Coordinating the Exercise and Establishment Clauses: A Narrow Establishment Clause Test for Government Funding of Prisoner Rehabilitation Services by Religious Providers
Ave Maria Law Review 387, Vol. 6, No. 2, 2008
22 Pages Posted: 30 Jun 2008
Date Written: June 30, 2008
Abstract
Any time religious organizations interact with government, there looms the potential application of the Establishment Clause. This application becomes a near certainty whenever public funds pass to religious institutions. But this is where the certainty ends, because the Court's Establishment Clause jurisprudence has become mired in a web of confusing and contradictory rules. The Court has been unable to settle on any one test or model, even in cases that present similar facts. As a result, the Supreme Court's Establishment Clause jurisprudence is both confused and contradictory. Because of how the Establishment Clause has been applied, it has often created a dissenter's right, which has served to restrict religious freedom just as a heckler's veto can serve to restrict free speech rights.
One controversy under the Establishment clause is whether government can contract with religious organizations, on the same terms as it can with secular organizations, for certain social welfare services. This Article will attempt to offer a more simplified and narrowly focused Establishment Clause test, focusing particularly on government funding or accommodation of religious organizations performing social welfare work in prisons. Such a test relies on a cooperative and coordinated relationship between the Free Exercise Clause and the Establishment Clause. By narrowing the application of the latter, the test in turn expands the reach of the former. Thus, when determining whether government aid to or accommodation of religious groups performing social welfare work in prisons violates the Establishment Clause, the focus should only be at one level: the level at which the government is choosing funding beneficiaries. Any concern about how the program functions regarding the actual program beneficiaries becomes a matter for the Exercise Clause.
Keywords: Establishment Clause, Free Exercise Clause, Public funds, Government funding, Social welfare services, Prisoner rehabilitiation, Prisons, Religious organizations
JEL Classification: K1, K3, K10, K19, K30, K39
Suggested Citation: Suggested Citation