NYCLU Challenges Federal Government As It Enters Salvation Army Lawsuit

The New York Civil Liberties Union has challenged the Department of Justice as it enters the NYCLU religious discrimination lawsuit against the Salvation Army. The NYCLU claims that Supreme Court rulings support its contention that religious organization do not have claim to government money while still maintaining their ability to discriminate in employment practices.

The NYCLU filed suit in February against the Salvation Army asserting that the charity was using the $89 million it accepts in direct government money to advance its religious mission. Employees who worked for the Salvation Army’s Social Services for Children program were ordered to fill out a form asking about their church affiliation and church attendance. They were also required to pledge their adherence to the religious principles of The Salvation Army Church. The organization soon rescinded that policy after the NYCLU filed suit, but continued to maintain unconstitutional practices.

While government employees for the Salvation Army no longer are required to disclose their religious practices, they still must pledge to follow the evangelical mission of The Salvation Army Church. The NYCLU contends this is a violation of the Constitution and blurs the line of separation between church and state.

US District Court Judge Sidney H. Stein permitted the Department of Justice (DOJ) to file an amicus brief on October 29, 2004, in which the Department asserted the legalities of the Administration’s faith-based initiative. The DOJ asserted that a religious organization can participate in government-funded programs and still maintain their preferred role as a religious organization, thereby permitting the organization to engage in religious discrimination in the workplace.

The NYCLU brief, filed in response last Friday, December 3rd, stated that the DOJ’s contention is not supported by Supreme Court rulings. Neither Title VII nor the Establishment Clause permits a religious organization to engage in religious discrimination or deliver its religious mission while performing government work in government’s name and with government money.

Religious organizations are protected by a claim of autonomy or religious privacy that allows them, as private associations, to hire employees that share the religious faith of the organization. And the Constitution does not prohibit the government from supporting secular social-welfare services solely because they are provided by a religiously affiliated organization. But the religious organization’s claim of autonomy loses its force when that organization accepts government funding to provide state-mandated services and the Supreme Court has never allowed religious discrimination in employment in federally funded programs.

DOJ’s argument, a defense of the federal Faith-Based and Community Initiative that “faith-based and secular organizations may compete on an equal footing for federal funding to provide social services to the public,” appears to rest on First Amendment public forum cases where the Supreme Court has held that religious organizations must be afforded “equal access” to public forums no less than secular organizations. But a government spending program will not fall under the “public forum/equal access” doctrine unless that spending program is designed to create a public forum for expression. Government-funded social services programs at issue here cannot be viewed as creating a forum for speech.