Chalk up a big legal victory for President Bush's effort to help religious charities get taxpayer funding. And score a symbolic win, too, for those who think Bush's "faith-based initiative" is just pork-barrel politics in disguise.
Bush's big victory came Sept. 30 in New York, where a federal judge threw out most elements of a religious discrimination lawsuit against the Salvation Army. Eighteen employees claimed they were fired or demoted because they refused to pledge support to the Salvation Army's mission of "proclaiming Jesus Christ as Savior and Lord," disclose what church they attended or name gay co-workers.
U.S. District Judge Sidney H. Stein noted that all the plaintiffs worked for a children's services division of the Salvation Army that gets 95 percent of its $50 million budget from government grants.
But the judge's 48-page opinion upheld the principle that a religious group can hire and fire employees on the basis of their religious beliefs and practices, even if their salaries come from taxpayer funds. That principle is at the heart of the Bush administration's policy.
"It's huge," H. James Towey, head of the White House Office of Faith-Based and Community Initiatives, said of the decision. "It's certainly a vindication of what President Bush has been saying from Day One -- that religious groups do not have to sell their soul, compromise their hiring practices, in order to partner with government in providing social services."
On the other hand, critics of the faith-based initiative got a boost last week when the U.S. Department of Education suspended a $435,000 grant for Alaska Christian College, an unaccredited, one-year school run by the Evangelical Covenant Church.
The Freedom From Religion Foundation, a Wisconsin-based group, had filed a lawsuit contending that the grant amounted to an unconstitutional endorsement of religion. After sending an inspector to visit the Alaskan school in July, the Education Department agreed. The inspector's report said the curriculum was "almost entirely religious."
Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation, said that over the past two years, Congress earmarked nearly $1 million for the bible school, about $20,000 per student. She called the money "religious pork" brought home by Rep. Don Young (R-Alaska), who took credit for this year's $435,000 grant in a November press release.
Gaylor's group agreed to drop its lawsuit following the grant's suspension. In a letter to the Alaska school, the Education Department explained that it can provide funds to schools with religious affiliations, but the money must be used for secular purposes.
Robert Tuttle, a professor at George Washington University Law School, said the two cases provide "a really nice example of where the faith-based initiative is -- and is not -- likely to run up against legal problems."
Tuttle noted that "a lot of the political action and opposition has revolved around discrimination in hiring." But the legal weak point of the administration's effort to dole out more money to religious charities, he said, is "the lack of clarity about what the government may or may not fund."
Another lawsuit on that question is scheduled to go to trial in Iowa on Monday, 2 1/2 years after it was filed by Americans United for Separation of Church and State. It challenges the constitutionality of the InnerChange program, a prison ministry run by Charles Colson's Prison Fellowship.
Iowa prison officials maintain that public funds are not used to pay for the religious elements of the program. But Americans United says it is impossible to separate the religious and secular portions of a program that describes itself as "Christ-centered."
There are lingering questions, too, about the Salvation Army. While the judge in New York dismissed the key claim of religious discrimination, he allowed the employees to pursue other allegations. One is that the Salvation Army's social services division gave 10 percent -- a tithe -- of its revenue to the parent organization. The judge ruled that the plaintiffs can sue as ordinary taxpayers if they have evidence that the charity thereby diverted government funds for religious purposes.