Several months ago, the State of Wisconsin was sued; specifically the Department of Administration. The plaintiff was the Association of Faith-Based Organizations, a Virginia-based nonprofit. It claimed that Wisconsin denied several faith-based organizations 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.
On Friday, September 29, 2006, Judge John C. Shabaz, of the United States District Court for the Western District of Wisconsin,...
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granted the plaintiff’s motion for summary judgment in an action for injunctive and declaratory relief.
Wisconsin Administrative Code Chapter ADM 30 governs the process and requirements for participation in the program. ADM 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 charitable organization staff employment, and applicable to membership on the charitable organizations governing board.
Wisconsin interpreted and applied this provision to render a religious charitable organization ineligible for participation if its governing board or staff are required to agree with the religious beliefs of the organization. What clearly weakened Wisconsin’s position—although not really a factor in the decision—was the fact that Wisconsin permitted several other organizations to participate in Wisconsin’s State Employees Charitable Campaign notwithstanding that these organizations had similar faith affirmation requirements.
Wisconsin argued that ADM 30.05(11) was a reasonable, neutral limitation on access to a non-public forum and therefore not an actionable constitutional deprivation. Judge Shabaz ruled that Wisconsin had enunciated the correct standard, but that Wisconsin had failed to provide sufficient facts to support that its exclusion was reasonable.
Judge Shabaz began his analysis by noting the charities in question have the first amendment right to solicit funds from state employees and the first amendment associational right to limit membership to individuals who share their beliefs. Wisconsin’s limitation on those rights could only withstand challenge on First Amendment grounds if the restriction was (1) reasonable in light of the purpose served by the SECC and (2) viewpoint neutral. According to Judge Shabaz, the standard for assessing defendants’ conduct affecting expressive association rights is less clear. He drew a distinction between a law that says “You must employ these people or elect these people to your board”—problematic—and one that simply denies a benefit—not necessarily problematic unless denial seriously threatens the existence of the organization. Judge Shabaz, by reference to another case, cited one of our favorite cases, Regan v. Taxation With Representation of Washington, 461 U.S. 540 (1983), to conclude that the proper standard was whether the action is “reasonable in light of the purpose of the forum and the surrounding circumstances, and viewpoint neutral.” He then concluded that despite the more lenient standard, Wisconsin failed to satisfy the first component of the test—reasonable in light of the purpose. He noted that Wisconsin supports and recognizes associational rights in many different laws. Consequently, he viewed tADM 30.05(1) as a “stark exception to a consistent state policy.” He noted the anomalous nature of forbidding discrimination in awarding state grants to religious organizations (direct provision of money by the state) while denying them access to a fundraising mechanism (indirect provision of money). In short, Judge Shabaz concluded:
The claim that excluding religious charities from the SECC is dictated by a larger state policy disfavoring discrimination in the governing boards and staff of religious organizations is simply unsupported.
Wisconsin also argued that the limitation was reasonable because it would avoid controversy that might hurt participation levels in the campaign. Judge Shabaz noted that Wisconsin’s program already admitted several groups that discriminated and included several groups with well-known religious references in their names. Yet he saw no empirical evidence of any adverse impact on SECC participation because of their presence.
And with that, Judge Shabaz granted the motion for summary judgment against the State of Wisconsin. He never reached the questions of whether the prohibition was viewpoint neutral or whether the prohibition infringed on rights granted under the Free Exercise, Establishment and Equal Protection Clauses of the U.S. Constitution.
According to the Milwaukee Journal-Sentinel, Wisconsin does not plan to appeal the decision. Stacy Forster, Charity Plan Can't Exclude Faith Groups: They Can Choose Own Workers, Judge Tells State, Oct. 2, 2006.
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