May the State Promote Faith in Order to Advance Secular Objectives?

Marty Lederman

I certainly share Marty's (and Madison's) concern about religious faith being reduced to a convenient means for achieving the government's "secular" ends. That said, I'm not sure why it should be unconstitutional -- or, in any event, why it would be "profoundly disturbing" -- for the government, as a general matter, to take, and act on (in non-coercive ways, of course, and consistent with the freedom of conscience), the view that "religious transformation [and] faith" are good (when freely embraced). There are dangers here, absolutely. Still . . . (To be clear: I'm not necessarily endorsing this particular program.)

Also, Marty writes, "[t]he government cannot specifically aim at religious transformation as a means of accomplishing those secular ends." Does this mean, I wonder, that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?

1. You ask whether my critique means "that government may (or should) not act with an eye specifically toward protecting, and even creating, the conditions required (in the government's view) for the flourishing of religious faith and freedom?"

No, it doesn't entirely mean that. One of the principal objectives of the religion clauses themselves is to encourage or require the government to act so as to eliminate government-created obstacles to the flourishing of religious faith and freedom. So, for example, I favor -- and have worked to enact and defend -- certain religious "accommodation" statutes, such as RFRA and RLUIPA.

However, although the state may advance the view that religious freedom (including the freedom to reject religion) is a civic good in and of itself, it may not advance the view that religious faith is a positive good in and of itself -- or that it's the means to valuable secular ends.

2. The government is simply not capable of determining whether "religious transformation [and] faith" are a "good" thing (when freely embraced) -- that's a question that is beyond the ken of secular authorities, who do not have the (basically theological) tools to make such determinations. Nor should the state try to do so -- that's not the proper role of government. (Or so argues the Madisonian, and modern, view of the Religion Clauses -- and I agree, although I'm very interested in hearing dissenting views.) And so it surely follows that government may not discriminate in favor of religion in the dispersal of funds on the basis of such judgments concerning the value of faith.

3. I think it's also "troubling," and unconstitutional, for the state to conclude that religious transformation or faith is correlated with secular objectives that the state is entitled to promote, such as civic behavior, rehabilitation, cessation of alcohol dependence, etc. For one thing -- and this isn't a constitutional point -- as far as I can tell, it's simply not true: If anything, human history (including, of course, obvious dramatic recent examples) pellucidly demonstrates that religious faith is no guarantee at all of righteousness, lack of cruelty, or law-abiding conduct.

More to the (constitutional) point, there is something profoundly troubling about the state itself adopting any view about the "typical" comparative social behaviors, and human qualities, of believers and nonbelievers.

4. The hard question, I suppose, is this: Assume the state is entirely agnostic as to the value or "truth" of religious transformation and faith, but actually discovers a strong empirical correlation between faith and some other quality that is a proper object of the state's concern. For example, let's say studies show a cause-and-effect correlation between faith and graduation rates, or between religious transformation and resisting drug addiction. (I'm not aware of any such empirical evidence, but I'm willing to assume arguendo . . . .) I don't think this would give the state the power to itself promote religious faith -- after all, in that case the state would be promoting something that it does not believe, which truly is a perversion of religion. But if there is such a correlation, can a government give resources to private groups that do have religious faith, to enable them to transform those individuals who don't?

Can the state, for instance, say: "Look, we really don't know whether faith is true, or valuable, or something to which all citizens should aspire. Those are eternal mysteries that are appropriately left to individuals. And we believe in religious liberty -- so to each their own on questions of faith. But what we do know, from rigorous scientific studies (indulge me the hypo), is that, for whatever reason -- indeed, for reasons that we are incapable of understanding or assessing -- many prisoners who would otherwise become recidivists do not do so if they come to believe in God, and for that reason (and that secular reason alone), we're giving discretionary grants to private religious organizations that can help such prisoners make such transformations. Indeed, the strongest correlation of all is with conversion to Christianity, and so we're going to give our funds primarily to Christian organizations. There's no such evidence with respect to Islam, or Wicca, and so we will not provide money to groups who have applied to encourage faith in those traditions."

Can the state do this? Madison thought not -- and I agree. But, unlike the other questions raised by the BOP program, that truly would be an interesting and difficult question (that is, assuming once again that there were any such evidence).

With all respect, I disagree. Putting constitutional doctrine aside, the public authority, charged with promoting and protecting the common good, may decide that "religion" is a basic human good, and that its flourishing -- consistent with the freedom of conscience -- is constitutive of the common good. (See, e.g., Finnis).

I think Marty is clearly right on this fundamental question. The state cannot decide that religion or religious transformation is a good thing, any more than it could decide that religion is a divisive and disruptive force that should be minimized or discouraged.

But a more sensibly designed program of religious rehab in prisons need not assume that religious transformation is a good thing, or even that religious programs would have lower recidivism rates than secular programs. It need only assume that religion works for some people, and that if different people respond to different kinds of programs, religious programs should be among the options.

Among the problems with the proposed federal program, at least as the press described it to me, is that only one religion will be represented, and that there does not appear to be an equivalent secular program.

But Doug, assume that the state prison decides that "religion works for some people," and therefore creates a program such as the one you describe: It establishes within the prison a funded series of voluntary rehab programs, some (but not all) of which are devoted to "religious transformation," as a means of lowering recidivism rates. Wouldn't there continue to be at least three constitutional problems with this?:

1. It would be direct funding of religious activity, prohibited by Mitchell, Kendrick, and numerous other cases.

2. It would consist of state actors actually engaged in the practice of promoting religious transformation. (These are, after all, state programs run within the prisons. Cf. West v. Atkins.) Just as public schools could not include a "religious transformation" class as part of a series of "elective" civics classes, in the service of creating upstanding citizens (and based on the same sorts of empirical claims that you invoke), so too for the public prisons . . .

3. Inevitably, each of the religious transformation programs will be sect-specific, i.e., each will involve the state urging prisoners to adopt a specific system of religious beliefs and commitments. This creates a problem within each of the programs, doesn't it? -- not to mention the inevitable problem that no prison will be able to offer "transformation" programs for all of the religions represented in the prison population.

These seem to me as though they are very big constitutional obstacles, even if the program were amended along the lines you propose.