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Jewish Groups Consider Lawsuits if Faith-based Initiatives Move Ahead

January 30, 2003
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Some Jewish groups may sue the Bush administration over faith-based initiatives that they say would violate the separation of church and state.

Faith-based initiatives have been a cornerstone of President Bush’s domestic policy.

He campaigned on it, and in his State of the Union address Tuesday, announced two new social service initiatives that would involve religious institutions — one to treat substance abusers and another for mentoring at-risk youth.

Any legal action would likely center around proposals by several U.S. government agencies that would give federal funding to churches and other religious groups for social services programming.

Several Jewish groups have contacted the agencies, seeking changes to the proposals.

But if the proposals move forward and become regulations, these groups say, they are considering legal action against the government agencies that carry out the initiatives.

“Some discussion is going on, but everyone is convinced these will end up in court,” said Rabbi David Saperstein, director of the Religious Action Center of Reform Judaism.

Marc Stern, co-director of the American Jewish Congress’ legal department, said his organization is looking into legal recourses and has contacted a New York law firm about options.

Opponents of the provisions must wait until the comment period is over, and the final regulations are released before challenging them.

Stern said that while the proposals on the face of it seem fine, the details could be problematic.

“In drug rehabilitation programs, there is no plausible way of separating what the government funds and religious instruction,” Stern said. “In most cases, what you’re dealing with is creating an atmosphere to transform someone’s life.”

He said in the mentoring programs that have already been tried in Florida — under the auspices of the president’s brother, Gov. Jeb Bush — an evangelical group was hired to coordinate the program and seek potential mentors in churches.

“To make a church group the group with central authority for mentoring is to tilt the playing field at the outset,” Stern said.

The White House tried hard in the last Congress to pass its faith-based plan, which called for tax incentives for charitable donations and an increase in social service funding.

But the bill went nowhere.

In his State of the Union, Bush called on Congress to pass the legislation, and White House officials say they are hopeful that it will be taken up this term.

But despite inaction in Congress, or perhaps because of it, the Bush administration has been moving forward on its own, with a series of executive orders that change the rules for the disbursement of funds it controls through federal agencies.

“The president made very clear that he continues to work in Congress and he’s going to do all he can through his powers as chief executive,” said Jim Towey, director of the White House Office of Faith-Based and Community Initiatives.

The president signed an executive order in December, directing “all federal agencies to follow the principle of equal treatment in awarding social service grants.”

“It’s all about discretionary funding and who is eligible to receive direct funding from the government,” said Michael Lieberman, Washington counsel of the Anti-Defamation League.

“What they’re doing now is going through the regulations and making faith-based organizations eligible,” he said of the administration.

The Department of Housing and Urban Development has proposed a rule that would allow federal building aid to go to the construction of churches and other religious buildings, specifically for social service centers within those institutions.

The Anti-Defamation League wrote to HUD Secretary Mel Martinez this week, saying the new regulations will “inevitably result in very broad and unconstitutional entanglements between government and religion to an extent never seen before.”

The Department of Health and Human Services has proposed similar initiatives for funding of drug addiction and homeless assistance programs.

Some Jewish groups have expressed concern that the federal aid in these service programs could go to programs run by religious organizations that discriminate in hiring based on religion.

Certain religious organizations are exempted from non-discrimination laws in hiring, but some have argued that those exemptions should not apply to positions that are substantially funded by federal dollars.

Jewish groups are also responding to the proposed provisions coming out of the Departments of Education, Agriculture and Labor.

After Bush’s executive order in December, the Federal Emergency Management Agency — soon to be incorporated into the new Department of Homeland Security — changed its policy on providing aid to faith-based social service agencies, allowing religious groups to receive disaster aid for soup kitchens and other social services on their premises.

That policy change came after an appeal by the Seattle Hebrew Academy, a religious school that was denied aid after an earthquake damaged its building.

The White House says these new regulations remove obstacles from getting social services to the community, but some Jewish groups say those are not obstacles but safeguards against federal funds going to religious groups.

Stern says there is a legal precedent for requiring that buildings erected with federal funds by religious organizations be used for nonreligious purposes. In 1971, the Supreme Court ruled that grants for nonreligious facilities in church-sponsored higher education institutions were constitutional, but rejected a provision that gave the schools the right to do whatever it wanted with the buildings after 20 years.

Not everyone in the Jewish community is opposed to the proposed regulations.

Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, said he believes the policies are moving in the right direction, but says that safeguards and provisions need to be included that will ensure that the funds will not be used for religious purposes.

“It’s discriminatory to say that no religious organizations can even think about competing for these grants,” he said. “There are a history of programs that Jewish organizations do run and could run utilizing these grant funds and that would be a very fine thing for the community.”

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