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Thanks for the thoughtful response, Doug. I
suppose that if one of these prison programs were structured like a
Rosenberger program (or what the Court understood the UVa program to
be, anyway), then the constitutional problems would be diminished. That is
to say, if the prison were establishing a program for encouraging the
flourishing of a wide and uncensored range of private speech in prison, without
regard to viewpoint, then perhaps it could (incidentially) fund religious
speech, as well.
But of course these programs are nothing of the
sort. They are developed by the state, for the state's own purposes, to
encourage a view of the world promoted by the state, with an eye toward
producing particular behavioral "outcomes" in the target audience. The
state is hardly viewpoint-neutral -- we can all imagine plenty of viewpoints
that the prisons would not permit in these programs; and in fact, the
programs are aimed very carefully, by the state, to rehabilitative --
"transformative" -- ends, rather than to the creation of a "speakers' corner" of
sorts (which is the last thing a prison would ever support). Indeed,
why isn't this program more or less analogous to the religious teaching in
McCollum, or to the prayer in Schempp? (Recall that in
the latter case, the Baltimore school district claimed that it instituted prayer
for secular purposes, including "the promotion of
moral values, the contradiction to the materialistic trends of our times, the
perpetuation of our institutions and the teaching of literature." The fact
that the school district also included plenty of secular content in its
curriculum in support of those same goals hardly served to immunize the prayer
from constitutional invalidation.)
Perhaps the closest analogy is the
Administration's own social-services "charitable choice" funding programs.
However, those programs are private and take place outside the aegis of the
state; they are not administered by a federal agency, and thus the recipients of
funds are not state actors. The prison's own rehabilitation services would
presumably consist of state action (like the existing rehab programs in
prisons). Moreover, the Administration itself has been careful to
emphasize in the charitable choice context both that the government itself is
indifferent as to whether the funded programs are faith-based -- the criteria
for funding are (allegedly) neutral and secular, and are (in theory) not skewed
toward religious organizations, let alone to religious transformation -- and
that the funded programs must not include "specifically religious activity" such as
proselytizing. The Administration has
repeatedly emphasized, 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." http://www.whitehouse.gov/government/fbci/guidance/partnering.html#1.
The proposed BOP program is inconsistent with
this model, and with Rosenberger, in numerous
respects.
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