Dispatches from the Culture Wars

For example, in dismissing one inmate, the entire treatment team met and discussed his progress, concluding: "your conduct has been excellent according to security standards, and you are a hard worker. With you as a member you have always completed your work and assignments, however, you are not displaying the growth needed to remain in the program. Your Focus is not on God and His Son to Change you."

The court also reported that InnerChange staff were given the authority to issue disciplinary reports on inmates in the program, reports that led to official punishments from the prison. Prison Fellowship tried several ways to get the court to dismiss the case, including challenges on standing and mootness, but the court rejected those arguments.

The program has now been changed and the defendants no longer receive state aid, which prompted their argument to dismiss on grounds of mootness. The appeals court ruled under the voluntary cessation doctrine that they could not avoid ruling "without any assurance that they will not resume the prohibited conduct."

On the merits, the court ruled under the Lemon test that the program had the clear effect of advancing religion by providing special benefits to those who participated in an overtly Christian program:

In the present case, plaintiffs demonstrated (and defendants do not seriously contest) that the InnerChange program resulted in inmate enrollment in a program dominated by Bible study, Christian classes, religious revivals, and church services. The DOC also provided less tangible aid to the InnerChange program. Participants were housed in living quarters that had, in previous years, been used as an "honor unit," and which afforded residents greater privacy than the typical cell. Among other benefits, participants were allowed more visits from family members and had greater access to computers.

The state simply cannot privilege religious belief and participation in this manner, giving special privileges to those who profess Christian belief and who participate in Christian religious exercises than those who do not do so. The court also found that the state aid was administered unconstitutionally:

Second, in administering aid, a government may not define recipients by reference to religion. The aid must be "'allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis'" Id. at 813, quoting Agostini, 521 U.S. at 231; id. at 845 (O'Connor, J., concurring in judgment).

In this case, to use the aid appropriated, inmates must have been "willing to productively participate in a program that is Christian-based." The district court found that inmates' religious beliefs (or lack thereof) precluded their participation. For contract years 2000 to 2004, the InnerChange program was not allocated on neutral criteria and was not available on a nondiscriminatory basis.

The court also ruled that a change in the program after 2005, which changed the funding from direct payments to InnerChange to a per diem payment based on participation, did not resolve the constitutional problems. Prison Fellowship argued that this change made the aid indirect and therefore constitutional. The court rejected that argument:

In the 2005, 2006, and 2007 contract years, funding from the DOC to InnerChange changed from cost reimbursement to per diem payment - an attempt to make InnerChange an indirect aid program. In order to comply with the Establishment Clause, indirect aid programs must be "neutral with respect to religion," and provide "assistance directly to a broad class of citizens who, in turn, direct government aid to religious" organizations "wholly as a result of their own genuine and independent private choice." "The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits."

In this case, there was no genuine and independent private choice. The inmate could direct the aid only to InnerChange. The legislative appropriation could not be directed to a secular program, or to general prison programs. See Mitchell, 530 U.S. at 816 (government support for religion is permissible where aid passes through the hands (literally or figuratively) of private citizens who are free to direct the aid elsewhere). For the inmate to have a genuine choice, funding must be "available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited" and the inmates must "have full opportunity to expend . . .aid on wholly secular" programs.

The court did rule in favor of the defendants on one key question. The lower court had ordered Prison Fellowship to repay all the state aid it had received, but the appeals court overturned that part of the decision. One interesting fact about the ruling: one of the judges on the panel was former Supreme Court Justice Sandra Day O'Connor, sitting by designation.