May 2013 Church & State | Featured

In October of 1998, Alicia Pedreira was fired from her job in Kentucky.

People lose or change jobs every day, and Pedreira might have become just another statistic on an employment report were it not for one thing: Her employer, Kentucky Baptist Homes for Children (KBHC), an institution heavily funded by taxpayers, fired Pedreira because she is a lesbian.

Pedreira had told KBHC officials about her sexual orientation before she was hired, and she had always gotten positive job-performance evaluations. But after a picture of Pedreira and her then-partner was publicly displayed in a photo contest, KBHC terminated her from her family therapist position, claiming her “admitted homosexual lifestyle is contrary to Kentucky Baptist Homes for Children core values.”

That was bad enough. But when attorneys at Americans United for Separation of Church and State began looking into the matter, they uncovered a host of church-state problems to boot. Kentucky Baptist Homes, which later changed its name to Sunrise Children’s Services, had been pressuring young people placed in its care to take part in religious services, as well as basing employment policies on religion.

All of this was being underwritten by Kentucky taxpayers to the tune of $10-$15 million annually. Since the legal case began, the Baptist-affiliated ministry has received in excess of $100 million in public support courtesy of the taxpayers.

It took 13 years, but many of these abuses are now being corrected. Americans United and allies filed suit over the matter in 2000, and the case is now being settled out of court.

Under the terms of the settlement, Kentucky government officials have agreed to make sweeping changes to the state’s child-care system to protect children against religious coercion, indoctrination and discrimination.

The settlement in Pedreira v. Kentucky Baptist Homes for Children didn’t give Americans United everything it wanted. Pedreira’s firing, for example, will not be remedied. The court had already ruled against Pedreria on her employment discrimination claim, so it could not be covered by the agreement.

But the settlement is significant in many ways. In court, Americans United, the American Civil Liberties Union and the Washington, D.C.- based international law firm Arnold & Porter LLP asserted that state taxpayer monies were being used to proselytize children and advance religion. That will come to an end.

“I think it’s a pretty good settlement,” Pedreira said. “I think that finally the Commonwealth of Kentucky is doing the right thing. We have so many kids in foster care, there are thousands of them. To abdicate your responsibility to another organization is not enough, and the Commonwealth of Kentucky had been doing that.”

Americans United and the ACLU presented extensive evidence that Sunrise Children’s Services, which despite the name change remains a contractor affiliated with the Kentucky Baptist Convention, coercively imposed Christianity upon children in its care in many ways.

The sectarian nature of Sunrise was never in doubt. In 1998, William Smithwick, president of what was then known as Kentucky Baptist Homes for Children, asserted in a press release, “Our mission is to provide care and hope for hurting families through Christ-centered ministries. I want this mission to per­meate our agency like the very blood through our bodies. I want to provide Christian support to every child, staff member, and foster parent.”

A year later, Smithwick boasted, “We are able to share the Bible and Christian literature with the children, and involve them in Christian activities. We had 171 professions of faith last year.” Sunrise referred to the foster parents who worked with it as “in-home missionaries.”

The problem is, not all of the young people being served wanted to take part in the religious activities favored by conservative Baptists, and lots of them certainly didn’t appreciate being pressured to make faith commitments.

Documents obtained in the litigation disclosed many cases of religious coercion at Sunrise. Young people of various faiths and philosophies, including Catholics, Pentecostals, Jehovah’s Witnesses and atheists, complained about being forced to attend Baptist services or said they were not permitted to go to services of other faiths. This issue could be addressed in the lawsuit because several taxpayer plaintiffs were part of the legal action.These stories came to light thanks to interviews with children conducted by the Children’s Review Program, a private contractor hired by Kentucky officials to monitor programs that serve children. The state cancelled the interview program in 2008, citing budget concerns, but interviews will resume as a result of the settlement agreement.

Americans United says the interviews and other enforcement mechanisms will help bring heavy-handed religious coercion of youngsters to an end in Kentucky child-care programs. Under terms of the settlement, the state has agreed to consider whether children or their parents or guardians object to placement in a faith-based child-caring facility, and make reasonable efforts to provide alternative placements.

In addition, all child-care agencies that contract with the state will be forbidden to discriminate in any manner against any child based on the child’s views about religion or to pressure children to participate in religious worship or instruction.

Furthermore, publicly funded child-care agencies and foster homes across the state also will be barred from placing religious symbols in children’s rooms without their consent, and religious materials will be given only to children who request such items. These protections will extend to foster care arrangements.

These changes came to fruition thanks to the persistence of Americans United. The Pedreira case has been AU’s most drawn-out legal battle. No one expected it would take 13 years to resolve.

The case’s longevity was due in part to legal skirmishes over “standing” – the right to sue.

Sunrise lined up some Religious Right legal power in court, accepting funding and assistance from the Alliance Defending Freedom, the Christian Legal Society and the Thomas More Law Center (a right-wing Catholic group).

The Religious Right attorneys’ strategy was to stop the suit from getting out of the starting gate by arguing that Kentucky taxpayers had no right to even bring it. They asserted that Kentucky residents had no standing to challenge state funding of the facilities, even though it was the taxpayers’ own money being allocated for religious purposes.

In March of 2008, U.S. District Judge Charles R. Simpson accepted this argument and issued a ruling dismissing the lawsuit. AU and its allies immediately filed an appeal.

The following year, in August of 2009, the 6th U.S. Circuit Court of Appeals reversed the lower court and declared that taxpayers in Kentucky had the right to sue over the matter. Sunrise attorneys pursued an appeal to the U.S. Supreme Court, but in April of 2011, the justices announced that they would not hear the case.

With the matter of standing settled, the case was headed back to the lower court for discussion of the church-state issues it raised. Rather than fight the matter out in court, Americans United attorneys suggested settlement talks. Lawyers for the state of Kentucky agreed. (Attorneys for Sunrise took part in the talks too, but Sunrise did not sign on to the final agreement.)

The dialogue between the two parties took place intermittently over the course of more than a year. There were times when it looked like things might break down, but in the end a settlement acceptable to the plaintiffs, AU, the ACLU and state officials was hammered out.

“We are pleased with this settlement,” said Americans United Associate Legal Director Alex J. Luchenitser, who has been managing the litigation for AU since December of 2004. “It will ensure that vulnerable youths in Kentucky’s child-care system are free to follow and practice their own faiths, or no faith at all, and that no religion is forced upon them.” (Other attorneys on the Pedreira legal team include Americans United Legal Director Ayesha N. Khan; ACLU attorneys Dan­iel Mach, James Esseks and William Sharp; and attorneys David Bergman, Ian Hoffman and R. Stanton Jones of the law firm Arnold & Porter LLP.)

The settlement includes enforcement mechanisms. As part of the agreement, state officials will be required to extensively monitor tax-fund­ed child-care agencies to make sure that they are complying with civil liberties safeguards and are not subjecting the children in their care to proselytizing or other religious pressures.

Monitoring documents will be made available to Americans United and the ACLU to ensure compliance with the terms of the agreement.

Some hurdles remain. Details will have to be worked out with Kentucky officials concerning implementing documents, and the court must still sign off on the final agreement. An additional complication is that officials at Sunrise oppose the settlement and are trying to derail it. Sunrise officials insist that they have done nothing wrong and don’t want to submit to enhanced oversight.

Despite these challenges, attorneys at Americans United are optimistic that the settlement will go through.

Paul Simmons, a University of Louisville ethics professor and a taxpayer plaintiff in the case, said he was pleased with the outcome, even if it was a long time in coming.

“We’ve got the attention of the Commonwealth that there are problems in contracting with sectarian groups,” Simmons said. “The Commonwealth needs to do more in contracting with secular groups.”

Simmons, a Baptist minister who formerly served as president of the Americans United Board of Trustees, added that Kentucky officials could have avoided these problems by realizing that a group known for proselytizing would probably continue that, even in a taxpayer-funded program.

“Kentucky and many other states are too generous in their attitudes toward sectarian groups,” Simmons said. “They think they can trust them to do what is promised, but we know that sectarian groups are going to be what they are – mainly aggressive in the pursuit of new converts.” (In addition to Simmons and Pedreira, other taxpayer plaintiffs were Johanna W.H. Van Wijk-Bos, a professor of Bible and Old Testament at Louisville Seminary, and the Rev. Elwood Sturtevant, pastor of Thomas Jefferson Unitarian Church.)

Pedreira, who now works as an educator on HIV-prevention issues for the Louisville city government, told Church & State that she considers the ongoing monitoring of sectarian child-care agencies to be very important.

“It’s a beginning,” she said, “I like that AU and different organizations will be looking at it. Every time you shine light on something, you can see what’s happening; people will be on better behavior.”