The other day I posted about the unconstitutionality of the BOP religious-rehabilitation funding program. See http://balkin.blogspot.com/2006/04/blatantly-unconstitutional-federal.html.
FYI, the Freedom from Religion Foundation has now sued to challenge the program: http://ffrf.org/legal/gonzales_complaint.html Rob Vischer and Rick Garnett have each posted thoughtful questions about my assertion that the state's interest in promoting religious transformation is an illegitimate (and troubling) governmental objective. Vischer: http://www.mirrorofjustice.com/mirrorofjustice/2006/05/government_fund.html Garnett: http://prawfsblawg.blogs.com/prawfsblawg/2006/05/religion_in_pri_1.html Rick writes, for example, the following: I certainly share Marty's (and Madison's) concern about religious faith being reduced to a convenient means for achieving the government's "secular" ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be "profoundly disturbing" -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that "religious transformation [and] faith" are good (when freely embraced). There are dangers here, absolutely. Still . . . (To be clear: I'm not necessarily endorsing this particular program.) Also, Marty writes, "[t]he government cannot specifically aim at religious transformation as a means of accomplishing those secular ends." Does this mean, I wonder, that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom? To which I have posted a response that includes the following. (I'd very much appreciate reactions on, especially, the fourth and final point): 1. You ask whether my critique means "that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?" No, it doesn't *entirely* mean that. One of the principal objectives of the religion clauses themselves is to encourage or require the government to act so as to eliminate *government-created obstacles* to the flourishing of religious faith and freedom. So, for example, I favor -- and have worked to enact and defend -- certain religious "accommodation" statutes, such as RFRA and RLUIPA. However, although the state may advance the view that religious *freedom* (including the freedom to reject religion) is a good thing in and of itself, it may not advance the view that religious *faith* is a positive good in and of itself -- or that it's the means to valuable secular ends. 2. The government is simply not capable of determining whether "religious transformation [and] faith" are a "good" thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government. (Or so argues the Madisonian, and modern, view of the Religion Clauses -- and I agree, although I'm very interested in hearing dissenting views.) And so it surely follows that government may not discriminate in favor of religion in the dispersal of funds on the basis of such judgments concerning the value of faith. 3. I think it's also "troubling," and unconstitutional, for the state to conclude that religious transformation or faith is correlated with secular objectives that the state *is* entitled to promote, such as civic behavior, rehabilitation, cessation of alcohol dependence, etc. For one thing -- and this isn't a constitutional point -- as far as I can tell, it's simply not true: If anything, human history (including, of course, obvious dramatic recent examples) pellucidly demonstrates that religious faith is no guarantee at all of righteousness, lack of cruelty, or law-abiding conduct. More to the (constitutional) point, there is something profoundly troubling about the state itself adopting any view about the "typical" comparative social behaviors, and human qualities, of believers and nonbelievers. 4. The hard question, I suppose, is this: Assume the state is entirely agnostic as to the value or "truth" of religious transformation and faith, but actually discovers a strong empirical correlation between faith and some other quality that is a proper object of the state's concern. For example, let's say studies show a cause-and-effect correlation between faith and graduation rates, or between religious transformation and resisting drug addiction. (I'm not aware of any such empirical evidence, but I'm willing to assume arguendo . . . .) I don't think this would give the state the power to itself promote religious faith -- after all, in that case the state would be promoting something *that it does not believe,* which truly is a perversion of religion. But if there is such a correlation, can a government give resources to private groups that *do* have religious faith, to enable them to transform those individuals who don't? Can the state, for instance, say: "Look, we really don't know whether faith is true, or valuable, or something to which all citizens should aspire. Those are eternal mysteries that are appropriately left to individuals. And we beleive in religious liberty -- so to each their own on questions of faith. But what we *do* know, from rigiorous scientific studies (indulge me the hypo), is that, for *whatever* reason -- indeed, for reasons that we are incapable of understanding or assessing -- many prisoners who would otherwise become recidivists do not do so if they come to believe in God, and for *that* reason (and that secular reason alone), we're giving discretionary grants to private religious organizations that can help such prisoners make such transformations. Indeed, the strongest correlation of all is with conversion to *Christianity*, and so we're going to give our funds primarily to Christian organizations. There's no such evidence with respect to Islam, or Wicca, and so! we wil l not provide money to groups who have applied to encourage faith in those traditions." Can the state do this? Madison thought not -- and I agree. But, unlike the other questions raised by the BOP program, that truly *would be* an interesting and difficult question (that is, assuming once again that there were any such evidence). _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
