or university expenses.

The grant was challenged by the American Jewish Congress (American Jewish Congress v. Corporation for National and Community Service). The lower federal court in Washington, DC, ruled in 2004 in favor of the American Jewish Congress, but this decision was overruled unanimously in 2005 by the US Court of Appeals for the District of Columbia, and the US Supreme Court has decided to let this reversal stand.

The case validates the principle that it is constitutional for faith-based organizations, like their secular counterparts, to take part in government-funded programs. It also validates the important principle that, while it is wrong for the government to pay for 'religious indoctrination", it is legitimate for voluntary religious participation to take place even when an organization receives government support.

Lown v. Salvation Army

The New York Civil Liberties Union charged that it was unconstitutional for the Salvation Army in its New York City programs to utilize religious employment standards because most of the funding for the programs run by those employees came from government (Lown v. Salvation Army). In a very important ruling, on September 30, 2005, the federal judge ruled for the Salvation Army and its religious staffing standards. The Establishment Clause does not forbid religious staffing by faith-based organizations that receive government funds; and both the applicable state and city laws, while generally banning religious employment discrimination, include an exemption permitting religious staffing by religious employees.

Federal, state, and local civil rights laws generally ban employers from discriminating against employees on the basis of religion (and also race, sex, age, disabilities, etc.). But such general laws include an exemption so that churches and other faith-based organizations can select staff sharing their faith. Despite this general exempition, some laws governing the awarding of government funds do restrict religious staffing, even by religious organizations. On the other hand, the New York state and city laws governing the Salvation Army contracts specifically exempted religious organizations receiving government funds--in other words, specifically preserved the religious staffing freedom for faith-based contractors. 

Religious Staffing

In 2006, the Association of Faith-Based Organizations (AFBO) successfully challenged the practice in Florida and Wisconsin of excluding certain religious charities from participating in state-employee charitable giving campaigns organizations. The Wisconsin campaign had excluded faith-based organizations that engage in religious staffing. Florida had entirely excluded organizations judged to be "primarily religious" from participating. A similar suit by AFBO against the State of Michigan awaits a decision. AFBO is also currently involved in a lawsuit to allow Geneva College, which staffs on a religious basis, to list its jobs on the federally funded job listing service operated by the Commonwealth of Pennsylvania.