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These are serious objections, and they may well be
insuperable politically. But I'm not sure they are insuperable in
principle. These are preliminary thoughts; I have not tried to work
through all the practical difficulties in any systematic
way.
In the early versions of these programs, they were run by
volunteers with outside funding. That avoids the direct funding question,
and it avoids the state urging people to become more religious. It could
be assimilated to forum models. It is somewhat troubling that
only one faith group so far seems much interested in sponsoring such
programs. But I am reluctant to say that that group can't speak and try to
help because other groups are less forthcoming.
We could expand the forum with government funding -- the
government could offer to pay for any programatically plausible private rehab
effort, from any faith or secular perspective, with careful safeguards to avoid
coercing any prisoner into a religious program. (That may in fact be
impossible if there are not secular alternatives adequate to meet all
demand. No matter what the food or conditions, and no matter what the
prison officials say, prisoners may figure that participation in a rehab program
will be rewarded.) The model here would be Rosenberger, a
publicly funded forum, where the Court also permitted direct funding of the
teaching of religion. The real problems in my view are not with direct
funding, but with the inevitable discretion in deciding which programs are
plausible enough to get funded.
The restrictions on direct funding may be necessarily
relaxed in the prison environment, for the same reason we permit prison
chaplains. There can be no religious exercise of any kind in prison
without substantial cooperation by government. If private funding produces
only on religious perspective, and government funding produces a variety of
religious and secular perspectives, government funding may be better than
private funding for religious liberty in this context.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988
(fax)
But Doug, assume that the state prison decides that
"religion works for some people," and therefore creates a program such as the
one you describe: It establishes within the prison a funded
series of voluntary rehab programs, some (but not all) of which are
devoted to "religious transformation," as a means of lowering recidivism
rates. Wouldn't there continue to be at least three constitutional
problems with this?:
1. It would be direct funding of religious
activity, prohibited by Mitchell, Kendrick, and numerous other
cases.
2. It would be state actors actually
engaged in the practice of promoting religious transformation. (These are,
after all, state programs run within the prisons. Cf. West v.
Atkins.) Just as public schools could not include a "religious
transformation" class as part of a series of "elective" civics classes, in the
service of creating upstanding citizens (and based on the same sorts of
empirical claims that you invoke), so too for the public prisons . . .
3. Inevitably, each of the religious transformation programs will be
sect-specific, i.e., each will involve the state urging prisoners to adopt a
certain system of religious beliefs and commitments. This creates
a problem within each of the programs, doesn't it? -- not to mention the
inevitable problem that no prison will be able to offer "transformation"
programs for all of the religions represented in the prison
population.
These seem to me as though they are very
big constitutional obstacles, even if the program were amended along the lines
you propose.
----- Original Message -----
Sent: Saturday, May 06, 2006 2:12
PM
Subject: RE: Use of Religion to Achieve
Secular Ends
I think Marty is clearly right on this fundamental
question. The state cannot decide that religion or religious
transformation is a good thing, any more than it could decide that
religion is a divisive and disruptive force that should be minimized or
discouraged.
But a more sensibly designed program of religious rehab
in prisons need not assume that religious transformation is a good thing,
or even that religious programs would have lower recidivism rates than
secular programs. It need only assume that religion works for some
people, and that if different people respond to different kinds of programs,
religious programs should be among the options.
Among the problems with the proposed federal program, at
least as the press described it to me, is that only one religion
will be represented, and that there does not appear to be an equivalent
secular program.
Douglas Laycock
University of Texas Law
School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341
(phone)
512-471-6988
(fax)
With all
respect, I disagree. Putting constitutional doctrine aside, the public
authority, charged with promoting and protecting the common good,
may decide that "religion" is a basic human good, and that its
flourishing -- consistent with the freedom of conscience -- is constitutive
of the common good. (See, e.g., Finnis).
Obviously, Rick's view on this
fundamental question is very different from mine, and inconsistent with
established constitutional doctrine (not that Rick claims otherwise). It
strikes me as quite an important issue of contention -- and that, if the
doctrine were to begin to reflect Rick's view, it would look very different
from what we now see.
What do others think?
----- Original Message -----
Sent: Friday, May 05, 2006 3:30 PM
Subject: Use of Religion to Achieve Secular
Ends
> 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).
> _______________________________________________
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