Table of Contents
EXECUTIVE SUMMARY
INTRODUCTION
I. DEVELOPMENTS IN THE JUDICIAL BRANCH
A. Significant Judicial Decisions
1. Locke v. Davey
a. Description
b. Analysis
(1) The Free Exercise of Religion and Nondis criminal
(2) Freedom of Speech and Nondiscrimination
(3) The Blaine Amendments
(4) The Scope of State Authority to Maintain Independent Church-State Policy
2. American Jewish Congress v. Corporation for National and Community Service
a. Description
b. Analysis
(1) The EAP Grantees
(2) The EAP Participants
(a) Religion-Neutral Selection of Beneficiaries
(b) Participants’ Choice Among Program Grantees and Sites
(c) The Religious Content of Participants’ Service
(d) Religious Liberty of EAP Participants
(e) Conclusion
3. Catholic Charities v. Superior Court
a. Background on the California Statute
b. Constitutional Arguments in the Catholic Charities Case
(1) The Religious/Secular Distinction
(2) Burden on Religious Exercise and Autonomy
(3) Broader Implications for Faith-Based Social Services
4. Freedom From Religion Foundation, Inc, v. Montana Office of Rural Health
a. Description
b. Analysis
5. Freedom From Religion Foundation, Inc. v. Jim Towey,
Director of the White House Office of Faith-Based and Community Initiatives
a. Description
b. Summary of Allegations
c. Recent Dismissal of Initiative-wide Aspects of the Lawsuit
d. Dismissal of the Initiative-wide Aspects of the Suit
e. Our Analysis of the Dismissal
B. Cases Awaiting Decision
1. Lown (and others) v. The Salvation Army. Inc.; Commissioner,
New York City Administration for Children’s Services (and others)
a. Description
b. Summary of Allegations
c. Responses from the Salvation Army and the Government Defendants
d. Analysis of the Litigation
(1) The Statutory Issues
(2) The Constitutional Issues
(a) State Action
(b) The Establishment Clause and State Support of
FBOs that Engage in Religiously Selective Personnel Actions
e. Conclusion
2. Americans United for Separation of Church & State v.
Warden Terry Mapes, Prison Fellowship Ministries (and others)
II. DEVELOPMENTS IN THE EXECUTIVE BRANCH
A. Key Elements in the Faith-Based and Community Initiative
1. Equal Participation of Faith-Based Organizations
in Federally Financed Social Welfare Programs
a. Equal Opportunity for FBOs
c. Preservation of FBOs’ Title VII exemption
d. Accommodation of Religion
2. Establishment Clause Limitations on the
Use of Government Funds for Religious Activities
a. No Direct Government Expenditures on “Inherently Religious Activities”
b. Restrictions on the Use of Government Funds for Religious Structures …
c. No Special Assurances by FBOs
d. Direct Financing of Religion for Individuals Under Significant Government Contro
e. The Constitutional Significance of Indirect Financing
3. Protections for the Religious Liberty of Program Beneficiaries …
No Religion-Based Discrimination Against Program Beneficiaries
B. Analysis of Distinct Features of Specific Agency Rules
1. Department of Agriculture …
2. Department of Labor
3. Agency for International Development
III. STATE CONSTITUTIONAL LAW