Description:
On May 4, 2006 the Freedom from Religion Foundation (FFRF)
filed a lawsuit that challenges the constitutionality of new and existing faith-based programs administered by the federal
Bureau of Prisons (BOP). In its complaint,[1] FFRF alleges that the BOP's new faith-based initiative, Life Connections 2, violates the Establishment Clause because it supports only religious programs, and directly finances the religious transformation of inmates. FFRF also alleges that BOP's existing faith-based initiative, Life Connections 1, provides unconstitutional aid for religious activities. Finally, in a claim that reaches well beyond BOP's programming, FFRF alleges that the federal
Office of Management and Budget (OMB) violates the Establishment Clause by encouraging federal agencies to increase grants and contracts with faith-based organizations (FBOs). The lawsuit asks the court to enjoin BOP's use of public funds for the Life Connections programs, to require BOP to establish rules that would guard against future uses of government funds for social welfare programs that have religious content, and to enjoin OMB from pressuring federal entities to grant funds to FBOs.
With this lawsuit, four cases now pending in federal court raise significant challenges to the constitutionality of faith-based services for prisoners[2]. All four lawsuits raise the same two basic questions. May the government directly support religious transformation as a means to achieve social benefits (especially the reduction of recidivism)? And, does the answer to the first question change in any way if the transformative programs occur in a prison setting?
Below, we describe BOP's Life Connections 2 and FFRF's legal challenge to BOP's faith-based programming. We then identify and analyze the legal issues raised by FFRF's challenge, and by BOP's likely legal defenses. If the allegations are accurate, the Life Connections 2 program appears to be in significant tension with the Supreme Court's current interpretation of the Establishment Clause. We address only in brief the FFRF claim against OMB, because that claim is totally unrelated to the prison context that is at the heart of this lawsuit[3].
Description of BOP's Life Connections 2 Program
On March 30, 2006, BOP posted a request for proposals (RFP) "for the provision of single-faith, residential re-entry programs" to be operated at up to six federal prisons[4]. According to the RFP, the residential re-entry programs are intended to "facilitate personal transformation, and thereby reduce recidivism through promoting the virtues of productive work, respect for others, responsibility, and accountability."[5] BOP's request identifies three essential components for the reentry programs:
- Program curricula and activities that will "foster growth" in ten areas: "daily living; mental health; wellness; interpersonal skills; academic; cognitive; vocational; leisure time; character; [and] spirituality."[6]
- Individual mentors for each program participant; the mentoring relationship should "reflect on spiritual (faith-based) or secular issues of broken-ness and healing; model appropriate social behaviors; and work with the participant in developing an appropriate action plan for maintaining life skills after release or reentry into the inmate population."
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- Development of a partnership between the inmate-participant and a "faith-based or other community organization" in the location to which the participant will go upon release from custody.
Further details of the Life Connections 2 (LC2) program are best understood through a comparison with BOP's now-operating Life Connections 1 (LC1) program.
LC1, now operating in five BOP facilities, is a "residential multi-faith restorative justice program," in which "inmates participate in religion-specific and interfaith program components designed to help the inmate explore his faith's way to restoration with one's God, family, community, and self."[8] Like LC2, the LC1 program includes a substantive curriculum intended to advance a range of values important for the prisoner's personal development and reentry into the broader community. In addition, LC1 contemplates both individual mentoring, pre- and post-release, as well as developing a relationship with a faith community or other organization that can help the participant on release from prison.
Unlike LC2, however, LC1 is administered through the chaplain's office in each facility, and is specifically designed to include a variety of faiths. LC1 funds primarily support a program coordinator, who develops the program's multi-faith curriculum, teaches and leads discussion groups, and facilitates workshops and seminars. Working with the chaplain's office, the coordinator "ensure[s] that volunteers and mentors from a broad spectrum of religious faith communities are available to meet the needs" of the program participants."[9] In addition to responsibility for the multi-faith curriculum, the LC1 coordinator arranges faith-specific classes and discussion groups for the participants. These responsibilities are reflected in the LC1 RFP's set of job qualifications for a coordinator: "selected contractor must possess, through a combination of education and experience, a general working knowledge of a broad variety of religious traditions." LC1 focuses on each participant's existing religious commitments, and facilitates the participant's personal development within the context of those commitments.
By contrast, LC2 is expressly a "single faith" program. While the RFP requires the LC2 provider to make specific accommodations for participants who do not share the service provider's faith, the provider is not required to offer an inter- or multi-faith curriculum. Instead, the LC2 provider is expected to offer a curriculum focused on the provider's religious commitments. In the April 18, 2006 "Pre-proposal Conference" for the RFP, the BOP representative asked and answered the central question:
How does the Bureau of Prisons define single faith? Is this different than faith-based? The single faith contract teaches the essential components of the overall residential program outlined in the statement of work through the particular principles of faith. A contract issued to a religious organization embodying a particular faith, for example, a Jewish, Christian, Moslem, etcetera.[10]
Under LC1, the coordinator is responsible for identifying mentors, teachers and discussion leaders that share participants' various faith commitments, but LC2 permits the service provider to use only leaders and mentors of its own faith.
A significant distinction between LC1 and LC2 is that LC2 providers will not be under the supervision of the facility's chaplain[11]. Thus, LC2 providers have only modest obligations to facilitate the religious life of program participants. The LC2 description seems to expect that program participants will share the service provider's faith, and that the provider will offer religious worship services and instruction for those participants, but the LC2 solicitation also recognizes the possibility that some participants will not share that - or perhaps any - faith. LC2 requires providers to allow "non-adherents" to opt-out of certain religious activities:
Inmates accepted into faith-based programs who are not adherent to that program's faith must be excused from program activities to attend worship services of their own faith traditions, but must otherwise participate in all non- religious aspects of the faith-based program. Inmates may not be required to participate in religious ritual practices or creedal confessions inconsistent with their own faith or practice[12].
Surprisingly, the RFP and attachments for LC2 display a number of features that raise questions about the significance of religion in the program. The LC2 Pre-Solicitation Notice (posted March 13, 2006) and the cover letter for the RFP describe the program as "single-faith." The actual Statement of Work (SOW) for the RFP, however, describes LC2 as "a residential re-entry program that will build partnerships between the DOJ and social service organizations."
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Close reading of the SOW seems to show that faith-based entities are only a sub-set of those eligible to provide LC2 services. More significantly, the SOW also treats faith-based content as a contingent - rather than necessary - part of the LC2 curriculum. LC2 providers may offer secular programs, and the SOW exempts such providers from the requirement to foster participants' spiritual growth.[14] Indeed, the SOW carefully avoids any suggestion that eligibility for LC2 is restricted to religious providers, content, participants, mentors, or partnering organizations.
Description of FFRF's Complaint
In its May 4, 2006 complaint, FFRF raises two closely related challenges to the constitutionality of the LC1 and LC2 program. First, FFRF contends that the Life Connections programs reflect BOP's specific intent "to encourage and promote the development of faith among inmates[15]," rather than an intent to accommodate prisoners' own religious choices. The Establishment Clause, FFRF asserts, prohibits the government from promoting religious faith, even if the government is doing so in order to advance secular goals, such as lowered recidivism. By promoting faith, FFRF claims, BOP has impermissibly endorsed religious transformation over other means of personal growth.
Second, FFRF alleges that LC1 and LC2 "use . . . Federal taxpayer appropriations to integrate religion as a substantive and integral component of programs delivered by the Bureau of Prisons.[16]" This challenge is based upon the Supreme Court's Establishment Clause jurisprudence, which provides that direct government funding may not be used for religious activities. Under this standard, the government may contract with FBOs, but the state must ensure that the public funds are not used for religious purposes. By integrating religion throughout the LC programs, FFRF contends, the government has made it impossible to segregate the religious from the secular components. Without such segregation, the program cannot pass scrutiny under Establishment Clause law.
FFRF also brings suit against OMB over the agency's promotion of the President's Faith-Based Initiative. In particular, FFRF alleges that OMB has misused public funds and endorsed religious services by its practice of "grading" federal agencies on their grants and contracts with FBOs. This practice is "based upon the premise that funding should normatively be increased to faith-based organizations - merely because such organizations are faith-based.[17]" Such preferential aid for FBOs, FFRF contends, is evident in both LC programs, and represents an endorsement of religion, in violation of the Establishment Clause.
Analysis of the Life Connections Programs and the FFRF Lawsuit
The government's response to, and the court's assessment of, the FFRF challenge will involve matters of both substance and process. The substantive analysis focuses on the Supreme Court's Establishment Clause jurisprudence, and especially the Court's decision in
Mitchell v. Helms (2000). As we describe at greater length elsewhere,[18]
Mitchell embodies the Court's Establishment Clause standard for programs of direct public financing of religion. The entire Court agreed on a general formulation statement of the relevant standard: the Establishment Clause is violated when government lacks a secular purpose for the program, or when public funding "results in religious indoctrination." The justices generally agreed that the program at issue in
Mitchell had a valid secular purpose, but the Court fractured in its willingness to attribute public responsibility for religious indoctrination. Four justices - the
Mitchell plurality - concluded that the government is not responsible when the aid "is offered to a broad range of groups or persons without regard to their religion." The plurality reasoned that "if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to religion, to all who adequately further that purpose, . . . Then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose.[19]"
Justices O'Connor and Breyer concurred in the Court's decision, but did not join the plurality's opinion. In her concurrence, O'Connor argued that the plurality's analysis provided necessary, but not sufficient, conditions for Establishment Clause scrutiny of direct public aid for religion. To survive such scrutiny, she wrote, programs of public aid must meet two additional conditions. First, public funds should not be used for religious activities or programs with explicit religious content. Second, the government must take reasonable steps to ensure that public support will not be diverted to religious use. Only if it meets these two conditions, O'Connor argued, is the government excused from responsibility for any religious indoctrination that might occur in the program. The O'Connor-Breyer concurring opinion in
Mitchell, which adds O'Connor's two conditions to the plurality's two conditions, represents the controlling law of the Establishment Clause. Analyzed in light of Justice O'Connor's
Mitchell concurrence, the LC2 program seems highly vulnerable to Establishment Clause challenge.
Neutrality
Indeed, LC2 may not even satisfy the less restrictive standard set forth in the
Mitchell plurality. For the plurality, the government is excused from responsibility when it offers aid on a neutral basis, which means that the challenged program does not use religious criteria to define the classes of service providers or service beneficiaries. BOP's LC2 program, however, seems to fall short of the neutrality requirement.
FFRF's complaint identifies the starkest aspect of LC2's apparent non-neutrality. In several prominent descriptions of the program, BOP characterizes LC2 as a "single-faith" program, which strongly indicates a preference for religious over non-religious service providers, and for religious rather than non-religious means of fulfilling the RFP's requirements. In the SOW, however, BOP avoids any overt statement of a preference for religious over secular service providers. To succeed in its claim that LC2 impermissibly favors religious providers, FFRF will be required to show that the religion-neutral SOW masks a deliberate intent to support only religious programs. The LC2 RFP alone will not support FFRF's claim of bias toward religion[20].
In an April 19, 2006 letter to DOJ and BOP[21], Americans United for the Separation of Church and State raises two concerns about LC2's neutrality that were not identified in FFRF's complaint, but might provide support for FFRF's position. First, Americans United argues that the LC2 RFP "creates a preference for instruction in a single faith over multi-faith programming." The argument has significant strength, and emerges from a comparison of LC1 to LC2. The existing program requires multi-faith services, with an emphasis on learning religious toleration, while the proposed program seems to exclude multi-faith services. Indeed, a literal reading of the LC2 RFP and attachments excludes only multi-faith services. LC2 invites single-faith providers, and, at least in the SOW, invites secular providers as well. But multi-faith services fit into neither category. It is certainly possible that BOP has intentionally excluded multi-faith providers and curricula. If so, a court is likely to hold that the exclusion represents an impermissible preference for a denominationally exclusive vision of religion over a more inclusive vision.
It is more likely, however, that the exclusion is only apparent, and results from changes in the LC2 RFP. The Pre-Solicitation Notice of March 13 focused heavily on the religious character of LC2, marking a significant departure from the LC1 program. In the March 30 SOW, BOP has significantly muted the religious character of LC2, changing the requirement from a single-faith program of spiritual transformation into a religion-neutral program of personal growth. Thus, the LC2 RFP's reference to a "single-faith" provider should be taken as an example of eligible programs, rather than as an exclusion of interfaith or interdenominational programs[22].
The Americans United letter identifies a second charge of preferential treatment that FFRF might raise. The letter alleges that the LC2 RFP "appears to be gerrymandered to result in awards to one particular religious organization" - Prison Fellowship Ministries[23]. Americans United identifies ten core requirements of the LC2 RFP that match features of Prison Fellowship's "InnerChange Freedom Initiative." By selecting these requirements, the letter argues, BOP has simultaneously guaranteed Prison Fellowship's eligibility for LC2 contracts, and made it difficult for other potential providers to meet program requirements."[24]
Americans United's claim that the LC2 RFP appears to be "gerrymandered" for the benefit of Prison Fellowship is credible, especially in light of the brief time - one month - originally allowed between the RFP's posting and the due date for proposals. Moreover, the RFP requests very detailed information about potential providers' offered services, from the policies that will be used to select and train personnel, to the program curriculum, to the providers' ability to access a network of mentors and participating faith or community organizations. Such a tight deadline would be reasonable for organizations already operating similar programs, but virtually impossible to meet without such programs already in place, even if an organization were otherwise qualified. BOP has very recently alleviated that concern, at least in part, by extending for an additional month the due date for LC2 proposals.
Neither FFRF nor Americans United focused on the one type of religious discrimination that appears to remain even in the LC2 SOW. The SOW permits religious service providers to prefer applicants that share the providers' faith. During the Pre-Proposal Conference, David Morton, the BOP Faith-Based Coordinator gave the following explanation of providers' choice of participants, using a Jewish program as his example:
The Jewish Faith-Based Residential Re-entry Program is open to all persons of all faiths. For admission purposes, how does the BOP propose to resolve a situation where, say, for example, there is only one available slot and the two persons applying for that slot are a Jew and a non-Jew. Would there be any admissions preference for the person of the Jewish faith? Once again, inmates must be willing to have the Life Connections program site designated for them. And each case will be evaluated individually. Persons of the same faith will ordinarily be given preference over inmates of another faith.[25]
The SOW requires providers, in the selection of participants, to comply with federal anti-discrimination laws. While the SOW specifically references a DOJ regulation that prohibits religious coercion or harassment, it also incorporates by reference Presidential Executive Orders and DOJ's regulations for faith-based service programs. In Executive Order 13279, "Equal Protection of the Laws for Faith-based and Community Organizations," as implemented in DOJ regulations, the administration has advanced a strong norm that prohibits religion-based discrimination against beneficiaries of federal programs.
By permitting LC2 providers to use religion as a criterion in selecting participants, BOP might be in violation of applicable federal regulations. It might also be acting unconstitutionally. The
Mitchell plurality asserted that a program is deemed religion-neutral under the Establishment Clause if it "is offered to a broad range of groups or persons without regard to their religion." But the BOP's proposed method for selecting participants in LC2 programs appears to fall short of the
Mitchell plurality's standard. Under the RFP, it is possible that one religious provider could be awarded the contract for all six sites, and then would be free to offer the program only to inmates that are part of - or are interested in becoming part of - its faith community. If the government offers aid only to those in select religious communities, and defines participants' eligibility based on their membership in those communities, then the government might reasonably be held responsible for the religious indoctrination carried out in that program.[26]
Religious Activities: Content and Safeguards
As we noted above, Justice O'Connor's opinion in Mitchell represents the controlling Establishment Clause standard, and she adds two elements to the plurality's requirement of neutrality. To survive Establishment Clause scrutiny, O'Connor asserted, direct government aid must not be used for religious activities, and government must ensure that religious providers have in place adequate safeguards against the diversion of public funds to religious activities[27]. As recognized in both the FFRF complaint and the Americans United letter, the LC2 program makes no distinction between permissible secular and impermissibly religious uses of direct government funding. In a preceding paragraph, we quoted BOP's definition of a single-faith program, and that quotation also describes the contemplated use of religion by an LC2 provider: "The single faith contract teaches the essential components of the overall residential program outlined in the statement of work
through the particular principles of faith.[28]" The LC2 program appears to permit, and even to encourage - although it does not require - providers to use explicitly religious means of fostering personal transformation. And, of course, LC2 does not require safeguards against diversion, because the program specifically approves of the practices that such safeguards are supposed to prevent.
In any other social service context, LC2's invitation to fully incorporate religious transformation into the government-funded service would violate the Establishment Clause standard set forth in the
Mitchell concurrence. BOP, however, is likely to raise several defenses that apply specifically to the prison setting. Before turning to those defenses, we should identify two possible responses that BOP is not likely to raise. BOP will almost certainly not claim that LC2 should be treated as a program of indirect assistance. Although service providers in voucher programs are not required to segregate religious and secular activities, the structure of LC2's financing clearly involves direct payments that are not contingent on the number of participants enrolled in a program.
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In addition, BOP is not likely to argue that its financing supports only the secular content of LC2 programs. The RFP's only distinctions involving program activities concern mandatory opt-outs for "non-adherents." The SOW provides that a participant may not be required to participate in worship or confess particular beliefs, if such practices are inconsistent with the inmate's own faith. Non-adherents "must be excused from program activities to attend worship services of their own faith traditions." But, the SOW states, non-adherents "must otherwise participate in all non-religious aspects of the faith-based program.[30]" The SOW's analysis of faith-based programs omits the most complicated aspect of current Establishment Clause law, especially as applied to faith-based service providers. On the one hand, the SOW prohibits service providers from requiring inmates to engage in unwanted religious worship, or to confess a specific religious creed. On the other hand, the SOW requires participants to engage in "all non-religious aspects" of the program. These two categories exclude the very important middle: instruction or other activities that do not constitute "religious ritual practices," yet are explicitly religious in content. Even if BOP were to exclude religious worship from the activities eligible for public financing, the LC2 would still permit service providers to employ the language and commitments of their faith communities to convey the program's lessons. Such explicitly religious programming falls within the definition of religion used by O'Connor in her
Mitchell concurrence.
The Government's Likely Defenses
BOP is likely to raise two defenses, one substantive and the other procedural. In its substantive defense, BOP may argue that the Establishment Clause should not be construed as strictly in the prison context. The Administration has incorporated a similar argument into a variety of federal regulations, including those that govern DOJ programs. The regulations generally provide that restrictions on direct public aid for religion do not apply - or at least not with the same force - with respect to government-supported religious activities in prison[32]. As a general matter, the exception for prisoners is valid to some extent, because prisoners would otherwise have significantly restricted access to religious life if the prison does not make some accommodations. But the justification for the exception contains within itself the standard for its own limitation. Government expenditures for prison programs do not violate the Establishment Clause only so long as the expenditures arise from the government's effort to facilitate the inmate's free exercise of religion.
Again the contrast between BOP's LC1 and LC2 proves instructive. The LC1 program is fairly well tailored to the legitimate purpose of facilitating inmates' religious exercise. The program coordinator is charged with identifying the resources to meet the varied religious needs of all participants, and the program is closely linked with each facility's office of chaplaincy, which further reinforces the need for religious inclusivity. LC2, however, does not focus primarily on facilitating the religious needs of individual inmates. In fact, LC2 service providers are specifically asked to refer "non-adherent" participants to the office of prison chaplain, which will then be responsible for meeting that inmate's religious needs. LC2 imposes only negative restrictions on providers' role in the religious life of particular inmates - the ban on mandatory participation in ritual or creedal confession, and the obligation to release prisoners to attend alternative worship services. For religious providers in LC2, the program's central focus appears to be the juncture of the government's desire for personal transformation of inmates, and the religious provider's freedom to build and operate a ministry program that is faithful to the organization's mission. The ambitious scope of LC2 does
not seem justified by a concern to meet free exercise interests of inmates, and thus the prison-based exception to Establishment Clause restrictions may well not apply to LC2.
Finally, and most importantly, BOP is likely to raise a procedural defense against the FFRF lawsuit. A longstanding doctrine of federal law requires that cases brought before a federal court must be "ripe" for adjudication. The ripeness inquiry prevents courts from ruling prematurely on issues that are abstract and not factually concrete. Under the ripeness doctrine, courts must "evaluate the fitness of the issues for judicial decision, and the hardship to the parties of withholding court consideration."[33]
The fitness inquiry concentrates on the availability of facts needed by the court to resolve the dispute. For example, if an FBO is awarded a contract to provide a faith-intensive substance abuse treatment program, legal challenges to the government's procurement decision - and to the treatment program's use of public funds - must await the actual operation of the program by the government and the provider. The Establishment Clause issue can be resolved only by scrutiny of the policies and practices put in place by the government and the provider. Such scrutiny will provide information about the provider's segregation of religious and nonreligious activities, as well as details about any safeguards against diversion that would constrain future misuses of government aid.
On the question of hardship, the ripeness doctrine measures the harm caused to litigants by a judicial decision to postpone adjudication of the matter. Where postponement of judicial scrutiny does not make the litigants materially worse off, and the court determines that the legal issue in question would benefit from further factual development, the court will dismiss the claim on grounds of ripeness, which then allows the litigants to return to court whenever the relevant facts have ripened.
In Establishment Clause jurisprudence, the ripeness doctrine finds a close relative in the Court's decision in
Bowen v. Kendrick (1988). In Bowen, the court sharply limited the kind of challenges that may be brought against programs that include faith-based service providers[34]. The Court rejected plaintiffs' "facial" challenge to a program designed to provide sexual abstinence education for teenagers. Plaintiffs claimed that constitutional flaws in the design and operation of the program should result in a judicial mandate to enjoin future public financing of the program.
Instead, the Court held that the defects or abuses in the program - which included use of program support for religious activities - did not jeopardize the program as a whole. Post
Bowen v. Kendrick, most plaintiffs raising Establishment Clause challenges will need to show that individual programs fail to satisfy constitutional requirements. On such a showing, the plaintiffs will ask the court to enjoin that program's unconstitutional conduct. But proof of a violation in one publicly financed program will not impair the ability of parallel programs to operate.
In light of the connections between the doctrine of Bowen v. Kendrick, and the considerations of adjudicative prematurity associated with the ripeness doctrine, BOP may have strong defenses to the lawsuit brought by FFRF. First, the district court may well grant a government motion to dismiss the suit, at least with respect to plaintiffs' allegations about LC2, because plaintiff's claim is not ripe for adjudication. The RFP's various references to LC2 as a "single-faith" program would seem to indicate that the program is facially discriminatory, and thus vulnerable to facial attack. On closer reading, especially of the SOW, the LC2 solicitation is not facially discriminatory. Constitutional challenges to LC2, therefore, must focus on the policies and curriculum developed by contractors at each of the sites. And that focus, in turn, will require plaintiffs to identify specific details of each challenged program. Until grants are made and programs are in place under LC2, adjudication may be premature.
Second, although the court may assert jurisdiction over FFRF's challenges to LC1 and OMB's practice of encouraging faith-based grants (i.e., by finding that the claims are ripe), the government will have fairly strong substantive arguments in response. With respect to the LC1 program, the government may be able to show a sufficiently strong connection between that program and traditional chaplaincy functions. LC1, especially when compared with LC2, is designed to facilitate prisoners' exploration and development of their own religious commitments; LC2 seems to subordinate those individual concerns for religious exercise to the goals of the religious provider (and perhaps also the government).
With respect to FFRF's challenge to OMB's practice of "scoring" federal agencies' inclusion of faith-based service providers, the government may analogize the practice to preferences in affirmative action plans. In attempting to redress the long-standing exclusion of certain FBOs from participating in government-funded services, and settled bureaucratic habits of such exclusion, OMB - like the Administration more generally - engages in a consistent practice of consciousness-raising. The work of including FBOs on an equal footing in competition for grants and contracts may lead OMB to single out such entities for special attention, even though grant proposals from FBOs will be evaluated using the same criteria that are applied to all other potential service providers.
Conclusion
FFRF's lawsuit, and the Americans United letter to DOJ and BOP, have highlighted a program that raises significant questions for Establishment Clause law. These questions, when eventually addressed by a court, will undoubtedly prove important for analysis of faith-based programs in prison and in the broader community as well. The court's assessment of OMB's religious scoring practice and BOP's LC1 program may offer additional clarifications of the relevant law, and BOP and OMB will be required to defend those programs on their merits. But, for now, FFRF's challenge to the LC2 program is unlikely to survive the government's argument that the claims against that program are not ripe for adjudication. After
Bowen, plaintiffs must address their Establishment Clause challenges to the operation of individual programs, and virtually all of the facts relevant for determining the validity of LC2 contracts will only arise after specific providers are selected, participants are enrolled in the programs, and the government's policies of monitoring the programs have crystallized.
Notes
FFRF's complaint is available online at:
http://ffrf.org/legal/gonzales_complaint.html.
The other three lawsuits are: Americans United for Separation of Church and State v. Mapes,(see our analysis at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=13);
Moeller v. Bradford County (see our analysis at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=35):
Freedom from Religion Foundation v. Richardson (see Roundtable news story, by Claire Hughes, online at: http://www.religionandsocialpolicy.org/news/article.cfm?id=3460).
There have been a number of other lawsuits alleging that faith-based programs in prisons violate the Establishment Clause, see, e.g., Williams v. Huff, 52 S.W.3d 171 (Tex. 2001); Destefano v. Emergency Housing Group, 247 F.3d 397 (2nd Cir. 2001). Most of these lawsuits, however, concern the compelled participation of inmates in religious activities, especially substance-abuse treatment programs that have explicitly religious components. See, e.g., Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996); Munson v. Norris, 435 F.3d 877 (8th Cir. 2006); Warner v. Orange County Dep't of Prob., 115 F.3d 1068 (2nd Cir. 1997). In addition, FFRF sued over the inclusion of a faith-intensive substance abuse treatment provider in a voucher program funded by Wisconsin's Department of Corrections, Freedom From Religion v. McCallum.
See our analysis of the district court's decision, which rejected FFRF's claim:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=9.
See also our analysis of the federal appellate court's decision in McCallum, which sustained the district court's judgement:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=15.
FFRF's claim that OMB has unconstitutionally pressured agencies into funding religious activity fits more comfortably into FFRF's other, ongoing litigation (FFRF v. Chao, originally FFRF v. Towey) which challenges the conduct of the WHOFBCI and other Executive Branch agencies in promoting the initiative. The claim in this case against OMB thus will raise the same issues of standing that have consumed the Seventh Circuit in FFRF v. Chao. Moreover, the claim against OMB seems very weak on its merits. OMB's efforts are wholly internal to the government, and OMB does not distribute money to religious activities or organizations. No court is likely to find that OMB encouragement to agencies to follow the President's policy of inclusion of FBOs in social service is a violation of the Constitution, if the basic policy of inclusion itself is not constitutionally forbidden.
The BOP request is identified as RFP-NAS-0171-2006, and can be found online at:http://www2.fbo.gov/spg/DOJ/BPR/PPB/RFP%2DNAS%2D0171%2D
2006/Attachments.html
Statement of Work (SOW), RFP Attachment II, p.1.
Id. at pp. 2-3.
Id. at 5. Note that the program contemplates that some participants will complete the program before their release from incarceration.
A brief description of LC1 is found on the website of DOJ's Task Force for Faith-Based and Community Initiatives, at:
http://www.ojp.usdoj.gov/fbci/progmenu_exoffndr.html.
Further details of LC1 may be gleaned from its RFPs, one of which is available online at:
http://www.fbodaily.com/archive/2004/03-March/24-Mar-2004/FBO-00552077.htm.
Details of LC1 are drawn from the RFP cited above.
David Morton, BOP Faith-Based Coordinator, Pre-proposal Conference: Residential Re-entry Program (Tuesday, April 18, 2006), p. 4. Available online at:
http://fs2.fbo.gov/EPSData/DOJ/Synopses/3015/RFP-NAS-0171-2006/
Pre-SolicitationConferenceMinutes.pdf.
This contrast between FC1 and LC2 is developed in some detail during the LC2 Pre-proposal conference. See id at pp. 46-47.
Id. at p. 14; the same language is also used in the LC2 Statement of Work, p,2
.
LC2 RFP, Statement of Work, p.1.
The LC2 SOW's contemplation of secular providers is evident in the statement of mission (p.1); of "program goal areas"(pp.2-3); of religious accommodation (p.5); and of community linkage (pp.5-6).
FFRF complaint, at p.8.
Id.
Id. at 12.
2002 State of the Law Report, at 22-24.
For an even more detailed analysis, see our essay,
The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1, 75-102 (2005).
Mitchell v. Helms, 530 U.S. 793, 809-10 (2000) (Plurality opinion).
Both the FFRF complaint and a letter to BOP from Americans United for Separation and State focus on the LC2 RFP's form entitled "Credentials of Religious Services Contractor." They contend that the form's requirement of such religious credentials - which would be provided by a religious body - effectively excludes non-religious entities from participating. In both the SOW and the Pre-Proposal Conference, however, BOP says that non-religious providers are excused from submission of the form, unless that non-religious provider intends to introduce a religious component to its program. At least formally, religious credentials - like religious content and the religious character of service providers - are not necessary components of LC2 proposals.
Letter from Alex J. Luchenitser, Americans United for Separation of Church and State, to Alberto R. Gonzales, DOJ, and Harley G. Lappin, BOP (April 19, 2006) (available online at: http://www.au.org/site/DocServer/BopLt060419bod.pdf?docID=821).
BOP officials' description of the program during the Pre-Proposal Conference reflect a significant lack of clarity, and perhaps a degree of ambivalence, about the extent to which programs should conform to the single-faith model suggested by the March 13 Pre-Solicitation Notice. See, e.g., the definition of a "single-faith program"provided by David Morton. Conference minutes, cited above, at p.4.
Prison Fellowship Ministries operates the Iowa prison program that is the target of an Establishment Clause challenge brought by Americans United. We discuss that lawsuit, Americans United for Separation of Church and State v. Mapes, at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=13.
Americans United letter, cited above, at p.2.
Pre-Proposal Conference, cited above, at p.13.
Analysis of the government's neutrality toward program beneficiaries is a significantly more complicated task than this discussion indicates. Such neutrality must assume a baseline against which prospective participants' options can be measured. If benefits are extended only to those of select religious faiths, then the religious preference is obvious. But participants will often have a range of options available to them, and it is possible that a religion-based standard for participation might remedy certain criteria that might have effectively excluded the religious participant from availing herself of those options,
This Establishment Clause analysis applies to any service provider receiving direct public financing, even if all other government-supported providers offer secular services.
Pre-Proposal Conference, cited above, at p.4.
For the funding structure in LC2 contracts, see Attachment I to the LC2 RFP, which provides that LC2 contracts will be "firm-fixed-price, "with "ramp up" funding prior to enrollment, and then payments based on 3 levels of enrollment. Such financing does not fit within the Court's definition of "indirect aid, "because funding of the provider is not entirely contingent upon a beneficiary's choice of that provider. For analysis of the distinction between direct and indirect financing, see our discussion of
Zelman v. Simmons-Harris, the Supreme Court's 2002 decision upholding the Cleveland school voucher program, online at:
http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=10.
LC2 SOW, cited above, at 5.
We have elsewhere, and at great length, discussed the uncertainties created by the definition of "religion"advanced by the Administration's Faith-Based and Community Initiatives. Specifically, we contend that the Administration's definition of religion is underinclusive for purposes of Establishment Clause analysis: it omits those activities that do not constitute worship or proselytizing, but nonetheless involve explicitly religious concepts, language, and commitments. The Mitchell concurrence, and indeed decisions stretching back nearly two decades, adopt the broader definition of religion. See our analysis of the phrase "inherently religious activities,"found in our 2003 State of the Law Report, at pp.4-11.
28 CFR ยง 38.1(b)(2) ("The restrictions on inherently religious activities set forth in paragraph (b)(1) of this section do not apply to programs where Department funds are provided to chaplains to work with inmates in prisons, detention facilities, or community correction centers, or where Department funds are provided to religious or other organizations for programs in prisons, detention facilities, or community correction centers, in which such organizations assist chaplains in carrying out their duties").
Abbott Laboratories v. Gardner, 387 U.S. 136, 149 (1967). For a helpful overview of the ripeness requirement, see David Floren, Comment: Pre-Enforcement Ripeness Doctrine: The Fitness of Hardship, 80 Or. L. Rev. 1107 (2000).
Bowen v. Kendrick, 487 U.S. 589 (1988).
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