NYCLU Settlement Ensures that The Salvation Army May Not Proselytize While Performing Government-Funded Social Services

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February 17, 2010 —  In a settlement agreement announced today, New York City, Long Island and New York State government agencies have agreed to a system for monitoring The Salvation Army to ensure that it does not impose religion on recipients of its government-funded social services.

The settlement, approved Tuesday by a federal judge, is part of Lown v. The Salvation Army, a lawsuit filed by the New York Civil Liberties Union in 2004 in response to an effort by The Salvation Army to require social workers and other employees in its government-funded social services programs to identify their church affiliation, the frequency of their church attendance, and to sign an endorsement of The Salvation Army’s mission to “preach the Gospel of Jesus Christ.”

The lawsuit challenged The Salvation Army’s legal right to tailor its provision of government-funded social services to its religious principles. It was filed on behalf of 18 former and current employees of The Salvation Army, and names various state, city and county agencies as defendants.

“This agreement protects the religious freedom of all New Yorkers who rely on faith-based organizations for crucial government-funded social services,” NYCLU Executive Director Donna Lieberman said. “Our taxpayer money shouldn’t support religious indoctrination of anyone – particularly children. And no one should be subject to proselytizing because they need foster care, adoption, child care or HIV services. This settlement ensures that religious organizations may not preach to people who receive government-funded social services or discriminate against them based on their religious beliefs.”

Under the two-year settlement agreement, every government agency named in the lawsuit has adopted auditing procedures or standards of conduct to ensure that The Salvation Army does not force people in need of government-funded services to engage in religious activities, such as worship or religious instruction. The procedures and standards will also ensure that recipients of social services are not discriminated against because of their religious beliefs.

The government agencies that have adopted audit procedures or standards of conduct are: New York City Administration for Children Services (ACS), New York City Division of Juvenile Justice, New York State Office of Mental Retardation and Developmental Disabilities, New York State Department of Health, Nassau County Department of Social Services and Suffolk County Department of Social Services.

ACS, which funds a wide variety of social services in New York City, has determined to apply its auditing protocols to all of its contracting agencies.

“Religious organizations such as The Salvation Army have played a historic role in the provision of social services programs for the community. But however well-meaning, when religious organizations use government money to administer these services, there is a risk that the services will be tailored to meet religious principles. Procedures must be put in place to prevent taxpayer money from promoting religion and to prevent religious belief from limiting the services provided by religious organizations, especially in areas like sex education and family planning,” said NYCLU Legal Director Arthur Eisenberg. “The auditing model that we have developed here should serve as a check against the misuse of government funding to promote religion.”

Today’s agreement partially settles the NYCLU’s lawsuit. Though The Salvation Army is a church, a firewall for years existed between its religious arm and its social service arm. This allowed The Salvation Army to perform its responsibilities as a government-funded social services agency in the New York metropolitan area diligently and without injecting religion into its provision of social services.

The lawsuit contended, however, that under a reorganization plan initiated in 2003, the church began to break down that wall of separation and introduced greater religious control over its government-funded social services. The U.S. Supreme Court has repeatedly recognized that the First Amendment’s Establishment Clause prohibits government-financed or government-sponsored indoctrination of religious faith.

The NYCLU’s lawsuit claimed that, when government agencies provide funding to religious organizations to administer social services such as foster care or day care, the agencies are constitutionally required to monitor the programs to ensure that religious organizations do not use government money to engage in religious indoctrination of the beneficiaries of the programs. The suit also claimed that federal, state and local anti-discrimination laws prohibited The Salvation Army from discriminating on the basis of religion against social workers employed in government-funded programs. Finally, the suit claimed that two employees were constructively terminated from their jobs for protesting The Salvation Army’s introduction of religion into the workplace.

In 2005, a federal judge recognized, as had the Supreme Court in a 1988 decision (Bowen v. Kendrick), that the city and state agencies cannot allow religious organizations to use government funds to proselytize or to impose religious messages on those who rely on them for social services, and allowed those claims to go forward. Today’s settlement with the government agencies emerges out of that ruling.

In the same ruling, the judge dismissed claims that The Salvation Army and government agencies had engaged in impermissible employment discrimination when it required employees in the government-funded programs to disclose their religious beliefs and practices and to pursue the evangelical Christian mission of The Salvation Army. That ruling can be appealed. Also, the 2005 decision did not dismiss the claims of the two employees who claimed constructive discharge for protesting The Salvation Army’s introduction of religion in the workplace, and the litigation of those claims against The Salvation Army is continuing.

“When The Salvation Army’s religious mission was made mandatory in our work place, it changed the climate in a way that caused us fear and concern about our ability to ethically deliver services,” said Marina Obermaier, a social worker administrator who worked for eight years with Salvation Army foster families in New York City and on Long Island. “Our ethical commitment as social workers means that we may not be judgmental or refuse to offer services to our clients that are beneficial to them.”

“One of the underpinnings of social work is that you start where the client is,” said Anne Lown, the former associate executive director of The Salvation Army who worked there for 24 years. “If you’re preaching an agency’s religion to the client, you’re not starting where the client is and you’re not respecting the client.”

“In this field you deal with the most vulnerable population possible, and it’s wrong to push religious beliefs on vulnerable people,” said Mary Jane Dessables, a social worker and an ordained elder in her Nassau County Presbyterian Church and former management information systems director for The Salvation Army who worked for the charity for 12 years.

As part of the settlement, the NYCLU will receive regular reports from the government agencies on The Salvation Army’s compliance with the agreement. A federal court will maintain jurisdiction over the agreement for two years to ensure that it is enforced.

“This auditing model establishes a template that government agencies across the country can apply to faith-based organizations contracted to perform government services,” said NYCLU Senior Staff Attorney Beth Haroules.

“With this settlement, government is watching out,” said NYCLU co-counsel Deborah Karpatkin. “It will not fund religious organizations to proselytize to recipients of government-funded social services. It will not allow these government-funded services to be tailored to the precepts of the religious organization.”

Attorneys involved in this case are Haroules, Eisenberg, Karpatkin and Martin Garbus.