Sep 15, 2011

The plaintiffs challenged the State of Wisconsin's funding of Faith Works, a religious residential drug and alcohol treatment center. Two funding streams were at issue: fixed grants and per capita funding, both of which were used, in part, to indoctrinate participants in religion. The lower court found the former funding stream to be "direct" and therefore unconstitutional, but upheld the latter funding stream as "indirect" funding akin to a private school voucher program. On appeal from the latter ruling, we filed an amicus brief in October 2002 with the Seventh Circuit arguing that the second funding stream, like the first, is unconstitutional. We argued that the analogy between the per capita funding stream and vouchers was inapposite because the participants were referred to the program by the State, and thus did not participate as a result of truly private, independent choice; that there were only seven other available treatment programs, none of which was truly comparable to Faith Works, so a broad range of choices was not available; and that the funds were transmitted directly from the State to Faith Works, rather than passing through the hands of participants. In April 2003, the court issued a unanimous ruling finding that the per capita funding is akin to a voucher program and can thus permissibly be used for religious activities. We submitted an amicus brief in support of en banc review but the request was denied in May 2003. The plaintiffs elected not to petition the Supreme Court for certiorari.