By Jeremy Leaming
In late 2002, Americans United attorney Alex Luchenitser was alerted to a publicly funded “faith-based” operation in an Iowa prison that he found beyond astounding.
That program, called the InnerChange Freedom Initiative, was being funded and supported by the state of Iowa; it was aimed at rehabilitating inmates at the Newton Correctional Facility by converting them to fundamentalist Christianity.
Luchenitser, now AU’s senior litigation counsel, saw in this set-up an opportunity to challenge and unmask the serious flaws behind the popular political push for “faith-based” social services.
“As I found out more about the InnerChange program, it quickly became clear that this was one of the most egregious violations of the separation of church and state I’d ever seen,” said Luchenitser. “And even scarier was that politicians, including the president, had pointed to this type of program in promoting a ‘faith-based’ funding agenda.
“The public funding of the InnerChange program,” he concluded, “was a First Amendment lawsuit waiting to happen.”
In early 2003, Americans United went to federal court on behalf of nine Newton inmates, four family members of inmates and several local taxpayers.
A little more than four years after the lawsuit was brought, Americans United has scored a decisive blow against the “faith-based” funding scheme. On Dec. 3, a three-judge panel of the 8th U.S. Circuit Court of Appeals unanimously found that public funding of InnerChange is a clear violation of the First Amendment principle of the separation of church and state.
In a 28-page opinion, the panel – which included retired Supreme Court Justice Sandra Day O’Connor, Judge Duane Benton (appointed by President George W. Bush) and Judge Roger Wollman (a Ronald Reagan appointee) – concluded that the state’s “direct aid to InnerChange violated the Establishment clauses of the United States and Iowa Constitutions.”
Benton, writing for the 8th Circuit panel, observed, “In the present case, plaintiffs demonstrated…that the InnerChange program resulted in inmate enrollment in a program dominated by Bible study, Christian classes, religious revivals, and church services.”
Americans United Executive Director Barry W. Lynn told The New York Times that he thought the appeals court decision would hobble the drive for “faith-based” initiatives.
“The decision,” he said, “casts a long, deep shadow over faith-based programs in states, and even at the federal level.”
In an interview with the Associated Press, Lynn added, “I think this has implications far broader than a prison in a single state because the framework of this decision, the way they reached the conclusion is that government can’t pay for these religious social services nor can they turn over functions of government essentially to religious operations.”
The InnerChange program is the creation of Prison Fellowship Ministries (PFM), a fundamentalist Christian group that describes itself as a “ministry focused on the mission of transformation through the grace and power of Jesus Christ.”
Said AU’s Luchenitser, “Before we filed suit, Prison Fellowship did not try to hide the highly religious nature of InnerChange. Its own Web site and promotional materials made crystal clear what the program was all about – immersing inmates in a fundamentalist form of Christianity around the clock, seven-days-a-week, in order to try to ‘cure’ them of ‘sin.’”
The program, which took nearly $2 million in public funds from 1999 to 2007, has been touted by the Religious Right as an effective and neutral way to reduce recidivism.
Prison Fellowship, a $52.8 million operation headquartered in Virginia, was founded by Charles W. Colson, who was convicted and served time in connection with the Nixon administration’s Watergate scandal. Colson was often referred to as Nixon’s “hatchet man,” because his main mission was to see Nixon win re-election at any cost.
Colson became a fundamentalist Christian in prison, and today he is considered a major player in the Religious Right. In 2005, Fox News Channel’s Brit Hume dubbed Colson among “the most influential evangelicals in America” and highlighted the former convict’s prison work.
Colson has powerful friends. He noted in the Fox News interview that George W. Bush set up the first InnerChange program at a Texas prison when Bush was governor there. Bush has repeatedly pointed to Colson’s ministry as a shining example of “faith-based” endeavors.
Bush has hosted Colson and PFM President Mark Early at the White House, to praise their work. In 2003, Colson dropped by to trumpet a study purportedly proving that InnerChange successfully helped curb recidivism. (The study, however, was later debunked as statistically flawed by a University of California-Los Angeles professor. See “Iowa Inmate Indoctrination On Trial,” Church & State, July/August 2006.)
Americans United argued in its lawsuit that Colson’s program was deeply flawed on a number of levels and amounted to government funding of religious conversion and indoctrination.
The case was, Luchenitser said, a prime opportunity to show the great drawbacks to the Bush administration’s drive for funneling more federal dollars to religious groups that offer social services.
The litigation, he added, could “serve as a bulwark against the variety of ways in which the White House was trying to expand tax funding of religious groups, for the case raised many of the legal issues that the ‘faith-based’ initiative highlighted.
“We knew that the case would be a long fight and a lot of work,” he continued, “but it was pretty clear from the outset that this was a case we had to bring.”
The lawsuit was also aimed at revealing the basic unfairness of the InnerChange program. All inmates, regardless of their religious affiliation or lack thereof, should have access to effective rehabilitation programs, AU insisted.
Luchenitser, along with other members of the Americans United legal team, including AU Litigation Counsel Heather Weaver and Iowa civil rights attorney Dean Stowers, were up against a well-funded Religious Right outfit in Prison Fellowship that was bent on preserving public funding of its ministry.
During the litigation, Prison Fellowship and its InnerChange program were represented by six attorneys from a 600-attorney international law firm, Troutman Sanders LLP, and two other attorneys represented the state of Iowa.
The Prison Fellowship team, Luchenitser said, was intent on denying the religious nature of InnerChange, thus prompting AU’s attorneys to submit multiple rounds of discovery requests, and obtain and review about 25,000 pages of documents. Americans United lawyers took 17 depositions and interviewed about 25 inmates and former inmates as potential witnesses.
The work paid off in amassing a record for the court that overwhelmingly showed that InnerChange and its staff were all about promoting fundamentalist Christianity and deriding other faiths.
At the trial, which lasted nearly three weeks, Americans United called 33 witnesses, while the defense team produced nine.
Several of the inmates who testified for Americans United told the court that InnerChange was rife with hostility against other faiths. Staff comments and curriculum materials bashed Catholicism, Judaism, Islam and Native American religion. That testimony seriously undermined InnerChange’s claims that it was open to inmates of all faiths.
“The program was so saturated in fundamentalist Christianity that there was no way that an inmate of a minority religious faith – such as Judaism or Islam – could take part in the program without essentially abandoning his faith,” said AU’s Weaver.
Evidence showed that InnerChange personnel disparaged Catholics as not really Christians. One InnerChange volunteer said a future pope would be the Antichrist, and the pope was compared to Hitler by an InnerChange counselor.
Non-evangelical Christians were frequently referred to by InnerChange staff as “unsaved,” “lost,” “pagan,” those “who served the flesh,” “of Satan,” “sinful” and “of darkness.”
Bilal Shukr, a Muslim inmate, told the court that the program was too hostile for him, saying that there was “no possible way for me as a Muslim to participate without blaspheming my faith, blaspheming God.”
AU lawyers turned up InnerChange literature that instructed men to take control of their households.
“Wives, submit to your own husbands, as to the Lord,” stated one workbook. “For the husband is head of the wife, as also Christ is head of the church….”
InnerChange material also teaches inmates anti-gay dogma. One inmate said he was drummed out because he was perceived by staffers to be gay.
Clint Kirkpatrick testified that the search for his sexual identity left him feeling alienated and uncomfortable within the program. Another InnerChange inmate, according to court documentation, warned Kirkpatrick to “stop his faggot behavior or he would do something about it.”
The 8th Circuit panel took note of the religious nature of InnerChange’s program.
“According to the orientation materials, InnerChange ‘is a Christian program, with a heavy emphasis on Christ and the Bible,’” the panel noted.
The appeals court wrote that during the first phase of the program, which lasted a year, the inmates’ days started with a “30-minute devotional where inmates pray and read aloud from Christian scripture. Classes are followed by an afternoon community meeting. There, inmates pray, make prayer requests, sing religious songs, read from the Bible, and hear a daily devotional message (by an InnerChange inmate).”
Even the “treatment” components of the program were used to push religion.
“For example,” the appeals panel noted, “InnerChange affirms that its (licensed) substance abuse curriculum contains a high level of religious content, based on the premise that ‘only Jesus Christ is the cure for addiction.’”
Not only are InnerChange’s programs pervasively religious, its staff is made up of individuals who are required to sign Prison Fellowship’s fundamentalist statement of faith.
That staff, in turn, used a religious litmus test of sorts to monitor the progress of inmates. The 8th Circuit noted that the test was used to yank one inmate from the program.
The appeals court cited a passage from an InnerChange discharge summary that showed the inmate was expelled from the program because staffers believed the prisoner failed to fully embrace InnerChange’s religious message.
“Your conduct,” the evaluation reads, “has been excellent according to security standards, and you are a hard worker. With you as a member you have always completed your work and assignments, however, you are not displaying the growth needed to remain in the program. Your Focus is not on God and His Son to Change you.”
The InnerChange program also required inmates to allow the staff to direct their religious lives after release from prison. Inmates were required to sign an agreement that they would become active members of a local church that InnerChange approved of. According to the agreement, a reentry candidate committed to “[a]ttend the church we agree on for at least 3 months before deciding to ‘church shop.’”
Evidence revealed that Iowa Department of Corrections funding supported salaries of the InnerChange staff, purchases of literature and even religious gifts, such as key rings and bookmarks, provided to staffers and graduating inmates.
The 8th Circuit panel noted that an InnerChange recruitment brochure, “A Prison Like No Other,” was printed completely at state expense. The brochure describes the InnerChange program as a “24-hour-a-day, Christ-centered, biblically based, program that promotes personal transformation of prisoners through the power of the Gospel.”
During the course of the litigation, it became apparent that inmates at the Newton prison were enticed by material incentives into enrolling in InnerChange. As the 8th Circuit noted, the program was operated in a unit of the prison that had housed the prison’s best-behaved inmates and where inmates had keys to their doors, which were made of wood instead of steel.
InnerChange inmates had more privacy, as well as access to a computer room and a program building with no security cameras. Inmates in the general population of the prison were not afforded such perks. The evidence also showed that InnerChange inmates had quicker access to treatment programs, special contact with family members, easier access to computers and guaranteed prison jobs.
Speedier access to treatment programs meant quicker access to release, since completion of treatment classes was required for parole.
Luchenitser estimated that the Americans United legal team, which included major input and guidance from AU Legal Director Ayesha Khan, devoted approximately 9,000 hours to the InnerChange legal battle.
That work first began to pay off in June 2006, when U.S. District Judge Robert W. Pratt issued a 140-page ruling that came down solidly on the side of Americans United.
“For all practical purposes,” Pratt wrote, “the state has literally established an Evangelical Christian congregation within the walls of one of its penal institutions, giving the leaders of the congregation, i.e., InnerChange employees, authority to control the spiritual, emotional, and physical lives of hundreds of Iowa inmates. There are no adequate safeguards present, nor could there be, to ensure that state funds are not being directly spent to indoctrinate Iowa inmates.”
Pratt’s decision, however, was not the end of the battle. Prison Fellowship appealed to the 8th Circuit and fought back fiercely in the court of public opinion.
Prison Fellowship representatives, along with other Religious Right outfits, spent months deriding the ruling and trying to influence the media. They argued that unless the decision was reversed, the religious liberty rights of Christians would be greatly jeopardized.
PFM President Early, in a press release, claimed, “The courts took God out of America’s schools, now they are on the path to take God out of America’s prisons.”
In an interview with The New York Times, he blasted the decision as “extreme” and claimed it leveled a “serious blow at the religious freedom of prisoners.”
But Americans United’s position was supported by diverse religious and civil liberties organizations. The American Correctional Chaplains Association, the American Catholic Correctional Chaplains Association and Jewish Prisoner Services International argued in their 33-page friend-of-the-court brief that the InnerChange program was unconstitutional.
They noted that unlike chaplaincy programs “that are nonsectarian and religiously inclusive, InnerChange represents only one religious perspective: evangelical Christianity.”
The Baptist Joint Committee for Religious Liberty, the American Jewish Congress, the Anti-Defamation League, the ACLU, the American Jewish Committee and the Council for Secular Humanism also filed friend-of-the-court briefs in support of Americans United.
After the 8th Circuit handed down its ruling, Prison Fellowship offered a desperate spin on the outcome.
The only part of Pratt’s decision to be reversed was his order that PFM repay the state of Iowa more than $1.5 million in public support it had received, a rare legal action called recoupment. The 8th Circuit in overturning this part of the Pratt’s ruling concluded that the judge failed to consider the Iowa officials’ arguments for their funding of the program and found no evidence of bad faith on the part of the Iowa officials.
However, the 8th Circuit did say that InnerChange would be responsible for repaying the state of Iowa any funding it received for services rendered after Pratt’s ruling in June 2006. By then, the parties could not argue they were unaware that such funding was unconstitutional. PFM told reporters that it would have to return about $160,000.
Prison Fellowship’s press release, nonetheless, claimed that the group was “grateful” for the appeals court’s action. The Becket Fund, a Religious Right outfit that represented InnerChange on appeal, also issued a press release lauding the opinion as a “huge victory.”
The Religious Right spin, however, could not change the facts. AU’s Lynn says Prison Fellowship lost a major battle in its effort to convince the federal courts that its prison ministry work was neutral, open to all prisoners and worthy of public support. The loss, he added, would likely have negative effects on other efforts to publicly fund social service programs that improperly infuse those services with religious precepts.
“This was a big blow to those politicians who are constantly seeking ways to funnel more tax dollars to religious groups who in turn discriminate in their hiring and try to use social works to push a religious agenda,” said Lynn. “Because of the dedicated work of the Americans United Legal Department, the ‘faith-based’ initiative has suffered a significant setback.”
After long hours on the case – which turned into years – Luchenitser and Weaver felt elated by the 8th Circuit’s ruling.
“We prevailed on virtually every major aspect of the case,” Luchenitser said. “From the many notes of congratulations I received from other members of the civil liberties community shortly after the opinion was released, it quickly became clear that the decision was considered a major victory in the battle to preserve the separation of church and state.”
Added Weaver, “I expect the decision to have a huge impact in support of our fight to combat federal and state officials’ efforts to expand taxpayer funding of religious social services in general, and to halt the expansion of government-aided religious ‘rehabilitation’ programs in prison more specifically.”
Luchenitser was able to speak with most of the plaintiffs regarding the appeals court ruling.“They seemed quite happy with the ruling,” he said. “They were pleased that their rights had been vindicated.”