Federal District Court Opinions

DEBORAH GARRETT THOMAS, Defendants. No. 06-C-175-S. United
States District Court, W.D. Wisconsin. September 29, 2006


JOHN SHABAZ, District Judge

Plaintiff Association of Faith-Based Organizations
commenced this action on behalf of several of its members
for injunctive and declaratory relief entitling its members
to be listed as potential donees in the Wisconsin State
Employees Combined Campaign (“SECC”), a program through
which Wisconsin State Employees may make voluntary
contributions to listed charitable organizations via
payroll deduction. Jurisdiction is based on 28 U.S.C.
§ 1331. The matter is presently before the Court on
cross motions for summary judgment. The parties have
submitted an agreed statement of all facts which they
believe are necessary to determine the legal issues
presented and have jointly represented that no factual
issues remain to be resolved at trial. The following is a
summary of the stipulated facts. Page 2


SECC is authorized and overseen by the Wisconsin Department
of Administration. Although the state provides no cash to
the program, SECC uses state facilities, equipment and
supplies, and employee volunteers work on the program
during regular hours of employment. Defendant Bablitch is
responsible for establishing and maintaining the list of
charitable organizations eligible to receive contributions.
Defendant Bablitch delegates to an Eligibility Committee
the task of reviewing applications and recommending which
charities should be included in the campaign. In 2005 SECC
included more than four hundred organizations and collected
more than $2.8 million in contributions.

Wisconsin Administrative Code Chapter ADM 30 governs the
process and requirements for participation in the program.
ADM 30.05(11) provides:

The charitable organization shall have a policy and
procedure of nondiscrimination in regard to race, color,
religion, national origin, handicap, age, or sex
applicable to persons served by the charitable
organization, applicable charitable organization staff
employment, and applicable to membership on the charitable
organizations governing board.

Defendants interpret and apply this provision to render a
religious charitable organization ineligible for
participation if its governing board or staff are required
to agree with the religious beliefs of the organization. To
be initially eligible to participate in the program a
charitable organization must submit a Page 3 written
assurance that it complies with the requirements of ADM
30.05(11). This statement is examined by the Eligibility
Committee for compliance.

Several of plaintiff’s members, Christian Legal Society,
Pro-Life Wisconsin Educational Task Force, Teen Challenge
International — Wisconsin, Advocates International,
and Mission Aviation Fellowship, (collectively “members”)
comply with all requirements for participation in SECC
except that each requires its governing board and employees
to affirm their Christian Faith. In 2005 Christian Legal
Society applied for and was denied participation in the
SECC based solely on its requirement that board members and
employees affirm their Christian faith. In 2003 defendants
denied member Mission Aviation Fellowships application to
participate, however in 2005 its application was granted
and its participation was renewed in 2006.

Defendants have permitted several other charitable
organizations including Mercy Ships, Christian Military
Fellowship World Impact and India Partners, to participate
notwithstanding that these organizations have similar
requirements of faith affirmation for its board members.
The following additional organizations have been allowed
to participate in SECC notwithstanding website statements
which set forth policies inconsistent with ADM 30.05(11):
Adventist Development and Relief Agency International, Food
for the Hungry, MAZON, World Concern, Page 4 Officers
Christian Fellowship, Hispanic Scholarship Fund, American
Indian College Fund, Elder Care Partnership Program and
Movin’ Out.

In 2002, in the context of a proposal to add sexual
orientation to the list of prohibited bases of
discrimination, then-secretary of the Department of
Administration George Lightbourn acknowledged in a letter
that the following participating organizations likely limit
clients and board members in ways that might disqualify
them under ADM 30.05(11):

Aids Network, Aids Resource Center, Catholic Charities
Diocese of Madison, Boy Scouts, Urban league of Greater
Madison, Women’s Transit Authority, Catholics United for
Life, National Black Child Development Institute, Native
American Rights Fund, Zero Population Growth, Christian
Children’s Fund, Salvation Army World Service Office,
National Association of Black Veterans, Inc., WI
association of Black Public Sector Employees, National
Right to Life Education Trust Fund, Officers Christian
Fellowship, Prison Fellowship Ministries; American Friends
Service Committee, Bethany Christian Services Parents,
Families and Friends of Lesbians and Gays, People for the
Ethical Treatment of Animals, Planned Parenthood
Foundation, Jewish Social Services of Madison.


Plaintiff contends that the application of ADM 30.05(11)
to exclude religious charitable organizations from SECC
impermissibly infringes its members First Amendment rights
of expressive association, free speech and free exercise,
and the Establishment Clause, as well as their rights under
the Equal Protection Clause. Defendants maintain that ADM
30.05(11) as applied to religious charities is a
reasonable, viewpoint neutral limitation on access Page 5
to a non-public forum and therefore not an actionable
constitutional deprivation. Although defendants have
identified the proper standard for assessing the
constitutionality of their actions in denying plaintiff’s
members access to the SECC, they have failed to provide
sufficient evidence from which a reasonable factfinder
could conclude that they had a reasonable basis to exclude
religious charitable organizations from the SECC.

Summary judgment is appropriate when, after both parties
have the opportunity to submit evidence in support of their
respective positions and the Court has reviewed such
evidence in the light most favorable to the nonmovant,
there remains no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law.
Rule 56(c), Fed.R.Civ.P. A fact is material only if it
might affect the outcome of the suit under the governing
law. Disputes over unnecessary or irrelevant facts will not
preclude summary judgment. A factual issue is genuine only
if the evidence is such that a reasonable factfinder,
applying the appropriate evidentiary standard of proof,
could return a verdict for the nonmoving party. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986).

Plaintiff’s members have a constitutional right to
expressive association which entitles them to limit
membership in their organizations to those who share common
religious views. Christian Legal Society v. Walker, 453
F.3d 853, 861-62 (7th Cir. 2006). Page 6 Plaintiff’s
members also have a constitutional free speech right to
solicit funds from state employees. Cornelius v. NAACP
Legal Defense and Educational Fund, Inc., 473 U.S. 788,
798-99 (1985). Denying access to the SECC impinges on both
of those constitutional rights. The principal issue
presented by the pending motions is whether the impingement
of those constitutional freedoms resulting from their
exclusion from the SECC is permissible under the

Considering first the free speech claim, Cornelius makes
clear that the SECC is a nonpublic forum, 473 U.S. 788, 805
(Combined Federal Campaign program to solicit charitable
contributions from federal employees is a nonpublic forum).
Accordingly, defendants may properly exclude religious
charitable organizations from the SECC only if the
restriction is (1) reasonable in light of the purpose
served by the SECC and (2) viewpoint neutral. Id. at 806.

The standard for assessing defendants’ conduct affecting
expressive association rights is less clear. Plaintiff
contends that the restrictions should be viewed as forcing
inclusion of board members who do not hold similar beliefs
to those of the organization, and that such a requirement
can only be upheld if the exclusion serves “compelling
state interests unrelated to the suppression of ideas, that
cannot be achieved through means significantly less
restrictive of associational freedoms.” Christian Legal
Society, 453 F.3d 853, 861-62 (quoting Boy Scouts Page 7
of America v. Dale, 530 U.S. 640, 648 (2000)). Examination
of the circumstances, however, compels the conclusion that
this is not a “forced inclusion” case which would trigger
the related heightened “compelling state interest”

In Dale the Court struck down a New Jersey law prohibiting
discrimination in public accommodations which would have
compelled the Boy Scouts of America to admit homosexual
members, a requirement contrary to its beliefs. Thus, the
law at issue in Dale affirmatively intruded into the
plaintiff’s right to control membership. The same high
standard has been applied to state action which stops short
of direct forced inclusion but which imposes disabilities
on the organization the practical reality of which is to
compel forfeiture of constitutional rights. Healy v. James,
408 U.S. 169, 183 (1972) (addressing the denial of
recognized status for a university student group). The
Seventh Circuit affirmed this principal in Christian Legal
Society, holding that denying a student group university
recognition and its many attendant benefits triggered the
same analysis. However, neither Healy nor Christian Legal
Society stand for the proposition that any withholding of
benefits, no matter how slight relative to the functioning
of the organization, amounts to the state compelling an
organization to admit unwanted members. See Christian Legal
Society 453 F.3d at 864 and 873-74 (discussing the extent
of the impact of the withheld benefits on the organization
and Wood, Page 8 dissenting, contrasting the impact in
Healy with that in Christian Legal Sevices).

Whatever the threshold at which the denial of benefits
becomes an indirect compulsion to admit unwanted members,
it is apparent that denying plaintiff’s members access to
SECC does not cross it. The sole benefit denied to
plaintiff’s members is the right to join more than 400
other charities in soliciting funds from state employees
through the SECC. Nothing suggests that the absence of that
benefit in anyway threatens the members from pursuing their
organizational objectives. Nothing suggests that any member
would be compelled to abandon its rights to expressive
association in exchange for this limited benefit. Unlike
the student organizations in Healy and Christian Legal
Services, whose continued existence as organizations might
arguably depend on official university recognition,
plaintiff’s members do not suggest that they will cease to
effectively function or fund raise unless they can access
the SECC.

The correct standard for assessing the constitutionality of
the members’ exclusion from the SECC is that identified
under nearly identical circumstances in Boy Scouts of
America v. Wyman, 335 F.3d 80, 91 (2d Cir. 2003). In Wyman,
Connecticut excluded the Boy Scouts from its state employee
charitable campaign. Wyman rejected the application of the
Dale standard: “The effect of Connecticut’s removal of the
BSA from the Campaign is neither Page 9 direct nor
immediate, since its conditioned exclusion does not rise to
the level of compulsion.” 335 F.3d at 91. Accordingly,
Wyman concluded that the correct standard, whether the case
was viewed as conditioning a government benefit on the
relinquishment of a constitutional right, citing Regan v.
Taxation With Representation of Washington, 461 U.S. 540
(1983), or denial of access to a nonpublic forum, citing
Cornelius, 473 U.S. 788, is whether the action was
reasonable in light of the purpose of the forum and the
surrounding circumstances, and viewpoint neutral.

Notwithstanding that the more lenient standard applies in
assessing the constitutionality of defendants conduct, they
have failed to satisfy the first component of the test,
that their actions in excluding plaintiff’s members be
reasonable in light of the purposes of the SECC. Defendants
offer two arguments in support of their position that
excluding religious charitable organizations from the SECC
is reasonable. First, they argue that exclusion of
religious charitable organizations furthers a general state
policy against religious discrimination. Second, they argue
that it is reasonable to exclude religious charities from
the SECC because their presence might cause controversy
which would depress overall participation in the program.
Viewed in light of the undisputed facts, the purpose of the
forum and surrounding circumstances, neither position could
sustain a finding of reasonableness. Page 10

Defendants’ assertion that Wisconsin has a general policy
of opposing invidious religious discrimination is
undoubtedly true. However, it is equally clear that
Wisconsin does not espouse a policy against discrimination
by religious groups in choosing members of their faith as
directors and employees, and has affirmatively supported
such rights. Such discrimination is, of course, fundamental
to the nature of religious organizations and their right of
expressive association. The Wisconsin Fair Employment Act
expressly permits a non-profit religious organization to
discriminate in its hiring in favor of employees of the
same denomination and beliefs. Wis. Stat. §
111.337(2)(a)&(am). Furthermore, Wisconsin law forbids a
county, city or town from adopting a discrimination statute
which precludes such hiring practices. Wis. Stat. §
111.337(3). The articles of incorporation of a religious
organization may specify that officers and trustees must be
communicants of the faith of its affiliated church. Wis.
Stat. § 180.030. Wisconsin Statutes not only allow
the Department of Health and Family Services to contract
with and provide grants to religious organizations for the
provision of social services, Wis. Stat. § 46.027(1),
it forbids discrimination against them, Wis. Stat. §
46.027(2), and forbids the department from requiring a
religious organization to alter its internal governance to
be eligible for a contract or grant. Wis. Stat. §
46.027(3)(b). Page 11

Wisconsin’s public policy as embodied in its statutes
unequivocally supports the right of religious organizations
to control their internal governance and hire employees who
share the organization’s religious beliefs. Excluding
religious charities from the SECC appears as a single stark
exception to a consistent state policy. It is particularly
anomalous to forbid discrimination against religious
charities in the awarding of state grants and contracts
which use state resources to confer a substantial monetary
benefit upon religious organizations, yet to exclude such
organizations from the far less significant, and less state
connected benefit of access to the SECC. The claim that
excluding religious charities from the SECC is dictated by
a larger state policy disfavoring discrimination in the
governing boards and staff of religious organizations is
simply unsupported.

This stands in sharp contrast to the situation in Wyman,
where Connecticut state law expressly prohibited state
agencies from providing support to organizations which
discriminate on the basis of sexual orientation. 335 F.3d
at 97. In that situation, admitting such an entity to the
state employee charitable campaign was not only contrary to
a clearly stated public policy, but arguably in direct
violation of state law. Id. In the present situation, the
right of religious organizations to discriminate on the
basis of religious beliefs in choosing its governing
members and employees is approved and protected by statute.
There is no Page 12 state policy against such
discrimination and therefore no policy to provide a
reasonable basis to deny religious charities access to the

Defendants second argument in favor of exclusion —
that the inclusion of religious charities would cause
controversy and depress contributions — is no more
reasonable. It is true that one purpose of the SECC is to
encourage and facilitate charitable giving and that
entities that might disrupt the SECC and hinder
participation might reasonably be excluded from
participation. Cornelius, 473 U.S. at 809-11. However, not
only is the suggestion that admission of religious
charitable organizations to the SECC would be disruptive
unsupported by any evidence, it is contradicted by the
actual experience of the SECC and other similar campaigns.
Whether by error or intentionally, defendants have admitted
to the SECC numerous organizations which discriminate on
the basis of religion in selecting their boards and
employees, including Mission Aviation Fellowship, Mercy
Ships, Christian Military Fellowship World Impact and India
Partners. They have also admitted many charities whose
names would clearly suggest a religious affiliation to
participants, including Catholic Charities Diocese of
Madison, Catholics United for Life, Christian Children’s
Fund, Salvation Army World Service Office, Officers
Christian Fellowship, Bethany Christian Services Parents,
and Jewish Social Services of Madison. Yet there is no
empirical evidence of any adverse impact on SECC
participation because of their presence. Page 13

Participation in the analogous charitable campaign for
federal employees does not exclude religiously exclusive
entities from participation. 5 CFR § 950.110
(prohibiting discrimination by participants on the basis of
religion, but providing that eligibility is not affected
“merely because [an organization] is organized by or to
serve persons of a particular . . . religion.”) Yet there
is no suggestion that the federal campaign has suffered as
a result.

The only example plaintiff provides of SECC disruption
involved the participation of the Boy Scouts of America,
and participant objections in that instance had no relation
to religious affiliation, but concerned discrimination on
the basis of sexual orientation. Defendants do not restrict
access to the SECC by organizations which discriminate on
the basis of sexual orientation. Furthermore, a perusal of
the list of organizations identified in former secretary
Lightbourn’s letter would suggest that many of these
organizations are more controversial and likely to elicit
participant objections than the religious charities which
seek admission here. Accordingly, the single example
provided by defendants provides no support for the
speculative proposition that participation in the SECC will
be adversely affected by the admission of religious
charitable organizations.

Having concluded that defendants have presented no
reasonable basis for excluding religious charitable
organizations from participation in the SECC which could
justify the burden imposed on Page 14 the exercise of
their First Amendment rights of associational expression
and free speech, the Court need not reach the issue of
whether the exclusion was viewpoint neutral. Similarly, the
Court does not address plaintiff’s additional claims that
such conduct violated the Free Exercise, Establishment and
Equal Protection Clauses.


IT IS ORDERED that defendants’ motion for summary judgment

IT IS FURTHER ORDERED that plaintiff’s motion for summary
judgment is GRANTED.

IT IS FURTHER ORDERED that judgment be entered declaring
that excluding a religious charitable organization from
participation in the Wisconsin State Employees Combined
Campaign solely because that organization discriminates on
the basis of religion or creed in choosing its governing
board and employees is constitutionally impermissible, and
that defendants are enjoined from denying the application
of an otherwise qualified religious charitable organization
to participate in the Wisconsin State Employees Combined
Campaign on that basis. Page 1