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.