U.S. Judge Rules Public Funds Can Be Used For Church Renovations

The Federal district court ruling in Michigan highlights a shift away from strict church-state separation.

The Christian Science Monitor reports:

Should citizens' tax dollars be spent to renovate houses of worship?

St. Johns Episcopal Church, Detroit Michigan, one of three churches that received public monies.

The answer to that question used to be a resounding "No, it's unconstitutional." But Aug. 8, a federal judge broke new ground. He ruled that the city of Detroit could partially reimburse three churches for renovations they made to their buildings to make the downtown area more attractive before the 2006 Super Bowl. (The city paid numerous property owners for renovations.)

Public funds can go to churches for improvements that serve a civic purpose, but not to promote religion, ruled Judge Avern Cohn of the US District Court of Eastern Michigan. In practical terms, that meant the churches could be reimbursed for repairs to their buildings and parking lots, which "convey no religious message," he said, but not for new signs or stained-glass windows.

Judge Avern Cohn, appointed to the U.S. District Court for the Eastern District of Michigan by Jimmy Carter in 1979.

"This is the first time we've gotten a court decision on government bricks-and-mortar spending in a very long time," says Robert Tuttle, a law professor at George Washington University. And it's likely to capture the attention of states and cities across the United States as they consider similar church-state matters.

The ruling troubles those who hold to a strict separation of church and state, including the group that brought the case against Detroit's downtown development agency.

"If it's OK for the government to pay for bricks and mortar, what's to stop it from out and out building churches?" asks Ellen Johnson, president of American Atheists Inc. (AAI) "The ramifications are tremendous."

The ruling represents an attempt to grapple seriously with a changing legal landscape, says Mr. Tuttle, who codirects legal research for the Roundtable on Religion and Social Welfare Policy based in Albany, N.Y. Pressures have grown in recent years to move away from the idea of a strict separation between church and state. Proponents in legal and religious circles have called for government neutrality toward religion – providing a level playing field where religious and secular entities can compete for public funds. This issue remains highly contentious.

Not long ago, it was deemed unconstitutional for public money to go to groups whose mission was "pervasively sectarian," in the language of the US Supreme Court. (The First Amendment to the US Constitution prohibits any government "establishment of religion.")

In 1973, the Supreme Court stated in regard to religious structures that government "may not maintain such buildings or renovate them when they fall into disrepair." That decision has never been repudiated, but in 2000, the Court ruled (in Mitchell v. Helms) that government can provide funds to religious groups as long as the money does not support religious activities. Parsing that in practice becomes the challenge.

President Bush's faith-based initiative made funding of religious organizations for a variety of social services a prime goal. Some of those projects have been challenged in court, a few successfully, for promoting a particular religion.

In 2003, the administration announced it was opening the door to direct funding for renovations to religious buildings through the Save America's Treasures program to preserve cultural landmarks. (The Department of Justice later issued legal opinions that could allow funding religious structures under other federal programs.)

The first grant, for $317,000, was given to restore the windows in Boston's Old North Church, made famous by Paul Revere. Later that year, $375,000 went to Touro Synagogue in Newport, R.I., the nation's oldest synagogue. Both are active houses of worship, but they are also historical landmarks that draw visitors in large numbers. No challenge has been mounted to those grants.

"We have well over half a million visitors each year, including some 70,000 school kids," says Ed Pignone, director of Old North Foundation. The 1723 church is "Boston's most visited historic site," he says.

Other instances of direct government aid are being challenged, however. When Congress passed a bill specifically to fund the restoration of California missions, 19 of which are active Catholic churches, Americans United for Separation of Church and State said it would sue. The missions have yet to raise the matching money that would trigger the grant.

And last week, the American Civil Liberties Union filed a suit in Louisiana to halt the payment of $120,000 in state money to two churches. The funds were earmarked in an appropriations bill, without any purpose or justification given.

AAI is considering whether to appeal the Michigan ruling. Although they had a partial victory (some church expenses were not reimbursed), they say they can't let the bricks-and-mortar argument stand.

"You could easily build a megachurch and avoid the religion iconography," Ms. Johnson says. "Then the church could later say, 'Now we'll put in the religious symbols ourselves.' " There's nothing secular about a church, she adds.

Others argue that religious groups frequently provide a secular service that makes them worthy of public support, even without setting up a separate 501(c)3 nonprofit to ensure no funds go to religious activities. This is the thinking behind Mr. Bush's faith-based initiative.

Partners for Sacred Places (PSP), a nonprofit, nonsectarian organization founded in 1989 to help preserve older and historic houses of worship, seeks contributions from private and public sources to help congregations repair their buildings.

Partners conducted a study of 100 congregations in six cities. It found that, on average, each maintained four community service programs. And 80 percent of the people who entered the buildings in a given week were nonmembers – people receiving those community services.

To donors, "we say it isn't supporting a religion, but supporting everybody – they don't make distinctions between kids or seniors of one faith or another," says Bob Jaeger, PSP executive director. "The other argument is that these are historic buildings ... that are an important part of a community's heritage."

PSP set up a fund in Pennsylvania and raised $2 million in donations from the William Penn Foundation, the state government (three different sources), and individuals to restore buildings in southeastern counties. The goal is to help congregations across the state.

One beneficiary is St. Francis de Sales Catholic Church in west Philadelphia. "It's an enormous building ... and they've been struggling for 20 years with how to fix the [three] domes which have water leaks," says Mr. Jaeger. "The church has an amazing physical presence and a cluster of programs for the community – we gave them $100,000."

For strict separationists like Johnson, no tax money should help a church – "religion should be doing that themselves."

For Tuttle, the Michigan decision seriously tackles the changes that have gone on in the law: the shift from barring any funding to religious institutions to barring funding for any religious activities. It comes down neither on the strict separationists side nor on the blanket neutrality approach of the Bush administration.

Instead, it says that "when a government makes a grant for secular purposes to a broad set of grantees, it can include churches," Tuttle adds. "But it has to be careful it is not directly supporting the religious mission or ministry."

Churches already have non-profit status and do not pay taxes, precisely so they can pay their own way and keep the wall of separation clear and distinct. Now they can get public money?

How about churches that have seen their heyday, the children and grandchildren of their followers having moved to the suburbs or out of state and don't have much of a population anymore? That's what the Catholic Churches in inner cities are experiencing. Can the Vatican now expect municipalities in the U.S., already operating on strapped budgets, cutting public services to its citizens, to pick up the tab for keeping them in good repair?

Given the fact that Detroit is in severe financial crisis, with rampant unemployment, property values that have nose-dived, and a shrinking tax base, I'm shocked that the citizens haven't taken to the streets in protest over the outlay of their scarce public resources to attract tourists for one weekend.

Religion for Captive Audiences, With Taxpayers Footing the Bill

The NYT reports:

Life was different in Unit E at the state prison outside Newton, Iowa.

The toilets and sinks — white porcelain ones, like at home — were in a separate bathroom with partitions for privacy. In many Iowa prisons, metal toilet-and-sink combinations squat beside the bunks, to be used without privacy, a few feet from cellmates.

The cells in Unit E had real wooden doors and doorknobs, with locks. More books and computers were available, and inmates were kept busy with classes, chores, music practice and discussions. There were occasional movies and events with live bands and real-world food, like pizza or sandwiches from Subway. Best of all, there were opportunities to see loved ones in an environment quieter and more intimate than the typical visiting rooms.

But the only way an inmate could qualify for this kinder mutation of prison life was to enter an intensely religious rehabilitation program and satisfy the evangelical Christians running it that he was making acceptable spiritual progress. The program — which grew from a project started in 1997 at a Texas prison with the support of George W. Bush, who was governor at the time — says on its Web site that it seeks “to ‘cure’ prisoners by identifying sin as the root of their problems” and showing inmates “how God can heal them permanently, if they turn from their sinful past.”

One Roman Catholic inmate, Michael A. Bauer, left the program after a year, mostly because he felt the program staff and volunteers were hostile toward his faith.

“My No. 1 reason for leaving the program was that I personally felt spiritually crushed,” he testified at a court hearing last year. “I just didn’t feel good about where I was and what was going on.”

For Robert W. Pratt, chief judge of the federal courts in the Southern District of Iowa, this all added up to an unconstitutional use of taxpayer money for religious indoctrination, as he ruled in June in a lawsuit challenging the arrangement. [Americans United for Separation of Church and State against the Iowa Department of Corrections and InnerChange Freedom Initiative, an organization affiliated with Prison Fellowship Ministries. Prison Fellowship was founded by Charles W. Colson, a close ally of President Bush and an influential evangelical who went to prison for his role in the Watergate cover-up.]

The Iowa prison program is not unique. Since 2000, courts have cited more than a dozen programs for having unconstitutionally used taxpayer money to pay for religious activities or evangelism aimed at prisoners, recovering addicts, job seekers, teenagers and children.

Nevertheless, the programs are proliferating. For example, the Corrections Corporation of America, the nation’s largest prison management company, with 65 facilities and 71,000 inmates under its control, is substantially expanding its religion-based curriculum and now has 22 institutions offering residential programs similar to the one in Iowa. And the federal Bureau of Prisons, which runs at least five multifaith programs at its facilities, is preparing to seek bids for a single-faith prison program as well.

Government agencies have been repeatedly cited by judges and government auditors for not doing enough to guard against taxpayer-financed evangelism. But some constitutional lawyers say new federal rules may bar the government from imposing any special requirements for how faith-based programs are audited.

And, typically, the only penalty imposed when constitutional violations are detected is the cancellation of future financing — with no requirement that money improperly used for religious purposes be repaid.

But in a move that some constitutional lawyers found surprising, Judge Pratt ordered the prison ministry in the Iowa case to repay more than $1.5 million in government money, saying the constitutional violations were serious and clearly foreseeable.

His decision has been appealed by the prison ministry to a federal appeals court and fiercely protested by the attorneys general of nine states and lawyers for a number of groups advocating greater government accommodation of religious groups. The ministry’s allies in court include the Bush administration, which argued that the repayment order could derail its efforts to draw more religious groups into taxpayer-financed programs.

Officials of the Iowa program said that any anti-Catholic comments made to inmates did not reflect the program’s philosophy, and are not condoned by its leadership.

Jay Hein, director of the White House Office of Faith-Based and Community Initiatives, said the Iowa decision was unfair to the ministry and reflects an “overreaching” at odds with legal developments that increasingly “show favor to religion in the public square.”

And while he acknowledged the need for vigilance, he said he did not think the constitutional risks outweighed the benefits of inviting “faith-infused” ministries, like the one in Iowa, to provide government-financed services to “people of faith who seek to be served in this ‘full-person’ concept.”

Crossing a Bright Line

Over the last two decades, legislatures, government agencies and the courts have provided religious organizations with a widening range of regulatory and tax exemptions. And in the last decade religious institutions have also been granted access to public money once denied on constitutional grounds, including historic preservation grants and emergency reconstruction funds.

In 2002, the Supreme Court ruled that public money could be used for religious instruction or indoctrination, but only when the intended beneficiaries made the choice themselves between religious and secular programs — as when parents decide whether to use tuition vouchers at religious schools or secular ones. The court emphasized the difference between such “indirect” financing, in which the money flows through beneficiaries who choose that program, and “direct” funding, where the government chooses the programs that receive money.

But even in today’s more accommodating environment, constitutional scholars agree that one line between church and state has remained fairly bright: The government cannot directly finance or support religious evangelism or indoctrination. That restriction typically has not loomed large when public money goes to religious charities providing essentially secular services, like job training, after-school tutoring, child care or food banks. In such cases, the beneficiaries need not accept the charity’s religious beliefs to get the secular benefits the government is financing.

The courts have taken a different view, however, when public money goes directly to groups, like the Iowa ministry, whose method of helping others is to introduce them to a specific set of religious beliefs — and whose success depends on the beneficiary accepting those core beliefs. In those cases, most of the challenged grants have been struck down as unconstitutional.

Those who see faith-based groups as exceptionally effective allies in the battle against criminal recidivism, teen pregnancy, addiction and other social ills say these cases are rare, compared with the number of programs receiving funds, and should not tarnish the concept of bringing more religious groups into publicly financed programs, so long as any direct financing is used only for secular expenses.

That concept has been embodied most prominently since 2001 in the Bush administration’s Faith-Based and Community Initiative, a high-profile effort to encourage religious and community groups to participate in government programs. More than 100 cities and 33 states have established similar initiatives, according to Mr. Hein.

The basic architecture of these initiatives has so far withstood constitutional challenge, although the Supreme Court agreed on Dec. 1 to consider a case on whether taxpayers have legal standing to bring such challenges against the Bush administration’s program.

Defenders of these initiatives say they are necessary to eliminate longstanding government policies that discriminated against religious groups — to provide a level playing field, as one White House study put it.

But critics say the “level playing field” argument ignores the fact that giving public money directly to ministries that aim at religious conversion poses constitutional problems that simply do not arise when the money goes elsewhere.

Who's getting the money?

Converting Young People

Those constitutional problems sharpen when young people are the intended beneficiaries of these transformational ministries. In recent years, several judges have concluded that children and teenagers, like prisoners, have too few options and too little power to make the voluntary choices the Supreme Court requires when public money flows to programs involving religious instruction or indoctrination.

That was the conclusion last year of a federal judge in Michigan, in a case filed by Teen Ranch, a nonprofit Christian facility that provides residential care for troubled or abused children ages 11 to 17.

In 2003, state officials imposed a moratorium on placements of children there, primarily because of its intensively religious programming. Lawyers for the ranch went to court to challenge that moratorium.

“Teen Ranch acknowledges that it is overtly and unapologetically a Christian facility with a Christian worldview that hopes to touch and improve the lives of the youth served by encouraging their conversion to faith in Christ, or assisting them in deepening their pre-existing Christian faith,” observed a United States District judge, Robert Holmes Bell, in a decision released in September 2005.

Although youngsters in state custody could not choose where to be placed, they could refuse to go to the ranch if they objected to its religious character. As a result, the ranch’s lawyers argued, the state money was constitutionally permissible.

The state contended that the children in its care were “too young, vulnerable and traumatized” to make genuine choices. The ranch disputed that and added that the children had case workers and other adults to guide them. Judge Bell rejected Teen Ranch’s arguments. “Regardless of whether state wards are particularly vulnerable, they are children,” he wrote.

The ranch in Michigan has discontinued operations pending the outcome of its appeal, said Mitchell E. Koster, who was its chief operating officer. “We are confident that our argument will win,” Mr. Koster said. “It’s just a question of at what level.”

In another case early last year, a federal judge struck down a federal grant in 2003 to MentorKids USA, a ministry based in Phoenix, to provide mentors for the children of prisoners. In a case filed by the Freedom From Religion Foundation in Madison, Wis., the judge noted that the exclusively Christian mentors had to regularly assess whether the young people in their care seemed “to be progressing in relationship with God.” In a program newsletter offered as evidence, its director said, “Our goal is to see every young adult choose Christ.”

The federal government had been clearly informed in advance of the nature of the MentorKids ministry, said Jon Gibson, chairman of the group’s board. “The court’s decision meant that there were 50 kids we could have served that we were not able to serve.”

In another case, more than $1 million in federal funds went to the Alaska Christian College in Soldotna, Alaska, which says it provides “a theologically based post-secondary education” to teenage Native Americans from isolated villages. But an investigator from the Education Department who visited the school last year found a first-year curriculum “that is almost entirely religious in nature.”

The Freedom From Religion Foundation sued to block the financing. The school promised to use government money only for secular expenses, and federal financing resumed last May, according to Derek Gaubatz, of the Becket Fund for Religious Liberty, which represents the college.

A number of government grants to finance sexual abstinence education have been successfully challenged. For example, the Louisiana Governor’s Program on Abstinence gave federal money to several religious groups that used it for clearly unconstitutional purposes, a federal judge ruled in 2002, in a case filed by the American Civil Liberties Union.

One grant went to a theater company that toured high schools performing a skit called “Just Say Whoa.” The script contained many religious references including one in which a character called Bible Guy tells teenagers in the cast: “As Christians, our bodies belong to the Lord, not to us.”

The federal judge said the grants were so poorly monitored that the state missed other clear signs of unconstitutional activity — as when one Catholic diocese sent monthly reports showing that it had used federal money “to support prayer at abortion clinics, pro-life marches and pro-life rallies.” Gail Dignam, director of the abstinence program, said that state contracts now emphasize more clearly that no grant money may be used for religious activities.

The Programs in Prisons

Programs like the one at the Iowa prison are a rare ray of hope for American prisoners, and governments should encourage them, their supporters say.

“We have 2.3 million Americans in prison today; 700,000 of them will get out of prison this coming year,” said Mark L. Earley, a former attorney general of Virginia. Many inmates come out of prison “much more antisocial than when they came in,” he added. He said he saw faith-based groups as essential partners in any effective rehabilitation efforts.

Mr. Earley is the president and chief executive of Prison Fellowship Ministries, based in Lansdowne, Va. With almost $56 million a year in revenue, the ministry oversees the InnerChange Freedom Initiative, which operates the Iowa program.

Since its birth in 1976, Prison Fellowship has been most closely associated with one of its founders, Charles W. Colson, who said in a 2002 newsletter that the InnerChange program demonstrates “that Christ changes lives, and that changing prisoners from the inside out is the only crime-prevention program that really works.”

In early 2003, Americans United for Separation of Church and State joined with a group of Iowa taxpayers and inmates to challenge the InnerChange program in federal court.

In ruling on that case, Judge Pratt noted that the born-again Christian staff was the sole judge of an inmate’s spiritual transformation. If an inmate did not join in the religious activities that were part of his “treatment,” the staff could write up disciplinary reports, generating demerits the inmate’s parole board might see. Or they could expel the inmate.

And while the program was supposedly open to all, in practice its content was “a substantial disincentive” for inmates of other faiths to join, the judge noted. Although the ministry itself does not condone hostility toward Catholics, Roman Catholic inmates heard their faith criticized by staff members and volunteers from local evangelical churches, the judge found. And Jews and Muslims in the program would have been required to participate in Christian worship services even if that deeply offended their own religious beliefs.

Mr. Earley said Judge Pratt’s decision was sharply inconsistent with current law and his standard for separating secular from religious expenses was so extreme that it would disqualify almost any faith-based program. He acknowledged that inmates, whatever their own faith, are required to participate in all program activities, including worship, but he insisted that a religious conversion is not required for success. InnerChange uses biblical references only to illustrate a set of universal values, such as integrity and responsibility, and not to exclude those of other faiths, he said, adding that it was “unfortunate” if any inmates felt the program denigrated Catholicism or any other Christian faith. Corrections officials in Iowa declined to comment on the case.

Not all programs in prisons are so narrowly focused. Florida now has three prisons that offer inmates, who must ask to be housed there, more than two dozen offerings ranging from various Christian denominations to Orthodox Judaism to Scientology. But at Newton, Judge Pratt found, there were few options — and no equivalent programs — without religious indoctrination.

“The state has literally established an Evangelical Christian congregation within the walls of one of its penal institutions, giving the leaders of that congregation, i.e., InnerChange employees, authority to control the spiritual, emotional and physical lives of hundreds of Iowa inmates,” Judge Pratt wrote. “There are no adequate safeguards present, nor could there be, to ensure that state funds are not being directly spent to indoctrinate Iowa inmates.”

InnerChange, which has been widely praised by corrections officials and politicians, operates similar programs at prisons in Texas, Minnesota, Kansas, Arkansas and, by next spring, Missouri. Officials in those states are monitoring the Iowa case, but several said they believed their programs were sufficiently different to survive a similar challenge.

A government-financed religious education program at a county jail in Fort Worth was struck down by the Texas Supreme Court more than five years ago, and more lawsuits are pending. Corrections Corporation was among those sued last year by the Freedom From Religion Foundation, which is challenging a Christian residential program at a women’s prison in Grant, N.M. The foundation has also sued the federal Bureau of Prisons over its faith-based rehabilitation programs. And Americans United, the Iowa plaintiff, and the American Civil Liberties Union have sued a job-training program run by a religious group at the Bradford County Jail near Troy, Pa.

Prison Fellowship Ministries is one of about a half-dozen Christian groups that operate programs at jails and prisons run by the Corrections Corporation. The company’s lawyers are studying the Iowa decision, said a spokeswoman, Louise Grant. “But we are not, at this time, changing or altering any of our programming based on that, or any other ruling.”

Inadequate Monitoring

Government agencies have been criticized repeatedly for inadequately watching these programs. Besides the criticism in various court decisions, the Government Accountability Office has twice raised questions about cloudy guidelines and inadequate safeguards against government-financed evangelism.

In its most recent audit released in June, the G.A.O., which examined faith-based organizations in four states, found that some were violating federal rules against proselytizing and that government agencies did not have adequate safeguards against such violations.

The problem is not that none of these programs are audited. Every group that gets a federal grant worth more than $500,000 has to pay a private auditor to examine its books and report to the government. Many federal programs, like those that provide Medicaid services or help the government allocate arts grants, require additional audits.

But no supplemental audits are required under the faith-based initiative — indeed, it would probably violate the Bush administration’s new regulations to do so, said Robert W. Tuttle, a professor of law and religion at George Washington University and co-director of legal research, along with Ira C. Lupu, for the Roundtable on Religion and Social Welfare Policy, a project of the Rockefeller Institute.

“The rules can be read to prohibit special audit requirements because that would be considered a stigma, which would be discriminatory,” Professor Tuttle said. “But that flies in the face of constitutional logic, because religion is special, and that special quality has to be reflected in program guidelines and audit rules.”

The G.A.O. also says the government cannot easily or accurately track either how much money is flowing to groups or whether they are using the funds in unconstitutional ways.

The Bush administration is already studying whether these constitutional problems can be resolved by reshaping many government grants into voucher programs under which the beneficiary decides where the money goes. But vouchers are a limited solution because most social service agencies need to know that a certain amount of money is assured before they can begin operations.

Mr. Hein, the White House official, agreed that vouchers could clarify the legal landscape. But even where they are not practical, he said, the Bush administration remains committed to keeping the doors to government financing open for as many religious groups as possible.

And The Constant American administration remains committed to eliminating religious groups' tax exempt status.