I assume that most all of you will agree that this program is indefensible
under modern Establishment Clause doctrines. Can anyone offer even a
colorable argument to the contrary?
http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html
A Blatantly Unconstitutional Federal Religion-in-Prisons Program
Marty Lederman
The Department of Justice's Bureau of Prisons (BOP) has established "a
residential multi-faith restorative justice program" entitled Life
Connections. According to the Department of Justice:
The 18-month program is open to adult volunteer inmates in both male and
female facilities in five BOP facilities across the country. The mission of
the program is to reduce recidivism and bring reconciliation to victim,
community and inmate through personal transformation using the participant's
faith commitment. Inmates parate explore his faith's way to restoration with
one's God, family, community, and self. Spiritual guides, brought into the
facility under contract by BOP, lead small group studies of each faith's
sacred texts. Participants also are matched with volunteer mentors of their
faith who visit weekly, and are linked with a faith community at their
release destination in order to enhance community reiticipate in
religion-specific and interfaith program components designed to help the
inmntegration.
BOP is now soliciting proposals from private parties to act as contractors
to administer the Life Connections program. According to this March 31,
2006, letter, the proposal is for provision "of single-faith, residential
re-entry programs" at one or more of six pilot sites in the federal prison
system.
From all that appears, this program, and the funding that BOP plans to
offer, is manifestly unconstitutional in several respects.
1. Most fundamentally, the program will involve direct federal financing of
religious teaching and indoctrination. Under currently governing doctrine,
repeatedly reaffirmed by the Supreme Court and most recently re-articluated
by Justice O'Connor's governing opinion in Mitchell v. Helms, the
Establishment Clause of the First Amendment forbids direct state financing
of religious teaching and other forms of religious indoctrination. See
generally pages 13-16 of this Office of Legal Counsel Opinion. As a
unanimous Supreme Court has explained, the state may not directly fund
programs that involve "explicitly religious content" or that are "designed
to inculcate the views of a particular religious faith." Bowen v. Kendrick,
487 U.S. 589, 621 (1988). Indeed, even Justice Thomas's plurality opinion in
Mitchell, which would have eased some of the constitutional restrictions
established in the governing O'Connor opinion, did not take issue with this
baseline "no direct funding" rule with respect to direct financial aid.
Therefore, even if the Life Connection program were not within and part of
the federal prison system itself, but were instead merely a federal
financial assistance program to private non-governmental operations outside
the federal enclave, the funding of faith-intensive rehabilitation
operations would be unconstitutional. Indeed, the Bush Administration itself
has repeatedly taken pains to emphasize, with respect to its other
faith-based programs, that recipients of direct federal aid "can not use any
part of a direct Federal grant to fund religious worship, instruction, or
proselytization. Instead, organizations may use government money only to
support the non-religious social services that they provide. Therefore,
faith-based organizations that receive direct governmental funds should take
steps to separate, in time or location, their inherently religious
activities from the government-funded services that they offer. Such
organizations should also carefully account for their use of all government
money."
On this ground alone, the Life Connections program is unconstitutional.
2. The very purpose of the program, acknowledged by BOP, is "to facilitate
personal transformation." (See page 1 of Attachment II, here.) Indeed, one
of the ten program goals is "spiritual development" (see page 3 of that
attachment). These are constitutionally illegitimate state interests. The
government is required to be neutral -- agnostic, really -- on questions of
transformation and spiritual development. BOP suggests that its interest in
spiritual development of inmates is in the broader service of trying to
"reduce recidivism through promoting the virtues of productive work, respect
for others, self-worth, responsibility, and accountability." Those are, of
course, legitimate state goals. But the government cannot specifically aim
at religious transformation as a means of accomplishing those secular ends.
As Madison explained in his Memorial and Remonstrance Against Religious
Assessments, employing religion "as an engine of Civil policy" is forbidden,
not least because it is "an unhallowed perversion of the means of
salvation." What is more, I think there's something profoundly disturbing --
whether or not it's constitutional -- in the federal government advancing
the view that the virtues of productive work, respect for others,
self-worth, responsibility, and accountability are correlated with religious
transformation or faith; but that's a broader topic, perhaps for another
post.
3. But the constitutional probelms are actually much worse than that,
because Life Connections is not merely a private program funded by the
government: It is a government program itself, within federal prisons, using
federal contractors. The operation of the program therefore almost certainly
would be deemed state action. See, e.g., West v. Atkins (private physician
under contract to provide orthopedic services at a state-prison hospital on
a part-time basis was a state actor acting under color of state law). And
just as the state may not engage in religious teaching or indoctrination in
its schools or other institutions, it may not do so in prisons, either.
What about prison chaplains, who are, after all, state employees? The
religious conduct of prison (and military) chaplains is a narrow exception
to the general rule that the state may not engage in religious activity. The
theory is that because the state, by incarcerating prisoners in a
government-controlled enclave, has prevented those prisoners from exercising
their religion, the provision of chaplains is a permissible "accommodation"
that alleviates a significant burden on religious exercise that the state
itself has imposed. In order to re-establish a modicum of religious freedom
for prisoners who cannot worship or receive religious counseling while in
prison, many prisons permit clergy to perform such services for prisoners.
Cf. Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985). That accommodation model
has no application to the Life Connection program, which is not designed to
provide prisoners the opportunity to engage in religious exercise that they
would otherwise be denied, but is instead specifically designed to advance
the state's own rehabilitative goals. Moreover, prison chaplains must
minister to the religious needs of all prisoners on an ecumenical basis;
their function is not to inculcate any particular religion. In this respect,
too, the Life Connection program is not analogous to established chaplaincy
programs.
4. Even in contexts where private religious organizations are eligible to be
funded (or receive a contracting bid) on equal terms with secular
organizations, it is well-established that the state may not prefer
religious organizations. The criteria for decision must be neutral and
secular. See page 12 of this OLC Opinion. By soliciting applications for
"single-faith, residential re-entry programs," BOP is expressly signaling a
preference for religious providers. That's unconstitutional.
5. Moreover, denominational preferences are especially disfavored under the
First Amendment. See Larson v. Valente. BOP's requirement of a
"single-faith" organization violates this principle. Indeed, it's not
immediately apparent why BOP would have any legitimate interest at all in
having the programs be "single-faith."
6. According to a letter sent to the Attorney General from Americans United
for Separation of Church and State (apparently not yet available online, but
discussed in this Washington Post story), BOP "has tailored its bidding
requirements to fit one particular program: an immersion in evangelical
Christianity offered by Charles W. Colson's Prison Fellowship Ministries."
Americans United alleges that there are ten ways in which BOP's request for
proposals from private contractors dovetails with Prison Fellowship's
"InnerChange" program. I don't know whether that is true; but if it is, such
gerrymandering of the program to a particular faith group would be yet
another constitutional problem. See Board of Education of Kiryas Joel v.
Grumet.
* * * *
I should note that, at least on its face, the BOP program would not
necessarily raise two other constitutional problems often associated with
Prison Fellowship programs. First, a DOJ spokesperson asserts that the
program does not coerce or induce prisoners to adopt or feign religious
adherence, because participation will be voluntary and the inmates who
choose to take part will receive "no reduction in their sentence . . . no
better facilities, same food, same privileges and disciplinary rules."
Second, BOP insists (see page 5 of Attachment II, here) that participating
inmates who are not adherents of the program's faith "may not be required to
participate in religious ritual practices or creedal confessions
inconsistent with their faith or practice," although they "must otherwise
participate in all non-religious aspects of the faith-based program." This
might be some small solace -- although it's not clear whether there will be
any significant "non-religious aspects" of faith-intensive programs such as
those operated by Prison Fellowships.
* * * *
With all of these constitutional infirmities, it is hard to imagine that the
Office of Legal Counsel signed off on this BOP program. (Disclosure: I
worked at OLC until November 2002, and in that capacity provided some legal
advice about issues such as those discussed in this post. But I do not
recall being involved in any specific discussion about the Life Connections
program, and I was not and have not been privy to any OLC legal analysis in
support of the Life Connections program, assuming any exists (which I do not
know).) I would be surprised if any serious student of the Establishment
Clause concludes that the program is constitutional. Unless I'm missing
something rather significant, it's not a close call.
Note that a lawsuit challenging a similar prison religious program in the
Iowa state prison system is currently pending before federal District Judge
Robert Pratt. Much more on that lawsuit is available in this analysis
written by Religion Clause experts Chip Lupu and Bob Tuttle.
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