On September 30, 2005, Judge Sidney Stein of the United States District Court for the Southern District of New York issued a long-awaited ruling on motions to dismiss the complaint in the case of Lown v. Salvation Army ("SA") [2]. In a momentous victory for the architects of the Faith-Based and Community Initiatives ("FBCI"), Judge Stein dismissed the plaintiffs' claims that the Salvation Army's alleged religious selectivity, coupled with the government funding that helped finance the SA's work force, violated federal, state, or local law. Judge Stein refused to dismiss, however, two additional categories of claims. These included assertions that the government defendants in the case violated the Establishment Clause by permitting the SA to divert government funds to religious uses, and that the SA unlawfully retaliated against employees who complained about possible violations of state and local civil rights law. The case will now go forward in the district court on those remaining two claims. After the district court completes its consideration of those remaining claims, the parties will be free to appeal any adverse rulings in the case, including the orders of dismissal announced on September 30.
As we described in detail in a Legal Update posted on June 21, 2004 [3], the lawsuit involves a variety of claims by current and former employees of the SA against the SA itself, and officials at a number of government agencies in the New York City area that finance social services performed by the SA. The plaintiffs alleged that, in late 2003, the SA instituted a reorganization plan in several of its programs in the New York area. According to the plaintiffs, the reorganization plan is designed to promote a "One Army Concept," in which the SA's religious mission would permeate its social service and other programs. The principal locus of the complaint about the reorganization plan is Social Services for Children ("SSC"), a program of the SA. The reorganization plan, inspired and implemented by officers of the SA, allegedly involved a significant increase in emphasis within SSC and its staff on the SA's religious mission.
Prior to the institution of the plan, the SSC's Employee Manual included a policy of nondiscrimination in employment "with respect to creed." [4] The new plan withdrew that policy, and substituted various assertions of the SA's religious mission. In particular, the revised Employee Manual announced a policy of "equal opportunity for employment . . . except where a prohibition on discrimination is inconsistent with the religious principles of the [SA]." The revised manual went on to declare that the SA is a "Christian church," reserved to the SA the right to make employment decisions calculated to promote its religious principles, and required employees both to acknowledge the SA's religious status and to agree to do nothing to undermine the SA's religious mission [5]. Pursuant to the plan, the SA required employees who worked with minors at SSC to fill out a form acknowledging receipt of and willingness to comply with the revised manual, and to complete an additional form entitled "Work with Minors." The latter form restated the employee's agreement to act consistently with the religious principles of the SA, and authorized disclosure by representatives of the churches that the employee attended with respect to the employee's fitness to work with children.
A number of employees at SSC, including several with significant supervisory responsibilities, refused to fill out the forms and refused to administer the forms with respect to other, lower-ranking employees. In the friction that ensued over the reorganization plan, a number of employees resigned, citing what they alleged to be a pervasively hostile and discriminatory environment. A number of these employees, as well as a few that remained, brought the suit [6]. The lengthy and detailed complaint focused primarily on issues of 1) religious discrimination and harassment in employment, and 2) diversion of government funds to the religious mission of the SA.
The legal theories advanced by the complaint, and DISMISSED by Judge Stein, include:
- By funding a private agency that discriminates based on religion, the government defendants are violating the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, an analogous provision of New York State's constitution, and the Establishment Clause of the First Amendment
- The SA is violating the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and analogous provisions of New York State's constitution, by exercising religious selectivity in its employment policy.
- The SA is violating federal, state, and local anti-discrimination statutes by exercising religious selectivity in employment policy.
- The SA is violating the provisions in federal law that prohibit retaliation against employees who make civil rights complaints.
The legal theories NOT DISMISSED by Judge Stein include:
- The government defendants are violating the Establishment Clause of the First Amendment by permitting diversion of government funds to the support of religious activities by the SA.
- The SA is violating the provisions in state and local law that prohibit retaliation against employees who make "objectively reasonable" (even if ultimately unsuccessful) civil rights complaints.
In what follows, we first describe and analyze the significance of the claims that Judge Stein dismissed. We then turn to a similar discussion of the claims that remain to be litigated in the district court. We conclude with some final reflections on the overarching importance of the litigation in Lown v. Salvation Army.
THE DISMISSED CLAIMS:
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By funding a private agency that discriminates in employment based on religion, the government defendants are violating the Equal Protection Clause of the 14th Amendment to the U.S. Constitution, an analogous provision of New York State's constitution, and the Establishment Clause of the First Amendment
The equality-focused elements of this claim are less important than those focused on non-establishment of religion. With respect to the federal and state claim of denial of equal protection of the laws, Judge Stein asserted that the relevant question was whether the SA's religious selectivity could properly be attributed to the government, and he concluded that it could not be so attributed. Because the contracts between government agencies and SA prohibited "unlawful discrimination," Judge Stein inferred that the government had no intention of its own to engage in or advance religious discrimination in employment. Violations of anti-discrimination provisions in both the federal and state constitutions depend upon the presence of intentional discrimination by government officials. The Lown complaint made no allegations that any government officials or agencies acted with religious animus or any other discriminatory intent, and Judge Stein found that omission fatal to these claims.
The Establishment Clause claim dismissed by Judge Stein is the one most feared by the architects of the FBCI. Although faith-selective hiring is unlawful for most employers, religious entities that hire on a faith-selective basis have been able to rely on the exemption in Section 702 of the federal Civil Rights Act of 1964, and on comparable exemptions in the law of most states. In Corp. of Presiding Bishops v. Amos (1987), the Supreme Court rejected an Establishment Clause attack on the constitutionality of Section 702. The Court concluded that the exemption represented a reasonable accommodation, within the discretion of Congress, of the interests of religious entities in their employment-centered exercise of religion. The reasoning in the Amos decision extends fully to comparable state law provisions protecting the right of faith-based organizations ("FBOs") to engage in faith-selective hiring for some or all positions.
The plaintiffs in Lown argued that the Amos ruling should not apply to FBOs whose faith-selective hiring is supported by funds derived from government contracts or grants. In such situations, the plaintiffs argued, the government is itself impermissibly advancing religion, rather than simply permitting FBOs to advance religion. And the plaintiffs argued further that, because the content of government-funded service must be secular, FBOs engaged in such service could not legitimately be promoting their religious interests.
Judge Stein confronted and squarely rejected these arguments. Although he noted that, in 1989, a U.S. District Court in Mississippi ruled in favor of a claim akin to that advanced by the Lown plaintiffs [7], he found all of the plaintiffs' arguments unpersuasive. Judge Stein accepted that FBOs might be motivated by faith to provide social services, even if those services must be secular in content. Thus, an FBO's choice of work force might constitute an exercise of religion even if that work force's efforts appeared entirely secular to the beneficiaries of service. Permitting an FBO to maintain a faith-selective work force thus constitutes a discretionary accommodation of the entity's pre-existing and legally recognized hiring practices.
Judge Stein's approach recognizes the discretion possessed by Congress (and, by implication, state legislatures as well) to permit FBOs to maintain faith-selective hiring practices even when they are operating under contracts with government. Judge Stein also noted, however, that legislatures were free to choose not to accommodate such hiring interests in publicly funded social services [8]. Thus, Judge Stein's opinion strongly reinforces what we have been arguing for some time about faith-selective hiring policies in FBOs that contract with the government - the current legal status quo protects those policies, and the question of maintaining or changing such policies is entirely one for legislative discretion [9].
Once the Lown case is concluded in the district court, we expect the plaintiffs to appeal on this question. But unless and until an appellate court reverses Judge Stein's ruling, we expect that his opinion will carry considerable weight with other courts that may be asked to consider this issue. The opinion is carefully reasoned and attentive to all of the principal arguments. Moreover, this question was elaborately briefed and argued by a cadre of very knowledgeable and experienced lawyers, including those from the U.S. Department of Justice, which appeared as an amicus curiae in this case. When one adds to this the respect typically afforded by other courts to fully developed opinions from the Southern District of New York, we find reason to believe that Judge Stein's opinion on this point will give considerable comfort to proponents of the FBCI, and to FBOs who have been uncertain about the legal status of their rights to seek government contracts while engaging in faith-based hiring. The political struggles over this point will continue, but we think that this opinion may go a considerable way toward settling the constitutional contentiousness that has surrounded this issue.
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The SA is violating the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and analogous provisions of New York State's constitution, by exercising religious selectivity in employment policy.
The Lown plaintiffs claimed that the religion-focused employment policies of the SA violated several provisions of the federal constitution, and at least one provision of the state constitution. If the SA were an arm of the government, Judge Stein would undoubtedly have ruled that those allegations stated a legally sufficient claim. Agencies of government - federal, state, and local - are barred by a number of constitutional provisions from engaging in faith-selective employment practices. As we discussed at length in our earlier write-up of Lown, however, the problem for the plaintiffs in this regard is that the constitution limits only the actions of the state, and does not address the actions of private parties. The plaintiffs advanced a number of legal theories to support the idea that the SA's employment policies should be attributed to the state. These included the quantity of SSC's budget that came from public sources; the fact that government compelled many beneficiaries of SSC's services to use that agency; and the idea that social service of the type performed by SSC represented a government function.
Judge Stein accepted none of these arguments. The Supreme Court has long limited the argument about "government function" to functions that are historically exclusive to government, such as controlling towns or prisons. Even if some of the adolescent services of SSC could be so characterized, the SA's employment polices cannot. Most importantly, in a pair of highly influential decisions from the 1980's, the Supreme Court firmly rejected the idea that contracts with government transform a private contracting party into an arm of the state [10]. The extent of government funding of an organization does not alter the operation of that principle. Because state and local government passively accepted, but did not require, faith-based hiring by the SA, the government was not responsible for such employment policies.
The argument that the SA is a "state actor" has always seemed to us to be an extremely long shot for the Lown plaintiffs, and Judge Stein's conclusion is utterly unsurprising. Moreover, the implications of his conclusion on these alleged facts seem to us rather stark. If a court will not attribute the status of "state actor" to the SA - despite the size of its operations, the percentage of its support that comes from government, and the extensive administrative interaction with government agencies over a multi-year period - other FBOs need not fear that their employment policies will be treated as if they were policies of government, subject to all of the constitutional limits that would be imposed as a consequence.
- The SA is violating federal, state, and local anti-discrimination law by exercising religious selectivity in employment policy.
Judge Stein had little trouble with the claim that SA's reorganized employment policies violate federal anti-discrimination law. As noted above, Section 702 of the 1964 Civil Rights Act exempts faith-based organizations from the otherwise general ban on religious discrimination in employment. And Section 702's language is extremely sweeping. It provides that the employment title of the 1964 Act "shall not apply . . . to a religious . . . institution . . . with respect to the employment of individuals of a particular religion . . ." Having upheld the constitutionality of Section 702 as applied to FBOs that contract with government, Judge Stein concluded that the SA's alleged employment policies could not be the subject of a claim under the federal act.
Judge Stein had little more difficulty with the assertion that state statutes or local ordinances prohibited the SA's employment policies. State and local law do generally prohibit religious discrimination in employment, and these bodies of law do not contain the same sweeping exemption as does the federal law. Nevertheless, both the state and city laws (though not identical) do include a narrower exemption, which authorizes religious organizations to implement employment policies "calculated by such [a religious organization] to promote the religious principles for which it is established and maintained [11]." Judge Stein easily concluded that the SA is a religious organization, and that the workplace environment of which the Lown plaintiffs complained was calculated to promote the SA's religious principles. Judge Stein, incorporating and relying on the same reasons discussed above in connection with the constitutionality of Section 702, rejected the argument that these state and local exemptions violated the federal constitution as applied to the government-supported FBOs.
If Judge Stein was correct about the constitutionality of section 702 as applied in this situation, he must be right about the constitutionality of the state and local exemptions for religious organizations. The state and local exemptions are narrower and limited to carrying out of religious purposes, so the idea that the exemptions accommodate the free exercise of religion is even stronger in this state and local context than in the federal context in which all religion-based employment decisions are exempt.
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The SA is violating the provisions in federal law that prohibit retaliation against employees who make civil rights complaints.
As Judge Stein viewed the matter, the broad exclusion in Section 702 extended with equal force to the plaintiffs' claim of retaliation against those who file a federal civil rights complaint. If Title VII simply "does not apply" to FBOs with respect to religious selectivity, there can be no federal claim for unlawful retaliation against someone who files a federal complaint about such selectivity.
THE CLAIMS NOT DISMISSED (AND THEREFORE REMAINING FOR ADJUDICATION):
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By funding "specifically religious" activities of the Salvation Army, the government defendants are violating the Establishment Clause of the First Amendment.
Although he dismissed plaintiffs' most prominent Establishment Clause claim - the one linked to their charges of employment discrimination - Judge Stein allowed the plaintiffs to proceed with a distinct set of Establishment Clause claims that focus on the use of government funds for religious purposes. Unlike the more prominent claims, which arose from the plaintiffs' status as employees, the surviving Establishment Clause claims against the government defendants arise solely from the plaintiffs' status as taxpayers of the governmental entities that funded the SA programs in question. In that respect, the plaintiffs are no differently situated than any other plaintiff in a typical Establishment Clause challenge, brought by a taxpayer challenging an allegedly impermissible governmental expenditure [12].
In ruling that the plaintiffs stated a claim under the Establishment Clause - and thus survived the government's motion to dismiss - Judge Stein identified the controlling constitutional standard as that developed in Justice O'Connor's concurring opinion in Mitchell v. Helms. Under that standard, the Establishment Clause prohibits the government from "directly providing funds to organizations that use those funds to support religious activity.[13]" Quoting from Bowen v. Kendrick, a 1988 Supreme Court decision, Judge Stein found that the category of "religious activity" includes any programming that has "an explicitly religious content" or is "designed to inculcate the views of a particular religious faith.[14]" Moreover, although Judge Stein does not focus on this aspect of the Mitchell standard, the government has an affirmative obligation to ensure that any publicly funded program has in place reasonable safeguards against diversion of public funds to such religious activities.
Judge Stein allowed the plaintiffs' Establishment Clause claims to proceed with respect to three aspects of the SA's program: a) the alleged diversion of 10 percent of SSC's public funding to the religious mission of the SA; b) the influence of the "One Army Concept" on the content of social services delivered by SSC; and c) the possible use of public funds in furtherance of the SA's reorganization plan. Claims about the first two aspects of the SA's program reflect fairly common allegations of Establishment Clause violations in the social services context; but the third element - focused on the SA's reorganization plan - may raise more novel and complex questions of Establishment Clause law.
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The 10 percent payment. In their complaint, the plaintiffs allege that SSC pays a fixed portion of its government contracts to the SA, but the SA provides little or nothing of material value to SSC in return for the payments. Instead, the plaintiffs allege, the money is diverted into the SA's broader religious purposes.
Judge Stein ruled that these allegations were sufficient to state a claim under the Establishment Clause. If true, the SA's diversion of funds would represent an Establishment Clause violation. Under the Mitchell standard, government agencies paying SSC for social services have an affirmative obligation to guard against diversion of public funds to religious uses. If public funds have been diverted, or if the funding agency lacks the requisite safeguards to prevent such diversion, then the grant or contract will likely be held in violation of the Establishment Clause.
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The "One Army Concept" and the content of social services. The "One Army Concept" stands at the heart of the plaintiffs' conflict with the SA. Under the Concept, plaintiffs claimed (and the SA affirmed), the SA endeavored to revive the religious quality of their social service agencies, and to reconnect those agencies with the broader mission of the SA. The plaintiffs alleged that the SA's effort to extend religious control over SSC impeded the plaintiffs' ability to deliver social services consistent with the plaintiffs' professional obligations.
Judge Stein inferred from the plaintiffs' allegations the claim that the SA's "One Army Concept" had influenced the content of the social services delivered by SSC. If that influence extends to the inclusion of "specifically religious" content in SSC's instruction or other services, then the use of government funds to finance such services would violate the Establishment Clause. Because of the religious character of the SA and its "One Army Concept," and the extensive government funding of SSC, Judge Stein ruled that this allegation by plaintiffs survived the government defendants' motion to dismiss [15].
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The reorganization plan. As we discussed above, Judge Stein dismissed what was certainly the most prominent claim in this lawsuit - plaintiffs' claim that the government violated the Establishment Clause by funding the SA's discriminatory employment practices. Despite Judge Stein's unequivocal rejection of that claim, he does leave open - or at least hints at - the possibility of bringing an Establishment Clause challenge to such practices. He writes: "It is a reasonable inference from the allegations in the Amended Complaint that government funds have been used in furtherance of SSC's compliance with the Reorganization Plan, particularly given that SSC is 95% funded by government sources and that its employees are paid virtually in full by government funds.[16]" Does Judge Stein's "reasonable inference" imply that the government defendants might be held constitutionally responsible - under the Establishment Clause - for financing SSC's implementation of the SA reorganization plan?
Put more directly, does Judge Stein mean that the Establishment Clause applies to the public funding of some conduct that involves only a private employer and employee? In contrast to the 10 percent payment, which implicated the SA's broader religious mission, and the One Army Concept's alleged influence on the content of SSC's services, the reorganization plan focused only on the personnel policies and practices of the SA and its service agencies. As such, an Establishment Clause challenge to government financing of the reorganization plan is very difficult to distinguish from the main Establishment Clause challenge in this lawsuit - which alleged the government's responsibility for the SA's religious selectivity in employment - and which Judge Stein dismissed.
Because Judge Stein devotes but one sentence of his ruling to the Establishment Clause implications of government funding for the SA reorganization plan, any conclusions drawn from that sentence must be tentative, but we think two readings are plausible and consistent with his dismissal of the plaintiffs' broader and primary Establishment Clause claim.
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Religious content. The first, and narrow, reading of Judge Stein's ruling focuses on the content of any materials, training, or other work activity financed by government. Thus, if the SA used public funds to develop staff training materials that included religious content, or billed the government for staff time that included prayer or religious counseling, those expenditures would violate the Establishment Clause (assuming that the SA or its service program received direct financing from the government). This first reading seems wholly consistent with existing interpretations of the Establishment Clause, both in case law and in administrative guidance materials.
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Implementation or enforcement of religious selectivity. The second, broader, reading of Judge Stein's ruling expands the first reading to include any expenditure of direct government funds by the religious organization to establish, implement, or enforce a policy of religious selectivity in the workplace. Use of government funds to advance such a policy, such as the payment of an administrator's salary while she calls employees' religious references to assess their religious character, would have the same constitutional status as payment of that administrator's salary while she leads worship or performs religious counseling.
Unlike the first interpretation, this broader reading would extend the reach of Establishment Clause law into aspects of faith-based organizations that until now have been ignored in constitutional litigation and administrative regulation and guidance. If a religious organization receives direct government funding, selects its employees based on religious grounds, and pays those employees with public funds, the religious employer and its government grantor will need to establish accounting mechanisms to ensure that public funds are not used to implement or enforce the organization's religious selectivity. Under this reading of Judge Stein's ruling, the Establishment Clause does not prohibit the government from paying the salaries of employees selected on a religious basis, but it does bar the government from supporting the administrative mechanisms that determine or maintain the employees' religious character and conformity.
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The Salvation Army may be held liable, under state and city law, for retaliating against employees who complained about alleged religion-based employment discrimination
Although Judge Stein dismissed all of the plaintiffs' employment discrimination claims, he allowed the plaintiffs to proceed with claims that the SA unlawfully retaliated against them for filing the employment discrimination charges[17]. Federal, state, and city laws prohibit an employer from taking adverse action against an employee if the action is motivated by the employee's filing of (or participation in) an employment discrimination claim. Because the relevant federal provision falls under Title VII's categorical exemption for religious employers, and the SA is a religious employer, Judge Stein dismissed the plaintiffs federal retaliation claim against the SA.
The state and city anti-retaliation provisions, however, contain a narrower exception for religious employers than that found in the federal statute. Like the exceptions for religion-based discrimination more generally, the state and city exceptions apply only to actions of a religious employer that "promote the religious principles for which it is established or maintained." Thus, retaliatory conduct (if any) by the SA would be exempt only if undertaken "to promote the religious principles" of the SA. Judge Stein denied the SA's motion to dismiss the state and city retaliation claims. He ruled that the plaintiffs raised a legitimate question of fact - whether the SA's alleged retaliation was motivated by religious principle - and that question could not be answered based only on the pleadings before the court.
Judge Stein's decision to allow the plaintiffs to proceed with their retaliation claim holds a number of interesting implications. One involves the difference between the claims of employment discrimination and retaliation. The SA had argued that the retaliation claims should be dismissed if - as ultimately occurred in the case - the underlying employment discrimination claims were dismissed. If the SA is exempt from liability for religion-based employment discrimination, they reasoned, it also should be exempt from liability for retaliation related to that discrimination.
The court rejected the SA's reasoning, and shifted the focus from the SA's status as a religious employer to the plaintiffs' reasonable beliefs about the legal significance of that status. In order to bring a claim for retaliation, Judge Stein determined, the plaintiffs needed only to show a "good faith reasonable belief" that the employer acted in a discriminatory manner. Despite the broad federal, and the slightly narrower but still generous state and city exemptions for religious employers, Judge Stein found that a reasonable person might not know of those exemptions. In the context of this case, the latitude for a "reasonable person's" understanding of the law is even wider. Even one learned in the law might reasonably believe that the legal norms would be different for programs funded almost entirely with public resources.
Surviving the SA's motion to dismiss, however, does not imply - much less guarantee - that the plaintiffs will succeed in their retaliation claim. The plaintiffs will need to show that the SA retaliated against them because of their complaints about, or unwillingness to participate in, discriminatory practices. If they can make such a showing, the SA would then need to prove that its retaliatory conduct was intended "to promote the religious principles" of the organization. In dismissing plaintiffs' state and city employment discrimination claims, Judge Stein concluded that the SA's Reorganization Plan reflected an intent to "promote the religious principles" of the organization. It is highly likely that Judge Stein will reach the same conclusion about the SA's retaliatory conduct. Even if plaintiffs can prove all the facts that they allege in their complaint, the retaliation claim, like the underlying employment discrimination claim, arises from the SA's Reorganization Plan and its implementation.
Judge Stein's decision also provides an important reminder that state and local anti-discrimination laws may differ from those found in Title VII of the Federal Civil Rights Act. As we have discussed on other occasions, federal law does not generally displace state or local civil rights laws[18]. To the extent that those laws provide greater protection than that provided by the federal law, FBOs must be vigilant about observing their distinct obligations under state and local laws.
CONCLUSION:
Government officials, FBOs, civil libertarians, and many others interested in the FBCI had been anxiously awaiting a decision in Lown v. SA. The case had (and, in light of appeals to be expected, still has) the potential to alter the Initiative's landscape considerably. If Judge Stein had allowed the plaintiffs to proceed with their claim that the Establishment Clause bars the government from contracting with FBOs that engage in religiously selective hiring, the opinion would have produced shock waves. Even though such an opinion technically would be controlling only in the Southern District of New York, government contracting officials and FBO representatives alike - fearful of similar lawsuits elsewhere - would have pulled back from contracts involving FBOs whose employment policies are religion-based.
Judge Stein's opinion should calm those fears, which had been stoked by the intense politics surrounding the hiring issue raised by the FBCI. Viewed in its entirety, Judge Stein's opinion reaffirms a set of prior, deeply held understandings of the effect of the Establishment Clause on the FBCI. The content of government-financed social service programs must meet Establishment Clause standards of requisite secularity. This is the lesson of Lown, as well as a growing number of judicial decisions invalidating the direct government funding of social services that include religious themes[19]. This strong requirement of secular content of course may change over time, but as of this writing no judicial opinion in any court in the United States has ever upheld against Establishment Clause challenge a program of direct government funding of a social service program with explicit religious content.
By contrast, questions pertaining to the places where such services are performed, the choice of personnel to carry them out, and the governance of private entities that engage in such service remain subject only to political control, not to judicial control under the Constitution. The law governing the FBCI thus distinguishes between the content of government-financed services, which must be secular, and the wide range of mechanisms government may use to deliver such services. Lown unequivocally reaffirms that the government may include among its delivery mechanisms those institutions that have a religious character. The distinction between service content and institutional character remains for now at the core of the body of legal norms governing the FBCI[20].
Notes:
- Ira C. Lupu is the F. Elwood and Eleanor Davis Professor of Law at George Washington University Law School; Robert W. Tuttle is Professor of Law, George Washington University Law School. Professors Lupu and Tuttle are the Co-Directors of Legal Research for the Roundtable on Religion and Social Welfare Policy.
- Judge Stein's opinion is at:
http://www.religionandsocialpolicy.org/
docs/legal/cases/Salvation_Army_Hiring_Ruling-NY_Dist.pdf
- The update of 6/21/04 is available at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=27
- Lown v. Salvation Army, slip op. (hereafter "slip op."), at p. 8.
- Slip op. at p. 9, n. 5.
- The allegations concerning this friction are described in slip op., pp. 6-12.
- Dodge v. Salvation Army, 1989 WL 53857 (S.D. Miss., Jan. 9, 1989).
- Slip op. at p. 39, n. 14 ("This is not to imply that the Constitution forbids Congress from imposing a universally applicable, neutral rule that government contractors not discriminate on the basis of religion").
- 2002 Annual report, at pp. 43-47.
- Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Blum v. Yaretsky, 457 U.S. 991 (1982).
We discuss these cases in some detail in our earlier posting on Lown.
See http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=27.
- As set out at pp. 43-44 of the slip opinion, the quoted language appears in both New York Exec. Law, section 296, and New York City Administrative Code, section 8-107.
- We discuss the doctrine of taxpayer standing at greater length in our analysis of Freedom from Religion Foundation v. Towey,
available online at: http://www.religionandsocialpolicy.org/
legal/legal_update_display.cfm?id=31
- Slip op. at p. 22.
- Slip op. at p. 24, n.11.
- If the SA?s religious mission resulted in its publicly-supported counselors refraining from offering certain services which conflict with the organization?s religious mission, such religiously-inspired omissions would not constitute the use of government funds for religious instruction or indoctrination.
- Slip op. at p. 23.
- Only the plaintiffs Lown and Geissman brought retaliation claims against the SA.
- See 2002 State of the Law Report, at 47-49; 2003 State of the Law Report, at pp.26-28.
- LINKS to Roundtable legal updates on McCallum I (June 3, 2002); Montana Office of Rural Health (Nov. 1, 2004);
FFRF v. Towey (MentorKids Arizona, Jan. 18, 2005).
- We attempt to explain and defend such a distinction in Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1 (2005), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=727744.
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