Wednesday, September 28, 2011

Prison or Church

By Mike Dorf


Here's an interesting story about a small town in Alabama (Bay Minette) that will offer mandatory church attendance as an alternative to incarceration or a fine for non-violent offenders.  The story quotes an ACLU official condemning the policy as "blatantly unconstitutional" because "government can't force participation in religious activity."  Yet getting to that result is not so easy under the existing Supreme Court precedents.

The story quotes the town police chief  as follows: "You show me somebody who falls in love with Jesus, and I'll show you a person who won't be a problem to society."  Now, insofar as that statement shows that the program aims to advance Christianity in particular, it renders the program infirm under the Establishment Clause.  But maybe we can gloss the statement a bit.  Perhaps, if pressed, the police chief would say "and not just Jesus; you show me someone who falls in love with the teachings of any religious tradition or even a non-religious ethical tradition, and I'll show you a person who won't be a problem to society."  Is that what the police chief actually thinks?  I doubt it, but I also doubt he's given much thought to how his church alternative would work for non-Christians.  And his subjective intentions may not matter.

Some scholars and policy makers have argued that at least some faith-based delivery of social services can be justified by the fact that for some people, they are more effective than their counterparts.  Suppose that were true or at least plausible.  That still would not justify church as an alternative to jail or a fine unless church were simply one alternative, along with other religious and secular options.  The news story says Bay Minette will permit offenders to attend worship services in any faith they choose, but it also notes that there are no mosques or synagogues in the vicinity.

Does that doom the program?  Not necessarily.  Consider that in Zelman v. Simmons-Harris, the Supreme Court upheld Cleveland's school-voucher program despite the fact that 96% of the schoolchildren who used vouchers attended religious schools.  What was critically important to the Court was the fact that parents rather than the state determined whether to redeem the vouchers at religious or non-religious schools and if the former, at what religious schools.

That still leaves the Bay Minette program open to question on its face for not even formally including a secular option, but this seems easy to remedy.  One could imagine giving convicts the choice of weekly attendance at some sort of secular alternative to religious services, such as volunteering at a soup kitchen or taking yoga classes, assuming that such things exist in or around Bay Minette, Alabama.  If they do not, that might doom the program, but let's assume they do.  Is there still an argument that a sentence of attending religious worship services or jail coerces religious practice?

Sure, but that's true of conditional sentencing more generally. Some conditions of supervised release would be unconstitutional if imposed directly. For example, prohibitions on associating with certain former criminals could be considered violations of the right to association, but they may be imposed as alternatives to incarceration.  It's at least possible to reach the same conclusion for religious services--again, assuming there are a range of alternatives, including secular ones.

Perhaps the best argument for the unconstitutionality of the Bay Minette program is that it violates the "entanglement" prong of the Establishment Clause: A state judge must monitor church (or other religious service) attendance in order to determine whether a convict is complying with the terms of his sentence.  That is formally a problem, but the entanglement limit may be moribund: After all, state officials must monitor attendance at religiously-affiliated programs for drug treatment, education, and other faith-based services; yet current law largely accepts these.

Surprising Bottom Line: If structured carefully, Bay Minette's program could be held constitutional under the existing case law.

7 comments:

Joe said...

If structured carefully. Sure.

The reports don't talk about secular alternatives. That was my red flag. But, alternatives to prison that involved a range of options, including religious ones, would probably stand up. There you wouldn't be forced to participate in religious activity. Like schools, there would be a secular alternative.

I question if mere church attendance is enough. I recall a case involved prison religious programs that was struck down for some reason. Perhaps because of lack of alternatives. Anyway, the program provided some sort of counseling or something, not merely going to religious services.

I don't think it would be a major issue since any church that accepts people of this type will probably include that sort of thing to guide them. But, if they merely went to church, it would be a closer call for me personally.

Raymond Vasvari said...

Mike:

I think the lack of doctrinal clarity is underscored by the fact that one can find district court cases holding mandatory participation in twelve step programs unconstitutional based on the precept that participants accept that their actions be guided by a higher power.

Simmons-Harris (in which, for the sake of full disclosure, I was nominally involved as the loser) really did put the choice of how vouchers would be used in the hands of parents. And it had an interesting post-script. At the time it was decided, dozens of catholic schools within the Cleveland district limits existed without competitors. Parish consolidations and the white flight that has reduced center city population here by 500,000 in 50 years reduced that number. In their place, a large number of charter schools - the existence of which depended on the decision in Simmons-Harris - have sprouted. Some are well managed and genuinely philanthropic, but many are not, and more than a few have been disbanded after their first encounters with state auditors.

But back to Alabama. I think the gloss you put on the local program is charitable. To call what they have proposed constitutional if it afforded an actual choice of secular options assumes into being a solution that this problem will only have come the close of discovery. I have litigated a few small town establishment clause cases in my day. The degree to which those who put programs like that in this Alabama town in place are oblivious to what the Establishment Clause requires would stun you.

I have started blogging myself as of late. The quality and erudition here make you a role model. Check me out (blatant plug follows) at raymondvasvari.wordpress.com.

Best

Ray Vasvari

Michael C. Dorf said...

Thanks to Joe and Ray for their comments (and Ray, congrats on the blog!). I don't disagree. In fact, I find this development quite disturbing. My main point was that given the accommodationist nature of the doctrine, a good lawyer could make a respectable case for a program pretty similar to this one. More's the pity.

john said...

I find this development quite disturbing,Some are well managed and genuinely philanthropic, but many are not, and more than a few have been disbanded after their first encounters with state auditors.I think the gloss you put on the local program is charitable.

Kattie said...

25
蛋糕
彌月蛋糕
棧板
隔熱紙
關鍵字
回頭車
江詩丹頓
高仿手錶
棧板
棧板
防水工程
瑜珈教室

26
除蟲公司
捕蚊達人
民宿
隆乳
整形外科
關鍵字排名
隆鼻
電波拉皮
眼袋
裝潢
室內設計作品
人工植牙

Kobe Bryant said...

WOW Gold
I problem if pure religious work is enough. I recognition a case included jail spiritual applications that was hit down for some reason. Perhaps because of insufficient choices. Anyway, the application offered some kind of therapy or something, not merely going to spiritual services.seo博客 英文seo

Shak Olreal said...

But back to Alabama. I think the gloss you put on the local program is charitable. To call what they have proposed constitutional if it afforded an actual choice of secular options assumes into being a solution that this problem will only have come the close of discovery. I have litigated a few small town establishment clause cases in my day. The degree to which those who put programs like that in this Alabama town in place are oblivious to what the Establishment Clause requires would stun you.Windows 7 ultimate product Key
Windows 7 ultimate activation Key
Windows 7 professional Key