President Bush’s faith-based initiative got a big green light from the U.S. Court of Appeals for the District of Columbia circuit yesterday. In deciding the case of American Jewish Congress v. Corporation for National and Community Service and University of Notre Dame, a three-judge panel ruled unanimously that taxpayer funds may permissibly sponsor AmeriCorps volunteers who teach in religious schools.

Participants in the AmeriCorps Education Awards Program, a public program sponsored by the Corporation for National and Community Service, perform 1,700 hours of national service at an approved organization in exchange for financial aid that can be used to repay student loans or finance post-graduate education.

One approved AmeriCorps program, the Alliance for Catholic Education sponsored by the University of Notre Dame, trains volunteers as teachers and places them in needy Catholic schools, where they teach secular subjects. But some volunteers, apart from the AmeriCorps program, have taught religious classes as well. According to the regulations governing AmeriCorps, volunteers may not engage in religious activities “while charging time to the AmeriCorps program” or “accumulating service or training hours.” If they do teach religious classes, they are prohibited from wearing the AmeriCorps logo while they do so.

Nevertheless, the American Jewish Congress, which sued the Corporation for National and Community Service, objected that the program amounts to a government establishment of religion. “Regardless of how such hours spent engaging in religious instruction are counted for the Corporation’s accounting purposes,” the AJCongress’s complaint alleges, “an AmeriCorps participant who is publicly identified with the AmeriCorps program, who is placed as a teacher in a private sectarian school by a private religious organization, and who receives federal financial assistance for working in that teaching position, is still engaged in religious indoctrination in violation of the First Amendment.”

The AJCongress also argued that the corporation’s approval of the Alliance for Catholic Education and similar programs “as eligible to place individuals in national service positions has the purpose or effect of endorsing religion, in violation of the First Amendment.”

Were such logic to prevail, one can see the difficulty it would present for future partnerships between government and religious charities. “If we prevail, there will be an outer limit on what’s permissible in charitable choice,” a lawyer for the AJCongress, Marc Stern, told the magazine Christianity Today when the lawsuit was first filed in 2003.

The American Jewish Congress has played an important role in the struggle for religious liberty and a civil society in America, and Mr. Stern is one of its heroes. But the AJCongress, despite an initial victory in district court, has not prevailed. The appeals court noted that the AmeriCorps program creates no incentives for participants to teach religion since only time spent on non-religious subjects counts toward their service hours requirement. “Individual participants who elect to teach religion in addition to secular subjects do so only as a result of ‘their own genuine and independent private choice,’ ” explained the court, and therefore the government can’t be seen as making an endorsement one way or the other.

By the AJCongress’s rules, AmeriCorps would need to prohibit its volunteers from engaging in religious activities even on their own time – thereby not only discriminating against religious believers, but also subverting the First Amendment’s guarantee of free exercise of religion.

“When a government program is neutral toward religion and ‘provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice,’ the Establishment Clause is not violated,” the appeals court held, quoting the Supreme Court’s 2002 decision upholding Ohio’s school-voucher program.

So when a program is open to all, the government doesn’t need to exclude religious groups and individuals. “This is another hopeful sign that the constitutional law with regard to the relationship of religion and state is on the right track – toward moderation and toleration rather than the discrimination which some continue to seek,” said the director of public policy for the Union of Orthodox Jewish Congregations, Nathan Diament, in response to the ruling.

We are at a moment when the courts are moving away from requiring anti-religious discrimination toward a tolerant neutrality. We’d like to think that over time this will prove beneficial to all religions without harming the freedom, recognized as far back as the founding of America, of those Americans who are not religious at all and do not wish to see the government establish one faith.