In Bay Minette, Alabama, felons are being given the opportunity to climb the wall. Not the prison wall, mind you. The Alabama court and local police are helping felons over the wall of separation of church and state by giving convicted citizens an opportunity to avoid jail if they volunteer — so long as it is with a church.

Non-violent offenders with misdemeanor convictions are given a list of local churches unless they want to wait in jail and pay a fine. The constitutional problems are magnified by the absence of anything other than churches as an alternative to jail.

Town police chief Mike Rowland insists that this will save the city $75 per day to jail citizens and is based on the consensus of “all the pastors that at the core of the crime problem was the erosion of family values and morals. We have children raising children and parents not instilling values in young people.”

To help Rowland make the case for an entanglement challenge, Rev. Robert Gates added You show me somebody who falls in love with Jesus, and I’ll show you a person who won’t be a problem to society.”

Of course, in addition to the absence of secular options, no mosques or synagogues are listed.

It will be interesting how much of that $75 per day savings will be spent on the litigation over this unconstitutional program.

In defense, Rowland insists that this is constitutional because there remains a choice between church and jail so that no one is being forced to serve the Lord. If that were the case, we could have extensive entanglement between church and state. Clearly, some judges and justices would agree. Justice Scalia in McCreary County v. American Civil Liberties Union, 545 U.S. 844 (2005), wrote a dissent that gave voice to this view of an accept monotheism in curtailing the scope of separation of church and state — virtually reducing the guarantee to the actual establishment of an official state religion:

Besides appealing to the demonstrably false principle that the government cannot favor religion over irreligion, today’s opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. . . . That is indeed a valid principle where public aid or assistance to religion is concerned, . . . but it necessarily applies in a more limited sense to public acknowledgment of the Creator. If religion in the public forum had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word “God,” or “the Almighty,” one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.

Many fear that there is now a non-separation majority on the Court, though I count four justices who are reliable on such issues for the non-separation side. Nevertheless, there is clearly a shift on the courts toward greater accommodation of faith in government programs — a trend encouraged by President Obama who not only preserved George Bush’s faith-based programs but actually expanded on them.

Source: WKRG

Jonathan Turley