A Jan. 11 ruling by a federal district court judge in Wisconsin in a complex case challenging the federal faith-based initiative has blocked funding to a program that incorporated religious content into government funded activities, but dismissed a claim that another program discriminated against secular nonprofits in awarding subgrants. Freedom From Religion Foundation v. Towey may be appealed by both sides. In June 2004 the Freedom From Religion Foundation (FRFF) filed a broad constitutional challenge to the federal faith-based initiative, but was limited to questions relating to two specific grants in November when the court dismissed the broad case for procedural reasons. The two grants in questions represent two of the most difficult issues involved in the faith-based initiative:

• Are grants or subgrants awarded in a discriminatory manner, favoring religious groups?
• Can and will the government enforce the ban on including religious content in government funded activities?

In this case the judge found FFRF did not meet the burden of proof required to show discrimination in favor of religious groups in awarding subgrants in a program funded by the Compassion Capital Fund, even though 80 percent of the subgrants went to faith-based groups. The grant involved was to Emory UniversityÕs Rollins School of Public Health for a three-year program that involved subgrants to partner foundations that in turn provided technical assistance and small subgrants to faith-based and community organizations focusing on community health needs. The court found EmoryÕs criteria for selecting partners to be neutral, although all eight had a religious affiliation. The neutral criteria included whether the potential partner had an independent funding base and an ability to collaborate with other faith-based or community organizations. Some of the partners favor faith-based organizations in making grants with their private dollars. There was no proof that Emory conducted an open competition for partner selection. In the first year 19 of 23 subgrants made by these partners went to faith-based organizations. In the second year 26 of 31 subgrants went to faith-based groups. However, the court held that this alone was not sufficient to overcome the presumption that a constitutional government program is implemented in a constitutional manner. If the ruling stands it will be difficult for future plaintiffs to prove discrimination. A claim may require a more qualified secular group that did not seek funding to challenge a grant to a less qualified faith-based organization. The second grant in the case involved MentorKids, which received a grant from the Department for Health and Human Services (HHS) to provide services to children of prisoners. MentorKids made no effort to separate its religious activity from its publicly funded program. Mentors were required to submit statements on their personal Christian conversion, discuss the Bible with the kids they worked with and submit reports on their religious progress. HHS did not defend these practices. They suspended the MentorKids grant and asked the court to dismiss the case. However, the court refused because the grant could be reinstated absent a court order barring such action. The ruling bars MentorKids from receiving future grants under its current structure. The blatant disregard for following government rules in this case raises serious questions about the will and ability of the federal government to oversee grants to faith-based organizations. The lack of clear guidance and standards, beyond a very general rule that religious activity must be separated in time and place from government funded activity, contributes to the problem.