The Prison Fellowship Ruling — Threat to Religious Liberty?

Last month, a federal judge in Iowa decided that an anti-recidivism program run by Prison Fellowship International is unconstitutional. The reaction from many Christian quarters has been harsh. Writing in First Things this month, Richard John Neuhaus stated that “I’m afraid the judge is somewhat deranged or culpably ignorant, or maybe both, which may be a mitigating factor in his staggering arrogance.” Robert George called the judge’s opinion “sprawling and undisciplined” in the Weekly Standard. In a Washington Post Op-Ed, Prison Fellowship’s President, Mark Earley called the ruling “extreme and punitive.” Referring to the ruling, Prison Fellowship’s home page includes a splash graphic warning “Religious Freedom at Risk.”

What is this really all about?

I want to approach this question very carefully because it is important and complex. I’m sympathetic to the aims and philosophy of the recidivism program at isue, Prison Fellowship’s Innerchange Freedom Initiative program. IFI’s website states that IFI’s mission is to

to create and maintain a prison environment that fosters respect for God’s law and rights of others, and to encourage the spiritual and moral regeneration of prisoners. Therefore, they may develop responsible and productive relationships with their Creator, families and communities.

A fundamental theme underlying IFI’s approach is that recidivism will not be cured only through therapeutic invervention. Instead,

The IFI model seeks to “cure” prisoners by identifying sin as the root of their problems. Inmates learn how God can heal them permanently, if they turn from their sinful past, are willing to see the world through God’s eyes, and surrender themselves to God’s will. IFI relies and directs members to God as the source of love and inner healing. Members then build on this new relationship to recast human relationships based on Biblical insights. (See IFI Website, Program Details.)

From my perspective as a Christian, I would agree that the root cause of antisocial behavior is sin. I’m not sure to what extent I’d agree with the IFI philosophy on every front. For example, identifying sin as the root of a problem often seems like a lazy shortcut for serious analysis of social problems, the fact that sin affects human nature globally doesn’t mean that therapeutic methods based on findings from the physical or social sciences are entirely invalid, and many helpful approaches to social problems are available to those outside the church by virtue of practical reason (natural law) and common grace. But, I’d agree that deep, lasting, systemic personal and social renewal will only come as people and communities are freed from sin and renewed by God’s grace. And, I suspect the engineers of the IFI program would likely agree with the nuances I’ve mentioned here. And so, I think recidivism programs like IFI that are based in a robust Christian anthropology generally are a good thing. I also applaud heartily Prison Fellowship’s work with this neglected and despised segment of our population. This is exactly the kind of work Christ commanded his disciples to do.

I also want to be careful in my comments because it’s difficult to critique a case like this without reviewing the entire trial record. A judge’s written opinion is always crafted towards a result. The court’s opinion often downplays facts or issues that are favorable to the losing side. This isn’t to say that judges are dishonest — most aren’t — but it’s simply the reality of how judicial opinions work. I also should say that I respect both Neuhaus and Robert George greatly.

With all that said, I’m finding it very hard to view this case as a significant threat to religious liberty. In fact, it seems to me more of a warning about what happens when a well-intentioned organization takes large amounts of government money.

The first major criticism of the opinion is Robert George’s concern that IFI was improperly considered a “state actor.” (See Opinion at 99-100.) This is an important concern, because a “state actor” must abide by the first amendment’s establishment clause, while a “private” actor’s religious speech is protected by the free exercise clause. If IFI were merely a private actor, it would be free to teach sectarian religious principles to inmates. In fact, IFI argued that its program was insulated under free exercise precedents. (See Opinion at 99-100 and note 37).

George is concerned that if IFI is a “state” actor, then government funding for faith-based initiatives like IFI will be imperiled. He may be right about that, and the judge may well have garbled the analysis a bit here. The main point of this section of the Opinion, however, is that government may not provide direct funding to organizations that are “pervasively sectarian.” That principle, for good or ill, is established precedent. And in finding that IFI was indeed “pervasively sectarian,” it seems to me the court was right.

IFI tried to escape the “pervasively sectarian” test by arguing that its program had signficant non-sectarian components applicable to any prisoner regardless of religious affiliation. It is true that the IFI program was open to all inmates regardless of faith. But, as the judge noted, “[t]he overtly religious atmosphere of the InnerChange program is not simply an overlay or a secondary effect of the program — it is the program.” (Opinion at 104.) This is a point, I think, that an honest observer should concede. IFI’s program is about helping prisioners find more than shallow “therapeutic” solutions to their problems. It is about helping prisoners find redemption and new life in Christ.

Apparently — and I’m trying to be careful and say “apparently” because I haven’t yet read the trial record — some IFI witnesses testified that the IFI program does not attempt to convert inmates to Christianity. (See Opinion at 104-05.) If this is so, it would be unfortunate, and would illustrate one of my central concerns about this case. If you take government money, you have to posture yourself according to the government’s rules, or disingenuously hide your true mission. It seems to me that a core component of IFI’s true mission is to lead prisoners to Christ. Why dance around that to satisfy some condition for a government subsidy? Let me be clear again: I believe introducing prisoners to Christ is one of the highest goals any organization like IFI could pursue. But wedding that goal to government money inevitably corrupts it.

IFI also attempted to escape the “pervasively sectarian” test by showing that the government funding it received was dedicated to non-sectarian purposes. This is legitimate under the existing case law. However, it seems that IFI did not keep very good records, and that some expenditures labeled as “non-sectarian” were in fact directed towards religious ends. (See Opinion at p. 41-47.) In any event, the notion that a missional organization like IFI has “non-sectarian” expenditures seems deeply problematic to me from a theological perspective. We don’t divide the world into “sectarian” and “non-sectarian,” “sacred” and “secular.” For example, eighty-two percent of IFI’s local Program Director’s salary was designated as “non-sectarian.” (Opinion, at p. 45-46.) Would that person really conceive of his job as involving 82% “secular” work? This suggests further to me that it might be better to forgo the government money.

A final aspect of the opinion that deserves comment is the court’s discussion of evangelical Christianity. (Opinion at p. 16-18.) Neuhaus lampooned this part of the opinion in his First Things comment. Much of what Neuhaus said about this aspect of the opinion was spot-on, paricularly regarding the Court’s characterization of evangelical Christianity as inimical to Roman Catholicism. As Neuhaus correctly notes, Prison Fellowship’s founder, Chuck Colson, is a leader among evangelicals in the Evangelicals and Catholics Together dialog. This is one of the things I personally most admire about Colson. However, not everything the court said about evangelicals was so deeply flawed. For example, the court summarized evangelicalism as follows:

Evangelical Christianity tends to be anti-sacramental, which means it downplays the traditional sacramental Christian events — baptism, holy communion or Eucharist, marriage, ordination, etc.–as appropriate ways to interact or meet with God. Along with adult conversion, contemporary Evangelical Christianity emphasizes religious experience–the actual experience of God in the believer’s life…. For many Evangelical Christians, the belief in creationism and suspicion of evolutionary theory is also present. Finally, the Evangelical Christian stance towards religious institutions is one of suspicion. This is most obviously seen in worship style.

While I would quibble with every one of these assertions and could provide counter-examples from within evangelicalism for each of them, and while the overall summary is simplistic and a bit historically tone-deaf, I can’t say that this is on the whole completely wide of the mark or derogatory towards evangelicalism. The court’s point was simply to show that the the IFI program could be characterized as “pervasively sectarian,” in that it drew from and related most directly to one particular form of Christianity, evangelicalism. It’s hard to quibble with that ultimate conclusion.

On the whole, then, the lesson I’d draw from this case is not that the courts are out to get us. Surely, Americans United for Separation of Church and State, who spearheaded this case, is out to get us. But we may in some ways be our own worst enemy when we try to advance the gospel using government money. We need programs like IFI. Perhaps we need changes in the law so that faith-based initiatives can receive government support without having to trade integrity for it. Before those changes happen, or if they never happen, I think we need to find ways to offer programs like IFI without government money.