Faith Works Funding Challenge Proceeds to Appeals Court (September 2002)

The Freedom From Religion Foundation is appealing a July 26 ruling by a federal judge permitting indirect state funding of a faith-based social service.

The disappointing ruling was “part two” of the Freedom From Religion Foundation’s challenge of the “charitable choice” funding of Faith Works.

Federal Judge Barbara Crabb of the U.S. District Court for the Western District of Wisconsin had earlier issued a landmark ruling against direct subsidy of Faith Works, a Milwaukee program instituted to bring “homeless addicts directly to Christ.” The Foundation case was the first in the nation challenging “charitable choice” to be adjudicated and won.

In her January 7 ruling, Crabb found that the grant of $880,000 in unrestricted federal funds to Faith Works constituted “unrestricted, direct funding of an organization that engages in religious indoctrination.”

Faith Works has no medical drug or alcohol treatment program, but relies on referrals to other agencies, and its “faith-enhanced” AA program and bible studies, some led by Faith Works “graduates.”

Crabb’s secondary ruling in July does not overturn her January decision against direct funding of proselytization.

Crabb had directed that the Foundation’s additional challenge of the constitutionality of state contracts with Faith Works be considered separately. The state Department of Corrections, using special waivers and a no-bidding process, has contracted with Faith Works to send parolees to the faith-based, long-term program.

The state Department of Corrections had contracted up to $160,000 in services from Faith Works from 1999 to 2001. The cost to taxpayers was $47 a day for each participant assigned by DOC to Faith Works over a period of nine to twelve months. Some of the men were sentenced to Faith Works as an alternative to revocation of probation or parole.

The State of Wisconsin and defendant-intervenor Faith Works tried to compare the contract to a “voucher.” Foundation attorney Rich Bolton in his brief noted that comparison is “incorrect.” There is no comparable secular program offered to offenders, who are a captive audience: “DOC selects, recommends and promotes Faith Works to targeted offenders.”

He added, “The State may not promote and pay for religious indoctrination that is recommended and encouraged in the first instance by probation and parole agents.” Even if the men are willing to participate in the religion-based program, Bolton noted, that is not a permissible use of taxes.

Bolton also noted in his brief that from Dec. 1999 to May 2001, DOC did not require that offenders be offered alternative secular treatment, nor is there one available of comparable length, a reason often cited for sending men to the program.
In her July decision, Crabb, who admitted that that the issue was “narrow” and “very close,” bought the “voucher” argument:

“The Supreme Court has drawn a distinction between government programs that provide aid directly to religious schools and those involving true private choice.” Crabb’s decision generously cited the Supreme Court’s June ruling approving vouchers for religious schools in Cleveland.

“I find that offenders participate in the program as a result of their genuinely independent, private choice. Thus, any appearance that the government is endorsing Faith Works is overcome by the fact that offenders must consent to the program’s religious content before participating in it,” Crabb concluded.

The Freedom From Religion Foundation gave notice of appeal of the July decision on Aug. 9. The State of Wisconsin and Faith Works are expected to appeal the major part of Crabb’s ruling barring direct funds to the religious group.
The case will go before the 7th U.S. Circuit Court of Appeals in Chicago.

“We are confident the appeals court will agree that direct funding of Faith Works is an egregious violation of the First Amendment,” commented Anne Gaylor, Foundation president.

“Along with our attorney Rich Bolton, we remain hopeful that the panel will carefully consider our argument that the state has shown illegal preference and endorsement in the state contracting process as well,” said Gaylor.

In related news, a federal court in Louisiana recently declared that state’s use of federal money to promote abstinence an illegal establishment of religion. This is the first challenge of the abstinence program since Congress made allocations to it under the “charitable choice” provisions of the 1996 welfare reform act, permitting federal funds to go to overtly proselytizing groups.

A recently filed lawsuit in Georgia also has ramifications for the fight against public funding of proselytizing social service groups. Plaintiffs are challenging state funding of the United Methodist Children’s Home in Decatur, which refuses to hire Jews, and has fired qualified workers for being gay. The home requires counselors to condemn homosexuality.

Freedom From Religion Foundation