President Bush’s faith-based initiative sought to level the playing field for faith-based organizations that provide social services. It may have achieved some of its goals, but it has also sparked a debate as to the proper distance that should exist between religious organizations and the government. One thing is very clear: President Bush’s emphasis has generated a lot of business for...
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lawyers. One side is suing government agencies in an effort to stop funding of faith-based organizations. The other is suing government agencies to permit religious organizations to exercise their constitutional rights.
Today it is the State of Wisconsin that is being sued; specifically the Department of Administration. The plaintiff is the Association of Faith-Based Organizations, a Virginia-based nonprofit. It is claiming that Wisconsin denied several faith-based organization’s their constitutional rights when it denied the organizations the opportunity to participate in Wisconsin’s version of the Combined Federal Campaign (known as Wisconsin’s State Employees Charitable Campaign). The Department of Administration apparently barred participation because these organizations refused to sign a nondiscrimination statement. In a press release issued by the Alliance Defense Fund, Steve Alden, the attorney for the plaintiffs, said,
Wisconsin officials should not be in the business of forcing faith-based charities to
abandon their constitutional right to define themselves around shared religious beliefs...That is exactly what Wisconsin is trying to do by prohibiting combined campaign charities from selecting employees and volunteers based upon their commitment to the organizations’ beliefs.Secular non-profit organizations that hire, select members, and accept volunteers who
comply and agree with their mission are allowed to participate in the program, but AFBO’s members are being required to abandon their religious staffing and membership requirements in order to be allowed into the program. Officials concerned about discrimination shouldn’t practice it themselves.
The dispute centers on Chapter 30 of the Administrative Code that governs the Department of Administration and Wisconsin’s State Employees Charitable Campaign. Specifically, Admin Section 30.05 sets forth the eligibility requirements for participation in the campaign. Section 30.05(11) provides:
The charitable organization shall have a policy and procedure of nondiscrimination in regard to race, color, religion, national origin, handicap, age, or sex applicable to persons served by the charitable organization, applicable to charitable organization staff employment, and applicable to membership on the charitable organization’s governing board.
The faith-based groups are essentially arguing that this provision is unconstitutional to the extent it penalizes them for hiring individuals who share their religious beliefs. Although we hardly consider ourselves to be constitutional authorities, our limited knowledge of the case law in this area leads us to conclude that the plaintiffs have a legitimate claim in this case. See, Corporation of Presiding Bishop v. Amos, 483 U.S. 327 (1987). Granted that case involved a suit against a religious institution under Title VII of the Civil Rights Act of 1984, but it seems to view "limited" discrimination as being part of a religious organization’s constitutionally-protected associational rights. The subsequent Supreme Court decision in Boy Scouts of America v. Dale, 530 U.S. 640 (2000), also recognizes the associative right to engage in "limited" discrimination that is consistent with the organization’s tenets.
But as all lawyers know, courts generally avoid resolving disputes on constitutional grounds if they can do so. We suspect that the district court will be able to avoid a constitutional resolution of this case if it wants to. As we read the regulations, the committee charged with reviewing charities that can participate in the program has no discretion once a charity meets the requirements set forth in Admin Section 30.08 of the regulations. The allegations in the plaintiff’s complaint include a charge that at least one of the organization’s properly excluded people from employment based on its beliefs regarding certain sexual orientation. The committee may disagree with those beliefs, but the express terms of Admin. Section 30.05(11) do not list discrimination based on sexual orientation as a prohibited form of discrimination. The Department of Administration is likely to run into further trouble because it apparently permitted the Boy Scouts to participate in the campaign despite the fact that the Boy Scouts apparently discriminate based on sexual orientation. See, S. Forster, Faith Groups Sue State's Donor Plan: Religious Bias Kept Them Off Recipient List, They Say, Milwaukee Journal-Sentinel (April 5, 2006). In fact, the complaint alleges that the Department of Administration granted a waiver to the Boy Scouts. That raises a basic question: Why is a waiver granted for one organization, but not another? In short, we have the committee introducing discretion and additional requirements into the process. That almost assuredly makes the State of Wisconsin’s case a loser. Moreover, in this day of rampant employment practices litigation, it is hard to imagine that every charity participating in the campaign has been able to avoid suits based on allegations of discrimination. If one or more of these charities has every lost or settled a such a suit, how has the committee factored that into their recommendations regarding satisfaction of all the requirements?
We are anxiously awaiting the outcome of this suit, but the handwriting is already on the wall. Other states with similar campaigns may want to take note.
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