A Lemon Of An Idea In Alabama

If you are convicted of a misdemeanor in Baldwin County, Alabama (that’s on the east side of Mobile Bay, bordering Florida, with a county seat in the I’m-sure-it’s-lovely city of Bay Minette), the judges will give you a choice — serve your time in the county jail or promise to go to church once a week (subject to check-ins with the pastor and the police to verify attendance). The program is called Operation Restore Our Community and goes by the acronym “ROC” — an allusion to Simon Peter as the “rock of the church” in the Christian religion? Well, maybe not. In any event, over 50 churches in the county have signed up to participate.

In several blog reports the program is being credited to a particular judge or set of judges in Bay Minette, but it appears to me to be a program that made it through the Baldwin County Commission and the judges are implementing it. Willingly and gladly, I’m reasonably confident, but let’s not blame judges for making this stuff up; this is not the product of judicial fiat but rather the result of the democratic process.

Regular Readers of this blog should know that it’s time to pull out the Lemon test to determine if the Establishment Clause has been violated. Readers already familiar with the Lemon test will hopefully suspect that this will be a rather easy analysis.

The three things we look for are:

1. Secular legislative purpose.
2. Neither advance nor inhibit religion.
3. Avoids “excessive entanglement” with religion.

Prong one is where the new program is actually the strongest. It’s clear enough to me that the program has a secular purpose — the reduction of crime, reformation of petty criminals, relieving the demand for resources and money in the county jail. Debatably, the creation of a more moral community in the county, which is getting a bit grayer than those other goals, but as a society we do accept the notion that the law can be used to promote public morality and proscribe at least minimally acceptable standards of moral behavior, so “public morality” is also an acceptable goal for a legislative action, at least from a Constitutional law perspective.

This is where the smooth sailing for the ROC program ends, however. Does this program “neither advance nor inhibit religion”? Given a choice between serving time in jail and going to church, it isn’t a choice at all. The chief of police puts it clearly in an interview with the Christian Post:

“It’s an easy choice for me,” says Bay Minette Police Chief Mike Rowland. “If I had to choose between going to jail and paying a heavy fine or going to church, I’d certainly select church.”

This atheist would pick church, how about you? I would be quick to tell the judge, “I may not believe in God, but I’ll go to church if it keeps me out of jail!” Of course, that may actually be the wrong thing to say, as in a subsequent interview Chief Rowland admits that

…atheists and agnostics would be out of luck.

“We would not have an option for them,” Rowland responded. “It’s a faith-based program. So it has to be a faith-based organization.”

Oh. So maybe I’d lie to the court about my religious beliefs. Well, I was baptized into the Roman Catholic Church as a baby and completed catchecism as a pre-teen, so I could claim to be a “lapsed Catholic” who might benefit more from going back to church once a week instead of being exposed to the heightened risk of anal rape that prison would bring. Whatever unfair jokes about priests and altar boys you might want to make, a grown man is substantially less likely to be subject to violence of any nature going to a Catholic church service once a week than he is living in jail for a year. That seems to me to be a powerful incentive to go to church.

Thus the ROC program presents me with a choice of “worship once a week or get ass-raped” and thereby it is a program that, all other things being equal, advances religion. If the program advances religion it fails the Lemon test and is a violation of the Establishment Clause.

In defense, let’s go back to Chief Rowland, a vocal advocate of the program:

“All these groups saying stuff – they don’t know the details,” Rowland told [Christian Post]. “If this was the only alternative available, then maybe it would violate some constitutional laws. But [ROC] is just one of several alternatives that are available to judges.”

Rowland pointed out that judges decide on what they believe would be the best way to handle offenders and have several programs to choose from, including community service activities, such as raking leaves, picking up trash, and washing police cars. Therefore, an offender is not “forced” to choose between jail and church.

When asked if going to church once a week is still a far more attractive choice compared to picking up trash on the side of the road, Rowland stressed the choice aspect.

“Nobody is forcing anybody to go to church,” he said, reiterating that judges give the offender the option only if he or she believes the offender will benefit from ROC.

In regards to the church and state separation aspect, Rowland believes people are too caught up in labels.

“I think it’s a cloudy issue,” he said, referring to the many other factors involved in the process of deciding whether or not an offender will be given the choice of participating in the ROC program. Some of those factors include the severity of the offense, past records, and, most importantly, whether or not the offender actually wants to participate in the program.

“They always have the choice,” Rowland said. “It’s up to them.”

Maybe the availability of community service as a possible sentence convinces you that the program doesn’t really advance religion. It doesn’t convince me.

Chief Rowland makes it sound like ROC is a trinary option between jail, community service, and church and selecting a form of punishment is sort of collaborative process between defendant and court. Well, I rather doubt that — criminal sentencing is not a particularly collaborative process elsewhere; it is a process by which the court imposes its decision on the defendant. Few people would choose incarceration (at least, for any substantial length of time) over just about anything else available by way of sentences.*

I don’t think it really is up to the defendant. The choice between jail time, a fine, or community service, is resident with the court and not the defendant. The choice between jail and church is no choice at all.

Now for the third prong, “excessive entanglement.” While that phrase has never been very clearly-defined, this seems to be it. In Lemon v. Kurtzman itself, excessive entanglement was found in a school textbook subsidy because a government official had to read the books in question to verify their secular content and subject-matter appropriateness to meet the state cirriculum standards before the state would subsidize the purchase of those textbooks for private school students. I presume that there was already a list of at least some approved titles and once the official had read the book once, it didn’t have to be re-read when multiple schools applied for subsidies — but the amount of work involved wasn’t the thing the Court looked at, it was the quality of that interaction between the religious institution and the state, the need for a state official to get involved with the nuts and bolts of how the private school implemented its cirriculum.

Here, a pastor and a police officer has to verify that the ROC enrollee attends church weekly. Perhaps that’s a little less intrusive than checking the content of a textbook. But it’s still getting into who does or does not show up for church services (and, I’m presuming, not leaving early or sleeping through the sermon). That seems rather similar to the textbook content verification that came up in Lemon itself, and indeed the county is relying on the church to fulfill the purported function of the jail, which is behavior modification under the label “rehabilitation.” While we can’t be certain of what “excessive entanglement” is, this looks like a good candidate for it, so I’m going to say that we have a problem with the third prong of Lemon too.

Now, there are two other tests for Establishment Clause violation, but having gone through the Lemon analysis we can run through them quickly.

I favor the “endorsement test” for determining if violations of the Establishment Clause have occurred. Does the ROC program convey a message to the community as a whole that religious people are favored over non-religious people? Damn right it does. A “get out of jail free” card is about the ultimate form of favored treatment one could request in a misdemeanor sentencing. And as the program’s advocate admits above, atheists and agnostics are not eligible to participate.

Then, there’s the “coercion” test. Does the ROC program compel a person to engage in religious activity that they would not otherwise engage in? Well, it certainly would for me and I’m a confirmed nonbeliever. I wouldn’t hesistate to avoid jail by going to a church and listening to a bunch of stuff I didn’t really believe in my heart. Once again, a choice between jail and church is so one-sided a choice that it isn’t really a choice at all. This program fails even the highly deferential-to-government coercion test.

Finally, let’s consider the potential efficacy of the program. Does going to church really make you a more moral person, and therefore less likely to commit crimes in the future? I’m sure I don’t need to trot out all the statistics about how only a miniscule portion of the prison population is atheist while the bulk of prisoners are Christian or Muslim. Or how divorce rates and adultery rates are higher among the religious than the nonreligious. You’ve seen that stuff before. But that ignores religion at its best, in the hands of smart and sincere practitioners. Despite the availability of statistical evidence indicating that a person’s piety has nothing whatsoever to do with their morality, I would nevertheless conditionally agree for purposes of this discussion that religion, at its best, provides a psychological force impelling morally good decision-making.

The thing of it is that for religion to work at its best, one needs a voluntary and willing worshipper, one who will put in the time and thought and study and effort needed to learn the moral lessons that the religion has to teach, one who can and will not only separate the timeless moral teachings of a religion from its ancient and obsolete cultural trappings, but then thoughtfully implement those timeless moral teachings to the dilemmas and choices facing the worshipper in the real, immediate world. In other words, you need to have someone who is willing to try to be a good person to begin with, and then religion can make that person even better.

If you have someone who isn’t willing to try to be a good person to begin with — someone who is, I don’t know, maybe someone who is already a criminal — the thoughtfulness, introspection, study and understanding, and sober implementation of ideas necessary to actualize the moral teachings of religion and produce the desired behavior modification just isn’t going to be there. Sort of like a twelve-step program for an addict: if the addict wants to change, she will; if she doesn’t want to change, all the AA meetings aren’t going to do her a lick of good. Church can make a person who wants to be a good person better; but the desire to change has to come from within the self and cannot be imposed from without.

The ROC program takes people who have already demonstrated their willingness to make bad, or at least thoughtless, moral choices and found themselves crosswise with the law for it, and offers them another opportunity to participate in a process they have already eschewed. Perhaps a small number of participants will go into the project with the right frame of mind to benefit from it. But it seems a safe prediction that most will not. And those for whom it will work, they likely would find some other means by which they could morally improve themselves anyway because those are the people who just plain screwed up in what is likely to have been an isolated incident, out of character from their usually morally-upright lives.

More to the point, even if the program would work in a large number of cases (which I doubt), the efficacy of the program is no excuse for its violation of the Constitution. Even attributing the best of motives to the lawmakers who created and seek to implement this program (a concession for which I frankly have some doubts), and even conceding (arguendo) that the program would effectively rehabilitative petty criminals, reduce public expense, and foster a more moral community, we mustn’t ever seek to get to such a place by way of turning a blind eye to the fact that we violate the Constitution to get there. Under no recognized test for determining whether an Establishment of religion has taken place can this program be justified. This isn’t a close question; Baldwin County, Alabama, is violating the Constitution.

* I have seen sentencings where a defendant requested jail time, usually of a week to two weeks, rather than having a fine imposed that the defendant knew he would be unable to pay. In those cases, the judge did sort of bargain with the defendant to try to explain why paying a fine was way, way better than even a short time in jail, but the defendants insisted that they would never be able to pay and would rather do the time to not have a creditor following them around. That may not have been an entirely irrational choice on the part of those defendants. If it were a sentence of many months to a year, I think the calculus might change; I suppose the result might not if the defendant fatalistically thought they might wind up in jail for other sorts of behavior anyway.