Justice Unit Puts Its Focus on Faith
One of the main jobs at the Justice Department is enforcing the nation’s civil rights laws. So when a nonprofit group was accused of employment discrimination last year in New York, the department moved swiftly to intervene -- but not on the side one might expect.
The Salvation Army was accused in a lawsuit of imposing a new religious litmus test on employees hired with millions of dollars in public funds.
When employees complained that they were being required to embrace Jesus Christ to keep their jobs, the Justice Department’s civil rights division took the side of the Salvation Army.
Defending the right of an employer using public funds to discriminate is one of the more provocative steps taken by a little-known arm of the civil rights division and its special counsel for religious discrimination.
The Justice Department’s religious-rights unit, established three years ago, has launched a quiet but ambitious effort aimed at rectifying what the Bush administration views as years of illegal discrimination against religious groups and their followers.
Many court decisions have affirmed the rights of individuals in the public sector not to have religious beliefs imposed on them -- the Supreme Court ruling banning school-sponsored prayer in public schools among them. And courts have ruled that the rights of religious groups sometimes need protection too -- upholding, for example, their right to have access to public buildings for meetings.
But the argument that a religious institution spending public funds has the right to require employees to embrace its beliefs -- and that it will be backed by the Justice Department in doing so -- has changed the debate. It is an argument the Bush administration is making in Congress as well as in the courts.
Central to the competing points of view are the protections afforded by the 1st Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
The webpage of the Justice Department unit reads: “Religious liberty was central to the Founders’ vision for America, and is the ‘first freedom’ listed in the 1st Amendment of the Bill of Rights. A critical component of religious liberty is the right of people of all faiths to participate fully in the benefits and privileges of society without facing discrimination based on their religion.”
Likening the effort to the civil rights movement of the 1960s, the special counsel for religious discrimination has intervened in an array of religious disputes.
In some cases, the government’s stand has been applauded by secular civil rights groups as well as religious groups.
For example, the Justice Department prevailed last year when a Muslim girl’s right to wear a head scarf to class was upheld -- she had been suspended for violating the dress code at a public school in Oklahoma. The department also has challenged the practice of making residents at some youth detention facilities in the South participate in religious activities.
In other areas, the department is implementing the will of Congress or the Supreme Court. It acted, for example, to enforce a 2000 law that gives preferential treatment to religious groups in zoning disputes over the construction of churches.
But critics say there is a fine line between promoting religious rights and promoting religion, especially in light of the constitutional requirement that the government maintain strict neutrality when it comes to religious activities.
Judging from the cases and investigations the religious unit has launched, the new mission of the Justice Department is overwhelmingly focused on protecting the rights of religious organizations.
Eric Treene, the religious-discrimination special counsel, is the former litigation director of a nonprofit group, the Becket Fund for Religious Liberty. The group has been active in suing schools and local governments on behalf of religious groups.
Treene, one of four special counsels in the civil rights division, has no staff and shares a secretary with two other Justice Department lawyers. But a former senior Justice official describes him as widely influential, bird-dogging cases he thinks the department should throw its weight behind and reaching out to religious groups for bias cases he believes the department should investigate.
Neither Treene nor his boss, R. Alexander Acosta, head of the civil rights division, were available for interviews.
Many religious people freely embrace the principle of separation of church and state -- in particular when it involves providing publicly funded social services -- and don’t welcome the attention of the Justice Department on the issue.
“There are many God-fearing people who would say that mostly what they want is for the government to leave religion alone,” said Melissa Rogers, founding executive director of the Pew Forum on Religion and Public Life and a visiting professor of religion and public policy at Wake Forest University Divinity School.
A number of cases the department has taken on serve specific goals of conservative religious organizations, a key political constituency of the Bush administration.
In three separate lawsuits, the department has filed briefs supporting the Child Evangelism Fellowship. The Christian group has led a national movement to establish after-school Good News Clubs in public elementary schools around the country in which children learn Bible stories and pray, among other activities.
The suits seek to enforce a landmark Supreme Court ruling the group won in 2001 giving it the right to hold Bible club meetings on public school property.
Gordon Todd, a civil rights division official, said in an interview that the Justice Department got involved because some local jurisdictions had refused to open their doors to the religious groups, or imposed new barriers to entry, in defiance of the high court ruling.
“That deserves some follow-up litigation,” he said, comparing the enforcement efforts to those the department undertook in the face of local resistance to the Supreme Court’s school desegregation cases dating to Brown vs. Board of Education in 1954.
Still, some critics wonder whether such cases warrant Justice Department involvement, especially if the litigants are already well-represented by private lawyers.
“This is not the equivalent of the Southern resistance to the black vote that you need to have the Justice Department pursuing it,” said Marc Stern, co-director of the Commission for Law and Social Action of the American Jewish Congress in New York. “The litigation goes very nicely without the United States government intervening.”
The religious unit has conducted at least six bias investigations triggered by complaints from a group of Christian lawyers in Texas known as the Liberty Legal Institute.
In December, a Justice Department lawyer launched a probe of an elementary school in Plano, Texas, that had stopped a fourth-grader from handing out candy canes with a religious message at school-sponsored holiday parties.
Based on another complaint, the department investigated a biology professor at Texas Tech University two years ago who would not write letters of recommendation for students unless they affirmed a belief in the theory of evolution.
The professor, Michael Dini, said he was seeking to ensure that his students understood “the central, unifying principle of biology.” He agreed to modify his policy under pressure from the Justice Department, requiring that students be able to explain the theory of evolution rather than actually believe in it.
“I think if I am the Justice Department, they like groups like us who bring cases that I think present a very clear picture” of discrimination, said Kelly Shackelford, the Liberty Legal Institute’s chief counsel, adding that not all its cases involve Christian conservatives.
The Salvation Army case is the boldest initiative in the Justice Department’s recent emphasis on religious rights. And the stakes go well beyond the old-line Christian charitable organization.
The department’s position in the case -- that religious groups should be able to hire or fire people based on their religious views, even when administering publicly funded programs -- is a cornerstone of President Bush’s faith-based initiative. The initiative is channeling hundreds of millions of U.S. taxpayer dollars to churches and other religious groups to deliver social services.
Although the Civil Rights Act of 1964 preserves the right of religious organizations to discriminate in hiring, it does not address the question of whether that applies to groups that accept public funds. That issue has not been legally resolved.
Bush has said he believes that, so long as they do not infuse their social programs with religious messages, religious groups should not have to sacrifice their religious character -- by employing nonbelievers or followers of a different faith -- in order to qualify for federal funds.
Last week, the House approved an administration-backed bill that would permit such discrimination in hiring. But the Senate has blocked similar legislation in the past, with Democrats arguing that using the law to permit discrimination turns civil rights enforcement upside down.
If Congress again refuses to allow such discrimination, a setback in the Salvation Army case could bolster legal challenges to federal faith-based programs across the country.
In New York, the Salvation Army apparently had long operated without such entanglements, despite a history steeped in religious tradition. The international organization has provided social services to New Yorkers for decades. Its current contracts total about $50 million from the city and state of New York to provide foster care, HIV counseling and other services.
In 2003, according to a lawsuit filed by more than a dozen workers in its Social Services for Children division, the Salvation Army began requiring employees to divulge information about their faiths, including the churches they attended and their ministers.
They were also called on to embrace a new mission statement -- included in job postings and job descriptions -- that declared the top goal of the social welfare operation is “to preach the gospel of Jesus Christ and to meet human needs in his name without discrimination.” The previous mission statement was “to empower each person who enters our doors to live with dignity and hope,” and contained no religious references.
Protections against discriminatory employment practices were excised from the employee handbook, and an effort was made to compile a list of homosexual employees, according to the suit.
The plaintiffs -- veteran social workers who had grown accustomed to the organization not mixing its religion with the secular social-welfare services it administers -- saw the moves as an illegal use of public funds.
“I worked there for 24 years. When I was hired, nobody ever asked me what my religious beliefs were. What they were really looking for were my professional skills, " said Anne Lown, the program’s former second in command. She resigned because of the Salvation Army’s “illegal infusion of religion” into the workplace, and now heads a child social services program for Catholic Charities in New York.
According to the complaint, the organization was concerned about “the widening gap between the ecclesiastical Salvation Army and the Social Service component of the Salvation Army” in the New York region.
But employees said the new policies would inevitably infuse religion into the services the welfare program had long provided -- notably in areas such as abortion counseling and HIV prevention -- that would conflict with their ethical duties as social workers to furnish proper care.
And because in many cases children and families are required by law to participate in the city-funded programs, they assert that would lead to precisely the sort of government-coerced religion that the Constitution prohibits.
The proposals touched off a wrenching debate among some of the organization’s most devout employees. The longtime executive director of the social services program, a Lutheran minister, was ousted after voicing objections to the plans, according to the employee complaint.
Ultimately, 18 current and former employees of the social services operation, a number of them in supervisory positions, filed a lawsuit in federal court in New York. Many of them say they are religiously active, but think an important line has been crossed.
“We are not all a bunch of atheists or secular humanists,” said one of the plaintiffs, Mary Jane Dessables, who is an elder at her Presbyterian church. But “we are all united in our dismay.”
The Salvation Army has moved to dismiss the case, saying that as a private, nonprofit religious organization it is exempt from antidiscrimination laws. New York officials, also defendants in the suit, say they are not legally responsible for the organization’s actions.
The Justice Department weighed in last August, calling the employee suit an affront to “the federal statutory and constitutional rights of religious employers to define their character and maintain their religious integrity.” The department said the discrimination claims were “irrelevant.”
The case is awaiting a decision by a judge.