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11/18/05
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Anne Lown, a Jewish woman from Boston, had worked nearly 25 years for the Salvation Army's children's services arm in New York when she was thrust into the world of faith-based initiatives. Lown, associate director of the local Salvation Army's government-funded Social Services for Children, was one of 18 employees to leave or be dismissed in 2003-04 for allegedly refusing to sign forms swearing loyalty to the group's Christian principles. The employees (among them Jews, Catholics, Evangelical and mainline Protestants, and one ordained Lutheran minister) said they also rejected the army's demands beginning in 2003 for details about what churches they had attended over the past 10 years. They would not permit the army to contact ministers of these churches for information on them. And one manager said she refused a request from her superiors to identify gay workers on her staff. "The whole time I was there no one had asked me about my own religion," said Lown, a soft-spoken woman with a master's degree in social work from Smith College. "There was never any kind of litmus test." Lown's father, Dr. Bernard Lown, won the 1985 Nobel Peace Prize. He had fled Lithuania during World War II to escape the Nazis. Many of her family members, she noted, had died in the Holocaust. "To find this happening in your workplace, where I'd given my total commitment, was really incredibly enraging and disheartening," she said. "I'd always believed because they took public money that that protected us." But last month, a federal district judge in New York ruled that even if the Salvation Army did all this, it broke no law, even though the programs in question are funded almost entirely by the government. The White House's director for faith-based initiatives exulted publicly over the ruling. "I think this is going to send a resounding signal out there in America," Jim Towey told National Public Radio soon afterward, "because here you have an organization ... that got 95 percent of its money from government to do its social service work and the court held that they were allowed to hire on a religious basis." The ruling by Judge Sidney Stein is subject to a virtually certain appeal, but observers agree the Bush administration's hand has been greatly strengthened for a slew of measures it has been pushing. Among other things, a bill now in the House would allow religious groups to run Head Start programs and hire staff for them on a religious basis: a measure that could channel millions to such programs. The administration also plans to direct some $500 million worth of private school vouchers to mostly religious schools to help Gulf Cost residents displaced by Hurricane Katrina. And its Federal Emergency Management Agency has announced it will reimburse religious groups and houses of worship for some of the services they are providing to displaced Gulf Coast residents. "The Salvation Army decision is huge," Towey spokeswoman Alyssa McClenning told The Jewish Week. Some church-state legal experts in the Jewish community agree. "It's a case of huge importance to the Jewish community," said Marc Stern, co-director of the American Jewish Congress' Commission for Law and Social Action. "As government delegates more and more social services to private groups, there may be real restrictions on where Jews can get employment." On the other hand, he said, "The director of UJA-Federation is never going to be a Catholic. Yet federation and its agencies get money from the government. ... If you say no discrimination, it means no preferences ... even a preference for Jews in a Jewish nursing home. "It's an excruciating dilemma," he said. "But it's like pulling teeth to get the Jewish community to think about this." Indeed, one UJA-Federation executive said an effort to set up a meeting about the issue after the court ruling went nowhere for lack of response. But UJA-Federation's top lobbyist in Albany, Ron Soloway, said that the network of some 100 social service agencies that make up the UJA-Federation system gets about 75 percent of its funds from government sources, a total of $1 billion. "Now that this case has come to the public fore," said Soloway, "we've started to explore its implication, if any, for for the system." Stern said he's found "lots of denials" that Jewish charities engage in discrimination. "But if they're not discriminating," he said, "why wouldn't people just give to United Way?" Some Jewish Officials Concerned The unease of officials such as Stern stem in part from the peculiar nature of the Salvation Army case. Stein's complex ruling leaves parts of the case alive and the rejected employment discrimination claim subject to appeal after the judge issues his ultimate decision. Both the live part and the expected appeal of the rejected part may threaten longstanding assumptions and practical arrangements many faith-based groups have relied on, these officials say. And the administration's faith-based dreams only deepen their worries. "I'm concerned about some of the direction in which the conversation is moving," said David Zwiebel, executive vice president of Agudath Israel of America. "I'm concerned it's brought out of the woodwork all these very knotty discrimination questions." Agudah, an Orthodox organization, is heavily reliant on government funds for the social services it provides in largely Orthodox neighborhoods and communities. Zwiebel acknowledged that his group discriminates in some of its hiring on the basis of religion: and for religious reasons, sometimes gender, as well. Like other faith-based groups, Agudah has relied on a religious exemption written into Title VII of the 1964 Civil Rights Act for its legal right to do so. Now the administration's faith-based initiative and Stein's ruling promises (or threatens, depending on one's viewpoint) to greatly widen the ability of such groups to discriminate with taxpayer money. But if the Lown plaintiffs win their planned appeal or the remaining part of their case, that exemption could be considerably narrowed. Using government money for religious discrimination in hiring has always been the deal breaker in the administration's initiative. At least rhetorically, all major players agree there can be no discrimination or proselytizing when actually serving clients. But Lown v. Salvation Army may highlight a contradiction at the heart of the administration's program: the expectation that you can hire staff with religious discrimination and not engender any discrimination in the delivery of services. Along with her staff, Lown believed she was working for the Salvation Army's secular-oriented social service arm. The army's Social Services for Children had been receiving government funds for decades. Nearly all its $50 million annual budget came from city and state government. And the government contracts themselves barred discrimination, including religious discrimination, in hiring staff or delivering services. The staff, some 800 employees, was a model of diversity, with Catholics, Jews, Evangelical and mainline Protestants, and a Hindu working together on services such as foster care placement and HIV/AIDS counseling for tens of thousands of New Yorkers from every creed. But according to Lown's legal complaint, new Salvation Army administrators arrived early in 2003 with new plans for its social services division. A New RegimeIn March 2003, the complaint states, Col. Paul Kelly directed Salvation Army administrators to gather information on the religious affiliation of SSC staff as part of a broad reorganization plan. Among other things, the complaint alleges, Kelly voiced concern to one manager that SSC's Human Resources director, Margaret Geissman, was Jewish. He was informed she was not. According to Geissman, a practicing Catholic, that same month an aide to Kelly asked her to identify homosexuals working at SSC. She refused.In September of that year, SSC managers were asked to distribute a new "Work With Minors Form" for mandatory signature by all SSC staff, the complaint states. The form, filed with the court, mandated disclosure of the employees' "Present Church," the name of his or her minister, and "Other Churches attended regularly during the past ten years." It required employees to authorize the Salvation Army to obtain from these ministers "any information they may have regarding my character and fitness for work with children" and to waive any right to see what they wrote. Any false statements, employees were warned, were "punishable under the laws relating to perjury." The complaint alleges that in October 2003, Salvation Army administrators told Lown, Geissman and other SSC managers that any employees refusing to sign a separate job description form would be fired. This form contained a new mission statement that declared, "I understand The Salvation Army's status as a church and agree I will do nothing as an employee of The Salvation Army to undermine its religious mission ... I agree and understand that ... my conduct must not conflict with, interfere with, or undermine the Army's [religious] programs or the Army's [religious] purposes." Over the next several months, the refusal by Lown, Geissman and other SSC managers to press their staff to sign these forms led to what they allege was their "constructive termination." In his pre-trial ruling, Stein rejected the plaintiffs' contention that the Salvation Army had violated their rights as employees under Title VII of the 1964 Civil Rights Act. That law, the judge noted, carves out a hiring exemption for religious organizations that Congress expanded in 1972 to apply to any activities "regardless of whether those activities are religious or secular in nature." The fact that the religious organization's activities were government funded in this case changed nothing, Stein wrote: the first time this exemption has been ruled to apply even to government-funded activities. But the judge left two parts of the suit alive. The plaintiffs, he ruled, could go to trial with their contention that government agencies violated the Establishment Clause of the First Amendment by allowing their funds to be spent on the Salvation Army's alleged religious discrimination activities. Even minor expenses with government funds, such as paper, ink and staff time for composing the forms the plaintiffs refused to sign or distribute, could be violations under this ruling, said George Washington University law professor Robert Tuttle, who has been monitoring the case. And the Salvation Army itself, Stein ruled, would have to face charges it had used some of its government funds for actual religious activities. The plaintiffs charge that some 10 percent in overhead money that SSC turned over to Salvation Army headquarters went not for legitimate overhead but to its religious mission. Crossing The Red Line The plaintiffs also claim SSC's own program was bent to the army's religious mission in ways that infused it with religious content: the bright red violation line that all agree on. In one case, said Marina Obermaier, who was assistant director for foster home and adoption services, army administrators demanded she delete language in her program's literature to recruit non-traditional foster families, such as gay couples or single parents. City regulations and the Salvation Army's contracts prohibit discriminating against such households, she noted. "Prior to this issue, we included in the literature that applicants could be single, married or living with another adult," Obermaier said in an interview. "We were directed to delete that sentence." Beyond this, Lown and her colleagues say, the Salvation Army put them in an impossible situation as social workers: The demand that they sign the religious mission pledge inevitably conflicted with their professional and ethical duties. The SSC program, the plaintiffs noted, requires them to counsel sexually active, often troubled teens (some of them gay, bisexual or just experimenting) who are at risk for HIV, sexually transmitted infections and unintended pregnancy. While abstinence is the first and best choice, they said, their obligations as social workers include offering counseling on birth control and safer sex, and occasionally to making abortion referrals. They are obligated as well to make judgments about foster care placement without regard to the sexual orientation or religious beliefs of the families involved. But, the plaintiffs noted, the Salvation Army as a matter of religious principle condemns non-marital sexual relationships, contraceptive use outside of marriage, homosexuality, abortion, social drinking, gambling, smoking and drug use as "unacceptable according to the teaching of Scripture." "I brought this up with them," Obermaier recalled. "Their standard response was, we will abide by our contractual obligations. But not being a lawyer, I didn't know how to parse out contractually what I was obligated to do. I could be pursuing my professional, contractual and ethical obligations and be putting myself in danger of being fired. Or I could be abiding by their pledge and be failing my professional obligations." Asked if the Salvation Army would permit its workers to offer birth control counseling, or certify gay, Jewish or Muslim households for foster care and other activities that might conflict with the mission statement, Salvation Army attorney Paul Mourning said, "The issues are complicated. I would not want to comment on it [beyond] the answer we will provide the court." Mourning said he would file a response to the suit this week. Stern and Zwiebel said this is where the new, narrower focus of the case, and the scrutiny inspired by controversy over the Bush administration's faith-based initiative, could get most uncomfortable. Over the years, they said, the numerous faith-based social service groups with which the city contracts have made quiet, practical arrangements to accommodate their religious concerns. Many of these arrangements came in the wake of a case that challenged the way the city assigned Jewish and Catholic children to foster-care homes of the same faith to ensure their religious upbringing. "Often these groups object to being told what to do publicly," Stern said. "They have less objection to actually doing it." But now, he fears, such practices (arguably defensible discrimination in the rendering of services) will come under close scrutiny. "I heard the head of Catholic Charities say everything was going fine, we'd worked out an M.O.," said Stern. "And this sort of forces us all to declare ourselves. But the most important fact is, UJA-Federation is not even worried enough to think about it."

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