Green Light In The Bluegrass State

Appeals Court Gives Taxpayers The Right To Challenge ‘Faith-Based’ Funding Of Baptist Youth Agency In Kentucky

Kentucky Baptist Homes for Children (KBHC) considers its main mission to be providing care for young people through “Christ-centered ministries.”

 

KBHC’s president once asserted in a press release, “I want this mission to permeate our agency like the very blood throughout our bodies. I want to provide Christian support to every child, staff member, and foster parent.”

 

Christian iconography decorates KBHC facilities. Young people in the agency’s care are pressured to attend Baptist church services. Some have complained that they were not allowed to attend other types of services.

 

In light of this clear sectarian slant, KBHC would seem to be a poor candidate for governmental support. Yet the agency gets lots of it. In fact, since 2000, KBHC has pulled in more than $100 million in public funding from the state of Kentucky and the federal government.

 

Despite this infusion of taxpayer aid, KBHC boldly declares a right to hire and fire according to religious criteria. If an employee’s personal life offends the agency’s religious sensibilities, that worker can be shown the door.

 

Kentucky resident Alicia Pedreira fell victim to the Homes’ policies in 1998. Pedreira, who is a lesbian, was hired to be a family counselor by KBHC that year. She disclosed her homosexuality during an interview and was assured it would not be a problem.

 

Six months later, Pedreira was summarily handed a pink slip after KBHC officials saw a photo of her and her partner taking part in an AIDS walk. Despite having garnered excellent job-performance reviews, Pedreira was sent packing because her sexual orientation was deemed incompatible with the religious mission of KBHC.

 

Suddenly, the issue of homosexuality became very important to KBHC. At the same time Pedreira was dismissed, the home adopted a policy stating that “homosexuality is a lifestyle that would prohibit employment.”

 

It has taken more than a decade, but Pedreira may finally secure a measure of justice. A federal appeals court ruled Aug. 31 that a lawsuit challenging government funding of KBHC can go forward.

 

While the court denied Pedreira’s personal claim of religious discrimination, her attorneys at Americans United say the ruling is significant because it allows AU and its allies to present evidence in court that KBHC is saturated with religion – and thus may not legally receive taxpayer support. Pedreira’s story strongly buttresses that claim.

 

The case has been bouncing around in the courts for nearly a decade. It was filed in April of 2000, when Americans United and the American Civil Liberties Union joined forces to litigate the matter on Pedreira’s behalf. (See “Trouble at the Old Kentucky Home,” June 2000 Church & State.) The lawsuit, which also includes taxpayer plaintiffs, asserted that KBHC engaged in religious discrimination against Pedreira in violation of civil-rights statutes and that tax funding of the institution violates the separation of church and state.

 

For various reasons, the case got bogged down in procedural questions and moved slowly through the courts. It suffered setbacks after a federal judge issued two rulings, one in 2001 and another in March of 2009, dismissing one part and then the remainder of the lawsuit. U.S. District Judge Charles R. Simpson said KBHC had not engaged in religious discrimination against Pedreira and later asserted that taxpayers have no right to challenge public funding of KBHC.

 

But the recent ruling by the 6th U.S. Circuit Court of Appeals helps put the case back on track. The appeals court unanimously reversed key portions of Simpson’s ruling. While the appellate panel rejected Pedreira’s statutory religious discrimination claim, it ruled that taxpayers could continue the case and held that Pedreira should be allowed to present evidence of her firing to help prove that tax funding of the agency violates the Constitution’s prohibition on government subsidy of religion. 

 

That portion of the Pedreira v. Kentucky Baptist Homes for Children ruling is important, attorneys at Americans United say. Throughout the litigation, AU lawyers have asserted that KBHC – now known as Sunrise Children’s Services – should not be able to receive tax aid because it is a sectarian agency that indoctrinates children placed under state care in its religious beliefs.

 

“This Baptist agency has made no secret of the fact that it was evangelizing children under the state’s care in complete disregard of the Constitution’s ban on government-sponsored religion,” said Barry W. Lynn, executive director of Americans United. “We’re extremely pleased that the court has made it clear that taxpayers have the right to challenge government when it promotes religious doctrine.”

 

The appeals court found AU’s argument to be persuasive.

 

Plaintiffs, the court asserted, “have sufficiently demonstrated a link between the challenged legislative actions and the alleged constitutional violations, namely that Kentucky’s statutory funding for neglected children in private childcare facilities knowingly and impermissibly funds a religious organization.”

 

The court noted that reviews conducted by a private company of KBHC “contain 296 interview responses from youth describing [Baptist Homes’] religious practices as coercive.” The court also quoted a Baptist Homes annual report as stating, “The angels rejoiced last year as 244 of our children made decisions about their relationships with Jesus Christ.”

 

During the litigation, Americans United noted that a KBHC publication called The Baptist Children’s Messenger openly reported that the facility has religious goals; AU also noted that KBHC facilities post religious signs and symbols. Youngsters placed in the homes said they were pressured to attend Baptist church services, take part in Bible studies and participate in other religious activities.

 

One child who was leaving a KBHC facility said she was not permitted to attend services of her own religion. Another complained that church attendance was explicitly mandatory, remarking, “If you did not go, you got in trouble.”

 

Despite that record, officials at KBHC continue to insist they have done nothing wrong.

 

“We don’t believe we’re in violation of anything that we’ve been accused of,” said William Smithwick, president of Sunrise Children’s Services. He vowed to appeal the ruling, and on Sept. 14, attorneys for KBHC and the state asked the entire 6th U.S. Circuit Court to rehear the case.

 

If that hearing is denied, KBHC is expected to ask the U.S. Supreme Court to review the decision. If the Supreme Court denies review, the case will go back to the lower court for examination of what goes on inside KBHC facilities and other issues. 

 

Pedreira said the ruling gives her cause for optimism.

 

“While I’m disappointed that Baptist Homes won’t be held liable for firing me, today’s decision helps ensure that government funds won’t be given to employers who discriminate based on their religious beliefs about sexual orientation, and that’s why I brought this case,” said Pedreira.

 

It’s safe to say that none of the parties expected the litigation to take this long, and in some ways, the lawsuit was ahead of its time. When the legal challenge was filed in the spring of 2000, the term “faith-based initiative” was not in common parlance, and questions about whether religious organizations could take tax funds and still discriminate in hiring on religious grounds were rarely being asked.

 

Much has changed since then. During the presidency of George W. Bush, the question of tax funding of “faith-based” groups became much more prominent. Bush issued executive orders codifying the so-called “right” of publicly supported religious groups to take faith into account when hiring staff – but that only fanned the flames of controversy.

 

The election of Barack Obama in 2008 led some to hope that things would change. That hasn’t happened yet. During the campaign, Obama said he opposed giving tax money to religious groups that discriminate. But he has yet to rescind the Bush orders and now says these controversies should be examined on a case-by-case basis.

 

As is often the case with church-state controversies, civil liberties advocates are looking to the courts for direction. Pedreira’s case was designed to be an early test of a compelling legal question: Can a religious organization take huge amounts of taxpayer aid and still insist on the right to apply a religious litmus test to employees?

 

The question became even more contentious during the Bush years. Perhaps that’s why Religious Right legal groups are watching the Pedreira case closely. The National Legal Foundation and TV preacher Pat Robertson’s AmericanCenter for Law and Justice submitted friend-of-the-court briefs in support of KBHC.

 

The day the ruling was handed down, Mathew Staver, chairman of Liberty Counsel, a far-right group affiliated with the late televangelist Jerry Falwell’s empire, told the Associated Press, “It’s important for a faith-based organization to be able to hire those that are consistent with their message.”

 

It has also come to light that the Alliance Defense Fund (ADF), a large and well-funded Religious Right legal group, has been closely involved in the case – albeit mostly behind the scenes. On Sept.1, the ADF issued a press release reporting that it “provided funding for attorneys with the Christian Legal Society and ThomasMoreLawCenter to defend KBHC in the suit.”

 

“Faith-based organizations should not be discriminated against for their beliefs,” said Greg Baylor, attorney for the ChristianLegalSocietyCenter for Law & Religious Freedom, in the ADF media statement. “This is an important victory for the ability of faith-based social service providers to hire employees who share their values.”

 

The ADF grudgingly admitted that the case is continuing and vowed to assist KBHC with an appeal.

 

Not surprisingly, Americans United sees things differently. AU Senior Litigation Counsel Alex J. Luchenitser, who argued the appeal before the court, said he was gratified by the appeals court decision.

 

“This decision,” Luchenitser observed, “puts the brakes on the Religious Right’s efforts to keep taxpayers out of court in order to allow unfettered public funding of religious indoctrination. Proselytizing groups should not be able to get away with using government money illegally because they think that no one can sue them.”

 

One of the taxpayer plaintiffs, Paul Simmons, a University of Louisville ethics professor, said the ruling gives him a sense of optimism.

 

Simmons, a Baptist minister who serves as president of the Americans United Board of Trustees, told the Associated Baptist Press that Kentucky Baptist Homes would have been better off sticking with private funding.

 

The institution, Simmons remarked, “did a good job working with disturbed and disenfranchised children who were in need of help and assistance toward maturity.”

 

But, he added, “Unfortunately, they had, like so many church groups, gravitated toward financial assistance from the state that removed any meaningful support from Baptists. Seventy percent of the budget was being paid by the state.

 

“[James] Madison once made the point that such organizations were agencies of the state, not of the church,” Simmons continued. “Baptists thus were caught with their greed and short-sightedness showing. The courts have ruled against such arrangements, and Baptists can only regret they had sold their heritage for such a mess of pottage.”

 

Given his strong belief that government should not fund explicitly religious organizations, Simmons said he’s pleased that the case is moving forward.

 

“I think on that score, we’ve got an extremely strong case and we will prevail,” he told the LouisvilleCourier-Journal