A federal court opinion permitting the Salvation Army to consider the faith of employees hired for government- funded projects is being touted as a victory by proponents of President Bush's faith-based initiative, claiming it legitimizes the administration's stance. Yet, opponents of the Bush faith-based initiative are not entirely sure the court decision is a loss. In a mixed decision, on Sept. 30 Judge Sidney Stein of the District Court for the Southern District of New York found Lown v. Salvation Army that the Salvation Army was within its legal rights when it considered the faith of its employees, even though they were paid with public funds. The plaintiffs, former employees of the Salvation Army, charged that they were forced out of their federally-funded social service jobs after they disagreed with the organization's religious policies, including requirements they divulge their faith. In late 2003, the Salvation Army instituted a reorganization plan, designed to promote a "One Army Concept." According to the complaint, under the reorganization, the Salvation Army's religious mission would seep into social service programs, among others, and in particular its Social Services for Children program. Under the new program, employees allegedly were required to sign a form avowing they had received a Salvation Army Employee Manual, which stated, "I understand the Salvation Army's status as a church and I agree I will do nothing as an employee of the Salvation Army to undermine its religious mission." Additionally, some employees were also required to sign a "Work with Minors Form," obligating them to conduct themselves in their work "with children in a way that is consistent with the religious and charitable principles of The Salvation Army." The initial language in the Work with Minors Form required employees to identify their present church and minister, as well as other churches they attended during the last 10 years. Some employees refused to sign the Work with Minors Form and claim, as a result, they were disciplined, demoted, or fired. Judge Stein dismissed plaintiffs' claims that by funding a private agency that discriminates based on religion, the government defendants are violating the Equal Protection Clause of the 14th Amendment and the Establishment Clause of the First Amendment. The judge ruled that even though the Salvation Army receives government funding to administer social services, it is a "private entity" and cannot be sued for religious discrimination under the Establishment Clause unless facts show it was engaged in government action. According to the ruling, the plaintiffs "never allude to any state actor participating in the Salvation Army's allegedly discriminatory practices," and did not offer enough facts to find a "pervasive entwinement" between the Salvation Army and the government. The plaintiffs are expected to appeal once the case is concluded in the District Court. At the same time, the court allowed two of the plaintiff's claims to move forward:

• whether by funding "specifically religious" activities of the Salvation Army, the government defendants are violating the Establishment Clause of the First Amendment; and
• whether the Army may be held liable under city and state law, for retaliating against employees who claimed religious-based employment discrimination.

The first of these holdings allows the plaintiffs to proceed with a separate set of Establishment Clause claims that focus on the use of government funds for religious purposes. These claims arise from the plaintiffs' status as taxpayers of the governmental entities that provided funds for Salvation Army programs. The judge found that there was a "reasonable inference" that government funds were used and "that the Salvation Army may be using government funds to support indoctrination of clients who[m] the government defendants compel to participate in Social Services for Children programs." Faith-based organizations are barred from using direct federal financial assistance to support any "inherently religious" activity (including worship, religious instruction, and proselytization). An organization that engages in inherently religious activities must offer those services to beneficiaries separately in time and location from programs and services supported by direct federal funds. For opponents of the Bush faith-based initiative, the ruling reaffirms the principle that faith-based organizations cannot use direct federal funds for religious use. "The court properly ruled that the City and State agencies cannot allow the Salvation Army to use government funds to proselytize or to impose their religious beliefs on those who rely on them for day care, foster care, adoption, juvenile detention and HIV services. Under the ruling, government funds cannot be used by faith-based social service agencies to promote religion when they provide social services to the intended beneficiaries," explained Donna Leiberman, executive director of the New York Civil Liberties Union.