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Religion's Financial Windfalls in the Bush and Clinton Eras: An Important Recent Federal Court Decision Recognizes The Threat to the Constitutional Separation of Church and State In the Prison Context

Monday, Jun. 12, 2006

During the George W. Bush and Clinton Administrations, the barriers between government funds and religious groups have been systematically dismantled. Both Administrations have been eagerly willing to curry religious groups' favor - and the government's openness on this score has empowered and emboldened religious entities, who have been increasingly brazen about seeking government subsidies.

Indeed, both Administrations - led by southern Christian evangelicals - have gone so far as to enthusiastically underwrite religious groups' missions, blithely unconcerned about James Madison's warning that "not one pence" of any citizen's tax money should go to support the religious mission of another. And this dynamic has found its way into the states as well.

There are three battlefronts where these issues have been most actively percolating: religious prison programming, land use privileges, and faith-based funding. I'll discuss all three, but will focus, in particular, on a recent, laudable federal district court decision that opts, rightly, to hew to the Constitution's church/state line.

Religious Prison Programming: Why A Court Struck One Program Down

The Religious Land Use and Institutionalized Persons Act (RLUIPA) - which I discussed in detail, as it applies to prisons, in a prior column -- was primarily supported by Chuck Colson, the founder of Prison Fellowship Ministries. Not coincidentally, Prison Fellowship Ministries - and thus, Colson -- is the primary beneficiary of a number of state contracts for religious programming in the prisons.

Prison Fellowship Ministries' Iowa program recently was held unconstitutional. In Americans United for the Separation of Church and State v. Prison Fellowship Ministries, federal Judge Robert W. Pratt, of the Southern District of Iowa, ruled that the "InnerChange Freedom Initiative" (IFI) administered in the Iowa prisons violated the Establishment Clause. This is a case that has ramifications for Prison Fellowship's operations in other state prison systems, as well for other cases involving government funding for faith-based program and organizations.

Judge Pratt's 140-page opinion is devoted primarily to the facts regarding the relationship between government funds and the operation of IFI. The most salient facts the court found are as follows:

The IFI is a pervasively sectarian program, which integrates God, Jesus, and the importance of being "born again" across the program. All InnerChange employees must sign a "statement of faith," which reads in part, "We believe in one God, Creator and Lord of the Universe the co-eternal Trinity Father, Son, and Holy Spirit. . . . We believe that the Bible is God's authoritative and inspired Word. It is without error in all its teachings, including creation, history, and its own origins, and salvation." Neither the state nor IFI engaged in any meaningful oversight of which state funds were going to sectarian or non-sectarian uses; indeed, neither ever defined what was meant by either term. While other inmates participating in religious ceremonies - for example, "sweat lodges" for Native American Church members -- were required to pay for the materials needed for their religious observance, IFI participants paid nothing for the religious aspects of the program. InnerChange was permitted to take over an entire cellblock, one which was preferable in no small part because toilets and sinks were not in the cell, but rather down the hall in a community bathroom, giving inmates significantly more space and privacy; meanwhile, when the program started, those inmates who did not choose to join the InnerChange program were required to move to the "general population" cell blocks, which have in-cell sinks and toilets. Finally, no evidence was introduced at trial that IFI actually reduced recidivism rates among participating prisoners.

The district court found that the state contract for the program violated the Establishment Clause. The court found that there were at least some secular purposes behind the institution of the program, satisfying the "purpose" prong of the Lemon v. Kurtzman factors. (I discussed the "Lemon test" - the now-classic test determining whether the Establishment Clause has been violated -- in detail in a previous column). But the court also found that the Lemon test's "primary effect" prong - which prohibits government action from primarily benefiting or hindering religion -- could not be satisfied, because the program was pervasively sectarian.

The court noted that Prison Fellowship Ministries had argued that the government could not regulate its speech - but concluded that this argument rested on a fallacy: It assumed that IFI was private, when, here, it was in effect a "state actor." Accordingly, the question was not IFI's religious freedom, but rather the appropriateness of IFI's actions under the Establishment Clause. The court explained that "[a]s providers of a state-funded treatment program, [IFI's staff] are burdened with the same responsibilities of any state employee to respect the civil rights of all persons, including the First Amendment's prohibition on indoctrinating others in their form of religion."

Put simply, if the question was separation between Church and State, IFI here counted as the State, not the Church; after all, it was receiving government funding to administer state programs to state prisoners. This case, then, was not about IFI's right to practice religion, but rather about the inmates' right to be in a prison system that equally respects all religious viewpoints.

Nor was the court persuaded that IFI was a voucher program like that upheld by the Supreme Court in Zelman v. Simmons-Harris In that case, the court upheld a school voucher program on the ground that it offered expansive and "true choice" across many school options, private and public, religious and secular. The prison system, in contrast, did not feature "true choice": Indeed, there was no other program that offered the complete range of treatment modules offered by IFI. The inmates had no choice but IFI's evangelical Christian programming if they wanted to be in the "honor setting" and reap its privileges, which extended far beyond better cells, to weekly communal movie viewing, pizzas, sandwiches, and being allowed to sit with a close family member or friend at graduation ceremonies.

IFI - perhaps because it sensed its program might be challenged in court -- had tried to transform the program into a voucher system midway through the contract by altering the state's payment to IFI from a single lump sum to a per diem, per inmate payment. But the court saw this change in the mode of payment for what it was: merely a fig leaf to attempt to camouflage the clear constitutional violation of direct state aid to religion. The only recipient the inmates could designate for the per diem payment was IFI.

Finally, the court found excessive entanglement between the state and religion - another Establishment Clause taboo. "For all practical purposes," the court pointed out, "the state has literally established an Evangelical Christian congregation within the walls of one [sic] its penal institutions, giving the leaders of that congregation, i.e., InnerChange employees, authority to control the spiritual, emotional, and physical lives of hundreds of Iowa inmates."

Because the funds for the program came from an assessment placed on all inmates' phone calls, and from the state's Tobacco Trust, the Court concluded that IFI forced taxpayers to underwrite a frankly religious enterprise.

The court ordered a permanent injunction and ordered InnerChange to repay the state monies received, because the "level of religious indoctrination supported by state funds and other state support in this case, in comparison to other programs treated in the case law, . . . is extraordinary." The program, the court concluded, was a "real deprivation of Plaintiffs' religious liberties."

These remedies, however, have not yet gone into effect: Knowing full well that the decision would be appealed, the Court then sua sponte (that is, on its own initiative) entered a stay pending appeal.

There is far more to the opinion than I have been able to summarize here, including an interesting history of an Iowa prison system administrator's previous relationship with Prison Fellowship Ministries in other states, and a disturbing account of the contract award process for InnerChange, the result of which appeared to be a foregone conclusion before any negotiation or outside bidding ever took place. Accordingly, I encourage interested readers to consult the opinion's full text.

Before the Clinton Administration, such a prison program would have been thought to be impossible, because it was recognized that such a program would be clearly unconstitutional. But thanks to that Administration - and now, the current one - the lines have been blurred, and the unthinkable is being attempted with gusto

What is most remarkable about the story behind this case is that a few Iowa state officials had some misgivings about its constitutionality, but those most closely involved literally sped forward anyway to get the religious program into the prison, throwing constitutional concerns to the four winds. This is the set of values we have reaped from fourteen years of federal leadership that has sought to privilege religious entities and to eviscerate any meaningful separation of church and state.

The courts are the only bulwark against the activism that would establish theocracies in our public institutions. This court carefully applied settled precedent and reached a sound conclusion. Only an activist Supreme Court intent on removing all vestiges of Establishment Clause values would overturn such a decision.

Federal and State Subsidization of Religious Land Use

In addition to applying to prisons, RLUIPA --the Religious Land Use and Institutionalized Persons Act - also applies, as its title suggests, to land use. And here, too, RLUIPA's influence has been pernicious: As I have discussed in a prior column, RLUIPA financially privileges religious land users above all others.

There are three economic factors at work here: The first precedes RLUIPA: Religious entities receive a property tax exemption. At one point, there was debate about the constitutionality of this wealth transfer, but in 1970, in Walz v. Tax Commission of the City of New York, the Supreme Court upheld the practice -- in no small part because it had been in place since the founding.

This exemption is treated by many, at this point, as an entitlement. But it should not be forgotten, in discussions of RLUIPA and similar legislation, that religious entities already have significant financial assistance in their property ownership and construction. The question, when evaluating RLUIPA and similar laws, is not whether churches should be privileged financially, but whether they should be more privileged financially than they already are

RLUIPA added two privileges -- on top of the existing property tax exemption - that, together, put religious landowners' in an extraordinarily privileged position vis-à-vis other landowners:

First, RLUIPA means that religious landowners can do things with their property other landowners can't - because under the statute, it is difficult for zoning boards to meet the high standard necessary to stop them. It's well-known that much of a property's value comes from how it is zoned; for the same reason, RLUIPA is a windfall to religious landowners.

Here's how it works: Knowing RLUIPA gives them an edge to fight land use restrictions, religious entities often opt to purchase property in lower-cost zones, like residential neighborhoods, and then to put the property to more intense - in essence, commercial - use anyway. Religious entities can also leverage RLUIPA to make expansion less costly; whereas another landowner would have to buy another parcel of property, a religious landowner can simply expand on already-owned property, at significant savings.

Second, RLUIPA provides attorneys' fees for those religious landowners who sue and prevail. No wonder, then, that religious landowners jump into federal court as fast as possible if they are denied the variances they seek in the zoning process; they have the threat of attorneys' fees to use to force the zoning board to follow their bidding. And then, if the lawsuit is filed and even if settlement does occur, they insist that an allowance for attorneys' fees be a part of that settlement. And no wonder, too, that cash-strapped local and state governments, who are unwilling to spend taxpayers' money on litigation if they don't have to, often settle just to dispose of the lawsuit.

Other statutes have attorneys'fees provisions, to be sure, but none of those statutes limit their recipients to religious entities. Moreover, attorneys' fees awards are often added to induce litigants to act as "private attorneys general," or to reward those who bring successful civil rights claim to vindicate key values. A church's ability to get a variance from zoning rules that apply generally to all landowners is no civil rights issue.

Taken together, these three factors - longstanding property-tax-exempt status, the economic benefits flowing from the ability to alter the zoning code under RLUIPA, and threatened and actual attorneys' fees awards, also under RLUIPA -- create tremendous financial advantages for a class of landowners solely based on their religious status.

It is hardly surprising, then, that neighborhoods have started to lobby their members of Congress to repeal RLUIPA, at least as applied to residential property, along with its attorneys' fees provision. For a homeowner, Congress's decision to give religious landowners special privileges operates just as insidiously as the Supreme Court's much-maligned recent Kelo decision, which opened the door to the use of the eminent domain power to turn private homes over to private developers.

Faith-based Funding for Pervasively Sectarian Social Programs

Meanwhile, in addition to pushing the envelope in prisons and in land use law, the Clinton, and now Bush, Administrations have also pushed for "charitable choice" or "faith-based funding," -- the purpose of which is to permit religious entities to use government funds for social services, even though the funds subsidize their religious mission.

Before President Clinton, religious organizations like Catholic Charities and others received federal and state funds, to be sure. But they were required to keep separate accounts and to prove that the government's funds were used for nonsectarian purposes (say, a soup kitchen open to all). But since Clinton, the federal government has ceased to demand separate bookkeeping, and has thus opened the door for religious entities to obtain funds even for pervasively religious programs (say, a soup kitchen where those dining must listen to a sectarian sermon and even participate in prayer). Even conservatives like the Rev. Jerry Falwell, who at one time espoused a belief in smaller government, have been more than willing to take these new funds to serve their religious mission -- proving once and for all, that if there is a federal trough, anyone will line up for it. (I have written in more detail about this phenomenon in past columns such as this one.)

We are still in the early stages of litigation over RLUIPA's financial windfall for religious entities and faith-based funding. Still, the InnerChange decision does hold out hope that this incremental, but massive shift toward government subsidization of religion can be contained before Church/State separation is utterly eroded.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005). Her email address is

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