September 2001 Church & State | Featured

Back in August of 1987, Pascagoula, Miss., resident Jamie Kellam Dodge was fired from her job as a victims' assistance coordinator at a domestic violence center.

Her employer cited a couple of minor office infractions, but Dodge believed she had been fired because of her Wiccan religious beliefs. Like a lot of people who think their rights have been violated, she took the matter to court, eventually winning a substantial judgment.

The entire affair would have been quickly forgotten, as routine employment termination cases usually are, were it not for one fact: Dodge's employer was the Salvation Army, a religious denomination that every year receives millions of taxpayer dollars to run social service programs.

With President George W. Bush's "faith-based initiative" moving on Capitol Hill, Dodge's once-obscure case is suddenly getting a second look. It appears to be one of the few legal cases that answers what has become a central question of the debate over the faith-based initiative: Can a religious group take tax aid and still discriminate on the basis of religion in hiring?

In Dodge's case, that answer turned out to be a firm no. She had been hired in September of 1986 to work in a position that was entirely funded with government money grants that had been won from federal, state and local government sources.

When her lawsuit reached a federal district court in southern Mississippi, the judge found that tax money made all the difference. In a ruling dated Jan. 9, 1989, U.S. District Judge Dan M. Russell denied the Salvation Army's motion for dismissal, ruling that Dodge's complaint could go forward.

Russell declared that the Salvation Army, as a church, has the right to dismiss employees on religious grounds in its privately funded activities. But, he went on to observe, "[T]he effect of the government substantially, if not exclusively, funding a position such as the Victims' Assistance Coordinator and then allowing the Salvation Army to choose the person to fill or maintain the position based on religious preference clearly has the effect of advancing religion and is unconstitutional."

The Salvation Army chose not to pursue the matter further and reached a settlement with Dodge. Although the court record is sealed, The New York Times Magazine reported earlier this year that Dodge received $1.25 million.

Twelve years later, Dodge's attorney, David C. Frazier, remembers the case vividly and sees in it lessons for religious groups hoping to cash in on President George W. Bush's faith-based initiative.

"Because of this Dodge case, I've had some questions and concerns about to what extent religious organizations will be able to discriminate on the basis of religion," Frazier said. "That does raise some questions....I do have some concerns about these religious oligarchies dictating to the federal government who they're going to hire to disburse federal benefits."

If the Salvation Army learned a lesson from the Dodge case, its leaders must have quickly forgotten it. In July, The Washington Post reported that Army officials had been working behind the scenes with top advisors to the Bush administration to ensure that the Army would have the right to discriminate under the faith-based initiative while retaining its government subsidy. In return, Army officials agreed to give the proposal a high-profile endorsement.

An internal Salvation Army document obtained by The Post referred to a "firm commitment" the Salvation Army had received from the administration to make certain that the organization would not be subjected to state and local laws banning discrimination against gays and lesbians.

The Army proposed altering an Office of Management and Budget regulation known as "Circular #A-102" to forbid federal agencies from awarding money to local governments that require religious groups to adopt policies that "are inconsistent with the beliefs and practices" of the organizations. The net effect would be to override state and local laws outlawing certain forms of discrimination.

The May 1 document obtained by The Post mentioned a convergence of Salvation Army and White House goals, noting, "It's important that The Army's support for the White House activities occur simultaneously with efforts to achieve The Army's objectives. The White House has already said that they are committed to move on The Army's objectives when the legislation carrying charitable choice provisions passes the House of Representatives." It also stated that the Salvation Army planned to spend nearly $1 million $110,000 per month to boost the Bush faith-based initiative and would hire a bank of lobbyists.

The Army seemed well aware that its public image could be tarnished if word of the political deal leaked out. The document warns, "The Salvation Army's role will be a surprise to many in the media" and cautions that special steps should be taken to "minimize the possibility of any 'leak' to the media."

Release of the document quickly created a political firestorm in the nation's capital. Senate Majority Leader Tom Daschle (D-S.D.), saying he was "very concerned" about the matter, told reporters, "I'm troubled by secret deals. I'm troubled by any deal that would not show the kind of tolerance that I think we should show in this country. So clearly it raises a lot of questions, and I think may actually imperil the president's efforts to get something passed."

Days later, U.S. Rep. Jerrold Nadler (D-N.Y.), a leading congressional opponent of the faith-based initiative, announced that he would meet with officials at the General Accounting Office to discuss an investigation of the matter. Nadler accused the White House of "stonewalling" requests for information that he and Rep. John Conyers (D-Mich.) had made.

"Federal law empowers the General Accounting Office, the investigative arm of Congress, to investigate, and if necessary subpoena materials, to get the facts," Nadler said in a statement. "While it is certainly my preference to work this out cooperatively with the White House, I believe that the rights of all Americans to be free from discrimination in taxpayer-funded programs is too important simply to shrug off, as the White House has done to Rep. Conyers' and my repeated attempts to resolve this matter."

Nadler and Conyers asserted that the White House had a quid pro quo arrangement with the Salvation Army. White House officials denied the charge, saying the Army had assumed too much in its internal document. Administration officials also insisted July 10 that top Bush aides had not been involved in discussions with the Salvation Army.

Two days later, however, The Post reported that Karl Rove, Bush's senior advisor, had been the Salvation Army's point of contact in its effort to win the right to receive federal dollars and still discriminate. Two White House officials, speaking anonymously, told the newspaper that Rove "was intimately involved in courting the Salvation Army." Both said Rove knew about the Army's regulatory request, something the White House had steadfastly denied.

"Literally nothing occurs around here without his blessing," said one of the officials. "He's the air traffic controller. He says, 'Here's your problem. Here's your answer.'"

Rove's role isn't surprising. The high-profile senior Bush aide, who serves as the president's top political operative, has spearheaded plans to strengthen ties between the administration and targeted religious communities, including conservative Roman Catholics and African-American churchgoers. These constituencies are seen as important potential allies in the drive to pass the faith-based initiative, as well as key voting blocs in the 2002 and 2004 elections.

The Salvation Army was apparently on Rove's list of religious targets as well. In early May, eight top Army officials met at the White House with Bush and John J. DiIulio, head of the Office of Faith-Based and Community Initiatives. Salvation Army officials said the meeting dealt with the faith-based initiative, but not the issue of employment discrimination. An organization spokesman, Tom Jones, told The Washington Post, "I don't believe it came up."

After the meeting, Bush signed a proclamation declaring "National Salvation Army Week." The get-together, Jones insisted, was "more of a ceremonial meeting."

Nevertheless, the Salvation Army soon seemed ready to play political hardball and apparently had goals more ambitious than winning fawning presidential proclamations. The Army assembled a high-powered team of lobbyists with ties to Bush to press its case on the discrimination issue. Among them was Stephen M. Minikes, a Washington lobbyist who belonged to an elite group whose members had raised at least $100,000 for Bush during the campaign. The Post reported that the Salvation Army planned to pay Minikes' firm $20,000 to $25,000 per month between May 2001 and January 2002.

These lobbying efforts seemed to be paying off at first. After the story broke, the administration tried briefly to defend the idea of giving the Salvation Army a special exemption from state and local anit-discrimination law, sending Vice President Dick Cheney forth to make the case.

"A key part of the president's faith-based initiative is to make certain that in order to acquire, or to participate in providing these social services with government funds, we not require fundamental changes in the underlying principles and organizing doctrines, if you will, of the organizations that participate," Cheney said July 10.

But that very evening Bush and his advisors decided that publicly defending the proposed regulatory change was no longer tenable, and the administration announced that it was dropping all efforts to modify "Circular #A-102." It looked like a significant step at first, but a closer inspection of the politics underlying the situation soon revealed that nothing had really changed. The administration had merely concluded that it was not necessary to rewrite "Circular #A-102" to ensure that religious groups could accept tax aid and still engage in employment discriminiation. That goal could be achieved through other means.`

Even as the Bush White House was trumpeting its illusory reversal on the regulatory change, the House of Representatives was plowing ahead with the first piece of legislation under the faith-based initiative -- legislation that contained a provision giving the Salvation Army and other religious groups the right to receive federal funds yet still discriminate broadly on religious grounds.

The bill, called the Community Solutions Act (H.R.7), includes language explicitly stating that "faith-based" organizations will be able to hire only people who agree to abide by the organizations' beliefs and tenets. Under this wording, fundamentalist Christian groups could, for example, receive federal money yet refuse to hire Roman Catholics, Jews, Muslims, mainline Protestants or anyone else whose beliefs they think don't measure up.

In addition, religious groups would be able to reject for employment anyone whose personal life conflicts with certain sectarian teachings. Thus, a publicly funded Roman Catholic group could deny a job to a divorced person and a government-subsidized Baptist group could fire an employee for getting pregnant outside of marriage.

Americans United was quick to denounce the administration's alleged remedy. "The Bush administration is engaged in an outrageous shell game," said the Rev. Barry W. Lynn, executive director of Americans United. "The faith-based initiative still allows federally funded employment discrimination on religious grounds. White House spin doctors are trying to paper over the employment discrimination at the core of this initiative, but no one should be fooled."

Continued Lynn, "White House officials have promised that they won't pursue discrimination through executive order. But they don't need regulations to allow discrimination it's already a key component of the federal legislation working its way through Congress."

When the measure reached the House floor, the issue of taxpayer-supported discrimination dominated the discussion. While moderate Republican concerns over the question were strong enough to delay the debate by one day, they could not stop the bill entirely. H.R. 7 passed on a mostly party line vote of 233-198 and will now go to the Senate, where it is expected to face rougher sledding. (See "Bush-Whacked," page 9.)

AU's Lynn said the flap over the Salvation Army underscored one of the more subtle dangers of the faith-based initiative: It lures religious groups into the world of lobbying, backroom politics and wheeling and dealing.

"Suddenly religious organizations are acting like defense contractors eager to win a lucrative government contract -- hiring lobbyists and high-powered public relations firms, cutting backroom deals with White House operatives," said Lynn. "Is this really how we want America's houses of worship to behave?"

In the Salvation Army's case, such activity may be a matter of survival. Most Americans know the group for its bell-ringers who loom over kettles outside of shopping areas at Christmastime seeking spare change. Over the years, the Army has used those funds and others to develop a wide-ranging social service network that provides various services to needy families -- and it has apparently become addicted to public funds to do it. (See "The Salvation Army: Declaring War On Church-State Separation?," page 7.)

The Salvation Army receives about $300 million annually from government sources, about 15 percent of its budget. Appearing on "The Diane Rehm Show," a National Public Radio nationally syndicated radio program, Major George Hood, a Salvation Army official, said the organization would not give up the government money because that would mean people would go without needed services.

AU's Lynn was on the same July 19 program, and he pointed out that other charitable organizations could pick up the slack if the Army decided to swear off government money, but Hood rejected the idea.

Hood and other Salvation Army defenders frequently point out that the 1964 Civil Rights Act gives religious organizations the right to discriminate in hiring staff. This argument was also made frequently on the floor of the House during the July 19 debate, but as Lynn notes, it is irrelevant.

The 1964 Civil Rights Act banned discrimination based on race, color, religion or national origin in public establishments. The act used the federal government's power to regulate interstate commerce to outlaw discrimination in private businesses as well. Thus, segregation in any "public accommodation" was outlawed. Title VII of the act specifically outlaws employment discrimination on religious grounds.

But Title VII also makes it clear that houses of worship are exempt from the act, since the First Amendment governs their activities. The federal courts, however, have never interpreted Title VII's exemption to allow houses of worship to discriminate in programs largely funded with government money. What the Salvation Army and its backers are seeking is not an accommodation already made for them in the law, but a sweeping exemption from civil rights laws that has never before been granted.

The Salvation Army is well aware that this could create a public relations problem. On July 13, the organization posted an open letter on its website ( from National Commander John A. Busby, defending the organization's stance.

Busby insists that the church group "has not and does not show bias in its employment practices" but then goes on to qualify that by adding, "with exceptions dictated only by the religious purposes or moral position of the Salvation Army." Critics say this rather large loophole gives the Army the ability to deny employment to anyone who fails to meet the group's religious criteria.

Busby made many of the same points in a July 25 letter to USA Today, insisting that the Salvation Army "fully complies with all laws applicable to religious organizations in choosing who we hire." Again, critics say this is a red herring. When it comes to private funds, there are no applicable laws.

With the faith-based initiative headed for the Senate, the issue of taxpayer-supported discrimination by religious groups is sure to resurface. Senate Majority Leader Daschle has promised Bush that the Senate will discuss the legislative proposal, but he remains cagey about exactly when and how.

Daschle seems concerned over the discrimination angle. Speaking on NBC's "Meet the Press" July 22 he told anchor Tim Russert, "I don't want anybody to have to do anything contrary to their faith, but I also recognize that there is an important progress that we've made, some real effort over the last 30 and 40 years, to eliminate intolerance wherever we find it. And I think this is an open invitation that is, this bill, this faith-based initiative is an invitation to find additional ways with which to pursue intolerant approaches to the issuance of support and benefits for people who need them. I think we've got to be very concerned about that."

Just a few weeks after the Salvation Army flap, a federal court in Kentucky ruled that a Baptist-run home for troubled youngsters may fire a woman for being a lesbian, even though the facility is funded primarily with tax money. The decision in the Pedreira v. Kentucky Baptist Homes for Children case, which was brought by Americans United and the American Civil Liberties Union, is sure to re-ignite questions about employment discrimination under the faith-based initiative.

"The faith-based initiative is bad for many reasons," said AU's Lynn, "but these questions of discrimination based on religious belief and personal conscience are especially important. As a nation, we have soundly rejected discrimination in every form. It would be a big step backwards to force taxpayers to subsidize discrimination through this misguided proposal."