The Freedom From Religion Foundation's challenge of government-funded religious social services--a federal lawsuit challenging public sponsorship of Milwaukee's "Faith Works" program serving male addicts--will be the first such case adjudicated in the nation.
Both sides have asked for summary judgment (no trial). Justice Barbara Crabb of the Western District of Wisconsin has not yet decided on that motion and a trial date of September 24 is still scheduled.
The Foundation's attorney, Rich Bolton, filed a brief and reply briefs in May making the Foundation's strong case that more than $750,000 in public funds have been appropriated unconstitutionally to fund a ministry.
New developments include the filing in July of a "friend of the court" brief in support of public funding of Faith Works by the office of U.S. Attorney General John Ashcroft.
Another wrinkle is the resignation of Faith Works director Bobby Polito, apparently to take a position as a "faith-based adviser" to former Wis. Gov. Tommy Thompson, who now directs the Department of Health and Human Services. As governor, Thompson intervened to grant discretionary welfare reform money to Polito's Faith Works. Both Thompson and Polito are Catholic.
Faith Works, whose bylaws describe it as "inherently Christian" and which describes itself as "faith-based," makes church attendance a hiring consideration.
Guidelines to employees read, in part:
"We are a Christian faith-based treatment center. . . . We are as individuals to be growing in our own faith life by regular church attendance, prayer, Bible study and seeking Spiritual direction from a Pastor/Shepard [sic] in our faith community."
Its Statement of Faith, Theology & Spirituality (turn to pages 4-5 to read the entire document) calls religion an integral part of Faith Works and describes its purpose as developing a "community of believers."
Faith Works' document notes it "combines the AA [Alcoholics Anonymous 12-steps] model with Scriptures," that "12-steps is a way to dialog with Christ," and that it approaches its work "in light of evangelism," to "introduce God through the person of Jesus Christ."
Its "aim is to bring homeless addicts directly to Christ and open hearts to the gospel of Jesus Christ."
"Our goal," Faith Works states, "is to see every graduate become a member of a church, attend bible studies, gain a spiritual counselor" and obtain Christian counseling.
Faith Works brags: "AA stops short of recommending Christ to all. However, at Faith Works we do."
At a staff meeting on January 12, 2000, Polito asked that everyone read over the Statement of Theology and follow it: "This program is an evangelistic outreach to sinners, not a discipleship program."
The participants' day begin with chapel at 7, followed by noon prayers and nightly bible study at 8, plus daily AA meetings which are "faith enhanced." Faith Works, a longterm residential program, is held in a rented convent bearing a permanent cross on the front entrance, and is filled with religious posters, wall hangings and bibles as well as church recruitment literature.
Faith Works, which promises jobs to its graduates, has a goal to hire many of its own graduates, who are then paid with public funds.
Polito officially has described his program as an "Ongoing Ministry of Jesus."
He has publicly stated: "We feel that helping people recover from addiction means that we must enable them to see their need for Christ and respond to Him in faith."
The Foundation's brief notes: "Faith Works was apparently singled out for special praise and attention precisely because Faith Works is a faith-based organization. In these circumstances, a reasonable observer would form the impression that government support for Faith Works constitutes official endorsement."
In the fall of 1998, Wis. Sen. Bob Welch, as an undisclosed Faith Works officer, summoned top officials from the state Department of Corrections (DOC) to his office to lobby for funding of Faith Works, describing it as faith-based, making use of prayer and the bible. The DOC agreement required a waiver for the nonbidding contract and the Governor's approval. Welch recruited Rev. Susan Vergeront, a former legislator with political connections, to obtain major funding from the Governor's office, using discretionary funds through welfare reform. The governor granted $600,000 to Faith Works.
Polito also pursues public funding by pressuring Wisconsin-to-Work (W2) agencies to subcontract with Faith Works. Response has been lukewarm in part due to the expense of paying for the 9-month residential treatment.
Gov. Thompson handed Polito a podium at the GOP Platform Committee in June 2000 to lobby for government funding for his program, and arranged a campaign stop at Faith Works in July 2000 by George W. Bush.
Neither the state nor the DOC has imposed any restrictions on Faith Works' religious content, even after the Foundation filed its lawsuit last October. A state official instrumental in reviewing Faith Works' grant proposal admitted that funding of religious activities is impermissible, even under the Charitable Choice provision of the 1996 Welfare Reform Act.
The Foundation asserts that Faith Works uses the evangelistic opportunity provided by the lengthy residential program to promote religion to vulnerable clients, whom Faith Works' co-founder Rev. Vergeront coldly described as "addicted men who economically and socially are all but dead."
Faith Works, which intervened in the lawsuit to become a co-plaintiff, contends the Corrections contract involves voluntary assignment by men on parole or probation. However, records of the January 12, 2000 meeting reveal that Polito openly warned staff not to divulge the fact that the program is supposedly voluntary.
In proposals to government agencies, Faith Works defined success as based in part on the "blending of government money with a faith-based institution, measured by ongoing funding streams and fundraising ability."
While boasting of great success, Faith Works' statistics appear to be unreliable and are not regularly updated. The majority of men appear to drop out of the program.
"Here, the State of Wisconsin is illegally coercing the plaintiffs to support a substantially religious program, just as if the state was supporting a church, or buying bibles, or paying for construction of places of worship.
"The State essentially becomes a patron of a religious establishment," the Foundation brief stated.
"The voluntariness of participation in religious activity does not make it constitutional to publicly subsidize the activity over the objection of unwilling taxpayers."
Invoked as precedent in the lawsuit is the Foundation's April victory before the 7th Circuit Court of Appeals, ruling direct funding to parochial schools unconstitutional.
"We're arguing this is direct funding of religion in its purest sense," says Bolton.
Also precedent is the 1966 Kerr decision by the 7th Circuit finding that Alcoholics Anonymous' 12-step program constitutes a religion.
Representing Faith Works is Daniel Kelly, a Milwaukee attorney who graduated from Pat Robertson's law school and who lost a case to the Freedom From Religion Foundation last year.
Kelly argues, as does the U.S. Attorney General's office, that it is "discriminatory" if the state funds secular social services but refuses to fund overtly religious agencies.
"The issue in this case is whether the State is required to pay for religious advocacy whenever it buys secular social services. If the answer to that question is 'yes,' then the Speech and Free Exercise Clauses of the Constitution have eaten and swallowed the Establishment Clause," Bolton wrote in a reply brief.