Blogger’s Briefing with FRC: Mark Early and Prison Fellowship

I’ve been remiss in posting this. This briefing actually happened back on December 21st. I was in Phoenix on holiday at the time, and have been on holiday ever since. I’m grateful to FRC for the opportunity to hear about this issue–I’ll be watching the developments of this case closely as I think there are ramifications for religious liberties. As always, the mistakes are all mine.

Anthony Picarello is joining us as well, who is with the Beckett Fund for Religious Liberty. They are providing legal support for the appeal.

The first 10 or 15 minutes or so will be about the lawsuit, with time afteward for questions.

The program in question is the Innerchange Freedom Initiative (IFI), which is based on a program in Brazil. There are 9 programs total in six different states. In three states, it is privately funded, while the programs in the other three states receive state funding. Shortly, they’ll only be receiving funds from one state (Iowa). It is a faith-based Christ centered holistic reformation program. Program is open to everyone and all faiths–the only requirement is that they agree to participate. They let inmates know up front that the program is based on the teachings of Jesus.

State monies are used for non-sectarian or non-religious portions of the program (vocation training, substance abuse rehabilitation, etc). A study by the University of Pennsylvania found that the recivitism rate is only 8% after two years, compared with 66% after three years at the national level. (Matt’s note: a quick search found this criticism of Prison Fellowship’s spin on the study. I’m not sure who to believe, having not read the report itself.)

They were sued three years ago by Americans for Separation of Church and State–they lost the lawsuit at the first round. First time in an establishment clause case that a party has to pay the monies back retroactively (1.7 million).

Two disturbing things about the suit: Judge took it upon himself to define “evangelical” in his briefing. He came to the conclusion that an “evangelical by definition cannot say anything or do anything without trying to convert someone.” Any evangelical doing acts of mercy is by definition trying to convert the other person, which has disturbing ramifications beyond the case.

Secondly, the Judge didn’t think that IFI would be constitutional even if fully funded by private sources.

Vice President and General Council of the Becket Fund for religious liberty Anthony Picarelli:

The decision by the Judge was a 140 page decision, and they think that the opinion is not only wrong, not only very wrong, but very important. If not corrected, the opinion could create problems later down the line for programs providing faith-based initiatives.

The errors: 1) IFI is too religious to interact with the government. If religious thought is so pervasive in your organization, then if even one dollar comes in it will support your religious activity. This ideology was rejected by the Supreme Court in 2001 on the grounds that it discriminates against the very religious. 2) The court’s use of an “expert witness” to define “evangelical,” and then shoehorning IFI into that definition. The Becket fund argues that the court shouldn’t be theologizing at all–it is practicing religious stereotyping. The court should ask the litigant believes and take it at face value unless there is reason for doubt, rather than asking someone else what they believe. 3) Becket is arguing that the prosecution has no standing to seek that remedy. They are asking one defendant to pay another defendant, as both the State and IFI were implicated in the case. Additionally, the consequences of this remedy are broader than just this case.

David of Through a Glass Darkly, who is a lawyer and law professor comments that he read the opinion when it came out and was disturbed by some aspects of the opinion, but thought that fundamentally the court got it right. He thinks that IFI is trying to speak out of two sides of it’s mouth, that the program is fully religious (Matt’s note: you can see David’s remarks on the conversation here. He remains unsatisfied by the responses he received.)

Anthony: very religious people can do secular activities (such as drug rehabilitation). The Gospel is the distinguishing characteristic of the program, but that doesn’t mean it precludes receiving funding from the government.

David: There’s a problem with that from the theological perspective, in that there is no true transformation without the Gospel, then how can any of it be not religiously motivated?

Mark: From a theological standpoint, David is right. There is no sacred/secular divide. But the state wants a program to make distinctions for accounting purposes, not religious purposes.

David: Why not just choose not to work with the state?

Mark: We could, but we want to have to make that choice. Whether people of faith ought to take federal funds is a separate argument than how the funds get worked out in practice.

In addition, if the court had simply told them that they couldn’t have federal funding, they wouldn’t have appealed it. They are appealing because of the other baggage in the opinion.

The question for the court should have been, “What is this group doing with the money?” not “What does this group believe?”

Interestingly, the judge lumps Momonism into evangelicalism, which makes his definition extremely tendentious.

The implications of the decision are extremely broad: the public school teacher who is teaching out of her love of Christ, but is conforming to the secular requirements might face the charge of being unconstitutional by virtue of their motivations.

David: But the schoolteacher isn’t going to proselytize children, but IFI does.

Anthony: Yes, but not in every action. There are some actions that are more like a cup of water.

David: The actual accounting was much more muddled than Anthony is presenting it.

Anthony: The mistakes made were minimal, occurred early on in the program, and fixed immediately. But that’s not evidence of constitutional violation. It’s evidence that the safeguards of the program are actually working. The Court broke all factual ties in favor of Americans in Favor of Church and State.

The proseltyzing issue is somewhat of a red herring because there is a diversity of opinions among evangelicals on what prosletyzing looks like. Prisoners ought to be free to choose a rehabilitation program that is religious in nature, even if it prosletyzes.

Interestingly, most people drop out of the program because it’s too religious or too much work. Most of the people that enter the program are repeat offenders.

In response to my question for a timeline, Anthony informed me that a briefing before Court of Appeals was completed on December 4th or 5th. The amicus briefs are completed. They are waiting upon a hearing date, and expecting it within six months. They should have an appelate level decision within a year from now, and will challenge to the Supreme Court if necessary.

It was an interesting conversation–Prison Fellowship’s argument that they receive federal funding only for those parts of the program that are secular in nature is compelling. It seems like the chief issue is the definition of evangelicalism, which defines any activity by an evangelical as being motivated by a desire to convert people. I haven’t yet read the opinion, though, so my thoughts are all pretty tentative on this issue.