Freedom from Religion Foundation, Inc. v. McCallum, 02-3102.

• Decision Date: 02 April 2003
• Docket Number: No. 02-3102.,02-3102.
• Citation: 324 F.3d 880
• Parties: FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellants, v. Scott McCALLUM, et al., Defendants-Appellees, and Faith Works Milwaukee, Inc., Intervening Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

324 F.3d 880

FREEDOM FROM RELIGION FOUNDATION, INC., et al., Plaintiffs-Appellants, v. Scott McCALLUM, et al., Defendants-Appellees, and Faith Works Milwaukee, Inc., Intervening Defendant-Appellee.

No. 02-3102.

United States Court of Appeals, Seventh Circuit.

Argued February 12, 2003.

Decided April 2, 2003.

Rehearing and Rehearing En Banc Denied: May 22, 2003.

Richard L. Bolton (argued), Boardman, Suhr, Curry & Field, Madison, WI, for Plaintiffs-Appellants.

Bruce A. Olsen (argued), Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for Defendants-Appellees Scott McCallum, Jennifer Reinert, Richard A. Gartner and George Lightbourn.

Daniel Kelly (argued), Reinart, Boerner, Van Deuren, Norris & Rieselbach, Milwaukee, WI, for Defendant-Appellee Faith Works Milwaukee, Inc.

Ayesha Khan, Americans United for Separation of Church and State, Washington, DC, for Amicus Curiae Americans United for Separation of Church and State.

Steven M. Freeman, Anti-Defamation League of B'Nai B'rith, New York, NY, for Amicus Curiae Anti-Defamation League.

Jeffrey P. Sinensky, American Jewish Committee, New York, NY, For Amicus Curiae American Jewish Committee.

Gene C. Schaerr, Michael L. Post, Richard H. Menard Jr., Sidley Austin Brown & Wood LLP, Washington, DC, for Amici Curiae Evangelicals for Faith-Based Initiatives, Prison Fellowship Ministries, and Christian Community Health Fellowship.

Before BAUER, POSNER, and RIPPLE, Circuit Judges.

POSNER, Circuit Judge.

This is a taxpayer suit to enjoin Wisconsin correctional authorities from funding Faith Works, a halfway house that, like Alcoholics Anonymous, incorporates Christianity into its treatment program. The plaintiffs argue that this funding constitutes an establishment of religion, in violation of the Constitution. The district judge rejected the argument after a bench trial.

If a convicted criminal is out on parole (or probation, but we need not discuss that separately) and living in Milwaukee and he violates the terms of the parole, his parole officer may offer him, as an alternative to being sent back to prison, enrollment in one of several halfway houses with which the state has contracts. The officer can recommend a specific halfway house—the one he thinks best for the particular offender—but the offender is free to choose one of the others. One of the authorized halfway houses, Faith Works, which focuses on employment needs, drug and alcohol addiction, and parental responsibility, has a religious theme: it encourages the offender to establish a personal relationship with God through the mediation of Jesus Christ. Parole officers have recommended Faith Works to some parolees, but have been careful to explain that it is a nonbinding recommendation and that Faith Works is a Christian institution and its program of rehabilitation has a significant Christian element. Parole officers who recommend Faith Works are required to offer the offender a secular halfway house as an alternative. And although Faith Works will enroll an offender even if he is not a Christian, a parole officer will not recommend Faith Works to an offender who has no Christian identity and religious interest and will not advise anyone to convert to Christianity in order to get the most out of Faith Works.

There is no evidence that in recommending Faith Works a parole officer will be influenced by his own religious beliefs. His end is secular, the rehabilitation of a criminal, though the means include religion when the offender chooses Faith Works. Because the Supreme Court will not allow a public agency to force religion on people even if the agency honestly and indeed correctly believes that it is the best way of achieving a secular end that is within government's constitutional authority to promote, Lee v. Weisman, 505 U.S. 577, 587-89, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), the state may not require offenders to enroll in Faith Works even if it is the best halfway house in Milwaukee for any or even all offenders. Kerr v. Farrey, 95 F.3d 472, 479-80 (7th Cir.1996). The choice must be private, to provide insulating material between government and religion. It is private; it is the offender's choice.

The success of Alcoholics Anonymous is evidence that Christianity can be a valuable element in a program for treating addiction. And alone among the approved halfway houses in Milwaukee, Faith Works offers a nine-month residential program; the secular programs are only three months. The longer term makes Faith Works uniquely attractive to the correctional authorities because they believe that many offenders need the longer period of supervised residence in order to succeed in becoming reintegrated into civil society. So the state waived the usual bidding requirements when it contracted with Faith Works, which it had not done with the other halfway houses in Milwaukee. A similar program has operated in New York, reportedly successfully.

If an offender enrolls in Faith Works, the state reimburses a part of the cost in accordance with the terms of the contract, just as it does in the case of offenders who enroll in secular halfway houses. Pending the final outcome of this litigation, however, the parole and probation officers have stopped referring offenders to Faith Works, and the halfway house is empty.

The district judge was right to dismiss the suit. A city does not violate the establishment clause by giving parents vouchers that they can use to purchase private school education for their children, even if most of the private schools in the city are parochial schools—provided, of course, that the parents are not required to use the vouchers to attend a parochial school rather than a secular school. Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 2467-70, 153 L.Ed.2d...