Lown v. Salvation Army, Inc.

*226 OPINION & ORDER

Current and former employees of the Salvation Army bring this action for relief from the Salvation Army’s efforts to enforce compliance with its religious mission among its staff. Plaintiffs claim to have been subjected to unlawful religious discrimination and have brought suit against the Salvation Army, as well as against the City of New York and the commissioners of several state and local government entities that contract with the Salvation Army for the provision of social services. Plaintiffs allege violations of the First and Fourteenth Amendments to the U.S. Constitution, Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq., and various provisions of state and local law. All defendants have moved to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6).

As plaintiffs have failed to allege that the discrimination they suffered can properly be attributed to the government defendants, the motion of the government defendants is granted, except insofar as it pertains to plaintiffs’ taxpayer-standing-based Establishment Clause claim. Because the Salvation Army is not a state actor, and because it enjoys statutory exemptions from liability for religious discrimination, its motion to dismiss is granted with respect to all claims against it, except plaintiffs’ retaliation claims pursuant to state and city law.

Table of Contents

I. Background.227

A. The Parties.227

B. The Salvation Army’s Programs.228

C. Interaction Between Government Agencies and the Salvation Army.228

D. Diversion of Funds to the Salvation Army Church .229

E. The Reorganization Plan .229

F. Content of Services Delivered.233

G. Procedural History.233

II. Analysis.234

A. Standard.234

B. The Government Defendants’ Motion.234

1. Equal Protection.235

2. Establishment Clause .237

a. Standing.237

b. Stating an Establishment Clause Claim.239

C. The Salvation Army’s Motion.241

1. Constitutional Claims Against The Salvation Army.241

a. Federal Constitutional Claims.241

b. State Constitutional Claims.244

2. Employment Discrimination Claims .245

a. Federal Employment Discrimination Claim.246

b. State and Local Employment Discrimination Claims.252

3. Retaliation Claims .253

*227 III. Conclusion.255

I. BACKGROUND

The factual allegations, as set forth in the Amended Complaint, are recounted below.

A. The Parties

The plaintiffs, eighteen present and former employees of the Salvation Army, 1 include taxpayers of each of the jurisdictions represented by the government defendants. (Am.Compl. ¶¶ 2, 15). Sixteen of the plaintiffs have worked at Social Services for Children (“SSC”), a Salvation Army program that provides social services on behalf of the City of New York, the State of New York and the Counties of Nassau and Suffolk. (Id. ¶ 1).

The defendants are the Salvation Army, the City of New York and the commissioners of several state and local government entities that contract with the Salvation Army for the provision of social services. The Salvation Army is a not-for-profit eor-poration organized pursuant to the laws of the State of New York. (Id. ¶ 41). John B. Mattingly is the Commissioner of the New York City Administration for Children’s Services; Neil Hernandez is the Commissioner of the New York City Division of Juvenile Justice; Thomas A. Maul is the Commissioner of the New York State Office of Mental Retardation and Developmental Disabilities; Antonia C. Novello is the Commissioner of the New York State Department of Health; Robert Sherman is the Commissioner of the Nassau County Department of Social Services; Janet DeMarzo is the Commissioner of the Suffolk County Department of Social Services (collectively, the “individual defendants”). (Id. ¶ 43^i8). Each of the individual defendants is sued in his or her official capacity for injunctive relief. (Id.). Together with the City of New York, the individual defendants are referred to as the “government defendants.” 2

*228 B. The Salvation Army’s Programs

The Greater New York Division of the Eastern Territory of the Salvation Army runs programs in New York City and several surrounding counties, including Nassau and Suffolk. (Am.CompJ 53). The Greater New York Division administers social services through two organizations, SSC and Social Services for Families and Adults (“SSFA”). (Id. ¶ 54). Under contract with the government defendants (id. ¶ 61), SSC runs various programs, a number of which involve government-mandated custodial care. (Id. ¶ 68). Nearly 90% of the clients SSC serves are referred by, or in the custody of, government agencies and are assigned to SSC involuntarily. (Id. ¶¶ 3-4, 66-67). Among the services that SSC provides to more than 2,300 clients daily are: “foster care and adoption services, group homes, boarding homes, a non-secure detention facility for juvenile delinquents, services for children with developmental disabilities, HIV services, and group day care.” (Id. ¶¶ 3, 65). SSC is subject to significant regulatory oversight in the provision of these services. For example, SSC is an “authorized agency” pursuant to New York Social Services Law § 371(10) for providing child welfare services, a registered family day care provider in New York City and a licensed group day care provider in Nassau County. (Id. ¶¶ 57-59).

SSC derives more than 95% of its approximately $50 million budget from its contracts with government entities. (Id. ¶ 60). Consequently, the salaries of SSC’s 900 employees are paid virtually in full with funds that SSC receives through its government contracts. (Id. ¶ 64). Those contracts prohibit SSC from engaging in unlawful employment discrimination. (Id. ¶ 62).

C. Interaction Between Government Agencies and the Salvation Army

Plaintiffs allege several forms of cooperation between the government defendants and the Salvation Army. First, SSC staff and government employees allegedly work together to administer various services that SSC provides. (Am.Compl. ¶¶ 65-89). For example, with respect to foster care services in the City of New York, staff from the Administration for Children’s Services and SSC work in concert to “recruit potential adoptive parents, give orientations and training sessions, evaluate the suitability of pre-adoptive homes and coordinate the adoption process from initial planning to the adoption finalization in court proceedings.” (Id. ¶ 72). Second, as mandated by the government agencies with which it has contracts, SSC operates a variety of accounting systems for keeping track of payments to, and accounts maintained on behalf of, certain clients. 3 (Id. ¶¶ 92-95). The State pays for much of the computer equipment necessary to manage these accounts. (Id. ¶ 93). Third, SSC must use several government-mandated systems for standardization of child welfare data. 4 (Id. ¶¶ 98-110). *229 SSC’s in-house data is routinely merged with data from the state’s central registry. (Id. ¶ 106). The data coordination procedures allegedly involve close cooperation among SSC and the relevant government agencies. (Id.). Fourth, the government defendants impose specific training requirements on SSC staff and clients. For example, SSC foster parents must receive 30 hours of “Model Approaches to Partnership in Parenting” training, and SSC social workers must receive five days of new social worker training. (Id. ¶¶ 112-13). In addition, SSC child care workers, foster parents and social workers are required to undergo annual training on various topics including “child neglect and abuse, AIDS prevention and understanding, working with people with AIDS, first aid, CPR and Therapeutic Crisis intervention.” (Id. ¶ 114).

D. Diversion of Funds to the Salvation Army Church

Plaintiffs allege that SCC provides 10% of the revenue from its government contracts to the Salvation Army Church in the form of “field service” payments. (Am. Compl. ¶ 115). Although these payments purportedly reimburse the Salvation Army Church for administrative overhead expenses, SSC allegedly receives little administrative support in exchange. (Id. ¶ 116). Plaintiffs contend that SSC and its programs pay for their own administrative support despite making the “field service” payments. (Id. ¶ 116). The Salvation Army Church allegedly uses the “field service” payments to advance its religious mission. (Id. ¶ 118).

E. The Reorganization Plan

Historically, the Salvation Army did not scrupulously monitor SSC employees for adherence to the Salvation Army’s religious tenets. SSC had its own secular mission statement. (Am.Compl. ¶ 150). Nevertheless, in the several months leading up to the filing of the complaint, the Salvation Army began to infuse religion into SSC’s workplace. (Id. ¶ 6). The Salvation Army implemented a “Reorganization Plan” meant to advance a “One Army Concept” whereby the Salvationist spirit would be promoted among the Salvation Army’s social service programs. (Id. ¶¶ 120-22). The Reorganization Plan ensured that “ ‘a reasonable number of Sal-vationists along with other Christians [will be employed]’ because The Salvation Army is ‘not a Social Service Agency [but] a Christian Movement with a Social Service program.’ ” (Id. ¶ 120). The goal was that “ ‘[t]here should be one Salvation army with a single Mission Statement, driven by the vision of one leader.’ ” (Id. ¶ 122).

The Reorganization Plan outlined new responsibilities for Salvation Army leaders. For example, the Secretary for Personnel of the Greater New York Division must “ ‘conduct Sunday and weekday meetings at corps, residences, and social service institutions, within the division, with the aim of leading souls to Christ, the growth of Christian faith among the Salvation Army, and the instruction of our soldiers in Salva-tionism.’ ” (Id. ¶ 123) (emphasis in Am. Compl.). The Secretary for Social Ser *230 vices must “ ‘safeguard the essential Christian perspective towards social services” and “promote the unique spirit of Salva-tionism in social services. ’ ” (Id. ¶ 124) (emphasis in Am. Compl.). The Reorganization Plan further directed that the Secretary for Personnel and the Secretary for Social Services of the Greater New York Division each “ ‘conduct all activities of his office with a view to accomplishing the Army’s fundamental purpose of proclaiming Jesus Christ as Savior and Lord, which purpose must find expression in both the message proclaimed and the ministry of service performed.’ ” (Id. ¶¶ 123-24).

The Reorganization Plan has affected the procedures of SSC’s human resources operation. The Salvation Army’s mission statement now appears on job descriptions and postings and reads as follows:

The Salvation Army, an international movement, is an evangelical part of the universal Christian church. Its message is based on the Bible. Its ministry is motivated by the love of God. Its mission is to preach the gospel of Jesus Christ and to meet human needs in His name without discrimination.

(Id. ¶ 151). The Reorganization Plan also expressed concern about having a non-Christian Director of Human Resources at SSFA:

[W]e have chosen to hire a Director of Human Resources for Social Services for Families and Adults, who represents an eastern religion ... Is it responsible to have a Buddhist or Hindu present the Army’s Mission Statement and to expect that she will be able to represent us well when questions are asked? We are not a Social Service Agency. We are a Christian Movement with a Social Service Program.

(Id. ¶ 125). Salvation Army leaders conveyed similar anxiety regarding the religious affiliation of human resources staff at SSC. In March of 2003, Colonel Paul Kelly required the Director of Human Resources at the Divisional Headquarters, Maureen Schmidt, to contact SSC’s Human Resources Director, plaintiff Margaret Geissman, in order to collect information on the religious affiliation of SSC Human Resources staff. (Id. ¶ 126). After Geissman refused to compile the requested information, she was informed by Schmidt that “ ‘they are going to find out about everyone eventually because they want more Christians, especially Salva-tionists employed at SSC.’” (Id.). Kelly also voiced concern that Geissman might be Jewish, but Schmidt informed him that she was not. (Id. ¶ 127).

Schmidt asked Geissman to name the homosexuals working at SSC, but Geiss-man refused to comply. (Id. ¶ 128). Geissman complained to Schmidt and to then-SSC Executive Director Robert Gu-theil that she felt the questions of Kelly and Schmidt were harassing and discriminatory. (Id.). Gutheil communicated Geissman’s and his own concerns regarding the questioning to the leadership at Divisional Headquarters. (Id. ¶ 130). The Salvation Army allegedly took no action to address the complaints. (Id. ¶ 133).

Before the advent of the One Army Concept, the Salvation Army’s Employee Manual had expressly stated that the Salvation Army was not waiving “any right in the free exercise of religion” in its employment practices. (Id. ¶ 134). Nevertheless, a June 4, 2003 memorandum stated a principle of non-discrimination by SSC in employment with respect to creed. (Id. ¶¶ 134-36). Around September 16, 2003, Major Henrietta Klemanski, Secretary for Personnel for the Eastern Territory, distributed a memorandum announcing the abandonment of all addenda to the Employee Manual, including the June 4, 2003 memorandum. (Id. ¶¶ 137-38). Approxi *231 mately six months later, the Employee Manual was officially revised to eliminate the principle of non-discrimination with respect to creed that was contained in the June 4, 2003 memorandum. 5 (Id. ¶ 139). The revised Employee Manual included a section entitled “ ‘The Rules of Conduct,’ ” which provided that although “ ‘[t]he Salvation Army does not make employment decisions on the basis of an individual’s sexual orientation or preference[,]’ ” it nonetheless “ ‘reserve[s] the right to make employment decisions on the basis of an employee’s conduct or behavior that is incompatible with the principles of the Salvation Army.’ ” (Id. ¶ 140).

Employees also allegedly had to fill out a form acknowledging the receipt of the Employee Manual. That form contained the following statements:

I understand The Salvation Army’s status as a church and agree I will do nothing as an employee of The Salvation Army to undermine its religious mission.

I agree and understand that my services are a necessary part of The Salvation Army’s programs and that my conduct must not conflict with, interfere with, or undermine the Army’s programs or the Army’s purposes.

(Id. ¶ 141).

In effectuating the One Army Concept, the Salvation Army distributed a “Work with Minors Form” that all employees were required to complete. (Id. ¶ 142). That form mandated disclosure of employees’ “Present Church, Minister of Church, Other Churches attended regularly during the past ten years.” (Id. ¶ 143). It also directed employees to permit the Salvation Army to procure information from employees’ churches regarding the fitness of those employees to work with minors. 6 (Id. ¶ 146).

*232 After communicating his disagreement with the policy of compelling SSC employees to sign the Work with Minors Form, then-Executive Director of SSC Robert Gutheil was fired. (Id. ¶¶ 154-56). Alfred J. Peck, who had been Director of SSFA, became the Acting Director of SSC. (Id. ¶ 157). Plaintiff Lown was asked to assume Gutheil’s job duties, but was demoted from Associate Executive Director to Associate Director. (Id.). Peck instructed Lown that all employees were to sign the Work with Minors Form by January 1, 2004. (Id. ¶ 158). He insisted that each employee record specific information and that answering questions by writing “not applicable” was not an option. (Id. ¶ 159). Despite Peck’s orders, Lown and Geiss-man agreed that they would not require new employees to sign the Work with Minors Form, and that they would send employment packages to Divisional Headquarters for approval without that form. (Id. ¶ 161). At the end of October of 2003, Divisional Headquarters refused to approve new SSC hires because their employment packages did not include Work with Minors Forms. (Id. ¶ 163).

On or about October 28, 2003, at a meeting of the SSC Cabinet, Peck explained to the senior managers of all SSC departments and programs that all job descriptions had to include the mission statement of the Salvation Army and that any employee refusing to sign a job description would be fired. (Id. ¶ 162). In November, Divisional Headquarters rejected new SSC job postings that lacked the Salvation Army’s mission statement. (Id. ¶ 164). That same month, Geissman resigned because of the allegedly hostile work environment at SSC. (Id. ¶ 165). Petr Niki-chin assumed Geissman’s duties, but he resigned in February of 2004 for similar reasons. (Id. ¶ 166).

In late December, Peck informed Lown that she would be responsible for reporting the employees who failed to complete the Work with Minors Form by New Year’s Day. (Id. ¶ 170). He also instructed that she formulate a corrective action plan for getting all employees who missed the January 1 deadline to sign the form. (Id). In a January 1, 2004 memorandum to Peck, Lown — who in December had filed charges against the Salvation Army with the U.S. Equal Employment Opportunity Commission — conveyed an unwillingness to develop a corrective action plan in light of the fact that she had disputed the legality of the Work with Minors Form. (Id. ¶¶ 169, 171). Peck then relieved Lown of responsibility for obtaining completed Work with Minors Forms and reprimanded her for questioning whether it was appropriate to require SSC staff to attend an HIV training program with a religious focus. (Id. ¶¶ 172, 187-91). Lown resigned in February of 2004 because of the allegedly hostile work environment at SSC. (Id. ¶22). Peck requested that the various SSC program directors distribute the form *233 to their respective staff members and collect the completed forms before February 27, 2004; he also notified the directors that anyone who did not complete the form would be deemed “insubordinate” and fired. (Id. ¶¶ 173-74).

Plaintiffs allege that since the Reorganization Plan efforts began, manifestations of Christian faith have appeared in the workplace, including recitation of prayers at staff meetings and functions, frequent depositing of religious publications in employee mailboxes, conspicuous display of religious publications and regular public postings for prayer meetings and other religious events. (Id. ¶ 183). Plaintiffs claim that these circumstances and the Salvation Army’s intrusive inquiries have contributed to a hostile work environment that led to the constructive termination of plaintiffs Lown, Bielarski, Cogan-Kozusko, Copes, Dessables, Geissman, Gorham, In-ouye, Nikichin and Obermaier. (Id. ¶¶ 8, 10, 22, 24-27, 29, 31-32, 34, 36).

F. Content of Services Delivered

Plaintiffs allege that the Reorganization Plan initiatives “conflict with plaintiffs’ ethical and professional obligations as social workers....” (Am.Compl. ¶¶8, 147, 152,175). Plaintiffs explain that they:

cannot, as a matter of conscience and professional responsibility, sign a form stating that they would acknowledge and support The Salvation Army’s Evangelical Christian teachings, and fear that the new religious requirements will require them to provide mandated, government-funded social services to children in a manner that conflicts with them legal and professional obligations. For example, the children assigned to receive foster care and other services from The Salvation Army include sexually active teenagers who are at risk for HIV, sexually transmitted infections and unintended pregnancy. However, The Salvation Army condemns, among other things, non-marital sexual relationships, contraceptive use outside of marriage, homosexuality, abortion, social drinking, gambling, smoking and drug use as “unacceptable according to the teaching of Scripture.” Consequently, Plaintiffs claim that their legal and professional obligation to provide these teenagers with services conflicts with the religious principles of The Salvation Army.

(Id. ¶ 9; see also id. ¶ 176). Plaintiffs also claim that signing the Work with Minors Form would violate the Code of Ethics of the National Association of Social Workers. (Id. ¶ 180). The Code directs that “ ‘social workers should not allow an employing organization’s policies, procedures, regulations or administrative orders to interfere with their ethical practice of social work.’ ” (Id.). Pursuant to the Code, ethical practice of social work includes an obligation not to “ ‘practice, condone, facilitate, or collaborate with any form of discrimination on the basis of race, ethnicity, sex, sexual orientation ... marital status, political belief, [or] religion.’ ” (Id.).

G. Procedural History

Plaintiffs’ original complaint contained claims pursuant to the federal and New York State Constitutions, as well as state and local antidiscrimination laws. Defendants brought motions to dismiss that complaint pursuant to Fed.R.Civ.P. 12(b)(6). Before any adjudication of those motions, plaintiffs received notice of their right-to-sue from the U.S. Equal Employment Opportunity Commission and amended their complaint to include claims pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. 7 The Court then denied defendants’ motions to dismiss the original complaint as moot, and *234 defendants brought the instant motions to dismiss the amended complaint. 8

II. Analysis

A. Standard

When reviewing a motion to dismiss for failure to state a claim for relief pursuant to Fed.R.Civ.P. 12(b)(6), a district court may only dismiss plaintiffs’ claims if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Drake v. Delta Air Lines, Inc., 147 F.3d 169, 171 (2d Cir.1998) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)) (quotation marks omitted). A court must treat all factual allegations in the complaint as true and draw all reasonable inferences in plaintiffs’ favor. See Ganino v. Citizens Utils. Co., 228 F.3d 154, 161 (2d Cir.2000); Lee v. Bankers Trust Co., 166 F.3d 540, 543 (2d Cir.1999).

“A complaint need only ‘give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.’ ” Phillip v. Univ. of Rochester, 316 F.3d 291, 293 (2d Cir.2003) (quoting Conley, 355 U.S. at 47, 78 S.Ct. 99); see also Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The forgiving notice pleading rules “apply with particular stringency to complaints of civil rights violations.” Phillip, 316 F.3d at 293-94.

B. The Government Defendants’ Motion

Plaintiffs bring claims against the government defendants for alleged violation of *235 the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, the Establishment Clause of the First Amendment to the U.S. Constitution and Article I, Section Eleven of the New York Constitution. Because plaintiffs have failed to state a claim upon which relief can be granted with respect to all their claims other than their taxpayer-standing-based Establishment Clause claim, the government defendants’ motion to dismiss the complaint is granted in part and denied in part.

1. Equal Protection

Plaintiffs have failed to state claims against the government defendants for allegedly violating the federal Equal Protection Clause and Article I, Section Eleven of the New York Constitution by supporting the Salvation Army, which was allegedly engaged in discrimination on the basis of religion. The Amended Complaint does not contain allegations that the government defendants’ respective decisions to fund SSC programs ran afoul of the Equal Protection Clause, nor that the employment practices of the Salvation Army may properly be attributed to the government defendants.

The Equal Protection Clause provides that “[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. Section 1983 grants plaintiffs a cause of action for violations of the Fourteenth Amendment. 42 U.S.C. § 1983. It states, in pertinent part, that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress[.]” Id.

The Equal Protection Clause prohibits the government from subjecting individuals to “selective treatment ... based on impermissible considerations such as ... religion.” Knight v. Conn. Dep’t of Public Health, 275 F.3d 156, 166 (2d Cir.2001) (quoting Diesel v. Town of Lewisboro, 232 F.3d 92, 103 (2d Cir.2000) (quotation marks omitted)). To state an Equal Protection Clause claim, plaintiffs must allege that the government decisionmakers acted with discriminatory intent or purpose. See Thomas v. City of New York, 143 F.3d 31, 37 (2d Cir.1998) (affirming dismissal of an Equal Protection Clause claim when “plaintiffs did not allege sufficient facts to support discriminatory intent on the part of the legislature.”); see also Patterson v. County of Oneida, 375 F.3d 206, 226 (2d Cir.2004) (“[A] plaintiff pursuing a ... denial of equal protection ... must show that the discrimination was intentional.”); Knight, 275 F.3d at 166 (2d Cir.2001) (Plaintiffs must show “that the decision-makers ... acted with discriminatory purpose.”) (quoting McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987)) (quotation marks omitted).

To plead intentional discrimination in violation of the Equal Protection Clause, a plaintiff must allege that the state expressly classified on the basis of a suspect characteristic, see Brown v. City of Oneonta, New York, 221 F.3d 329, 337 (2d Cir.2000), applied a neutral program in an intentionally discriminatory manner, see id. (citing Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)), or promulgated a policy that was motivated by discriminatory animus and that had an adverse effect, see id. (citing Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65, 97 S.Ct. *236 555, 50 L.Ed.2d 450 (1977), and Johnson v. Wing, 178 F.3d 611, 615 (2d Cir.1999)). Plaintiffs never allege that the government defendants expressly classified on the basis of religion, intended to discriminate, nor possessed animus in the execution of the contracts at issue. Indeed, the contracts existed before the Salvation Army initiated the Reorganization Plan and they included provisions mandating that the Salvation Army not engage in unlawful employment discrimination. (See Am. Compl. ¶ 62). The absence of any allegations of impermissible intent or purpose, combined with allegations giving rise to the strong inference that the government defendants intended that the Salvation Army not discriminate, preclude plaintiffs’ Equal Protection Claim against the government defendants. See Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 869-70 (2d Cir.1996) (holding that a public school permitting a religious student club to discriminate on the basis of religion did not violate the Equal Protection Clause because “there is no invidious discrimination here.... ”).

The absence of allegations that the government defendants engaged in intentional or purposeful discrimination also proves fatal to plaintiffs’ claim pursuant to the New York Constitution. 9 See Hayut v. State Univ. of New York, 352 F.3d 733, 754-55 (2d Cir.2003) (applying the same analysis to a claim pursuant to Article I, Section Eleven of the New York Constitution as to a claim pursuant to the federal Equal Protection Clause) (citing Brown v. State, 89 N.Y.2d 172, 190, 652 N.Y.S.2d 223, 674 N.E.2d 1129 (1996)); Under 21 v. City of New York, 65 N.Y.2d 344, 360 n. 6, 492 N.Y.S.2d 522, 482 N.E.2d 1 (1985).

Plaintiffs claim that Norwood v. Hamson, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973), supports their Equal Protection Clause claim because the case barred the government from providing material support to discriminatory organizations. Norwood held that the Equal Protection Clause prohibited the government from providing textbooks to private schools that engaged in racial discrimination. See id. Plaintiffs cite no cases applying the holding of Norwood to organizations that discriminate on the basis of religion. Indeed, the Norwood Court distinguished the case before it from others in which the government extended aid to religious schools because unlike discrimination on the basis of race to which the Constitution ascribes no value, discrimination on the basis of religion may stem from the right to free exercise, which is constitutionally protected. See id. at 469-70, 93 S.Ct. 2804. The Court specifically noted that “the Constitution ... places no value on [racial] discrimination as it does on the values inherent in the Free Exercise Clause.” Id. Plaintiffs cannot lean on Norwood to support their Equal Protection claim.

The U.S. Supreme Court’s decision in Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 107 S.Ct. 2862, 97 L.Ed.2d 273 (1987), further undercuts plaintiffs’ Equal Protection Clause claim. The Amos Court rejected an Equal Protection challenge to Section 702 of the Civil Rights Act of 1964, a provision that exempts religious organizations from the antidiscrimination principle of Title VII *237 when they discriminate on the basis of religion in employment. See id. The Court explained that “where a statute is neutral on its face and motivated by a permissible purpose , we see no justification for applying strict scrutiny to [that] statute [if it] passes the Lemon [v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971) ] test [for gauging violations of the Establishment Clause].” Amos, 483 U.S. at 339, 107 S.Ct. 2862. In its Equal Protection Clause analysis, the Amos Court subjected Section 702 to the forgiving rational basis review standard, merely requiring a showing of “a rational classification to further a legitimate end.” Id.; see also Locke v. Davey, 540 U.S. 712, 720 n. 3, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004) (“Because we hold ... that the program is not a violation of the Free Exercise Clause, however, we apply rational-basis scrutiny to [plaintiffs] equal protection claims.”). Similarly here, the Equal Protection Clause does not dictate rigorous scrutinizing of the contracts. Rather, meaningful constitutional scrutiny of those contracts is properly carried out pursuant to the Establishment Clause. The contracts are religion-neutral, and they were executed for the permissible purpose of providing social services. Therefore, for Equal Protection Clause purposes, the contracts are subject to mere rational basis review, a degree of scrutiny they plainly survive.

Plaintiffs have alleged no facts suggesting that the government defendants’ funding decisions constituted intentional discrimination, and have instead proffered facts suggesting that the government defendants intended that the Salvation Army not discriminate. Moreover, as discussed infra, the Salvation Army’s allegedly purposeful discriminatory actions may not be ascribed to the government defendants. Accordingly, plaintiffs’ claims pursuant to the Equal Protection Clause and Article I, Section Eleven of the New York State Constitution against the government defendants are dismissed. 10

2. Establishment Clause

The Establishment Clause of the First Amendment to the U.S. Constitution, which provides that “Congress shall make no law respecting an establishment of religion[,]” applies to the states through the Due Process Clause of the Fourteenth Amendment. See Zelman v. Simmons-Harris, 536 U.S. 639, 648-49, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002); DeStefano v. Emergency Hous. Group, Inc., 247 F.3d 397, 405 (2d Cir.2001). Plaintiffs allege that by funding the Salvation Army, the government defendants have violated the Establishment Clause. Before determining whether plaintiffs have satisfactorily stated a claim for violation of the Establishment Clause, the Court must ascertain w