[Dialogue] Religion for Captive Audiences, With Taxpayers Footing the Bill

[Harry Wainwright]

 <http://www.nytimes.com/>  <http://www.nytimes.com/> The New York Times
<http://www.nytimes.com/> 

 




  _____  

December 10, 2006

In God's Name

Religion for Captive Audiences, With Taxpayers Footing the Bill 

By DIANA B. HENRIQUES
<http://topics.nytimes.com/top/reference/timestopics/people/h/diana_b_henriq
ues/index.html?inline=nyt-per>  and ANDREW LEHREN

Life was different in Unit E at the state prison outside Newton, Iowa
<http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessio
ns/iowa/index.html?inline=nyt-geo> .

The toilets and sinks - white porcelain ones, like at home - were in a
separate bathroom with partitions for privacy. In many Iowa prisons, metal
toilet-and-sink combinations squat beside the bunks, to be used without
privacy, a few feet from cellmates.

The cells in Unit E had real wooden doors and doorknobs, with locks. More
books and computers were available, and inmates were kept busy with classes,
chores, music practice and discussions. There were occasional movies and
events with live bands and real-world food, like pizza or sandwiches from
Subway. Best of all, there were opportunities to see loved ones in an
environment quieter and more intimate than the typical visiting rooms.

But the only way an inmate could qualify for this kinder mutation of prison
life was to enter an intensely religious rehabilitation program and satisfy
the evangelical Christians running it that he was making acceptable
spiritual progress. The program - which grew from a project started in 1997
at a Texas prison with the support of George W. Bush
<http://topics.nytimes.com/top/reference/timestopics/people/b/george_w_bush/
index.html?inline=nyt-per> , who was governor at the time - says on its Web
site that it seeks "to 'cure' prisoners by identifying sin as the root of
their problems" and showing inmates "how God can heal them permanently, if
they turn from their sinful past."

One Roman Catholic inmate, Michael A. Bauer, left the program after a year,
mostly because he felt the program staff and volunteers were hostile toward
his faith. 

"My No. 1 reason for leaving the program was that I personally felt
spiritually crushed," he testified at a court hearing last year. "I just
didn't feel good about where I was and what was going on."

For Robert W. Pratt, chief judge of the federal courts in the Southern
District of Iowa, this all added up to an unconstitutional use of taxpayer
money for religious indoctrination,
<http://www.iasd.uscourts.gov/iasd/opinions.nsf/49bb3d458bfdfed386256863007b
c595/f0e6eb32c02590a786257184006464d5/$FILE/Americans%206-2-06.pdf>  as he
ruled in June in a lawsuit challenging the arrangement.

The Iowa prison program is not unique. Since 2000, courts have cited more
than a dozen programs for having unconstitutionally used taxpayer money to
pay for religious activities or evangelism aimed at prisoners, recovering
addicts, job seekers, teenagers and children.

Nevertheless, the programs are proliferating. For example, the Corrections
Corporation of America
<http://www.nytimes.com/mem/MWredirect.html?MW=http://custom.marketwatch.com
/custom/nyt-com/html-companyprofile.asp&symb=CXW> , the nation's largest
prison management company, with 65 facilities and 71,000 inmates under its
control, is substantially expanding its religion-based curriculum and now
has 22 institutions offering residential programs similar to the one in
Iowa. And the federal Bureau of Prisons, which runs at least five multifaith
programs at its facilities, is preparing to seek bids for a single-faith
prison program as well.

Government agencies have been repeatedly cited by judges and government
auditors for not doing enough to guard against taxpayer-financed evangelism.
But some constitutional lawyers say new federal rules may bar the government
from imposing any special requirements for how faith-based programs are
audited.

And, typically, the only penalty imposed when constitutional violations are
detected is the cancellation of future financing - with no requirement that
money improperly used for religious purposes be repaid.

But in a move that some constitutional lawyers found surprising, Judge Pratt
ordered the prison ministry in the Iowa case to repay more than $1.5 million
in government money, saying the constitutional violations were serious and
clearly foreseeable.

His decision has been appealed
<http://www.pfm.org/media/ifi/Docs/09-13-06%20IFI%20Opening%20Brief%20FINAL.
pdf>  by the prison ministry to a federal appeals court and fiercely
protested by the
<http://www.pfm.org/media/ifi/Docs/09_22_06_States_Amicus_Brief.pdf>
attorneys general of nine states and lawyers for a number of groups
advocating greater government accommodation of religious groups. The
ministry's allies in court include the Bush
<http://www.pfm.org/media/prisonfellowship/IFI/pf_final_brief.pdf>
administration, which argued that the repayment order could derail its
efforts to draw more religious groups into taxpayer-financed programs.

Officials of the Iowa program said that any anti-Catholic comments made to
inmates did not reflect the program's philosophy, and are not condoned by
its leadership. 

Jay Hein, director of the White House Office
<http://www.whitehouse.gov/government/fbci/>  of Faith-Based and Community
Initiatives, said the Iowa decision was unfair to the ministry and reflects
an "overreaching" at odds with legal developments that increasingly "show
favor to religion in the public square."

And while he acknowledged the need for vigilance, he said he did not think
the constitutional risks outweighed the benefits of inviting "faith infused"
ministries, like the one in Iowa, to provide government-financed services to
"people of faith who seek to be served in this 'full person' concept." 

Crossing a Bright Line

Over the last two decades, legislatures, government agencies and the courts
have provided religious organizations with a widening range of regulatory
and tax exemptions. And in the last decade religious institutions have also
been granted access to public money once denied on constitutional grounds,
including historic preservation grants and emergency reconstruction funds. 

In 2002, the Supreme <http://www.law.cornell.edu/supct/pdf/00-1751P.ZO>
Court ruled that public money could be used for religious instruction or
indoctrination, but only when the intended beneficiaries made the choice
themselves between religious and secular programs - as when parents decide
whether to use tuition vouchers at religious schools or secular ones. The
court emphasized the difference between such "indirect" financing, in which
the money flows through beneficiaries who choose that program, and "direct"
funding, where the government chooses the programs that receive money. 

But even in today's more accommodating environment, constitutional scholars
agree that one line between church and state has remained fairly bright: The
government cannot directly finance or support religious evangelism or
indoctrination. That restriction typically has not loomed large when public
money goes to religious charities providing essentially secular services,
like job training, after-school tutoring, child care or food banks. In such
cases, the beneficiaries need not accept the charity's religious beliefs to
get the secular benefits the government is financing.

The courts have taken a different view, however, when public money goes
directly to groups, like the Iowa ministry, whose method of helping others
is to introduce them to a specific set of religious beliefs - and whose
success depends on the beneficiary accepting those core beliefs. In those
cases, most of the challenged grants have been struck down as
unconstitutional.

Those who see faith-based groups as exceptionally effective allies in the
battle against criminal recidivism, teen pregnancy, addiction and other
social ills say these cases are rare, compared with the number of programs
receiving funds, and should not tarnish the concept of bringing more
religious groups into publicly financed programs, so long as any direct
financing is used only for secular expenses.

That concept has been embodied most prominently since 2001 in the Bush
administration's Faith-Based and Community Initiative, a high-profile effort
to encourage religious and community groups to participate in government
programs. More than 100 cities and 33 states have established similar
initiatives, according to Mr. Hein.

The basic architecture of these initiatives has so far withstood
constitutional challenge, although the Supreme Court agreed on Dec. 1 to
consider a case on whether taxpayers have legal standing to bring such
challenges against the Bush administration's program.

Defenders of these initiatives say they are necessary to eliminate
longstanding government policies that discriminated against religious groups
- to provide a level playing field, as one White House study put it.

But critics say the "level playing field" argument ignores the fact that
giving public money directly to ministries that aim at religious conversion
poses constitutional problems that simply do not arise when the money goes
elsewhere.

Converting Young People

Those constitutional problems sharpen when young people are the intended
beneficiaries of these transformational ministries. In recent years, several
judges have concluded that children and teenagers, like prisoners, have too
few options and too little power to make the voluntary choices the Supreme
Court requires when public money flows to programs involving religious
instruction or indoctrination. 

That was the
<http://www.nytimes.com/packages/other/business/20061210ranch.RTF>
conclusion last year of a federal judge in Michigan, in a case filed by Teen
Ranch <http://www.teenranch.com/> , a nonprofit Christian facility that
provides residential care for troubled or abused children ages 11 to 17.

In 2003, state officials imposed a moratorium on placements of children
there, primarily because of its intensively religious programming. Lawyers
for the ranch went to court to challenge that moratorium.

"Teen Ranch acknowledges that it is overtly and unapologetically a Christian
facility with a Christian worldview that hopes to touch and improve the
lives of the youth served by encouraging their conversion to faith in
Christ, or assisting them in deepening their pre-existing Christian faith,"
observed a United States District judge, Robert Holmes Bell, in a decision
released in September 2005.

Although youngsters in state custody could not choose where to be placed,
they could refuse to go to the ranch if they objected to its religious
character. As a result, the ranch's lawyers argued, the state money was
constitutionally permissible. 

The state contended that the children in its care were "too young,
vulnerable and traumatized" to make genuine choices. The ranch disputed that
and added that the children had case workers and other adults to guide them.
Judge Bell rejected Teen Ranch's arguments. "Regardless of whether state
wards are particularly vulnerable, they are children," he wrote. 

The ranch in Michigan has discontinued operations pending the outcome of its
appeal, said Mitchell E. Koster, who was its chief operating officer. "We
are confident that our argument will win," Mr. Koster said. "It's just a
question of at what level." 

In another case early last year, a federal judge struck down a
<http://ffrf.org/news/2005/mentorkids05_decision.html>  federal grant in
2003 to MentorKids USA, a ministry based in Phoenix, to provide mentors for
the children of prisoners. In a case filed by the Freedom From Religion
Foundation in Madison, Wis., the judge noted that the exclusively Christian
mentors had to regularly assess whether the young people in their care
seemed "to be progressing in relationship with God." In a program newsletter
offered as evidence, its director said, "Our goal is to see every young
adult choose Christ."

The federal government had been clearly informed in advance of the nature of
the MentorKids ministry, said John Gibson, chairman of the group's board.
"The court's decision meant that there were 50 kids we could have served
that we were not able to serve."

In another case, more than $1 million in federal funds went to the Alaska
Christian College in Soldotna, Alaska, which says it provides "a
theologically based post-secondary education" to teenage Native Americans
from isolated villages. But an investigator from the Education Department
who visited the school last year found a first-year curriculum "that is
almost entirely religious in nature." 

The Freedom From Religion <http://ffrf.org/news/2005/alaska_complaint.pdf>
Foundation sued to block the financing. The school promised to use
<http://ffrf.org/news/2005/alaska_settlementagreement.pdf>  government money
only for secular expenses, and federal financing resumed last May, according
to Derek Gaubatz, of the Becket Fund for Religious Liberty, which represents
the college. 

A number of government grants to finance sexual abstinence education have
been successfully challenged. For example, the Louisiana Governor's Program
on Abstinence gave federal money to several religious groups that used it
for clearly unconstitutional purposes, a
<http://graphics8.nytimes.com/packages/pdf/business/20061210aclu.pdf>
federal judge ruled in 2002, in a case filed by the American
<http://topics.nytimes.com/top/reference/timestopics/organizations/a/america
n_civil_liberties_union/index.html?inline=nyt-org>  Civil Liberties Union.

One grant went to a theater company that toured high schools performing a
skit called "Just Say Whoa." The script contained many religious references
including one in which a character called Bible Guy tells teenagers in the
cast: "As Christians, our bodies belong to the Lord, not to us." 

The federal judge said the grants were so poorly monitored that the state
missed other clear signs of unconstitutional activity - as when one Catholic
diocese sent monthly reports showing that it had used federal money "to
support prayer at abortion
<http://topics.nytimes.com/top/reference/timestopics/subjects/a/abortion/ind
ex.html?inline=nyt-classifier>  clinics, pro-life marches and pro-life
rallies." Gail Dignam, director of the abstinence program, said that state
contracts now emphasize more clearly that no grant money may be used for
religious activities.

The Programs in Prisons

Programs like the one at the Iowa prison are a rare ray of hope for American
prisoners, and governments should encourage them, their supporters say.

"We have 2.3 million Americans in prison today; 700,000 of them will get out
of prison this coming year," said Mark L. Earley, a former attorney general
of Virginia. Many inmates come out of prison "much more antisocial than when
they came in," he added. He said he saw faith-based groups as essential
partners in any effective rehabilitation efforts.

Mr. Earley is the president and chief executive of Prison Fellowship
<http://www.prisonfellowship.org/default_pf_org.asp>  Ministries, based in
Lansdowne, Va. With almost $56 million a year in revenue, the ministry
oversees the InnerChange Freedom Initiative
<http://www.ifiprison.org/site_hmpg.asp> , which operates the Iowa program.

Since its birth in 1976, Prison Fellowship has been most closely associated
with one of its founders, Charles W. Colson, who said in a 2002 newsletter
that the InnerChange program demonstrates "that Christ changes lives, and
that changing prisoners from the inside out is the only crime-prevention
program that really works."

In early 2003, Americans United for Separation of Church and State joined
with a group of Iowa taxpayers and inmates to challenge the InnerChange
program in federal court. 

In ruling on that case, Judge Pratt noted that the born-again Christian
staff was the sole judge of an inmate's spiritual transformation. If an
inmate did not join in the religious activities that were part of his
"treatment," the staff could write up disciplinary reports, generating
demerits the inmate's parole board might see. Or they could expel the
inmate.

And while the program was supposedly open to all, in practice its content
was "a substantial disincentive" for inmates of other faiths to join, the
judge noted. Although the ministry itself does not condone hostility toward
Catholics, Roman Catholic inmates heard their faith criticized by staff
members and volunteers from local evangelical churches, the judge found. And
Jews and Muslims in the program would have been required to participate in
Christian worship services even if that deeply offended their own religious
beliefs.

Mr. Earley said Judge Pratt's decision was sharply inconsistent with current
law and his standard for separating secular from religious expenses was so
extreme that it would disqualify almost any faith-based program. He
acknowledged that inmates, whatever their own faith, are required to
participate in all program activities, including worship, but he insisted
that a religious conversion is not required for success. InnerChange uses
biblical references only to illustrate a set of universal values, such as
integrity and responsibility, and not to exclude those of other faiths, he
said, adding that it was "unfortunate" if any inmates felt the program
denigrated Catholicism or any other Christian faith. Corrections officials
in Iowa declined to comment on the case.

Not all programs in prisons are so narrowly focused. Florida now has three
prisons that offer inmates, who must ask to be housed there, more than two
dozen offerings ranging from various Christian denominations to Orthodox
Judaism to Scientology. But at Newton, Judge Pratt found, there were few
options - and no equivalent programs - without religious indoctrination.

"The state has literally established an Evangelical Christian congregation
within the walls of one of 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," Judge
Pratt wrote. "There are no adequate safeguards present, nor could there be,
to ensure that state funds are not being directly spent to indoctrinate Iowa
inmates."

InnerChange, which has been widely praised by corrections officials and
politicians, operates similar programs at prisons in Texas, Minnesota,
Kansas, Arkansas and, by next spring, Missouri. Officials in those states
are monitoring the Iowa case, but several said they believed their programs
were sufficiently different to survive a similar challenge.

A government-financed religious education program at a county jail in Fort
Worth was
<http://graphics8.nytimes.com/packages/pdf/business/20061210williams.pdf>
struck down by the Texas Supreme Court more than five years ago, and more
lawsuits are pending. Corrections Corporation was among those sued last year
by the Freedom From Religion Foundation, which is challenging a Christian
<http://ffrf.org/news/2005/newmexico_complaint.pdf>  residential program at
a women's prison in Grant, N.M. The foundation has also sued
<http://ffrf.org/legal/gonzales_complaint.html>  the federal Bureau of
Prisons over its faith-based rehabilitation programs. And Americans United,
the Iowa plaintiff, and the American Civil Liberties Union have
<http://www.nytimes.com/packages/other/business/20061210bradford.RTF>  sued
a job-training program run by a religious group at the Bradford County Jail
near Troy, Pa.

Prison Fellowship Ministries is one of about a half-dozen Christian groups
that operate programs at jails and prisons run by the Corrections
Corporation. The company's lawyers are studying the Iowa decision, said a
spokeswoman, Louise Grant. "But we are not, at this time, changing or
altering any of our programming based on that, or any other ruling." 

Inadequate Monitoring

Government agencies have been criticized repeatedly for inadequately
watching these programs. Besides the criticism in various court decisions,
the Government Accountability Office has twice raised questions about cloudy
guidelines and inadequate safeguards against government-financed evangelism.

In its most recent audit released in
<http://www.gao.gov/new.items/d06616.pdf>  June, the G.A.O., which examined
faith-based organizations in four states, found that some were violating
federal rules against proselytizing and that government agencies did not
have adequate safeguards against such violations.

The problem is not that none of these programs are audited. Every group that
gets a federal grant worth more than $500,000 has to pay a private auditor
to examine its books and report to the government. Many federal programs,
like those that provide Medicaid services or help the government allocate
arts grants, require additional audits. 

But no supplemental audits are required under the faith-based initiative -
indeed, it would probably violate the Bush administration's new regulations
to do so, said Robert W. Tuttle, a professor of law and religion at George
Washington
<http://topics.nytimes.com/top/reference/timestopics/organizations/g/george_
washington_university/index.html?inline=nyt-org>  University and co-director
of legal research, along with Ira C. Lupu, for the Roundtable on Religion
and <http://www.religionandsocialpolicy.org>  Social Welfare Policy, a
project of the Rockefeller Institute.

"The rules can be read to prohibit special audit requirements because that
would be considered a stigma, which would be discriminatory," Professor
Tuttle said. "But that flies in the face of constitutional logic, because
religion is special, and that special quality has to be reflected in program
guidelines and audit rules."

The G.A.O. also says the government cannot easily or accurately track either
how much money is flowing to groups or whether they are using the funds in
unconstitutional ways.

The Bush administration is already studying whether these constitutional
problems can be resolved by reshaping many government grants into voucher
programs under which the beneficiary decides where the money goes. But
vouchers are a limited solution because most social service agencies need to
know that a certain amount of money is assured before they can begin
operations. 

Mr. Hein, the White House official, agreed that vouchers could clarify the
legal landscape. But even where they are not practical, he said, the Bush
administration remains committed to keeping the doors to government
financing open for as many religious groups as possible.

Donna Anderson contributed research.

 

Copyright <http://www.nytimes.com/ref/membercenter/help/copyright.html>
2006 The New York Times Company <http://www.nytco.com/>  

 

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