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WASHINGTON, May 21 (JTA) – A charitable choice lawsuit is paving the way for future legal challenges, even before a decision has been handed down. A federal district court likely will have to decide the constitutionality of a program that uses religion and proselytizing in its efforts, the U.S. Court of Appeals for the Fifth Circuit ruled Monday. The case, American Jewish Congress and Texas Civil Rights Project vs. Bost, is the first involving a constitutional challenge to a charitable choice contract. The AJCongress says evangelical Christianity “permeates” the government-funded Texas Works Program, violating the separation of church and state. The program focuses on job training and placement. The AJCongress charges that Texas Works proselytizes, since it tells participants that “change can only be accomplished through a relationship with Jesus Christ.” Charitable choice, which allows religious institutions to bid for government contracts to provide social services, first was introduced in 1996. Under debate is direct funding to religious groups that use religion while delivering social services. Religious-based organizations do receive funds for their charitable service, but they must run nonreligious programs and follow guidelines that seek to safeguard against religious coercion. The appeals court also directed the lower court to determine whether damages should be awarded in the case. That is a crucial point, as no one has ever received damages in a case where a government subsidy for religious teaching is determined to violate the Establishment Clause — the constitutional provision mandating the separation of church and state. “If Texas officials are required to pay damages to the plaintiffs we represent, it will give a second thought both to state and federal officials before they fund obviously sectarian programs,” said Marc Stern, co-director of the AJCongress’ legal department. The case had been dismissed as moot because the program had ended. Now, however, the appeals court is saying that people have an opportunity to win cases even after the fact, Stern said. That is especially important because many government-funded social service programs are only one-year contracts, and complaints often arise only as the programs are ending.

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