Earlier this year, the Freedom from Religion Foundation filed a sweeping lawsuit aimed at dismantling President Bush’s faith-based initiative. In its complaint, the FFRF alleged that virtually every aspect of the faith-based initiative—from funding religious organizations to organizing conferences to promote the initiative—violated the First Amendment. The Bush Administration was sending "messages to non-adherents of religious belief that they are outsiders, not full members of the political community… and… an accompanying message to adherents of religious beliefs that they are insiders, favored members of the political community." According to Professors Ira Lupu and Robert Tuttle, two leading legal commentators, if the suit were successful,"“the Faith-Based Initiative could be significantly altered or compromised, and perhaps even wind up under long-term judicial supervision."

Fortunately, it hasn’t come to that. On November 16^th, the judge in the case dismissed the most sweeping elements of the case, leaving intact two specific challenges to a faith-based youth mentoring program—Mentor Kids USA, headquartered in Phoenix, which received a three-year, $225,000 federal grant—and a Compassion Capital Fund grant to Emory University’s Interfaith Health Strong Partners. In the words of Lupu and Tuttle, "[W]hat began as a sweeping constitutional attack on the administration and promotion of the Initiative has been reduced to a minor skirmish over two, highly particularized expenditures of federal money."

While the FFRF has yet to show its hand with regard to the Emory program, it has filed a memorandum seeking summary judgment in the Mentor Kids USA case. This organization collaborates with Chuck Colson’s Prison Fellowship Ministries to find Christian mentors for at-risk children of prisoners. Mentors must subscribe to a Statement of Faith and be "active in a church, teachable, relational, [and] committed." They must be "equipped to share the good news of who Jesus is and how he can provide a future of hope for anyone," in large part because one of the program’s goals is to "provide every opportunity for kids to know Jesus Christ the Savior and to develop a disciplined walk with God." Of course, Mentor Kids USA argues that a child who is "restored" to "his/her family, community, and Creator… will be less likely to become a criminal offender."

In other words, the organization proposes to achieve the secular purpose of the government’s youth mentoring program by means that are at least in part religious. I say "in part" because while the mentors are certainly prepared to witness to the children and the organization certainly celebrates its evangelistic successes, the FFRF offers no evidence of coercion or religious imposition in its memorandum. Indeed, given what I know about contemporary evangelicalism, I suspect that examples of religious heavy-handedness in this program would be rare, if not non-existent. Much of what the mentors do would probably be indistinguishable from what a Big Brother or Big Sister would do, save for their expectant availability for prayer, Bible study, and religious conversation. If a "personal relationship with God" developed, it would in effect flow naturally from the loving relationship with the mentor.

So what’s wrong with this picture, according to the FFRF? "When the government purchases social services that include religious content, the government effectively becomes the speaker and becomes a patron or sponsor of the religious message. By all Establishment Clause tests, direct government support of religious content has the effect of impermissibly promoting religious indoctrination." The fact that the program has a plausibly secular purpose isn’t enough to save it. Because the mentors are religious and because one of the program’s aims is religious, government support for it is government support for religion.

Thank you, Justice Sandra Day O’Connor, for articulating the "endorsement test," which holds that when a reasonable observer believes that a government action expresses support for religion, then it is impermissible under the First Amendment. O’Connor, by the way, is also the source of the FFRF’s "insider/outsider" language, which was lifted virtually verbatim from her concurrence in Lynch v. Donnelly, a 1984 case regarding a public holiday display. Because her view usually can command the support of four other members of the current Supreme Court (Stevens, Souter, Breyer, and Ginsburg), the FFRF can make this particular case with some confidence that a judge will be persuaded.

The counterargument is subtler and a little harder to make. Justice Clarence Thomas enunciated the principle beautifully in his opinion for the plurality in Mitchell v. Helms, a 2000 school aid case:

In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality, upholding aid that is offered to a broad range of groups or persons without regard to their religion. If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination.

If, in other words, every government contractor speaks for the government, then the government is responsible on some level for all the messages it "endorses" and hence none of them in particular. So long as the agency does not discriminate in favor of religion, funding organizations because they’re religious, rather than because they can plausibly get the job done, there is, even in O’Connor’s terms, no endorsement and hence no establishment.