Posted by Eugene Volokh:
Pretty Clear Establishment Clause Violation
http://volokh.com/archives/archive_2005_05_29-2005_06_04.shtml#1117666248
(if, of course, the press account is accurate). The [1]AP reports:
A Kentucky judge has been offering some drug and alcohol offenders
the option of attending worship services instead of going to jail
or rehab . . . .
"I don't think there's a church-state issue, because it's not
mandatory and I say worship services instead of church," he said. .
. .
Seems pretty "mandatory" to me. Sure, the offender doesn't have to go
to religious services; but if he says no, he'll have to go to jail or
rehab. Whether the condition is phrased as "You must go to religious
services, or else we'll send you to jail" or "You must go to jail, but
we'll let you get out of it by going to religious services," the
government is coercing people to go to religious services by
threatening them with jail. Nor does it matter that he's not picking
the denomination; he's still coercing people to engage in religious
activity.
This issue has actually come up in the past, when the government has
given prisoners special benefits if they go to Alcoholics Anonymous, a
program that has a religious component; courts have generally -- and
in my view, rightly -- held that such a program indeed violates the
Establishment Clause, precisely because it coerces people to
participate in religious activities.
The result would be different if the judge required people to do
something, and there were both religious and nonreligious options. But
here it sounds like the only option is to engage in religious practice
-- or go to jail or rehab. I'm not sure that going to worship services
is an effective way of getting people to stop misbehaving. But whether
or not it is, the government may not coerce people into religiosity,
even as a tool in fighting drug and alcohol abuse.
References
1.
http://www.latimes.com/news/nationworld/nation/wire/sns-ap-sentenced-to-church,1,2580464.story?coll=sns-ap-nation-headlines
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