In an early legal showdown over the "faith-based" initiative, Americans United and the Bush administration went eyeball-to-eyeball and the Bush administration blinked.
On March 20, the U.S. Department of Health and Human Services (HHS) announced a multi-million dollar funding opportunity to establish substance abuse and AIDS prevention programs in minority communities. On the application for funds, one $4 million program was limited to "faith-based organizations" and "youth-serving organizations collaborating with faith-based organizations."
In other words, the publicly funded program figuratively said, "no secular service providers need apply."
This exclusion of non-religious groups stood in stark contrast to the rhetoric offered by President George W. Bush, who has insisted repeatedly in recent months that he simply wants to allow religious groups to compete with secular organizations for federal grants.
The existence of a federal program that made public funds available exclusively to religious groups therefore appeared to not only be inconsistent with the Constitution, which prohibits government favoritism for religion, but also violated Bush's promises about how his faith-based initiative would be implemented.
When Americans United learned of the grant and its exclusively religious terms, action was swift.
"This faith-based set-aside is solid evidence from this administration that it is embracing a system of favoritism toward religion," said the Rev. Barry W. Lynn, executive director of Americans United. "This isn't a level playing field, it's an arena where secular groups aren't even allowed to play."
On May 16, AU wrote to HHS Secretary Tommy G. Thompson to notify the department of this program's unconstitutionality.
"The criteria used to select the grant recipients are not neutral and secular but instead favor religion," AU's letter said. "The aid is not available on a nondiscriminatory basis to both religious and secular beneficiaries, but it is only available to organizations that are religious themselves or are working with religious organizations."
AU also indicated the matter may end up in a federal courtroom if the proposal were not corrected.
"While we would like to resolve this matter without having to resort to litigation," the letter said, "we will file suit promptly if you fail to comply with this request."
The reaction from the Bush administration was, at first, recalcitrant.
Mark Weber, a spokesperson for HHS' Substance Abuse and Mental Health Services Administration, the agency that offered the grant, said the religious quota was perfectly legal.
"Before we put anything out on the street like this, we make sure we've crossed our t's and dotted our i's," Weber told the Associated Press. "We're very aware of what's constitutional and what's not constitutional."
At least one proponent of the Bush plan recognized that the HHS proposal was discriminatory, but thought it was nevertheless a fine idea.
"For so long there's been so much discrimination against faith-based organizations," said Connie Marshner, a spokesperson for right-wing strategist Paul Weyrich's Free Congress Foundation. "I'd say it's a leveling of the field."
The administration stuck to its guns on the issue for about 24 hours.
Exactly one day after AU threatened legal action over the HHS grant, the administration caved and agreed to change the proposal.
Tony Jewell, a spokesperson for HHS, said, "Once it came to [the White House's] attention and our attention, it needed to be adjusted."
AU's Lynn was pleased with the result and the speed with which it was reached.
"We're delighted that the HHS has seen the light," said Lynn, "There was simply no defense for offering a faith-based 'set-aside' that would make tax dollars available to religious groups and no one else.
"Considering this was our first legal showdown with the Bush administration over the faith-based issue, I'm very pleased with the result," Lynn concluded. "We are optimistic that all of our fights on this issue will be as successful."