"The devil is in the details": a continued dissection of the constitutionality of faith-based prison units.

AuthorBranham, Lynn S.

To protect his privacy, I'll call him "Bob." Bob had reached what, for him, was a low point in his life. Diagnosed with a brain tumor and suffering from epilepsy, he was struggling to cope with the physical debilitation and the uncertainty that attend serious medical problems. To compound his troubles, he was facing daunting financial bills, and he had been denied a promised job promotion for which he had long worked.

Then Bob attended the "Walk to Emmaus," a three-day spiritual retreat. Although Bob had been attending worship services at his church each week for years and led a small group from his church that met every other week, the "Walk to Emmaus" was a spiritual experience for him like none other. With its nonstop, God-centered focus, he was able to step back from his life's travails, see those travails from a new perspective, and gain the strength to endure and surmount the challenges he currently was confronting.

Then there is "Bethany." Bethany recognized that her spiritual life had reached a plateau, but the ways commonly employed by others to reignite that spiritual spark for which she yearned--such as weekly communal worship, praying, or reading the Bible, Torah, Koran, or other religious works--had just not worked for her. So she did something that was unconventional but, for her, spiritually needed. She stayed at a convent where she could focus her attention exclusively on God. And though not a Catholic herself, she found there the spiritual renewal and peace that she had not been able to find elsewhere.

Both Bob and Bethany opted to experience what I have called an "immersion approach" to spirituality. (1) They and others who have chosen to live for varying lengths of time in a communal environment in which a spiritual focus predominates have found that they need immersion-like experiences to charge or recharge their depleted or defunct spiritual batteries. Bob and Bethany also have said that they benefited not just spiritually, but physically, mentally, emotionally, and relationally, from what for them was a profound religious experience.

But what about prisoners, who lack the freedom to leave prison and go to a place where they can obtain, along with others, the concentrated and sustained spiritual nourishment that they believe they need to grow spiritually or in other ways? Can governmental officials afford prisoners these kinds of immersion-like experiences without abridging the First Amendment's Establishment Clause? (2) And, if they can, are governmentally funded faith-based prison units, which exemplify this immersion approach and are sometimes referred to as "God pods," (3) still inherently unconstitutional?

In an article that I wrote several years ago, I contended that faith-based prison units subsidized by the government could be operated in conformance with the Establishment Clause. (4) Although, since then, a federal district court has declared a faith-based unit in an Iowa prison to be unconstitutional, (5) the Court of Appeals for the Eighth Circuit has upheld that decision, (6) and other challenges to faith-based units have been mounted across the country, (7) I adhere to that conclusion.

In Part I of this Article, I explore the potential significance of several Supreme Court cases decided since I first wrote on this topic. In Part II, I discuss why conventional tests applied to Establishment Clause claims and the test generally applied to prisoners' constitutional claims seem inapposite when examining the constitutionality of faith-based prison units. Then, in Parts III and IV, I delve more fully into two key arguments, ones that I believe are red herrings, which have been asserted by those who clamor against the constitutionality of faith-based prison units: that prisoners' participation in faith-based units inevitably is coerced and that these units invariably manifest a lack of governmental neutrality on religious matters in contravention of the Establishment Clause. I conclude, as I have before, that if structured properly, faith-based units can pass constitutional muster.


    Several recent Supreme Court cases potentially have some bearing on the question of the constitutionality of faith-based prison units. Two cases that arose in the prison context--Cutter v. Wilkinson (8) and Johnson v. California (9)--are particularly germane. After demonstrating how the Supreme Court remains deeply split about the Establishment Clause's meaning and import, I discuss the Supreme Court's rulings and analyses in those two cases.

    1. A Court Divided

      If the adage that "a house divided cannot stand" were applied to the Supreme Court's ruminations on the Establishment Clause, the Court would be in a state of collapse. Fifteen years ago, a well-known First Amendment expert, now a federal appellate judge, succinctly described the Supreme Court's Establishment Clause jurisprudence: "It is a mess." (10) It remains so.

      Like a Creole chef continually tinkering with his recipe for jambalaya and periodically returning to his original recipe, the Supreme Court continues to vacillate as to how to assess whether an Establishment Clause violation has occurred. One Establishment Clause test the Supreme Court has applied is known as the "Lemon test." The Court first articulated this test in 1971 in Lemon v. Kurtzman, in which it held that the dissemination of certain state funds to parochial schools abridged the Establishment Clause. (11) To pass muster under the three-pronged Lemon test as it was originally formulated, a statute or governmental program must have a secular purpose, have a "principal or primary effect" other than advancing or curtailing religion, and avoid "excessive governmental entanglement with religion." (12)

      The Court sporadically applies the Lemon test in Establishment Clause cases, inciting Justice Scalia to charge that the Court selectively applies or disregards the test depending on the outcome it wishes to reach in a case: "When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely." (13) In 2005, a majority of the Supreme Court appeared to apply this test in McCreary County v. ACLU of Kentucky, concluding that the posting of the Ten Commandments in two county courthouses failed the test's first prong and consequently violated the Establishment Clause. (14) But while stating that she joined the majority opinion, Justice O'Connor seemed to apply a different test in her concurring opinion, one that the Court had applied in the past. (15) This test, known as the "endorsement test," essentially asks whether a "reasonable observer" would perceive that the government is endorsing religion or a religious practice. (16)

      A hodgepodge of other Establishment Clause tests were enunciated in McCreary County and Van Orden v. Perry, a case decided the same day as McCreary County in which the Supreme Court this time upheld the constitutionality of a display of the Ten Commandments on public property. (17) Perhaps most notably, the majority in McCreary County acknowledged that there are "special instances" when the Establishment Clause condones governmental actions whose evident purpose is "presumably religious." (18) In Van Orden, Justice Thomas advocated that coercion should be "the touchstone" for Establishment Clause analyses, (19) while Justice Scalia, in McCreary County, insisted that the Establishment Clause only prohibits the government from favoring one religious sect over another in certain circumstances, and not religion over irreligion. (20) And Justice Breyer essentially threw up his hands, stating in Van Orden, "I see no test-related substitute for the exercise of legal judgment." (21)

      One need go no further into this jurisprudential thicket to understand that Establishment Clause law is in flux. And to add to the uncertainty about how the Supreme Court will interpret this constitutional provision in the future, the composition of the Court has changed since McCreary County and Van Orden were decided. (22) This has led one preeminent scholar to predict that we are about to witness "a radical change in the law of the Establishment Clause." (23)

    2. Two Pertinent Prison-Related Cases

      1. Cutter v. Wilkinson

        The Supreme Court decided another Establishment Clause case in 2005, one of import to the question of the constitutionality of faith-based prison units. The issue before the Court in that case, Cutter v. Wilkinson, was whether Congress had transgressed the boundaries of the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act ("RLUIPA"). (24)

        The section of RLUIPA at issue in Cutter provides enhanced protections to prisoners' religious liberty, greater than those afforded by the Constitution. According to the Supreme Court, the First Amendment's Free Exercise Clause, which generally prohibits governmental incursions on religious freedom, (25) permits prison officials to take actions that inhibit prisoners' exercise of their religion as long as the actions are "reasonably related" to a "legitimate penological interest[]." (26) But RLUIPA goes much further than this constitutional minimum in accommodating prisoners' exercise of their religion, prohibiting governments from imposing any "substantial burden" on prisoners' or other institutionalized persons' exercise of their religion unless the burden is justified by a "compelling governmental interest" that is being furthered through the "least restrictive means." (27)

        The Supreme Court unanimously held in Cutter that RLUIPA was constitutional on its face. (28) The Court cited the fact that RLUIPA relieves what the Court considered "exceptional government-created burdens on private religious exercise" as the "[f]oremost" factor underlying its conclusion. (29) The Court also emphasized that RLUIPA does not accord preferential treatment to any sect. (30) Finally, the Court underscored...

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