Freedom From Religion Foundation , Inc . v. Scott M C Callum

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-3102
F REEDOM F ROM R ELIGION F OUNDATION , I NC ., et al.,
Plaintiffs-Appellants,
v.
S COTT M C C ALLUM , et al.,
Defendants-Appellees,
and
F AITH W ORKS M ILWAUKEE , I NC .,
Intervening Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 00-C-617-C—Barbara B. Crabb, Chief Judge.
____________
A RGUED F EBRUARY 12, 2003—D ECIDED A PRIL 2, 2003
____________
Before B AUER , P OSNER , and R IPPLE , Circuit Judges.
P OSNER , 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 establish-
ment of religion, in violation of the Constitution. The district
judge rejected the argument after a bench trial.

-- 1 of 7 --

2 No. 02-3102
If a convicted criminal is out on parole (or probation, but
we need not discuss that separately) and living in Mil-
waukee 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 reli-
gious theme: it encourages the offender to establish a per-
sonal 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 recom-
mend 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 reli-
gious 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 (1992), the state may not

-- 2 of 7 --

No. 02-3102 3
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 insulat-
ing material between government and religion. It is pri-
vate; 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 be-
lieve that many offenders need the longer period of super-
vised residence in order to succeed in becoming reinte-
grated 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 reim-
burses 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 out-
come of this litigation, however, the parole and proba-
tion 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 par-
ents 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 for a parochial school rather than for a secular

-- 3 of 7 --

4 No. 02-3102
private school. Zelman v. Simmons-Harris, 122 S. Ct. 2460,
2467-70 (2002). The practice challenged in the present
case is similar. The state in effect gives eligible offenders
“vouchers” that they can use to purchase a place in a
halfway house, whether the halfway house is “parochial” or
secular. We have put “vouchers” in scare quotes because
the state has dispensed with the intermediate step by
which the recipient of the publicly funded private service
hands his voucher to the service provider. But so far as the
policy of the establishment clause is concerned, there is
no difference between giving the voucher recipient a piece
of paper that directs the public agency to pay the service
provider and the agency’s asking the recipient to indicate
his preference and paying the provider whose service he
prefers.
Nor does it make a difference that the state, rather than
accrediting halfway houses, enters into contracts with
them. Obviously it has not refused to enter into contracts
with halfway houses that are secular—all but one of its
contracts are with secular houses. The only evidence of
favoritism, the bid waiver, is unpersuasive; it was granted
because Faith Works’ program has such attractive fea-
tures from a purely secular standpoint, such as the length
of the program, that the state was eager to have it on its
menu of halfway-house choices. That most of the halfway
houses with which the state has contracts are secular
makes this an easier case than the school voucher case.
Most private schools in this country are parochial schools,
so that a voucher system, at least in the short run (in the
long run the existence of such a system is likely to stimu-
late the creation of new secular private schools), will give
a definite boost to religion. Most halfway houses are secu-
lar.
The plaintiffs argue that by recommending Faith Works
to some offenders, parole officers steer the offenders to a

-- 4 of 7 --

No. 02-3102 5
religious program and by doing so provide governmental
support to religion. The implications of the argument are
unacceptable. If recommending a religious institution
constituted an establishment of religion, a public school
guidance counselor could not recommend that a student
apply to a Catholic college even if the counselor thought
that the particular college would be the best choice for the
particular student. And, coming closer to home, a parole
officer could not recommend to a parolee who had a se-
rious drinking problem that he enroll in Alcoholics Anony-
mous, even if the officer believed that this was the only
alcoholic-treatment program that would keep the parolee
from committing further crimes. To suppose such recom-
mendations unlawful would be to adopt a doctrinaire
interpretation of the establishment clause remote from
its underlying purpose and historical understanding. De-
Stefano v. Emergency Housing Group, Inc., 247 F.3d 397, 414-16
(2d Cir. 2001); compare Warner v. Orange County Depart-
ment of Probation, 115 F.3d 1068, 1069 (1997), reinstated,
173 F.3d 120, 121 (2d Cir. 1999). Suggestion is not a syn-
onym for coercion.
The plaintiffs’ lawyer acknowledged at argument that it
would be lawful for a public agency to rate public and
private, including parochial, schools and publish the rat-
ing, even if it put a Catholic school at the top. That would
be tantamount to recommending that school. He ar-
gued that the difference between that case and this one
is that there are no objective criteria for rating halfway
houses and therefore ratings or, what are equivalent,
recommendations would involve discretionary judgments
possibly influenced by the religious preferences of the
agency or public employees doing the rating or making the
recommendations. That is a danger, though the district
court found, not clearly erroneously, that it has not mate-
rialized. A school year has a standard length, so that a

-- 5 of 7 --

6 No. 02-3102
school that announced it was shortening its school year to
three months would quickly be stripped of its accredita-
tion. There is no standard halfway-house treatment pro-
gram that would enable an “objective” comparison to
be made between a three-month secular halfway-house
program and Faith Works’ nine-month program. Lack of
uniform intake criteria would defeat efforts to use the
recidivism rate as a test of quality. In short, it is easier to
establish accreditation criteria for schools than for half-
way houses.
If religiously oriented halfway houses were obviously of
little value from a correctional standpoint, the danger of
seepage of religious preferences or aversions into the
process of rating or recommendation might tip the scale
against allowing such halfway houses to receive public
funding even as mediated by private choice. But on the
contrary—and quite apart from the evidence, confirmed
by long experience with the parallel case of Alcoholics
Anonymous, that for some substance abusers religion is
an effective treatment—there is the fact that Faith Works
offers a program that lasts three times as long as that of
any of its secular competitors. To exclude Faith Works
from this competition on the basis of a speculative fear that
parole or probation officers might recommend its pro-
gram because of their own Christian faith would involve
the sacrifice of a real good to avoid a conjectured bad.
It would be perverse if the Constitution required this re-
sult. Cf. Metzl v. Leininger, 57 F.3d 618, 620-21 (7th Cir.
1995); Cammack v. Waihee, 932 F.2d 765, 778, 780 (9th Cir.
1991).
The plaintiffs try to turn the real good of Faith Works’
program in their favor by arguing that because it is indeed
the best program, offenders who are advised to enroll in
it—perhaps all offenders who are eligible for a halfway

-- 6 of 7 --

No. 02-3102 7
house—have no real choice. But quality cannot be coer-
cion. That would amount to saying that a city cannot
adopt a school voucher system if the parochial schools
in the city are better than the public or secular private
schools. Faith Works, penalized because its secular com-
petitors were unwilling to invest as much in the rehabilita-
tion of offenders, would have an incentive to reduce the
quality of its program, while those competitors would have
an incentive to reduce the quality of their own programs
in order to make Faith Works’ “violation” of the estab-
lishment clause more perspicuous and encourage it to cur-
tail its program. There would be a race to the bottom.
It is a misunderstanding of freedom (another paradox,
given the name of the principal plaintiff) to suppose that
choice is not free when the objects between which the
chooser must choose are not equally attractive to him.
It would mean that a person was not exercising his free
will when in response to the question whether he preferred
vanilla or chocolate ice cream he said vanilla, because it
was the only honest answer that he could have given
and therefore “he had no choice.”
A FFIRMED .
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-2-03

-- 7 of 7 --