Religion in the Court Room

Eugene Volokh posts about the judge who is offering drug and alcohol offenders the option of going to church instead of jail or rehab.

He argues that this is a clear violation of the establishment clause. Since Eugene has no comments on this post, I decided to put a response here.

First, I'm not sure I agree with the Kentucky judge. From my personal experience, going to church seems like an easy way to get out of breaking a law, albeit a misdemeanor.

Second, I don't think this violates the Establishment clause. The Establishment clause has been interpreted so many different ways that it is now broad enough to build a house on, or march an army under. Ultimately, the heart of the clause is the separation of church and state for the effect of preserving freedom of religion. Our founders came to America partly for religious freedom, something the king of england had tried to take from them, and this clause disallowed government favoritism. This being said, when a man or woman breaks a crime, he or she forfeits her freedoms--not her civil liberties--because causes must affect effects. Hence, those brought in on drug or alcohol charges must do jail or rehab. Period. Giving the perpetrators another option--to go to any worship service regardless of the religion--may be giving the offender an easier way out, but it does not force religion on anyone. Those who break the law, if not wishing to go to any church, receive the same punishment they always would have.

If the judge had ordered them to go only to an Episcopalian church, something would be wrong. Or if he said they must go--no jail or rehab allowed--that would be wrong also. But he does none of these things. You, me, bob down the street, and mr. drinker who stands in front of the judge, still have the freedom to choose our religion. We aren't benefitted monetarily by joining one or the other. We don't gain political status.

Ultimately, churches, organizations that purposely try to change people, might accomplish what prison often does not--reform the criminal. In that regard we should give this thought a try. No matter what, your and my civil liberties and freedom to choose a religion are in no way hampered by this decision.