Court Ruling In NYCLU Lawsuit Against The City And State Agencies And Salvation Army
Judge allows claims of improper government support for religion to continue

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October 4, 2005 -- In a mixed decision, a federal judge has refused to dismiss claims by the New York Civil Liberties Union against various City and State social services agencies for the improper use of government funds by the Salvation Army to convey religious messages in their social services programs in violation of the Establishment clause of the Constitution. US District Court Judge Sidney Stein also ruled that the NYCLU may proceed against the Salvation Army with claims of retaliation against employees for filing claims of religious discrimination.

Judge Stein, however, dismissed claims that the Salvation Army and the government agencies had engaged in impermissible employment discrimination by requiring employees in the government funded programs to disclose their religious beliefs and practices and to uphold the evangelical Christian mission of the Salvation Army.

"The court properly ruled that the City and State agencies cannot allow the Salvation Army to use government funds to proselytize or to impose their religious beliefs on those who rely on them for day care, foster care, adoption, juvenile detention and HIV services. Under the ruling, government funds cannot be used by faith-based social services agencies to promote religion when they provide social services to the intended beneficiaries." said Donna Lieberman, the Executive Director of the NYCLU.

"The court has, wrongly, we believe, exempted the Salvation Army from civil rights laws that generally prohibit discrimination against employees based on religion or creed. It allows the Salvation Army, because it is a church, to use a religious litmus test to hire and fire day care, foster care and other social services employees, even though they are paid almost exclusively with taxpayer funds."

"Faith based organizations that use government funds to provide social services to the general public, should not be permitted to engage in rampant discrimination against employees based on their religion -- to fire or demote all Jews, Muslims, Christians, or atheists, indeed anyone who does not practice the prescribed faith in the prescribed manner."

The NYCLU trusts that the Salvation Army, notwithstanding this opinion, will adhere to the commitment it made during the course of this case, to refrain from religious discrimination against its employees.

The NYCLU lawsuit Lown vs. Salvation Army, filed on February 24, 2004 charged the Salvation Army and the government agencies with the improper use of government funds to promote religion and to engage in unlawful religious discrimination against employees.

The Salvation Army provides social services for more than 2,000 children each day who are placed with the charity by the government. The programs are funded almost exclusively by $89 million in taxpayer funds for its social services division which employs about 800 people.

The NYCLU is considering future options in proceeding with all aspects of its lawsuit.

Plaintiffs are represented by NYCLU Legal Director Arthur N. Eisenberg and staff attorney Beth Haroules; NYCLU co-counsel Deborah Karpatkin; and Martin Garbus, Howard Rubin and Gregg Brochin from the Davis and Gilbert law firm.

NYCLU Sues Salvation Army For Religious Discrimination Against Employees In Government Funded Social Services For Children

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February 24, 2004 -- The New York Civil Liberties Union filed a lawsuit today in federal court charging The Salvation Army with religious discrimination against employees in its government funded social services in New York City and on Long Island. The lawsuit asks the federal court to order the 136 year old charity to stop the practices and to rule that the government funding of The Salvation Armys faith based discrimination against its social services employees in foster care, adoption, HIV, juvenile detention and other social services is illegal. Agencies for New York State, New York City and Nassau County and Suffolk County are named also as co-defendants.
The Salvation Army provides social services for more than 2,000 children each day who are placed with the charity by the government. The programs are funded almost exclusively by taxpayer money. The agency receives $89 million in taxpayer funds for social services and employs about 800 people.

Eric Fine, Anne Lown, Mary Jane Dessables and Marina Obermaier
In announcing the lawsuit, Donna Lieberman, Executive Director of the NYCLU, noted, This case is not about the right of The Salvation Army to practice or promote its religion. They have every right to do so, but not with government money. The Salvation Army cannot use taxpayer money to practice religious discrimination against its social services employees.

The Salvation Army recently began to require all employees in its Social Services for Children division to fill out a form on which they: a) identify their church affiliation and all other churches attended for the past decade, b) authorize their religious leaders to reveal private communications to The Salvation Army; and c) pledge to adhere to the religious mission of The Salvation Army which, according to The Salvation Army, is to preach the Gospel of Jesus Christ.

Moreover, new job descriptions for every social services employee now require compliance with The Salvation Armys religious mission statement. Previously, the social services unit had its own mission statement which was completely secular. All this began as part of a Reorganization Plan last year by the national leaders of the charity to narrow the gap between the ecclesiastical Salvation Army and the social services component. The goal of the Reorganization Plan was to ensure that as a Christian agency [&] a reasonable number of Salvationists along with other Christians [will be employed by The Salvation Army.]

The suit was filed on behalf of eighteen current and former Salvation Army employees of varying religious and non-religious backgrounds. They include many of the most respected senior managers in the agency.

Anne Lown is the current Associate Executive Director of Social Services for Children of The Salvation Army and has received 5 promotions in the 24 years she has worked for the charity. I do not think my religious beliefs nor the religious beliefs of the 800 employees in Social Services for Children are any business of the Salvation Army, Lown says.

Added Mary Jane Dessables who is the Management Information Systems Director for The Salvation Army and has worked for the charity for 12 years, Although I am not a Salvationist, I have sung for their Devotionals& attended their Good Friday services. I participated because I wanted to, not because it was required or requested of me.

And Margaret Geissman who is the former Human Resources Manager for Social Services for Children with The Salvation Army has left the charity rather than provide personal information about employees. When I refused to answer questions that I felt were clearly illegal and violated my employees privacy, I was harassed to the point where eventually I resigned. As a Christian, I deeply resent the use of discriminatory employment practices in the name of Christianity.

NYCLU Legal Director Arthur Eisenberg noted that The Salvation Armys new employment practices have injected religion into the workplace in ways that violate the anti-discrimination principles of the Fourteenth Amendment.

Martin Garbus, whose firm, Davis and Gilbert is co-counsel with the NYCLU, cited President Bushs Faith-Based Initiative as the catalyst for the current situation and called it the greatest transfer of wealth from governmental bodies to evangelical churches. Federal, state and local services are being used to spread the evangelical message.

In addition to Eisenberg, Lieberman and Garbus, plaintiffs are also represented by NYCLU staff attorney Beth Haroules; NYCLU co-counsel Deborah Karpatkin; and Howard Rubin and Gregg Brochin from the Davis and Gilbert law firm.

The NYCLU is the NY affiliate of the American Civil Liberties Union.

Click here to read the complaint. (Requires the free Adobe Reader.)

NYCLU Challenges Federal Government As It Enters Salvation Army Lawsuit

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December 6, 2004 -- The New York Civil Liberties Union has challenged the Department of Justice as it enters the NYCLU religious discrimination lawsuit against the Salvation Army. The NYCLU claims that Supreme Court rulings support its contention that religious organization do not have claim to government money while still maintaining their ability to discriminate in employment practices.
The NYCLU filed suit in February against the Salvation Army asserting that the charity was using the $89 million it accepts in direct government money to advance its religious mission. Employees who worked for the Salvation Armys Social Services for Children program were ordered to fill out a form asking about their church affiliation and church attendance. They were also required to pledge their adherence to the religious principles of The Salvation Army Church. The organization soon rescinded that policy after the NYCLU filed suit, but continued to maintain unconstitutional practices.

While government employees for the Salvation Army no longer are required to disclose their religious practices, they still must pledge to follow the evangelical mission of The Salvation Army Church. The NYCLU contends this is a violation of the Constitution and blurs the line of separation between church and state.

US District Court Judge Sidney H. Stein permitted the Department of Justice (DOJ) to file an amicus brief on October 29, 2004, in which the Department asserted the legalities of the Administrations faith-based initiative. The DOJ asserted that a religious organization can participate in government-funded programs and still maintain their preferred role as a religious organization, thereby permitting the organization to engage in religious discrimination in the workplace.

The NYCLU brief, filed in response last Friday, December 3rd, stated that the DOJs contention is not supported by Supreme Court rulings. Neither Title VII nor the Establishment Clause permits a religious organization to engage in religious discrimination or deliver its religious mission while performing government work in governments name and with government money.

Religious organizations are protected by a claim of autonomy or religious privacy that allows them, as private associations, to hire employees that share the religious faith of the organization. And the Constitution does not prohibit the government from supporting secular social-welfare services solely because they are provided by a religiously affiliated organization. But the religious organizations claim of autonomy loses its force when that organization accepts government funding to provide state-mandated services and the Supreme Court has never allowed religious discrimination in employment in federally funded programs.

DOJs argument, a defense of the federal Faith-Based and Community Initiative that faith-based and secular organizations may compete on an equal footing for federal funding to provide social services to the public, appears to rest on First Amendment public forum cases where the Supreme Court has held that religious organizations must be afforded equal access to public forums no less than secular organizations. But a government spending program will not fall under the public forum/equal access doctrine unless that spending program is designed to create a public forum for expression. Government-funded social services programs at issue here cannot be viewed as creating a forum for speech.

Click here to read the NYCLU's brief. (Requires the free Adobe Reader.)