UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WISCONSIN

FREEDOM FROM RELIGION
FOUNDATION, INC.; ANNE NICOL
GAYLOR; ANNIE LAURIE GAYLOR;
and DAN BARKER,

Plaintiffs

v.

Case No. 04 C 0381 S

JIM TOWEY, Director of White House
Office of Faith-Based and Community
Initiatives; et al.,

Defendants.

PLAINTIFFS' MEMORANDUM IN SUPPORT OF
SUMMARY JUDGMENT REGARDING HHS FUNDING
OF MENTORKIDS USA

I. INTRODUCTION.

HHS funds a program for mentoring children of prisoners. This is not a program for teaching job skills. Nor is it a program for feeding the hungry or sheltering the homeless. It also is not a program for providing health care to the poor. Instead, "mentoring children of prisoners" is an ambiguous "social service" directed at vulnerable children. It lacks prescribed definition or measurable content, except to befriend and influence children as to the choices they make.

MentorKids USA, formerly known as MatchPoint of Arizona, is a direct grantee of HHS, hired to mentor the children of prisoners. MentorKids is an exclusively Christian mentoring program. MentorKids subscribes to a Statement of Faith that believes the acceptance of Christ in one's life is the most effective means to stay out of trouble and to stay on the right path to a meaningful life. Believing such to be the case, MentorKids recruits only Christians to be mentors, who are encouraged to expose their young charges to the mentor's faith in Jesus Christ. Believing Christ to be the answer to the needs of vulnerable children, MentorKids tries to steer these kids to accept Christ. That is MentorKids' mission.

Influencing kids to accept Christ cannot be the mission of the federal government -- even in respect to the children of incarcerated parents. Religion is a matter of personal conscience, even for kids in need, and a private responsibility that is not an appropriate part of the government's realm. That is why the Establishment Clause prohibits the direct funding of religious-infused programs. Mentoring to convert is not a suitable social service to be provided by the government. That is why HHS funding of MentorKids is unconstitutional.

HHS apparently has not been duped into funding programs like MentorKids. HHS has actively showcased its funding of MentorKids, while ignoring MentorKids' known faith-based objectives. HHS perhaps showcased MentorKids precisely because of its faith-infused program. Who can say, given that HHS secretly decides how to dispense federal tax appropriations, such as under the Mentoring Children of Prisoners program? In so doing, HHS disclaims public accountability for its handling of public funds.

Regardless of HHS' secrecy, HHS certainly ignores known information about the faith-based organizations that it funds. That is a fact, such as with MentorKids, whose own submissions to HHS reveal its faith objectives. HHS, for its part, has produced no evidence that it has investigated or shown any interest in limiting the use of federal grant funds for faith-infused purposes, such as in the case of MentorKids.

The court should order HHS to discontinue funding MentorKids. The court also should order HHS to adopt and implement a meaningful plan to assure that funding for other faith-infused mentoring programs does not occur. HHS should execute its responsibility to comply with the Establishment Clause. In the meantime, the court should enjoin HHS from further disbursement of funding to faith-based mentoring groups until HHS has a demonstrated plan in place to comply with its constitutional obligations.

II. STATEMENT OF FACTS.

MatchPoint of Arizona, Inc., f/k/a Phoenix MatchPoint ("MatchPoint") and n/k/a MentorKids, submitted an application in July 2003 for federal grant funding to the Department of Health and Human Services, more particularly The Family and Youth Services Bureau of the Administration for Children and Families. (Bolton Aff., Ex. 1.) The defendant, Tommy Thompson, is the Secretary of the Department of Health and Human Services. MatchPoint's grant application was approved for funding under the Administration on Children, Youth and Families Mentoring Children of Prisoners Grant Program. (Bolton Aff., Ex. 2.)

The grant to MatchPoint was publicly announced by HHS at a showcased appearance in Phoenix, Arizona. (Bolton Aff., Ex. 5; and Ex. 3 at 3.) The HHS grant award to MatchPoint includes a project period of September 30, 2003 through September 29, 2006, with funding in the amount of $75,000 each year, for a total of $225,000. (Bolton Aff., Ex. 2 at 3.) MatchPoint subsequently has changed its name to MentorKids USA, but without substantive change to its HHS grant. (Bolton Aff., Ex. 4 at 2; Ex. 7 at 5.)

The MatchPoint Project is a collaboration with Prison Fellowship Ministries, which organization refers children to MatchPoint for mentoring services. (Bolton Aff., Ex. 1 at 9.) MatchPoint was launched by Prison Fellowship Ministries in 1996, and leverages local church relationships in order to recruit, screen, and train mentors. (Bolton Aff., Ex. 1 at 30.) MatchPoint was founded in Phoenix, Arizona, as a program originally designed by Prison Fellowship Ministries under the direction of Charles Colson. (Bolton Aff., Ex. 1 at 15.)

MatchPoint is a mentoring program dedicated to interjecting only Christian mentors into the lives of children. (Bolton Aff., Ex. 1 at 15.) MatchPoint's Statement of Faith includes a "belief in one God, Creator and Lord of the Universe, the Co-Eternal Trinity: Father, Son and Holy Spirit." (Bolton Aff., Ex. 7 at 6.) MatchPoint's Statement of Faith also includes a "belief that the Bible is God's authoritative and inspired word that is without error in all its teachings, including creation, history, its origins and salvation, and Christians must submit to its divine authority, both individually and corporately, in all matters of belief and conduct." (Bolton Aff., Ex. 7 at 6.) MatchPoint's Statement of Faith also includes a "belief that all people are lost sinners and cannot see the Kingdom of God except through the new birth. Justification is by grace through faith in Christ alone." (Bolton Aff., Ex. 7 at 6.)

MatchPoint cites its faith-based influence as a distinctive program feature. (Bolton Aff., Ex. 3 at 5; Ex. 7 at 2.) MatchPoint also believes that it is distinct by providing "relationships with caring Christian mentors that provide at risk youth the capacity to grow in their personal relationships with God, their family, and their community." (Bolton Aff., Ex. 7 at 2.)

In designing the MatchPoint Mentoring Program, the National Headquarters of Prison Fellowship Ministries hired Dare Mighty Things to determine why children of prisoners are likely to follow in their parents' footsteps, and to identify possible approaches to intercede or prevent that outcome. (Bolton Aff., Ex. 1 at 15.) The resulting MatchPoint Ministry model includes distinctive elements, including a philosophy that is based on a Christian foundation and a strategy that addresses physical, emotional, intellectual and spiritual aspects. (Bolton Aff., Ex. 3 at 5.)

MatchPoint Board of Directors meetings open with devotional prayer and include a report from the "Evangelism\Discipleship Director". (Bolton Aff., Ex. 4 at 1.) MatchPoint also has an Advisory Council, which reports to the Board of Directors, such as at an April 25, 2003 Board Meeting, at which the Advisory Council exhorted MatchPoint to emphasize prayer "to make sure everything MatchPoint does is covered with prayer." (Bolton Aff., Ex. 4 at 3.)

As a faith-based organization, MatchPoint believes that God changes hearts, and MatchPoint regularly has mentees who come to faith in Jesus Christ in the program. (Bolton Aff., Ex. 7 at 3.) MatchPoint includes a Statement of Faith that is provided to mentors. (Bolton Aff., Ex. 1 at 20.)

The Prison Fellowship Ministries Study concluded that alienation is the main reason youth begin to explore criminal activity, and the study proposed that if a child can be "restored" to his/her family, community and Creator he/she will be less likely to become a criminal offender. (Bolton Aff., Ex. 1 at 15.) MatchPoint, therefore, includes a self-described strategic approach to mentoring intended to develop key areas, including the "spiritual -- we provide every opportunity for kids to know Jesus Christ the Savior and to develop a disciplined walk with God." (Bolton Aff., Ex. 7 at 8.) Opportunities for Bible study and spiritual discussions are admittedly provided for interested mentees. (Bolton Aff., Ex. 7 at 11-12.)

MatchPoint only recruits, trains and supports adult Christian mentors to work one-on-one with children ages 8-15. (Bolton Aff., Ex. 1 at 16.) MatchPoint only recruits Christian mentors. (Bolton Aff., Ex. 7 at 11.) MatchPoint seeks only potential mentors who are Christian, over 21 years of age, active in a church, teachable, relational, committed, and have a flexible time schedule. (Bolton Aff., Ex. 1 at 20.)

MatchPoint only accepts Christian mentors because "it is important to us that our mentors are equipped to share the good news of who Jesus is and how he can provide a future of hope for anyone." (Bolton Aff., Ex. 7 at 11.)

MatchPoint delivers services using a Satellite Church Model. (Bolton Aff., Ex. 1 at 18.) MatchPoint partners with individual Christian churches at Satellite locations. (Bolton Aff., Ex. 1 at 18.) MatchPoint then develops the mentoring program within each Satellite church. (Bolton Aff., Ex. 1 at 18.)

MatchPoint contracts with a Case Manager at each church to recruit, train and support mentors, while overseeing the progress of each match. (Bolton Aff., Ex. 1 at 18.) MatchPoint provides funding, training, ongoing supervision and assistance, to all Satellite Church Case Managers. (Bolton Aff., Ex. 1 at 18.)

Mentors are recruited from Christian churches by a strategy that includes articles in church newsletters, bulletin announcements and inserts, pulpit interviews and endorsements, presentation in Sunday school classes in small groups, contact with related ministries in the church, ministry fairs, mission conferences, orientation meetings, personal contacts, and MatchPoint events. (Bolton Aff., Ex. 1 at 20.) MatchPoint also recruits mentors through its website, which publicly describes the Christian orientation of the program. (Bolton Aff., Ex. 7.)

MatchPoint provides orientation meetings for potential mentors to explore the possibility of mentoring, which orientation includes testimonies from active mentors. (Bolton Aff., Ex. 1 at 20.) Potential mentors are also given an information packet prepared by MatchPoint that includes a statement of mentor responsibilities, a statement of faith and code of conduct, a current MatchPoint newsletter, and a mentor brochure. (Bolton Aff., Ex. 1 at 20-21.) Potential mentors are further interviewed by MatchPoint paid Case Managers. (Bolton Aff., Ex. 1 at 21.)

Once the mentor screening is completed, a MatchPoint Case Manager schedules a meeting with the MatchPoint Case Manager's Supervisor, or the Project Director, to discuss each applicant's suitability to become a mentor. (Bolton Aff., Ex. 1 at 21.) Factors that are considered in MatchPoint's ultimate selection of mentors include spiritual maturity and church connection. (Bolton Aff., Ex. 1 at 21.)

Selected mentors are provided training by MatchPoint, which training includes "friendship evangelism" through which mentors are encouraged to expose their faith to the children being mentored. (Bolton Aff., Ex. 1 at 23.) After mentors are matched with children, MatchPoint Case Managers maintain reporting and progress contact with all mentors on a regular schedule. (Bolton Aff., Ex. 1 at 14 and 24.)

The HHS Center for Faith-Based and Community Initiatives has published a feature piece on MatchPoint, n/k/a MentorKids USA, which includes a description of the relationship between a mentor and her mentee. (Bolton Aff., Ex. 3 at 2-3.) The HHS feature on MatchPoint notes that through the mentor's encouragement, the mentee attended a faith-based youth camp and dedicated her life to God. (Bolton Aff., Ex. 3 at 2.) The HHS feature also quotes the mentee as stating that "even when I would become angry at her [the mentor] I couldn't give up. I knew I was to be faithful and to rely on prayer to help change my attitude." (Bolton Aff., Ex. 3 at 3.)

MatchPoint also publishes stories written by mentors, mentor coordinators and mentees, including those on MatchPoint's website; one of the published stories is entitled "Chris and Jenney-A Redeemed Life," which reveals that the mentor prayed with the mentee, who also was given a Bible at a six month review. The mentee subsequently has attended church regularly. (Bolton Aff., Ex. 7 at 23.) Another anecdote published on MatchPoint's website is entitled "John and Ryan-From Trouble to the Truth," which discloses that the mentor and mentee pray together and participate in Bible study. (Bolton Aff., Ex. 7 at 24.)

The evaluation of MatchPoint's grant application by HHS is secret. (Bolton Aff., Ex. 6 at 7.) No evidence has been produced by HHS indicating that it has ever investigated or shown any interest in limiting MatchPoint's use of grant funds for faith-infused mentoring. (Bolton Aff., ¦ 10.)

III. SUMMARY JUDGMENT STANDARD.

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). See also Books v. City of Elkhart, Indiana, 235 F.3d 292, 298 (7th Cir. 2000); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). No genuine issue of material fact exists "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

IV. THE ESTABLISHMENT CLAUSE PROHIBITS DIRECT FUNDING OF RELIGIOUS-INFUSED ACTIVITIES.

The Establishment Clause guarantees that the "government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way which establishes a religion or religious faith, or tends to do so." Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996), quoting, Lee v.Weisman, 505 U.S. 577, 587 (1992). The coercion prohibited by the Establishment Clause includes both personal participation in religious activities, as well as financial support of religious activities by government appropriations. The Supreme Court described this fundamental limitation imposed by the Establishment Clause in Everson v. Board of Education, 330 U.S. 1, 15-16 (1947):

No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the federal government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa.

See also, Kerr, 95 F.3d at 476.

In the present case, the plaintiffs raise a funding challenge to HHS's grant to MentorKids, USA. The plaintiffs base their funding objection on their status as federal taxpayers who are opposed to the use of governmental appropriations to advance and promote religion. (See Gaylor Aff.) The plaintiff, Freedom From Religion Foundation, is a representative organization advocating on behalf of its membership in opposition to such governmental endorsement of religion. (See Gaylor Aff.)

The plaintiffs raise a genuine "pocketbook" issue in objecting to the public subsidization of MentorKids. HHS has already appropriated $225,000 of grant money to support MentorKids over a period of three years. These public funds appropriated to MentorKids are utilized to support the proselytization of the faith-based Christian mentoring program of MentorKids.

The Establishment Clause of the First Amendment to the United States Constitution prevents the government from promoting or affiliating with any religious doctrine or organization. Freedom From Religion Foundation, Inc. v. Bugher, 249 F.3d 606, 610 (7th Cir. 2001). This means that the government may not make direct cash payments to organizations for the support of programming that includes religious content. The government "may not make unrestricted cash payments directly to religious institutions," regardless of whether they are pervasively sectarian. Freedom From Religion, 249 F.3d at 612, citing Tilton v. Richardson, 403 U.S. 672, 680-3 (1971). The government may not grant aid to an organization, whether in cash or in kind, where the effect of the aid is a direct subsidy of the religious activities of the organization. Witters v. Washington Dept. of Svs. for Blind, 474 U.S. 481, 487 (1986). A direct subsidy is viewed as governmental advancement or indoctrination of religion. Freedom From Religion Foundation, 249 F.3d at 612.

Direct monetary payments to faith-based organizations, where no restrictions require the money to be used only for secular purposes, have the effect of advancing religion under the test established in Lemon v. Kertzman, 403 U.S. 602, 612 (1971). Under this test, an appropriation violates the Establishment Clause unless (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion. Id. at 612-13.

In Agostini v. Felton, 521 U.S. 203, 222-23 (1997), the Supreme Court modified the Lemon Test, emphasizing the continuing importance of the first two prongs of Lemon, but determining that entanglement could be considered as an aspect of the second prong's "effect" inquiry. The Court then considered three primary criteria in evaluating whether government aid has the effect of advances religion: whether the statute of program in question results in governmental indoctrination; defines its recipients by reference to religion; or creates an excessive entanglement. Id. at 234.

In Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 759 (1976), the Supreme Court held that the Establishment Clause prohibits direct monetary grants to the general secular educational programs of non-pervasively sectarian religious colleges where there is no effective prohibition against sectarian use of the money and administrative enforcement of that prohibition. Even a secular purpose and facial neutrality do not satisfy the Establishment Clause "if in fact the state is lending direct support to a religious activity." Id. at 747. If a faith-based organization is not pervasively sectarian, therefore, the direct aid portion of a grant program still fails the "effects" prong of the Lemon test if there are no prohibitions or administrative enforcement mechanisms in place. Freedom From Religion Foundation, 249 F.3d at 613. The Court also noted the absence of any ability or attempt to monitor the use of grant money for improper sectarian use. Id. "In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and non-ideological purposes, it is clear from our cases that direct aid in whatever form is invalid." Id.

The prohibition on direct aid for programs of religious content is consistent with the Supreme Court's decision in Bowen v. Kendrick, 487 U.S. 589 (1988). In Bowen, the Court considered whether a grant program that provided funding for services relating to adolescent sexuality and pregnancy violated the Establishment Clause as applied. The Court concluded that grants given to sectarian organizations would violate the Establishment Clause, and specific instances of constitutionally impermissible use of funds should be addressed insofar as they shed light on the manner in which the program was being administered. Id. at 620-21.

The Supreme Court directed the district court in Bowen to consider "whether in particular cases AFLA aid has been used to fund specifically religious activities in an otherwise substantially secular setting." Id. at 621. The Supreme Court further directed the district court to determine whether AFLA grantees used materials with an explicitly religious content or that were designed to inculcate the views of the religious faith. Finally, the Supreme Court concluded that if the district court found that grants were being made in violation of the Establishment Clause, it should then consider the question of an appropriate remedy, i.e., "an appropriate remedy would require the Secretary [of Health and Human Services] to withdraw such approval." Id. at 621-22.

Justice O'Connor concurred in the Bowen decision, emphasizing that "any use of public funds to promote religious doctrines violates the Establishment Clause." Id. at 623. Justice O'Connor also noted that "there is a very real and important difference between running a soup kitchen or hospital, and counseling pregnant teenagers on how to make the difficult decisions facing them." Id. Finally, Justice O'Connor recognized that "using religious organizations to advance the secular goals of the AFLA, without thereby permitting religious indoctrination, is inevitably more difficult than in other projects, such as ministering to the poor and sick." Id.

Justice Kennedy also concurred in the Bowen decision in order to state his opinion that a remedy should not be imposed merely on the basis that an organization is pervasively sectarian, but rather "the question in an as-applied challenges is not whether the entity is of a religious character, but how it spends its grant." Id. at 624.

The dissent in Bowen would have found the statute at issue unconstitutional on its face. Both the dissent and the majority decisions, however, agreed that "religious dogma may not be employed by government even to accomplish laudable secular purposes." Id. at 640. The dissent also recognized that "the risk of advancing religion at public expense, and of creating an appearance that the government is endorsing the medium and the message, is much greater when the religious organization is directly engaged in pedagogy, with the express intent of shaping belief and changing behavior, than where it is neutrally dispensing medication, food or shelter." Id. at 641. Finally, the dissent recognized the "fundamental difference between government's employing religion because of its unique appeal to a Higher Authority and the transcendental nature of its message, in government's enlisting the aid of religiously committed individuals or organizations without regard to their sectarian motivation. In the latter circumstance, religion plays little or no role; it merely explains why the individual or organization has chosen to get involved in the publicly funded program. In the former, religion is at the core of the subsidized activity, and it affects the manner in which the 'service' is dispensed." Id.

Direct public funding of programs with religious content has the effect of endorsing religion, in part, because the religious component effectively becomes the government's own speech. The Seventh Circuit noted the difference between private speech and public speech in Freedom From Religion Foundation, Inc. v. City of Marshfield, 203 F.3d 487, 491 (7th Cir. 2000):

Because of the difference in the way we treat private speech and public speech, the determination of whom we should impute speech onto is critical. There is a "crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect."

When the government contracts to fund programs with religious content through grants, the government effectively becomes the speaker. In Urofsky v. Gilmore, 216 F.3d 401, 408, n.6 (4th Cir. 2000), the Court analogized restrictions by public employee's speech to restrictions on government-funded speech, such as by grants. "In both situations -- public employee speech and government-funded speech, the government is entitled to control the content of the speech because it has, in a meaningful sense, "purchased" the speech at issue through a grant or funding or payment of a salary." Id. Such government speech, however, cannot endorse religion.

In Lee, the Supreme Court prohibited state-sponsored non-sectarian prayer. The Supreme Court concluded that even non-sectarian, non-proselytizing prayer violated the Establishment Clause, which prevents the government not just from favoring one religion over another, but also forbids the government from favoring religion over non-religion. See County of Allegheny v. Greater Pittsburg ACLU, 492 U.S. 573, 591 (1989). As Justice Blackman noted in his concurrence in Lee, 505 U.S. at 607, "democracy requires the nourishment of dialog and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it 'transforms rational debate into theological decrees.'" Because of the dangers of such decree, the Supreme Court has consistently held the Establishment Clause applicable no less to governmental acts generally favoring all religion than to acts favoring one religion over others. Id. at 610.

The Supreme Court has remained unwavering in construing the Establishment Clause to prohibit direct public funding of religious content, including the Court's plurality decision in Mitchell v. Helms, 530 U.S. 793, 120 Sup. Ct. 2530 (2000). In Mitchell,Mitchell, however, were more emphatic that direct aid to religious entities, particularly funding of religious content, violates the Establishment Clause.

HHS incorrectly implies that direct public funding of religious activities is permitted under the Establishment Clause of government aid program is applied neutrally. The United States relies upon the decision in Rosenberg v. Rector and Visitors of University of Virginia, 515 U.S. 819, 839 (1995), and the plurality opinion in Mitchell, 530 U.S. 10, for its conclusion. This purported authority, however, does not support the proposition that direct public funding of programs with religious content is permitted under the Establishment Clause.

The focus on neutrality as a sufficient litmus test under the Establishment Clause relies incorrectly, in the first instance, on cases dealing with free speech principles applicable to limited public forums. The Supreme Court recently recognized in Locke v. Davey, ___ U.S. ___, 2004 WL 344123, n. 3 (February 25, 2004), that "cases dealing with speech forums are simply inapplicable" to determining the constitutionally of direct funding of program with religious content.

The decision in Mitchell also does not support the proposition that neutrality allows direct public funding of social service programs with religious content. The United States has relied upon the plurality opinion in Mitchell, for this proposition, despite the fact that Justice O'Connor's concurrence was supported by five justices, including for the proposition that religious content is prohibited from the realm of direct public funding.

Even the plurality opinion in Mitchell offers caveats. For instance, Justice Thomas, in the plurality opinion, recognizes "that as a way of assuring neutrality, we have repeatedly considered whether any governmental aid that goes to a religious institution does so only as a result of the genuinely independent and private choices of individuals." Id. at 810. The plurality in Mitchell also states that a concern for divertability of public funds is misplaced, as opposed to concern about "improper content." Id. at 822. Finally, the plurality concludes that the funding program at issue in Mitchell did not have the effect of advancing religion "because it determines eligibility neutrally, allocates that aid based on the private choices of the parents of school children, and does not provide aid that has an impermissible content." Id. at 829.

Justice Thomas' plurality emphasis on neutrality in Mitchell, moreover, does not represent the prevailing majority of the Justices' view, which were representing by Justice O'Connor's concurrence. In her concurrence, Justice O'Connor states that if a religious school uses public aid to inculcate religion in its students, "it is reasonable to say that the government has communicated a message of endorsement. Because the religious indoctrination is supported by government assistance, the reasonable observer would naturally perceive the aid program as government support for the advancement of religion." Justice O'Connor further states that "to establish a first amendment violation, plaintiffs must prove that the aid in question actually is, or has been used, for religious purposes."

The United States Supreme Court, and other courts, have consistently recognized the difference between direct funding of programs that incorporate religious content and programs that allocate funding by individual private choices. For example, in Zelman v. Simmon-Harris, 536 U.S. 639 (2002), the majority opinion recognized that to answer the question whether a school finance program has the forbidden "effect" of advancing religion, the Supreme Court's decision's have drawn a consistent distinction between government programs that provide aid directly to religious schools and programs of true private choice, in which government aid reaches religious schools only as a result of the genuine and independent choices of many private individuals.

Other recent decisions also recognize the significance of direct public funding of social service programs that incorporate religion as a substantive component. In Freedom From Religion Foundation v. McCallum, 179 F. Supp. 2d 950, 968 (W.D. Wi. 2002), the Court concluded that direct public funding of persons who actively inculcate religious beliefs cross the line between permissible and impermissible government action under the First Amendment. The court stated that "direct subsidies are viewed as governmental advancement or indoctrination of religion." Id. at 970.

More recently, in American Jewish Congress v. Corporation for National and Community Service, 323 F. Supp. 2d 44 (Dist. Col. 2004), the court also held that direct federal funding of a program that inculcates religion violates the Establishment Clause. The court in American Jewish Congress noted that although Justice Thomas' plurality opinion in Mitchell emphasized neutrality as the most important factor in considering the effect of a government aid program, Justice O'Connor's position on this issue represented the majority view of the Court; while the neutrality of aid criteria, therefore, is an important factor, it is not alone sufficient to qualify the aid as constitutional. Id. at 58-59. Instead, a government aid program to avoid impermissible governmental indoctrination must determine eligibility for aid neutrally, allocate that aid based on private choice, and not provide aid that has impermissible conduct. Id. at 59, quoting Mitchell, 530 U.S. at 829. Considering these factors, the court found the program under consideration to be unconstitutional because it provided direct public funding for a program that was not a program of true private choice, and which had impermissible religious content.

The law is clear that direct public funding of social services that integrate religious content violates the Establishment Clause. Direct funding of religious content, without effective administrative restrictions limiting the use of public funds to secular purposes, has the primary effect of endorsing religion. When the government purchases social services that include religious content, the government effectively becomes the speaker and becomes a patron or sponsor of the religious message. By all Establishment Clause tests, direct government support of religious content has the effect of impermissibly promoting religious indoctrination.

V. HHS FUNDING FOR MENTORKIDS VIOLATES THE ESTABLISHMENT CLAUSE.

HHS funding for MentorKids violates the proscription on direct funding for programs that integrate religion. MentorKids is subsumed by the underlying belief, common to Chuck Colson's Prison Fellowship Ministries, that the mentored children of prisoners need to find Christ in their lives in order to overcome their alienation. Because this belief is integral to MentorKids, only church-affiliated Christians are recruited to act as mentors. MentorKids explains this requirement as necessary so that "our mentors are equipped to share the good news of who Jesus is and how He can provide a future and a hope for anyone." (Bolton Aff., Ex. 7 at 11.)

The infusion of Christian-precepts is integral to MentorKids. Mentors, therefore are required to subscribe to a Statement of Faith that states:

We believe in one God, Creator and Lord of the Universe, the co-eternal Trinity, Father, Son and Holy Spirit.

We believe that Jesus Christ, God's son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, died a substitutionary atoning death on the cross, rose bodily from the dead and ascended to heaven where, as truly God and truly man, He is the only mediator between God and man.

We believe that the Bible is God's authoratative and inspired Word. It is without error in all its teachings, including creation, history, its own origins, and salvation. Christians must submit to its divine authority, both individually and corporately, in all matters of belief and conduct, which is demonstrated by true righteous living.

We believe that all people are lost sinners and cannot see the Kingdom of God except through the new birth. Justification is by grace through faith in Christ alone.

We believe in one Holy, universal and apostolic church. Its calling is to worship God and witness concerning its head, Jesus Christ, preaching the Gospel, among all nations and demonstrating its commitment by compassionate service to the needs of human beings and promoting righteousness and justice.

We believe in the necessity of the work of the Holy Spirit for the individual's new birth and growth to maturity, and for the Church's constant renewal in truth, wisdom, faith, holiness, love, power, and mission.

We believe that Jesus Christ will personally and visibly return in glory to raise the dead and bring salvation and judgment to completion. God will fully manifest this Kingdom when he establishes a new heaven and new earth, in which He will be glorified forever, and exclude all evil, suffering, and death. (Bolton Aff., Ex. 7 at 6; Ex. 8 at 2.)

MentorKids may claim a sincere regard for the well-being of the children of prisoners, but its core beliefs compel the organization to expose the children to the faith of the mentors. The mentors are encouraged to always expose their faith in Christ. The integration of prayer and Bible study, therefore, become part of mentor contacts with kids. Prayer is emphasized in all that MentorKids does.

MentorKids is responsible for the efforts of the mentors to bring the children of prisoners to know and accept Christ. MentorKids recruits, trains and oversees all of the mentors that are provided. MentorKids, therefore, cannot disassociate itself from the efforts of ostensibly "volunteer" mentors, who are trained and matched by MentorKids with vulnerable children, many referred by Prison Fellowship Ministries for conversion. MentorKids creates the circumstances for the proselytizing efforts of the mentors, which are pursued systematically and deliberately encouraged.

MentorKids, in fact, expects that mentors will look for opportunities to expose their faith in Christ to the children of prisoners whenever possible. MentorKids does not expect these efforts to respect time and place limitations. Faith is seamlessly integrated into all that a faith-based mentoring program like MentorKids does, being always at the ready.

Just as MentorKids cannot compartmentalize the faith in its program, neither can HHS for funding purposes. Mentoring is amorphous by definition, which is why faith-based mentoring is a questionable subject of federal funding, particularly without rigorous and effective safeguards in place. The difficulty of monitoring and overseeing such programs may be precisely why so much money and effort is devoted to mentoring by HHS, which has done nothing to limit the use of federal tax dollars for faith-based mentoring that systematically integrates a religious mission as one of its acknowledged objectives.

HHS funding of MentorKids plainly violates the Establishment Clause. HHS is providing direct funding for a program that deliberately and integrally seeks to convert a highly vulnerable and targeted subset of children to an acceptance of Jesus Christ. Exposing these children to the Christian faith is the goal of MentorKids, which goal is not ancillary to some other objective. It is the objective. This organized effort by MentorKids cannot be funded by HHS consistent with the Establishment Clause. The organized effort by MentorKids violates the Establishment Clause because that is precisely what HHS is funding.

VI. CONCLUSION.

For all of the above reasons, the plaintiffs request the court to grant summary judgment in their favor determining that HHS funding for MentorKids, by Secretary Thompson, violates the Establishment Clause. The plaintiffs further request the court to order Secretary Thompson to adopt and implement an effective plan to prevent further funding of faith-based mentoring programs that integrate and encourage faith as part of the mentoring protocol.

Dated this _____ day of November, 2004.

_____________________________________
Richard L. Bolton, Esq.
Boardman, Suhr, Curry & Field LLP
1 South Pinckney Street, 4th Floor
P. O. Box 927
Madison, WI 53701-0927
Telephone: (608) 257-9521
Facsimile: (608) 283-1709
Attorneys for Plaintiffs