02-3102 Freedom From Religion Foundation, Inc., et al., v. McCallum, et al.

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“A city does not violate the establishment clause by giving parents vouchers that they can use to purchase private school education for their children, even if most of the private schools in the city are parochial schools-provided, of course, that the parents are not required to use the vouchers for a parochial school rather than for a secular private school. Zelman v. Simmons-Harris, 122 S. Ct. 2460, 2467-70 (2002). The practice challenged in the present case is similar. The state in effect gives eligible offenders ‘vouchers’ that they can use to purchase a place in a halfway house, whether the halfway house is ‘parochial’ or secular. We have put “vouchers” in scare quotes because the state has dispensed with the intermediate step by which the recipient of the publicly funded private service hands his voucher to the service provider. But so far as the policy of the establishment clause is concerned, there is no difference between giving the voucher recipient a piece of paper that directs the public agency to pay the service provider and the agency’s asking the recipient to indicate his preference and paying the provider whose service he prefers.”

“The plaintiffs try to turn the real good of Faith Works’ program in their favor by arguing that because it is indeed the best program, offenders who are advised to enroll in it – perhaps all offenders who are eligible for a halfway house – have no real choice. But quality cannot be coercion. That would amount to saying that a city cannot adopt a school voucher system if the parochial schools in the city are better than the public or secular private schools. Faith Works, penalized because its secular competitors were unwilling to invest as much in the rehabilitation of offenders, would have an incentive to reduce the quality of its program, while those competitors would have an incentive to reduce the quality of their own programs in order to make Faith Works’ ‘violation’ of the establishment clause more perspicuous and encourage it to curtail its program. There would be a race to the bottom. It is a misunderstanding of freedom (another paradox, given the name of the principal plaintiff) to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him. It would mean that a person was not exercising his free will when in response to the question whether he preferred vanilla or chocolate ice cream he said vanilla, because it was the only honest answer that he could have given and therefore ‘he had no choice.'”

Affirmed.

Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Posner, J.