Insofar as America is (descriptively) exceptional,* two key differences setting America apart from its peer nations are mass incarceration and popular religiosity. Assuming the U.S. is most usefully compared with Canada, Australia, and Western Europe (I acknowledge not all will share this assumption), none of these peer nations match the U.S. imprisonment rate and few come close to American levels of church membership, church-going, or public professions of faith. Perhaps not surprisingly, then, many American prisons offer a wide array of faith-based programming (even, or especially, prisons where secular education and rehabilitation programming is meager: for instance, in Louisiana’s Angola State Prison, you can earn a BA from a Baptist theological seminary, but no non-Christian college courses are offered). An evangelical group, Chuck Colson’s Prison Fellowship Ministries, is among the most prominent national organizations sending volunteers into prisons and advocating for criminal justice reform.
How does this convergence of American religiosity with American imprisonment fit with the First Amendment’s ban on state-established religion? In her book Prison Religion: Faith-Based Reform and the Constitution (Princeton UP, 2009), Buffalo law professor Winifred Sullivan uses a recent lawsuit as a case study for considering this question. From the book’s introduction:
In December 2006, in Des Moines, Iowa, a U.S. District Court judge found unconstitutional a faith-based, in-prison rehabilitation program operating in the Newton Facility of the Iowa Department of Corrections, a program known as InnerChange Freedom Initiative (IFI). … Approximately a year after the District Court’s decision, the U.S. Court of Appeals for the Eighth Circuit found Prison Fellowship Ministries at the Iowa prison to be acting “under color of state law” in a program of conversion and discrimination. The Iowa Department of Corrections finally terminated its contract with InnerChange on March 10, 2008. (IFI programs are currently present in the prisons of five other states: Arkansas, Kansas, Minnesota, Missouri, and Texas. Private faith-based prison programs managed by other religious groups also exist in many states. Some states, including Florida, have initiated their own state-run, in-prison, faith-based programs. Because of variations in contracting arrangements, the effect of the Iowa court’s decision on these other programs remains unclear.)
AU v. PFM is acknowledged to be one of the most significant recent court cases considering the application of the establishment clause of the First Amendment to the U.S. Constitution to the new “faith-based” social services. A legal and social climate substantially more hospitable to government/religion partnership than in the recent past has made possible an increase in the number of government contracts with private, “faith based” social service providers, particularly those operating in prisons. … Notwithstanding the actual decision in the case, set in the larger context of religion in the United States, the trial testimony reveals a religious culture in which the sacred and the secular can be seen to be sinuously and ambiguously intertwined and support for religious authority more thoroughly located in the individual rather than in traditional institutions.I look forward to reading the rest of Sullivan’s book and perhaps blogging about it further.
(h/t: Legal Theory Blog)
* (I’ll leave prescriptivist exceptionalism to the politicians.)