February 8, 2016
The Center for Inquiry (CFI) is an organization that uses the legal process to advance its mission, in particular that portion of its mission that seeks to
preserve and promote the separation of church and state. Sometimes our legal work simply entails writing letters and/or engaging in informal negotiations
with local government officials. Other times, we may resort to litigation. Bringing a court case as a nonprofit advocacy organization entails a significant
responsibility, not only to any individual plaintiffs who are involved but also to the cause of church-state separation as a whole. A case should not be
brought unless there is an important legal principle at stake, there is a reasonable chance of prevailing, and there is no significant likelihood that the
case will create bad precedent.
In 2007, the Council for Secular Humanism (Council), then a separate corporate affiliate, now a program of CFI, brought a lawsuit in Florida challenging
one aspect of Florida’s mammoth faith-based funding program, pursuant to which significant amounts of state money are funneled to faith-based contractors
which provide various services. In a number of instances, the services provided are religious in nature. In other words, taxpayer dollars are being used to
subsidize religious programming. Joining Council in the lawsuit were two individual Florida taxpayers, Richard and Elaine Hull.
Since the Supreme Court’s decisions in Mitchell v. Helms, 530 U.S. 793 (2000) and Zelman v. Simmons-Harris, 536 U.S. 639 (2002), it is
difficult, if not impossible, to challenge successfully faith-based funding programs under the Establishment Clause, provided participation in such
programs is voluntary. However, Florida, like about thirty other states, has a provision in its constitution that, at least on its face, is more
restrictive than the Establishment Clause with respect to the type of aid that can be given to religious bodies. Specifically, Article 1, Section 3 of
Florida’s Constitution states that “No revenue of the state … shall ever be taken from the public treasury directly or indirectly in aid of any church,
sect, or religious domination or in aid of any sectarian institution.”
Council investigated some of the contracts that Florida had with faith-based providers and learned that the Department of Corrections had agreements with
two contractors, Prisoners of Christ and Lamb of God Ministries, that openly styled themselves as Christian ministries. Furthermore, the services they
provided— substance abuse rehabilitation services for former inmates— were explicitly religious in nature. Program participants were urged to turn their
lives over to Jesus. A newspaper article describing the work of one of the contractors was headlined “Former inmates find faith in Prisoners of Christ.”
Once Council filed suit, a squadron of attorneys jumped in to represent the defendant contractors, in addition to the attorneys representing the Florida
Department of Corrections. The defense team included attorneys from the notorious Becket Fund, one of whose guiding principles appears to be that it is
discriminatory for the state not to fund religious institutions.
In 2008, the trial court judge ruled for defendants on their motion for judgment on the pleadings, concluding that the Florida constitutional provision was
not intended to apply to state contracts for social services, but Council succeeded in getting this judgment overturned on appeal. Specifically, in 2010,
the First District Court of Appeal found that Council and the Hulls did state a valid claim for relief and that they could prevail if they showed that
state money was going to a religious institution and that the funds were used to advance religion by, for example, promoting the religion of the social
services provider. Although not a critical part of the case, it was also significant that the state contracts with Prisoners of Christ and Lamb of God
stated that the services provided were to be religious or spiritual in nature.
This favorable decision worried the religious right in Florida so much that two efforts were made to amend the Florida Constitution to remove the No-Aid
provision. Both referenda failed to gain the 60% majority required to change the constitution.
After the appeal, our case went back to the trial court where progress was slow, in part because of some resistance to discovery and delaying tactics by
the defendants and in part, quite frankly, because our pro bono counsel at the time did not move the case along expeditiously. However, the pace picked up
in 2013 when our current counsel assumed responsibility for the case.
Significantly, in 2014, the Department of Corrections changed the language of the contracts, dropping any reference to religious or spiritual programming.
In addition, immediately before their depositions, the directors of the two contractors changed the manuals and programming material they use with program
participants, deleting most of the explicitly Christian references. This was a transparent effort to “secularize” the programs. However, the directors
candidly admitted during their depositions that the nature of their programs hadn’t changed, even after the change in contract language and program
CFI filed a motion for summary judgment in the spring of 2015, which defendants countered with their own cross-motions for summary judgment. On January 20
of this year, the trial court granted the defendants’ motions. The court’s reasoning was fundamentally flawed. The court emphasized the fact that
participation in the programs was entirely voluntary. However, this factor, although important in Establishment Clause cases, should not be relevant in a
case brought under the No-Aid clause— assuming it means what it says. The court also said that there was insufficient evidence that the state was providing
funding for the religious aspects of the programs, as state funding did not cover all the costs of the contractors, so arguably the funding was used to pay
for non-religious items such as bedding, utilities, etc. One problem with that analysis is that the state contracts were for rehabilitation services, which
admittedly did use religious programming, not for beds.
CFI’s immediate reaction was that we would appeal this decision. As indicated, the trial court’s decision was not well-reasoned. However, reluctantly we
have come to the conclusion that it would be imprudent and a disservice to the cause of church-state separation if we pursued this case on appeal. As
stated at the outset of this statement, before bringing or pursuing a lawsuit, it is incumbent upon a nonprofit organization to make sure it has a
reasonable chance of prevailing and that the litigation will not create bad precedent.
Here’s the sad situation: appellate judges in Florida are appointed by the governor. Ultra-conservative Rick Scott has now appointed seven of the twelve
appellate judges who sit on the First District Court of Appeal. Thus, the composition of that court, which was already moderately conservative at the time
of our 2010 appeal, has now moved firmly into the camp of the religious right. We are concerned that were we to appeal, we would not only lose our appeal, but the court would revisit the favorable 2010 decision we obtained and reverse it.
Therefore, a dispassionate review of our chances on appeal indicates we likely would lose and, moreover, we may well create bad precedent that would
eliminate our hard-won victory and hurt the chances of other litigants. (As it stands now, the trial court’s decision, since it is the decision of the
lower court, would have no preclusive effect on other cases.)
Further casting a shadow over any appeal is the recent decision of the Supreme Court to hear a case from Missouri which will require the justices to
consider whether state constitutional provisions prohibiting state assistance of religious institutions, such as Florida’s No-Aid provision, can be
interpreted to prevent state assistance where the assistance would support an arguably secular program and such assistance would be permissible under the
Establishment Clause. (The case is Trinity Lutheran Church of Columbia v. Pauley.) Our appeal in Florida could well be mooted by the Supreme
Court’s decision— after the expenditure of a significant amount of money for attorneys’ fees.
Accordingly, we have concluded the responsible course of action is not to appeal this adverse decision. Admittedly, we are coming away from this multiyear
litigation with only half a loaf, but that’s better than nothing.
CFI’s commitment to pursue litigation when appropriate remains firm. But we also remain firmly committed to being wise and selective in the cases we bring.
That approach has brought us success, as indicated by the landmark victory we achieved in the U.S. Court of Appeals for the Seventh Circuit in CFI v. Marion Circuit Court Clerk (finding Indiana must allow nonreligious individuals the right to have secular celebrants for their weddings).
We expect further successes in the future.
We are, of course, very grateful for our donors who have supported our efforts in this litigation, and we hope you understand that the best use of your
support is to preserve the partial victory we have obtained already rather than to spend more money and risk losing it.
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The Center for Inquiry (CFI) is a nonprofit educational, advocacy, and research organization headquartered in Amherst, New York, with executive offices in Washington, D.C. It is also home to both the Committee for Skeptical Inquiry, the Council for Secular Humanism, and will soon be home to the Richard Dawkins Foundation for Reason & Science. The mission of CFI is to foster a secular society based on science, reason, freedom of inquiry, and humanist values. Visit CFI on the web at https://centerforinquiry.org.