Why Public Funding Of Faith-Based Services Is Unconstitutional by attorney Jeff Kassel (May 1999)

This was presented on behalf of the Freedom From Religion Foundation before the Special Committee on Faith-Based Approaches to Crime Prevention and Justice of the Wisconsin Legislature on March 11, 1999.


There are many state and federal laws that permit religiously affiliated organizations to provide a variety of publicly funded social services. Each of those laws contains a crucial limitation on the use of governmental funds: they may not be used by the organization for religious purposes.1

The consistency of that prohibition in statute after statute is no accident. It reflects a long-established and widely accepted understanding that the federal and state constitutions forbid the payment of public funds to religious organizations to be used for religious purposes.

The current effort to include “faith-based” organizations as providers of governmentally funded crime prevention or other social service programs represents a radical departure from this understanding and practice. The use of faith-based providers is being advocated precisely because of the religious nature of the services to be provided at state expense. It is for precisely this reason that state-funded faith-based social services are unconstitutional.

The Establishment Clause

The Establishment Clause of the First Amendment to the U.S. Constitution provides that “Congress shall make no law respecting an establishment of religion,” a provision that is made applicable to the states by the Fourteenth Amendment. Virtually every observer of the U.S. Supreme Court would agree–indeed, the Court itself has observed–that the Court’s Establishment Clause jurisprudence is hardly a model of clarity. There is, however, a Supreme Court case that directly addresses the use of religious organizations to provide publicly funded social services, and that case, Bowen v. Kendrick, 487 U.S. 589 (1988), provides the framework for the analysis of publicly funded, faith-based crime prevention services.

The issue in Bowen was the constitutionality of the federal Adolescent Family Life Act, which provided grants to public or nonprofit private organizations for services relating to adolescent sexuality and pregnancy. The Act was challenged because religious organizations were among the organizations eligible to receive federal funds to provide those services. In a 5-4 decision, the Supreme Court concluded that the Act was not invalid “on its face” simply because religiously affiliated organizations might participate. However, the Court recognized that there may well be unconstitutional applications of the Act. It would be unconstitutional, for example, if the federal funds went to a grantee that is a “pervasively sectarian” religious institution or if the aid were used to fund “specifically religious activities.” In such cases, the Court held, the religious organization could not participate in the program. The Supreme Court sent the case back to the lower court to determine whether the funds were in fact being used in an unconstitutional manner.

The Justice who provided the fifth vote in Bowen upholding the facial validity of the Act–and who often represents the “swing” vote on Establishment Clause issues–Justice Sandra Day O’Connor, wrote a concurring opinion in which she explained why the “as applied” challenge to the Act may well succeed as the facts of the case became more fully developed. She emphasized that “any use of public funds to promote religious doctrines violates the Establishment Clause.” While the government may use religious organizations to advance secular goals, she said, it must do so “without thereby permitting religious indoctrination. . . .” Id. at 623 (O’Connor, J., concurring). It may be relatively easy for a religiously affiliated organization to run a publicly funded soup kitchen without engaging in religious indoctrination, she noted. It is far more likely that the organization would cross the constitutional line by engaging in religious activities when it provided counseling services.

The use of “faith-based” organizations to provide faith-based corrections and crime prevention services crosses that line. It is apparent that many of these organizations are pervasively sectarian and that their express purpose is to promote their religious beliefs while providing services. For example, the Committee has received literature regarding the Restorative Justice Ministries Network of Texas. That organization’s list of “goals and objectives” states as first objective: “Maintain the standard of Jesus Christ in communications and representations of all we do. Relay the message that Jesus Christ is the only solution in changing a person[‘]s nature, pointing offenders, ex-of[f]enders, criminal justice professionals, victims, and all their families toward the solutions that can only be found in Him.” The Establishment Clause prohibits state funding to organizations such as this whose services are religious in nature and that will use state funds to further their mission of religious indoctrination and conversion.

“Neutrality” does not mean constitutionality

Proponents of governmental funding for religious-based social services contend that the constitutionality of such programs should be judged under a “neutrality” standard. For example, Professor Carl Esbeck argues that the constitution permits religious organizations to provide government ally funded social services that include inherently religious activities as an integral part of the services, as long as both secular and religious organizations are eligible to participate in the program. See Carl H. Esbeck, A Constitutional Case for Governmental Cooperation with Faith-Based Social Service Providers, 46 Emory L.J. 1 (1997).

Neutrality has never been accepted by the courts as a sufficient guarantor of constitutionality. In Bowen, for example, the Supreme Court expressly rejected the proposition that a program that neutrally benefits sectarian and nonsectarian organizations cannot have the unconstitutional effect of advancing religion:

“Of course, even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct governmental aid to religiously affiliated institutions does not have the primary effect of advancing religion. One way in which direct government aid might have that effect is if the aid flows to institutions that are “pervasively sectarian.’ . . . The reason for this is that there is a risk that direct government funding even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution’s “religious mission.'” 487 U.S. at 609-10.

Professor Esbeck acknowledges that the neutrality principle has not been adopted by the Supreme Court–that at most four of the Court’s nine justices (Chief Justice Rehnquist and Justices Kennedy, Scalia and Thomas) may be prepared to permit funding of religious activities by religious organizations under that principle and that four justices (Stevens, Souter, Gins burg and Breyer) are firmly opposed. See Esbeck, 46 Emory L.J. at 30-33. Indeed, the remaining justice, Justice O’Connor, has made it clear that she does not believe that the neutrality principle is the appropriate constitutional standard. In the 1995 Rosenberger case, in which the Court held in a 5-4 decision that the Establishment Clause does not prohibit a state university from using student activity fees to pay the printing bill of a religious student organization, Justice O’Connor wrote a concurring opinion to express her view that the Court’s decision “neither trumpets the supremacy of the neutrality principle nor signals the demise of the funding prohibition in Establishment Clause jurisprudence.” Rosenberger v. Rector and Visitors of the University of Virginia, 115 S.Ct. 2510, 2528 (1995) (O’Connor, J., concurring).

A constitutional defense of government funding for faith-based social services based on the neutrality principle relies on a constitutional theory that has never been accepted by the United States Supreme Court and that is unlikely to be embraced by a majority of the current Court. Nor could a lower court uphold such a program under a neutrality theory. Lower courts are bound by existing Supreme Court cases and are not free to adopt the neutrality principle even if they believe it to be preferable to the Supreme Court’s current jurisprudence and even if they believe that the Supreme Court eventually will adopt the principle. If this Committee is inclined to give serious consideration to state funding for faith-based crime prevention services, it should do so with the understanding that the constitutional theory advanced to justify those programs has never been accepted by the Supreme Court.

The Wisconsin Constitution

Article I, section 18, of the Wisconsin Constitution provides for separation of church and state in language that is much more specific than the federal constitution. It provides that no “money [shall] be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries;” that no person “shall . . . be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent;” and that no “preference be given by law to any religious establishments or modes of worship. . . .”

Although it has often been observed that the language of the state constitution is more restrictive than the federal Establishment Clause, the Wisconsin Supreme Court nevertheless has generally followed federal Establishment Clause jurisprudence when interpreting the state constitutional language. In State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 198 N.W.2d 650 (1972), for example, the Court struck down a law providing state funds to pay tuition at the Marquette dental school. The Court held that the aid violated the Establishment Clause because there was a possibility that the funds would be used for the university’s operating costs other than those of the dental school, and that any program that violated the federal constitution necessarily violated the state constitution as well. The Court added that a “proper contract” which truly restricted the use of state funds to secular dental education would not violate the state constitution because the dental school was a wholly secular unit of the university and the university as a whole would derive only an incidental benefit from such a contract. Id. at 333-35.

Most recently, in a case not readily squared with the Nusbaum decision, the Court held that the Milwaukee Parental Choice Program violated neither the Establishment Clause nor Article I, section 18, because it found the program to be both “neutral” with respect to religious and nonreligious schools and because parents, not the schools, determined which schools received state aid. Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, cert. denied, 119 S.Ct. 466 (1998). However, even if the Wisconsin Supreme Court were correct in its analysis of the program–the U.S. Supreme Court almost certainly will review the constitutionality of a school voucher program some day–the faith-based crime prevention programs offered to the Committee do not fit the voucher model.

There is another state constitutional provision potentially implicated by faith-based crime prevention programs. Article I, section 19, of the Wisconsin Constitution provides that “No religious tests shall ever be required as a qualification for any office of public trust under the state. . . .” That provision likely would be violated by a program such as the “Inner Change program” described in Legislative Council Staff Brief 98-11. According to the Staff Brief, Prison Fellow ship Ministries operates a unit of a Texas prison staffed by both Ministries-paid staff and volunteers and by state -employed corrections officers. Be fore they are allowed to work in the unit, the state employees are questioned to determine whether they would be comfortable “working with a biblically based, Christ-centered program.”

If corrections officers hold an “office of public trust” protected by Article I, section 19, that constitutional provision would prohibit Wisconsin from operating a program like that in Texas. (The courts have held that a village police chief holds an “office of public trust,” see Law Enforcement Standards Board v. Village of Lyndon Station, 98 Wis.2d 229, 295 N.W.2d 818 (Ct. App. 1980), aff’d, 101 Wis.2d 472, 305 N.W.2d 89 (1981), but there are no cases discussing whether a police or corrections officer does.) But even if Article I, section 19, does not literally prohibit the State of Wisconsin from using state employees in this manner, the notion that the State of Wisconsin would question state employees about their religious beliefs and restrict job assignments to those employees who are comfortable “working with a biblically based, Christ-centered program” is abhorrent to this State’s traditions and values.


Faith-based organizations are free to of fer religiously based social services to those who wish to avail themselves of those services. Under the Constitutions of the United States and the State of Wisconsin, however, those services may not be funded by public monies.

1Examples of statutes that prohibit the use of public funds for religious purposes in state and federally funded programs include: Sec. 120.125(3) (a)3., Wis. Stats. (prohibiting religious instruction and religious practices in before- and after-school day care programs administered by third-party providers under contract with school districts); Sec. 120.13(26), Wis. Stats. (prohibiting providers of private educational services under contracts with school districts from providing “religious or sectarian teachings or instruction”); 42 U.S.C. § 9858k (prohibiting the use of funds under the Child Care and Development Block Grant Program “for any sectarian purpose or activity, including sectarian worship or instruction”); 42 U.S.C. § 12584(a)(4) (prohibiting the use of funds under the National and Community Service Act for religious purposes); 20 U.S.C. §§ 1062(b), 1069c(l), 1132c (prohibiting the use of federal Higher Education Assistance funds for sectarian instruction or religious worship).

Attorney Jeffrey Kassel was lead counsel for the ACLU in litigation challenging Wisconsin’s religious school voucher program. He received his undergraduate degree from Bucknell University, his Ph.D. in psychology from the University of Michigan, and graduated from the University of Wisconsin Law School in 1985.

He is a partner in the Madison law firm LaFollette & Sinykin, specializing in constitutional law and appellate litigation. He previously clerked for U.S. District Court Judge Barbara B. Crabb and has taught at the University of Wisconsin Law School.

He represented the Foundation on both of its successful challenges of Wisconsin’s Good Friday state holiday.

Freedom From Religion Foundation