Just last week the Appeals Court ruled on Prison Fellowship case involving the Iowa Prison Ministry Program. This case has lots of implications for faith based providers who are interested in public resources for faith based community service. It is one in a series of legal decisions that are more clearly defining the lines for faith based providers. The following is an analysis provided by Stanley Carlson-Theis of the Center for Public Justice and the Coalition to Preserve Religious Freedom. Stanley was part of the formation team for the White House Faith Based Office and is a scholar committed to this issue. I will discuss some of the practical implications for faith based providers in an upcoming blog.
The federal appeals court (8th Circuit) made its ruling last week on the Interchange Freedom Initiative (Prison Fellowship Ministries) appeal of last year’s lower federal court ruling. The lower court had said the IFI program operated in the Newton, Iowa, prison was unconstitutional because it amounted to government indoctrination in religion, said the program had to stop, and ordered IFI to pay back the $1.5 million it had received from the state to that point. The appeals court agreed that the program as operated could not constitutionally be directly funded by Iowa. It suggested that the program ought to be retooled in order to pass muster as a privately paid pre-release recidivism program. But IFI does not have to pay back the $1.5 million earned before the lower court ruling, although it does have to pay back state funds received after the lower court made its decision.
Faith-based organizations should be reassured by the decision about repayment. The appeals court said that IFI had no compelling reason to think the state was drawing it into an unconstitutional program by awarding it several contracts to provide services the state urgently sought on behalf of its prisoners. Allowing a judge to assess a draconian penalty in such circumstances was unjust to the faith-based provider and put at risk every faith-based organization that agrees to work with the government. But faith-based organizations must pay careful attention before jumping into collaboration with the government, because they bear their own responsibility to be sure that a program will be operated consistent with constitutional guidelines.
The appeals court decision is an emphatic reminder about those constitutional guidelines. When the funding is direct (a contract or grant awarded to the faith-based organization), the faith-based organization must be careful to ensure that none of the government money is spent for religious activities and items. There must be a clear division of spending, a clear division of staff hours and responsibilities, transparent accounting that demonstrates that the government money was spent only on authorized (non-religious) items and work. It is not enough to say that the government got more secular value out of the services than it paid for.
On the other hand, when the funding is indirect, then religion (e.g., counseling with a spiritual dimension) can be part of the government-funded services—but for the set-up to fit this model, the beneficiaries have to be able to choose a secular alternative to the religious program. It is not enough to say that they can avoid the religious program by not choosing it. Faith-based providers wanting the freedom to include religion that indirect funding systems allow have to be certain that the government will ensure that beneficiaries have alternatives, including a secular choice.
Faith-based organizations that operate privately funded programs inside prison also should take note. This court case was not about privately funded prison programs, but the several judges did suggest that care is needed. Prisoners shouldn’t face the choice of either no rehabilitation help or else swallowing someone else’s religion. And the private groups should be careful that they aren’t inadvertently taking over the government’s job of decision-making and discipline, or else the courts will hold them to the government’s standards of how to treat prisoners. The government is not allowed to make decisions based on religion.
The appeals court reminded the lower-court judge, and Americans United for Separation of Church and State—the ones who sued—that a faith-based organization cannot be excluded from providing government-funded services merely because religion is reflected throughout the organization, i.e., because it is “pervasively sectarian.” What’s important is not how religious the organization is, but rather whether it will follow the rule that when the government funding is direct, that money cannot be spent on religious activities.
IFI and Prison Fellowship Ministries have asked two important questions that neither the lower court nor the appeals court answered: (1) While it is right to say that prisoners should be able to choose between various rehabilitation alternatives, is it right to penalize a provider of good services when that provider is the only one who came forward to offer the services? Isn’t it better for the prisoners to have something rather than nothing, even if that something is only suitable for some of the prisoners? (2) If the constitutional flaw in this case was not that the state paid IFI for its program but rather that the state did not at the same time offer prisoners another choice of rehabilitative services, shouldn’t the court have told the state to get busy setting up that alternative, rather than focus on shutting down IFI’s program?
For further commentary and the appeals court’s decision, go to:
Roundtable on Religion and Social Welfare Policy >
InnerChange Freedom Initiative >
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