Strengthening Constitutional Self-Government

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Prison Fellowship Ministry case

Howard Bashman provides a link to the opinion and some news coverage about the Iowa Prison Fellowship Ministry case, about which I blogged here, here, and here. The bad news is that the appellate panel (which included Sandra Day O’Connor) found against Iowa and PFM in many respects. The good news is that it did not uphold the district court’s very punitive requirement that PFM reimburse the state $1.5 million or require that the current privately-funded version of the program be shut down.

The folks at the Becket Fund are putting a happy face on a ruling with which they must be generally displeased, as do the PFM people. It’s true that nothing in the decision prevents states from permitting privately-funded faith-based programs in prisons, but all three judges still affirm that, as it operated for most of its term, the program violated constitutional strictures. The other piece of good news coming from the decision was the panel’s repudiation of the district court’s talk about "pervasive sectarianism."

The folks at Americans United regard this as a big victory, though I think they overreach at least a little when they claim that "[t]his ruling is a major setback for the White House’s ‘Faith-Based Initiative.’" Liberal Baptists are also pleased.

Once again, my own view is that, in general, opponents of programs like this ought to spend their efforts creating secular alternatives, guaranteeing inmates more choices, rather than working hard actually to reduce the rehabilitative options they have.

Discussions - 12 Comments

I don't see how the recognition and disapproval of a state-funded program that violated the establishment clause and was a gross breach of the wall of separation of church and state obligates anyone to "create secular alternatives" or "guarantee inmates more choices." It's not a supermarket, it's a prison. I'm sure you would oppose a taxpayer-funded rehabilitation program based on Muslim conversion, as would I. Same goes - for me - with the progam from the conveniently-converted Watergate guy.

What wall of separation between church and state are you referring to, Craig? How on earth did that program violate the establishment clause? Go read the first amendment again.

Why should anyone care if a prisoner rehabilitation program was faith-based if it worked at keeping people out trouble and out of prison and was voluntary?

I don't know that I would have a problem with a Muslim conversion program, just because it was Muslim, if such programs were not probably going turn out to be something like this. We already have U.S. Bureau of Prisons' Muslim chaplaincy programwhich is presumably tax-payer funded. The Watergate guy suggests that if the Christian based organizations are pulled from the prisons, that will leave the Muslims behind bars with the ability to convert and not the Christians. There is, however, this Muslim woman working as prison chaplain, who seems unlikely to be promoting jihad, but I suppose you never know. You certainly do never know what you might find poking about online.

Honestly, I have never liked the idea of faith-based institutions taking tax-payer money. It is not that I see it as a constitutional issue, but rather that public money ought not be the answer to every problem. Yet if we, the people, somehow think we have to spend money on this sort of thing, why a Christian organization that can do the job well is unqualified because Christian is beyond me.

"oppponents ... ought to spend their efforts creating secular alternatives"

Problem is, they're culture warriors. If they cared primarily about the recipients of the services, they wouldn't fight the faith-based programs in court. Cases like these show the fundamental coldheartedness and authoritarianism of the cultural left, which is primarily about the destruction of things they don't like (whereas the cultural right aims to maintain a civilizational inheritance).

I'm not a fan of President Bush's faith-based initiative because I don't like injecting federal funding (and therefore liberal values, e.g., "nondiscrimination") into the private sector. But constitutionally there is no problem with it. The people fighting this are our opponents more or less across the board, and will not suddenly decide to focus on providing more alternatives for the down and out just because it's the humane thing to do. Humanitarian results are not their concern.

Kate, this is from the court's summary of the decision:

"The Establishment Clause erects a barrier between government and religious entities 'depending on all the circumstances of a particular
relationship.' Lynch v. Donnelly, 465 U.S. 668, 678-79 (1984), quoting Lemon v. Kurtzman, 403 U.S. 602, 614 (1971); see McCreary County v. Am. Civ. Liberties Union, 545 U.S. 844, 867 (2005) ('under the Establishment Clause detail is key'). For those 'who wrote the Religion Clauses of the First Amendment the ‘establishment’ of a religion connoted sponsorship, financial support, and active sponsorship, financial support, and active involvement of the sovereign in religious activity."

And, more importantly:

"...because the indoctrination and definition criteria indicate InnerChange had the effect of advancing or endorsing religion, the state's direct aid to InnerChange during the years 2000 to 2004 violated the Establishment clauses of the U.S. and Iowa Constitutions..."

It's also interesting that Mr. Knippenberg said "opponents of programs like this ought to spend their efforts creating secular alternatives, guaranteeing inmates more choices, rather than working hard actually to reduce the rehabilitative options they have" as the court's judgment says (on p. 23) that "In this case, there was no genuine and independent private choice. The inmate
could direct the aid only to InnerChange. The legislative appropriation could not be
directed to a secular program, or to general prison programs.
" It appears that the elimination of choice was precisely one of the (many) problems with the InnerChange program (a subsidiary concern of Colson's Prison Fellowship ministries).

Mr. Frisk - nice try with the reality-on-its-head attempt to smear with "they're culture warriors." The only time I've ever heard or read that term is when Bill O'Reilly is proudly proclaiming HIMSELF to be one.

And this: "Cases like these show the fundamental coldheartedness and authoritarianism of the cultural left, which is primarily about the destruction of things they don't like (whereas the cultural right aims to maintain a civilizational inheritance)" - well, it made me laugh out loud. Yes, it's always the "cultural left" that is continually trying to outdo itself with rhetoric and policies to show how it/they want to "get tough on crime" and criminals. And, just limiting myself to a few examples in the more pertinent criminal justice realm, yes, it's the cultural left that is eager to execute (that is, destroying criminals), eager to find new crimes with which to imprison an even greater percentage of its population and bloat the prison numbers even beyond their world record-setting extremes. The cultural left came up with the "3 Strikes and You're Out" policy. It's the cultural left that cheers on the police when they taser kids, elderly, and pregnant women, in their expressions of authoritarianism run amok.

Craig, the ACLU types are the aggressors in the culture war. The O'Reillys are warriors only in a defensive sense. If this distinction is too much for you, maybe you shouldn't be posting on an adult blog, not being smart enough.


No one "eliminated" choice to put the PFM program into place. The Iowa Dept of Corrections did a cfp for a "values-based" rehabilitation program and PFM, the first time, was the only bidder. The second time, its bid was roughly $250-300K below the only other bidder.

While this arrangement might be said to approach establishment, it isn't there. Inmates would have other options for "values-based" rehab programs if some secularists--and other faith-based programs--stepped up to the plate to deliver them. As it stands now, the choice they had was this program, or the much less appealing set of courses and counseling offered by the state. Too bad for the prisoners, though I must say that I'm glad that PFM is able to sustain its program there (and elsewhere) with private money and lots and lots of volunteer hours.

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof" which is connected to the right to free speech and press, the right of assembly and the right to petition. I understand what the courts have made of it and what you make of it.

I like this from the OED on establishment: 2. esp. The ‘establishing’ by law (a church, religion, form of worship). (See ESTABLISH v. 7.) {dag}a. In early use, the settling or ordering in a particular manner, the regulating and upholding of the constitution and ordinances of the church recognized by the state. {dag}b. In 17th-18th c. occasionally the granting of legal status to (other religious bodies than that connected with the state). c. Now usually, the conferring on a particular religious body the position of a state church.

To quote the rest of your FindLaw piece, "[The] Court has long held that the First Amendment reaches more than classic, 18th century establishments.'' Supp.3 However, the Court's reading of the clause has never resulted in the barring of all assistance which aids, however incidentally, a religious institution. Outside this area, the decisions generally have more rigorously prohibited what may be deemed governmental promotion of religious doctrine."

Establishment was about a state supported church that influenced government in very particular ways. Mitt Romney would not be permitted to be president if some orthodox church, say the Episcopalian Church, were our established church. We do not have that kind of church, nor is Christianity in some generalized sense anything capable of the kind of organized political/governmental control implied by the courts. It is absurd. Your reading of that clause and perhaps that court's decision makes religion itself sound beyond the bounds of state protection. If that was the Founder's intention, I'll eat my shoe. It takes the most prejudicial and twisted reading of the Establishment Clause to suggest that the Constitution did not, in fact, require the protection of religion from state intervention on a federal level.

If there was no private choice in this case, perhaps that was because no one else was interested in providing a program to rehabilitate those prisoners in Iowa. Was that an elimination of choice or a lack of choice in the instance? Humanitarian results are not their concern. David Frisk is quite right.

Thank you for the clarification, Joe. I did not see you comment until after my post.

"While this arrangement might be said to approach establishment, it isn't there."

Well, you and the U.S. Court of Appeals for the 8th Circuit will just have to agree to disagree, as their panel unanimously concluded otherwise. Maybe you and Kate can take them on next time. In the meantime, I'm glad they called it the way they did. Again, they stated:

"...because the indoctrination and definition criteria indicate InnerChange had the effect of advancing or endorsing religion, the state's direct aid to InnerChange during the years 2000 to 2004 violated the Establishment clauses of the U.S. and Iowa Constitutions..."

I also noticed that "individual inmates" were listed as appellees alongside Americans United, having "had direct, offensive, and alienating contact with the InnerChange program." Apparently no inmates took the side of, or were not allowed to take the side of, Prison Fellowship Ministries, Inc., as appellants. Perhaps inmates were denied, or would not qualify as having, standing as appellants, but it seems odd that none of the beneficiaries of Colson's Bible-based program would step forward to defend it in one form or another, perhaps just to say that the program never advanced or endorsed any religion when they were taking part in it. Are "offensive and alienating" now part of what it means to be humanitarian?

[And since I'm here, and there almost certainly will not be a blog-post about it, has anyone heard the news that the National Intelligence Estimate - you know, that little report prepared by the 16 member agencies of the U.S. Intelligence Community (incl. the CIA, FBI, NSA, SecDef, and the DoE's Office of Intelligence) - stated that Iran stopped their nuclear program in 2003? The report also says it is unclear whether Iran "currently intends to develop nuclear weapons." Wow, they might not even INTEND to develop them! But hey, that's just the CIA, FBI, NSA, SecDef, etc. talking. Let's wait to see what NLT's friends Jonah Goldberg and the Powerline fellows have to say about it before we stop planning a preemptive missile strike. Wow, preemption would then be redefined as necessary "even if you're not necessarily thinking about it"!

Why talk about the NIE, when there are atheist films to fret about and discussions about just how "repellant" Hillary is!"]

I do not find Hillary repellant, just her politics. The NIE report seems problematic, for more reasons than I originally thought, the more I read about it. Does it seems so to you, having read about it for a few days?

Finally, aren't Americans allowed to disagree with the Constitutional findings of any court?

This goes away shortly. I am sorry I have not had time to continue the argument.

One of many things that seems rather problematic about the NIE on Iran is that if you follow the last several months of Bush's speeches on Iran it is rather striking how he changed the way he spoke of Iran and the danger it poses; basically he went from Iran having the technology to Iran seeking to have the KNOWLEDGE about the technology to have the weapons. Yet this didn't stop him from invoking nuclear holocausts and WWIII. Bush obviously saw the NIE before he said he did.

"Finally, aren't Americans allowed to disagree with the Constitutional findings of any court?"

Yes, absolutely! I don't see that I even inferred otherwise. I hope you remember this moment if you ever feel dismissive of the citizenry's right to dissent in the future.

Lastly, Kate, what to make of those videos of the interrogations that the CIA admits to having destroyed? It reminds me of my previous suggestion about videotaping any torture that is conducted by Americans. The story is that the video was destroyed because they feared that someone's cover might get blown if they couldn't keep the vid secret, and it ended up on YouTube or something. If they have such low confidence in being able to hold onto a tape, then why did they film it in the first place?

You don't suppose the video shows someone being tortured, do you?

Well, if the "enhanced interrogation" (that is, torture) yielded info that saved American lives, then they should've brought that agent home immediately thereafter, archived the tape securely, and at some point, after the agent is well-hidden and comfortable, or dead, we can all gather round the TV with our respective families, munch on some popcorn and see how yes, Virginia, there really IS a Jack Bauer, and he saved _____ (insert astonishing number) lives!! And then everyone would know why torture is a new American value (save for some hopeless liberals who should be regarded with great suspicion and possibly be locked up at Gitmo for thinking bad things about America!).

Craig, I find one constantly funny thing about being a conservative. Supposedly, it means I am in favor of the status quo, which is hardly ever true. I find the way things are simply appalling most of the time, and shrug, knowing I can do nothing about it. Whining on here is like taking aspirin for a cold.

I never feel dismissive of the citizens' right to dissent.

Yes, I am sure Bush changed his rhetoric about Iran to reflect what he was reading from the intelligence agencies. Is Iran a non-threat? I thought there was enough room for doubt within that NIE report that it was like the "Code Orange" sign I saw at the airport today. We can be relieved there is not an absolute threat, but to relax completely on the subject is not a good idea. Why did Iran back down from its nuclear program? Was it not a matter of concern to them for the last years that the US was looming, upset and cautiously belligerent about it? Is that really such a bad thing?

Yes, I remembered your video-taping idea. If you want to get worked up about the videos that were destroyed, then why not get worked up about why anyone admitted to those videotapes at all? "The CIA admits to having destroyed...." if it was something that needed to be terribly secret, or if the CIA was the monolithic evil you sometimes suggest, then why mention videos at all, ever. Just wondering.

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