Panel Decision Appears to Open Pandora’s Box (May 2003)

The Freedom From Religion Foundation has asked the 7th Circuit Court of Appeals for an en banc rehearing, after a 3-judge panel of the circuit ruled on April 2 against the Foundation’s challenge of a state contract with an overtly proselytizing sectarian organization.

Judge Posner, also writing for Judges Bauer and Ripple, upheld a decision last June by U.S. Dist. Judge Barbara Crabb, for the Western District of Wisconsin, to permit the Wisconsin Department of Corrections (DOC) to send men to Faith Works, in Milwaukee.

The Foundation won its major challenge of direct public funding of Faith Works on January 8, 2002, when Crabb ruled that more than $880,000 in public funds had been granted illegally to start up and run Faith Works, whose mission was to bring “homeless addicts to Christ.” Her strong ruling in favor of the Foundation’s challenge was the first such ruling in the nation against funding faith-based initiatives, and was considered a major blow to Pres. Bush’s faith-based proposals.

Crabb separated out the Foundation’s challenge of the DOC contract with Faith Works, involving a much smaller sum of state money. She waited to issue her ruling until after the U.S. Supreme Court had ruled in favor of taxpaid vouchers for religious schools in Cincinnati last summer in the Zellner case.

Faith Works and the State of Wisconsin began arguing that the DOC contract, involving a nonbidding procedure and special waivers dictated by the Governor’s office, was tantamount to “vouchers.” Bush is now favoring “vouchers” as the vehicle by which taxpayers should fund religious agencies.

Crabb issued what she termed a “close” decision last July in favor of the the state contract, which the Foundation appealed.

Circuit Judge Posner’s 7-page ruling against the Foundation contained errors of fact and appeared to be quarreling with an earlier decision by the 7th Circuit, Kerr v. Farrey (1996), which found that Alcoholics Anonymous was a religious treatment and that the State must offer secular alternatives to inmates and wards. Posner wrote, without any documentation, that: “The success of Alcoholics Anonymous is evidence that Christianity can be a valuable element in a program for treating addiction.”
Posner argued that the contract was a voucher where “the state has dispensed with the intermediate step by which the recipient of the publicly funded private service hands his voucher to the service provider.” The state began officially informing men going on probation or parole that they could object to placement at Faith Works after the Foundation filed its lawsuit. The Foundation also entered into the court records the fact that the DOC did not realize that Faith Works had no Alcohol and Other Drug Abuse-licensed counselors on staff, relying instead on bible reading, “faith-enhanced AA,” and a purported goal of hiring its own graduates to become “counselors.”

The Foundation pointed out that Faith Works, feeding nearly entirely from public funds, offered a 9-month treatment program, while there was no secular alternative with that comparable length of treatment. Posner concluded:

“It is a misunderstanding of freedom (another paradox, given the name of the principal plaintiff) to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him.”

The Milwaukee Journal-Sentinel reported after the decision came down that Faith Works had essentially closed its doors last year, when its vast infusions of direct public funding dried up after the Foundation won its initial lawsuit.
The Foundation petitioned for a rehearing before the 7th Circuit on April 16.

Foundation attorney Richard L. Bolton noted in his petition: “The Panel’s decision has significant importance because it purports to extend the Supreme Court’s voucher analysis in Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002), to a per capita government funding program in which government employees affirmatively recommend that probationers and parolees attend a religiously imbued drug and alcohol treatment program. Per capita funding of such programs, preselected and paid for by the government, is treated as prohibited direct funding of religion in violation of the Establishment Clause, according to Supreme Court precedents, . . .

“The Panel’s decision opens the door to direct government contracts with religious service providers as long as the program is funded on a per capita basis. This is an end run around the protections against government endorsement intended by the Supreme Court’s private choice/voucher decisions . . . The Panel’s decision ventures into uncharted waters . . . “

Posner argued that “endorsement” of religion by government is not a violation of the Establishment Clause in the absence of coercion. “The Panel’s decision also misapprehends the Supreme court’s requirement that programs of true private choice not be ‘skewed’ in favor of a religious alternative. Although the religiously funded alternative in this case is three times as long as secular alternatives, the Panel analogizes this difference in benefits as similar to the choice between ‘vanilla and chocolate ice cream.’ In fact, however, a probationer who chooses a secular program gets 3 months of paid treatment versus 9-12 months of government benefits at the religious alternative. This is more like the choice between one vanilla cone and three chocolate cones. It is a magnitude of difference, in conjunction with the government’s recommendation of the religious alternative, that impermissibly skews the choices available to private individuals.

“The Panel’s decision ‘assumes’ that religiously-inbued programming is advantageous, and then concludes that the Establishment Clause applies a different constitutional test for meritorious religious programming. The Panel, for example, takes ‘judicial notice’ of the benefits of Alcoholics Anonymous, a fact that does not appear in the record.

“The Panel’s decision entangles the government in evaluating the merits of religiously imbued programming as the litmus test for whether it can affirmatively recommend the religious program. This is what the Establishment Clause is intended to prohibit, but it is the Pandora’s box that the Panel’s decision appears to open.”

The Foundation petition noted: “a reasonable observer could not help but conclude that the government’s recommendation of religious programming is made with the government’s endorsement and support, which in this case includes a religiously imbued program that ‘encourages the offender to establish a personal relationship with God through the mediation of Jesus Christ.’ . . . the Panel’s decision would sanction the practice of school officials specifically recommending religious schooling alternatives to parents, as long as the parents are not coerced. Such a conclusion cannot be squared with the reasoning in the Supreme Court’s Zelman decision, which emphasized the absence of any government efforts to skew the choices toward religious schools.”

Freedom From Religion Foundation