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Friday, May 05, 2006
Religion in prisons
A few days ago, over at Balkinization, Marty Lederman posted about "a blatantly unconstitutional religion-in-prisons program" called Life Connections. (Here is a link to the DOJ's description.) Here's more about it:
The 18-month program is open to adult volunteer inmates in both male and female facilities in five BOP facilities across the country. The mission of the program is to reduce recidivism and bring reconciliation to victim, community and inmate through personal transformation using the participant's faith commitment. Inmates parate explore his faith's way to restoration with one's God, family, community, and self. Spiritual guides, brought into the facility under contract by BOP, lead small group studies of each faith's sacred texts. Participants also are matched with volunteer mentors of their faith who visit weekly, and are linked with a faith community at their release destination in order to enhance community reiticipate in religion-specific and interfaith program components designed to help the inmntegration.
Marty makes a detailed and (in my view, anyway) powerful case that the program, or at least parts of it, are not consistent with the relevant legal doctrine. One of his many arguments, though, left me not-quite-convinced:
The very purpose of the program, acknowledged by BOP, is "to facilitate personal transformation." (See page 1 of Attachment II, here.) Indeed, one of the ten program goals is "spiritual development" (see page 3 of that attachment). These are constitutionally illegitimate state interests. The government is required to be neutral -- agnostic, really -- on questions of transformation and spiritual development. BOP suggests that its interest in spiritual development of inmates is in the broader service of trying to "reduce recidivism through promoting the virtues of productive work, respect for others, self-worth, responsibility, and accountability." Those are, of course, legitimate state goals. But the government cannot specifically aim at religious transformation as a means of accomplishing those secular ends. As Madison explained in his Memorial and Remonstrance Against Religious Assessments, employing religion "as an engine of Civil policy" is forbidden, not least because it is "an unhallowed perversion of the means of salvation." What is more, I think there's something profoundly disturbing -- whether or not it's constitutional -- in the federal government advancing the view that the virtues of productive work, respect for others, self-worth, responsibility, and accountability are correlated with religious transformation or faith; but that's a broader topic, perhaps for another post.
I certainly share Marty's (and Madison's) concern about religious faith being reduced to a convenient means for achieving the government's "secular" ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be "profoundly disturbing" -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that "religious transformation [and] faith" are good (when freely embraced). There are dangers here, absolutely. Still . . . (To be clear: I'm not necessarily endorsing this particular program.)
Also, Marty writes, "[t]he government cannot specifically aim at religious transformation as a means of accomplishing those secular ends." Does this mean, I wonder, that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?
Posted by Rick Garnett on May 5, 2006 at 02:09 PM in Religion | Permalink
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Comments
Marty asks:
When you write "Putting constitutional doctrine aside," do you simply mean that *current* doctrine is inconsistent with your assertion, but that the doctrine can and should change to reflect your view, or do you mean to suggest instead that the Religion Clauses, properly construed, actually forbid that which you think the public authority ought to be able to do (i.e., that current doctrine is unfortunately correct)?
I mean, I think, the former. I don't think the Religion Clauses, fairly understood and applied, mean -- or have to mean -- that governments are disabled from promoting both "religious freedom" and "the good of religion" (or "religion in general") itself. (To be clear, though, I am libertarian enough to be quite leery of what even well-meaning governments might do in order to promote the "good of religion", as an aspect of human flourishing and the common good.)
Posted by: Rick | May 6, 2006 2:54:54 PM
Rick: Thanks very much. I think you've hit on the nub of the debate, viz., whether "the public authority, charged with promoting and protecting the common good, may decide that "religion" is a basic human good, and that its flourishing -- consistent with the freedom of conscience -- is constitutive of the common good."
Obviously, your take on this fundamental question is very different from mine, and inconsistent with established constitutional doctrine (not that you claim otherwise). It strikes me as quite an important issue of contention. I wish we could get a dynamic discussion going at, e.g., Mirror of Justice, where others much more learned than I might be able to weigh in.
In the meantime, one question:
When you write "Putting constitutional doctrine aside," do you simply mean that *current* doctrine is inconsistent with your assertion, but that the doctrine can and should change to reflect your view, or do you mean to suggest instead that the Religion Clauses, properly construed, actually forbid that which you think the public authority ought to be able to do (i.e., that current doctrine is unfortunately correct)?
Posted by: Marty Lederman | May 6, 2006 1:56:44 PM
Marty, thanks for your detailed response, here and on the Religionlaw list. You write:
The government is simply not capable of determining whether "religious transformation [and] faith" are a "good" thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government. (Or so argues the Madisonian, and modern, view of the Religion Clauses -- and I agree, although I'm very interested in hearing dissenting views.)
With all respect, I disagree. Putting constitutional doctrine aside, the public authority, charged with promoting and protecting the common good, *may* decide that "religion" is a basic human good, and that its flourishing -- consistent with the freedom of conscience -- is constitutive of the common good. (See, e.g., Finnis).
Posted by: Rick | May 6, 2006 1:25:01 PM
One very fascinating coming-full-circle-kind-of-thing about all of this is that the "penitentiary" is a Quaker invention in the first place, from what I understand, designed to give nmates the space and time to reflect on the consequences of their actions and come to a place of spiritual (and communitarian) peace through that process. Religion and punishment/reform have traditionally been intertwined.
Posted by: Marcia McCormick | May 5, 2006 8:09:32 PM
I would like to point out that the term "religious transformation" doesn't appear in the program description; it appears only in these commentaries. The program refers only to "personal transformation".
Posted by: Mike Walter | May 5, 2006 7:03:10 PM
"2. The government is simply not capable of determining whether "religious transformation [and] faith" are a "good" thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government."
The government IS capable of determining whether such transformations are a good thing - if recidivism is reduced among participating inmates, then that transformation was indeed a good thing. And, one could argue, it IS the proper role of argument to make such judgements. A government neutral to religion would see positive outcomes of a program, secular or religious, as a good thing. It would NOT be neutral for said government to act against a program simply because it was religious.
"3. ...human history (including, of course, obvious dramatic recent examples) pellucidly demonstrates that religious faith is no guarantee at all of righteousness, lack of cruelty, or law-abiding conduct."
This proves nothing. Human history also demonstrates that a lack of religious faith is, likewise, no guarantee at all of good behavior.
"4. ...Indeed, the strongest correlation of all is with conversion to *Christianity*, and so we're going to give our funds primarily to Christian organizations. There's no such evidence with respect to Islam, or Wicca, and so we will not provide money to groups who have applied to encourage faith in those traditions."
Can the state do this?"
Why not? It is in the state's interest to reduce recidivism. If Christian programs reduce recidivism, and the government is indeed neutral, then it has no objection. If Muslim programs reduce recidivism, and the government is indeed neutral, then it has no objection. If secular programs reduce recidivism, and the government is indeed neutral, then it has no objection.
It seems the establishment cause would come into play only if the results showed, for instance, that secular and muslim programs garnered better results but the state still gave funds only to Christian programs. Furthermore, if a program is available that shows verifiable results of reducing recidivism, would not the state be neglecting its duty if it did not make use of that program?
Posted by: Braden | May 5, 2006 5:04:14 PM
Thanks, Rick, for that thoughtful response. (If you guys permitted comments at Mirror of Justice (hint, hint), I would have thanked Rob Vischer for his similar reaction to the "impermissible objective" point there, too.)
I don't have time right now for a full response, so I'll limit myself to a couple of very rough reactions:
1. You ask whether my critique means "that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?"
No, it doesn't *entirely* mean that. One of the principal objectives of the religion clauses themselves is to encourage or require the government to act so as to eliminate *government-created obstacles* to the flourishing of religious faith and freedom. So, for example, I favor -- and have worked to enact and defend -- certain religious "accommodation" statutes, such as RFRA and RLUIPA.
However, although the state may advance the view that religious *freedom* (including the freedom to reject religion) is a good thing in and of itself, it may not advance the view that religious *faith* is a positive good in and of itself -- or that it's the means to valuable secular ends.
2. The government is simply not capable of determining whether "religious transformation [and] faith" are a "good" thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government. (Or so argues the Madisonian, and modern, view of the Religion Clauses -- and I agree, although I'm very interested in hearing dissenting views.) And so it surely follows that government may not discriminate in favor of religion in the dispersal of funds on the basis of such judgments concerning the value of faith.
3. I think it's also "troubling," and unconstitutional, for the state to conclude that religious transformation or faith is correlated with secular objectives that the state *is* entitled to promote, such as civic behavior, rehabilitation, cessation of alcohol dependence, etc. For one thing -- and this isn't a constitutional point -- as far as I can tell, it's simply not true: If anything, human history (including, of course, obvious dramatic recent examples) pellucidly demonstrates that religious faith is no guarantee at all of righteousness, lack of cruelty, or law-abiding conduct.
More to the (constitutional) point, there is something profoundly troubling about the state itself adopting any view about the "typical" comparative social behaviors, and human qualities, of believers and nonbelievers.
4. The hard question, I suppose, is this: Assume the state is entirely agnostic as to the value or "truth" of religious transformation and faith, but actually discovers a strong empirical correlation between faith and some other quality that is a proper object of the state's concern. For example, let's say studies show a cause-and-effect correlation between faith and graduation rates, or between religious transformation and resisting drug addiction. (I'm not aware of any such empirical evidence, but I'm willing to assume arguendo . . . .) I don't think this would give the state the power to itself promote religious faith -- after all, in that case the state would be promoting something *that it does not believe,* which truly is a perversion of religion. But if there is such a correlation, can a government give resources to private groups that *do* have religious faith, to enable them to transform those individuals who don't?
Can the state, for instance, say: "Look, we really don't know whether faith is true, or valuable, or something to which all citizens should aspire. Those are eternal mysteries that are appropriately left to individuals. And we beleive in religious liberty -- so to each their own on questions of faith. But what we *do* know, from rigiorous scientific studies (indulge me the hypo), is that, for *whatever* reason -- indeed, for reasons that we are incapable of understanding or assessing -- many prisoners who would otherwise become recidivists do not do so if they come to believe in God, and for *that* reason (and that secular reason alone), we're giving discretionary grants to private religious organizations that can help such prisoners make such transformations. Indeed, the strongest correlation of all is with conversion to *Christianity*, and so we're going to give our funds primarily to Christian organizations. There's no such evidence with respect to Islam, or Wicca, and so we will not provide money to groups who have applied to encourage faith in those traditions."
Can the state do this? Madison thought not -- and I agree. But, unlike the other questions raised by the BOP program, that truly *would be* an interesting and difficult question (that is, assuming once again that there were any such evidence).
Posted by: Marty Lederman | May 5, 2006 3:21:29 PM
Lederman must define his definition of neutral. According to my definition of neutral, the government can be sufficiently, and constitutionally, neutral if it promotes/supports religious actions no more than it promotes/supports secular ones. Were the government to exclude similar secular programs, then that could be construed to suggest the establishment of religion.
And, because no inmates are forced to participate in the program, one could hardly claim the government is establishing religion. Lederman would have a strong argument on these grounds if the inmates were forced through the program before their release.
Posted by: Braden | May 5, 2006 3:08:59 PM
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