In his final State of the Union speech, President George W. Bush called on Congress "to permanently extend Charitable Choice;" provisions in a number of federal laws that require states to include faith-based organizations among the service providers whenever they offer the same contracts to other private, nonprofits.

The following night Bush visited the Jericho Program, a religious provider of services to ex-offenders. While there he commented that it was a mistake to oppose the government support of religious groups. "There was the notion that somehow that there needed to be a clear separation of church and state, and therefore, we shouldn't be using taxpayers' money to help programs that were helping to meet important national goals."

Many criticize Bush's efforts for either not doing enough to religious nonprofits or for crossing the line between church and state in using tax dollars to promote religion. And since the creation of the Office of Faith-Based and Community Initiatives, grants have not been more available to religious nonprofit organizations. This was reiterated in a New York Times Op-ed written by two former employees of the office. "Over the past six years, federal grants to faith-based programs have shifted away from the local 'armies of compassion' praised by Mr. Bush and toward large, national organizations with religious affiliations."

Instead, to ensure that the separation of church and state is upheld, federal dollars must be used for purposes other than proselytizing. In addition, there are many underlying problems. Regardless what type of service providers receive federal funding, the government must sufficiently invest in domestic policies.

This week a federal appeals court ruled that tax funding of a Christian rehabilitation program at an Iowa state prison violates the separation of church and state. Americans United for Separation of Church and State (AU) filed a lawsuit in 2003 against the state of Iowa and Prison Fellowship, which operated a pre-release program for inmates called the InnerChange Freedom Initiative. AU charged that the program, in one of the state's prisons, promoted religious indoctrination and violated the constitutional separation of church and state. In June, a federal judge ruled in agreement with AU and ordered the Prison Fellowship to repay the state money it had received under contract. The case was appealed, with the group claiming the funds went towards nonreligious activities. And now the 8th Circuit Court of Appeals affirmed the lower courts ruling, but reversed the order that Prison Fellowship repay the state money. An AU press release quoted AU Senior Litigation Counsel Alex J. Luchenitser, "This ruling is a major setback for the White House's 'Faith-Based Initiative.' It reaffirms that the government must ensure that public funds are not used for religious instruction, and that the government must not aid programs that discriminate based on religion."

Read the story in the New York Times here.

OMB Watch is a part of the Coalition Against Religious Discrimination, which has asked the House Committee on Oversight and Government Reform to investigate the White House Office of Faith-Based and Community Initiatives, requesting an oversight hearing. The letter is a result of numerous developments including a recommendation by the Justice Department posted last month that suggests faith-based organizations should be exempt from the employment nondiscrimination rules attached to some federal grants.

The coalition's Nov. 2 letter to Congressman Henry Waxman (D-CA) chairman of the committee states: "Although many of our organizations support the involvement of faith-based organizations in the delivery of social services, we remain concerned that the Administration's efforts and policies may have crossed the line in a way that harms vulnerable beneficiaries, houses of worship and the civil rights of employees who are paid with public funds."

For more information, see this article from The Roundtable on Religion and Social Welfare Policy.

In August the American Civil Liberties Union (ACLU) of Louisiana asked that payments to churches totaling $120,000, approved by the legislature as part of a general appropriations bill were stopped. In response, on Oct. 5, a federal judge in Louisiana issued an order stating that "non-neutral, direct money grants of taxpayer funds to favored houses of worship are clearly unconstitutional." The ACLU argued that the legislative earmarks violated the First Amendment's Establishment Clause. The grants were not subject to oversight or competitive bidding and the appropriations bill offered no justification for them. The judge found that the grants lacked any specified secular purpose, as required by First Amendment protections prohibiting the government from endorsing religion.

Click here to read the court order blocking payments and here to read the judge's decision regarding the ACLU's standing to sue.

CQ ($$) reports that the Senate Appropriations Committee approved a spending bill for foreign operations that will permit the U.S. to provide contraceptives to family-planning groups to distribute in developing countries. This would be an important change to the Global Gag Rule (also known as the Mexico City Policy) in ending restrictions on use of private funds by nonprofits with federal family planning grants.

Also in a 5-4 decision, the U.S. Supreme Court today blocked a lawsuit by the group Hein v. Freedom From Religion Foundation Inc., because average citizens do not have the legal right to challenge President Bush's program on federal aid to faith-based organizations. Justice Samuel A. Alito Jr. wrote the majority opinion in the case. The lawsuit was filed in 2004 claiming that the White House Office of Faith-Based and Community Initiatives unfairly used taxpayer money to give an advantage to religious groups seeking federal funding, supporting religious groups over secular ones. This case is of particular importance because of the precedent it will set about who can sue the federal government with issues involving government grants to religious organizations. "The administration argued that the foundation's taxpayer plaintiffs lacked standing to sue because the faith-based initiatives office was not specifically funded by Congress."

Read the Washington Post story here and the court opinion here.

The New York Times reports that the Freedom From Religion Foundation (FFRF) has filed a lawsuit on behalf of three state taxpayers against North Dakota to prohibit public financing of the Dakota Boys and Girls Ranch. The teen Home provides therapeutic and rehabilitative services for troubled youth rooted in Christian teachings, Bible readings, and religious services. This case is the most recent legal challenge to public financing of religious-based programs. The Supreme Court is expected to issue a decision this month in another case brought by FFRF regarding whether private citizens may challenge in court the activities of the White House Faith-Based and Community Initiative.

For more information on the case, visit the Roundtable on Religion and Social Welfare Policy.

The New York Times reports on a shift of the Justice Department's civil rights mission. During the Bush administration, religious cases are being taken up much more than cases of racial discrimination. One example is the involvement in "court cases on behalf of religion-based groups like the Salvation Army that assert they have the right to discriminate in hiring in favor of people who share their beliefs even though they are running charitable programs with federal money." Instead of prosecuting racial injustice, it is disturbing to read that the federal government was supporting the ability of groups to hire based on religion, while the Justice Department was also making similar hiring decisions.

Figures provided by the department show that from 2003 through 2006, there was a notable increase of hirings from religious-affiliated institutions like Regent University and Ave Maria University. . . . Several career lawyers said that some political appointees favored the religious-oriented employees, intervening to steer $1,000 to $4,000 annual merit bonuses to them."

The state of Pennsylvania and civil liberties groups settled a lawsuit that challenged government funding of a faith-based job training program at a county jail. The settlement requires that state officials do not use public funds to support religious activities, that tax-funded programs will not religiously discriminate against program participants, and that the state will monitor the program activities to ensure there are no violations. The lawsuit filed in 2005, charged that federal funding of the Firm Foundation's training program violates the Establishment Clause, and the religious-freedom provisions of the Pennsylvania Constitution. The program reportedly proselytized inmates, pressured them to participate in prayer, and hired only Christians as employees. The agreement is similar to one reached in a case between the ACLU of Massachusetts and an abstinence education program called the Silver Ring Thing. This case again forces the question of what, if any, religious activities the government can fund without becoming government endorsement of religion. Read the Associated Press story here.

With a vote of 365-48, the House passed the Head Start reauthorization bill, and importantly without a religious hiring preference provision that would have allowed providers to hire employees based on religion. As expected, Republicans offered a motion to recommit with instructions to include the faith-based provision. According to CQ ($$), "Republicans defended the hiring amendment as "principled," calling it both a civil rights and civil liberties issue. The Democrats had another word for it: discrimination." Fortunately the motion to recommit failed with a vote of 195-222. However, the bill was amended to add language stating that;

"the history and importance of allowing faith-based and community-based organizations to participate in Head Start programs and, explicitly, that they will continue to be eligible to participate on the same basis as other organizations."

Republicans felt that this was a "fake" faith-based amendment and simply an attempt to gain political cover for the support of religious organizations. In the Senate, Senator Ted Kennedy (D-MA) has introduced the Head Start for School Readiness Act, S.556, without any such religious preference measure.

According to CQ, ($$) the White House expressed strong opposition to the Head Start reauthorization bill (HR 1429) that the House is expected to vote on today. The administration issued a statement that urges Congress to preserve Head Start's National Reporting System and to amend the bill to give hiring exemptions to faith-based groups. "The Administration strongly encourages the House to amend H.R. 1429 to ensure that faith-based organizations are not asked to forfeit their religious hiring autonomy as a condition of receiving Head Start grants." OMB Watch opposes this discriminatory measure.

Next week, possibly Wednesday, the House will consider H.R.1429, to reauthorize for the first time in a decade, the childhood development program Head Start. However, a "Motion to Recommit," is expected to be offered, sending the bill back to the committee and require the inclusion of the Charitable Choice religious discrimination provision, allowing providers to make hiring decisions based on religion. We strongly urge you to contact your representatives asking that they oppose the Motion to Recommit. Click here to go to the NAACP action alert to find out what you can do. For more information on the religious discrimination provision that failed in committee, click here.

Yesterday the House Education and Labor Committee approved Head Start reauthorization legislation, HR1429. Resident Commissioner Luis Fortuno (R-PR) offered an amendment that would have allowed faith-based organizations to hire teachers on the basis of religion. According to CQ, ($$) this issue was the main point of contention during the five hour long markup hearing. Supporters of the amendment said the religious hiring would help increase faith-based groups participation in the Head Start program. This same proposal was included in last year's Head Start reauthorization bill. The Fortuno amendment was defeated on a 26-19 party line vote, but some may try to add the faith-based hiring language during floor debate which may occur before the recess in April. Representative Dennis Kucinich (D-OH) commentated during the markup; "religious organizations are free to make hiring decisions using religious criteria with programs using their own money. But when you take federal money, there are strings attached."

The LA Times discusses the Hein vs. Freedom From Religion Foundation case, which the Supreme Court will consider next Wednesday February 28. At issue is whether taxpayers can sue over federal funding that the foundation perceives to promote religion. This could be a significant ruling in regards to the separation of church and state. The Bush administration is requesting that the case is thrown out, claiming that taxpayers have no legal interest in how the executive branch spends public money.

If the court grants the administration's request, it will eliminate what is often the only effective mechanism for challenging financial support of religion by the executive branch. The effect would be to grant the president and his staff, as well as the vast federal bureaucracy, a license to preach.

An article in the February 6 Watcher discussed this case. And read this related AP story here.

Americans United for Separation of Church and State (AU) recently filed an updated complaint in their lawsuit against the Department of Health and Human Services (HHS) challenging use of public funds for the Northwest Marriage Institute's bible based marriage counseling program. The Institute received a direct grant of $50,000 from the Department of Health and Human Service's Compassion Capital Fund, to help small religious groups increase their ability to compete for government contracts. A second $50,000 subgrant came from the nonprofit Institute for Youth Development and a third grant of $246,000 went to the group through the HHS Healthy Marriage Initiative.

The lawsuit contends that the marriage education program is essentially religious, providing examples from previous newsletters written by the founder, Dr. Bob Whiddon.

The complaint , states, "Both its premarital and marriage-counseling seminars include session on 'God's Plan for a Healthy Marriage.' Participants in those sessions learn that God designed marriage, and they receive instruction on God's plan for how marriage should work. Attendees at the Marriage Institute's programs will 'discover tools, embedded in God's Word, that can be used in real life to resolve real life problems."

Attorneys for AU argue that the nonprofit used the grant money to create these materials and others like it, and to pay some of the salaries of the employees who engaged in Bible based counseling. Further details of how the program operates will emerge as the case moves toward trial.

The Institute case also challenges federal capacity building grants meant to help small religious groups compete for more federal funding. AU contends such funds will be used for purchasing computers or developing a website, and both will ultimately be used to support the group's religious work. But Whiddon told the New York Times "The grants say that I'm allowed to do things that will allow me to increase the capacity of my organization to serve the community …None of what we do with the money is for religious purposes."