[ Below: editorial from New Jersey Lawyer, published September 25, 2006 ]

Faith-based justice

    Recently, we witnessed a rather extraordinary exchange between Chief Justice Deborah T. Poritz and U.S. Attorney Christopher J. Christie.

    The U.S. attorney requested -- seemingly demanded -- that the state judges, in effect, set up court in churches for the purpose of arraigning fugitives. Such a program, called "Safe Fugitive Program," it was related, was conceived by a U.S. Marshall from Ohio. The program offered federal grants to churches, which would encourage fugitives to voluntarily come to church to turn themselves in; arraignments would then be conducted in church by judges, with the participation of law enforcement officers and public defenders. These arraignments would involve bail hearings that would lead to the arrest and incarceration of some defendants. The program, it was represented, had met with great success -- several hundred fugitives had been returned to the justice system through a Baptist church in Cleveland.

    Apparently, the chief justice had been asked earlier, in February, to allow this program to be undertaken by a Baptist church in Camden. She declined to do so. It was reported, in July, that the chief justice, refusing to endorse or authorize court proceedings to be held in church, emphasized that the program would not be consistent with principles of judicial independence and neutrality, and posed security issues as well.

    We could not agree more with the stance of the chief justice, nor disagree more with the position taken by the U.S. attorney, that would sanction judges, as well as law enforcement personnel, to use church facilities for the arraignment of criminal defendants.

    The program, which gave federal grants to participating churches, seems an extreme example of the so-called faith-based charity initiatives that are pursued by the federal government. These understandably generate a sense of unease because of their capacity, if not propensity, to encourage and support religion through federal subsidies, while only incidentally or marginally, or conveniently advancing a charitable cause. The "Safe Fugitive Program" goes further: it authorizes the church to be involved in judicial proceedings with the judiciary itself performing judicial functions in church.

    The U.S. attorney, in tones which seemed petulant and querulous, chastised the chief justice for invoking incorrect legal technicalities and demonstrating inflexibility. Legal technicalities and intransigence are not at issue.

    This program, espoused by the U.S. attorney, not only generates an unacceptable risk, if not the reality, of the judicial support of religion. It verges on an impermissible delegation of judicial responsibility by allowing the exercise of judicial authority to be undertaken through the facilities of a religious entity. Concededly, it is not easy to mark boundaries that separate religion from government. Government may acknowledge or recognize or accommodate religious interests without directly supporting or too strongly encouraging those interests. Different and more acute concerns are engendered, however, when the government itself is the actor and the charity is religious. There are not a great many examples that dramatize this kind of perplexing dilemma. We have witnessed decisions addressing the display of the Ten Commandments. The display within the courthouse is impermissible; the display outside the courthouse is tolerable. If religion may not enter the court, then surely the court may not enter religion.

    When the U.S. attorney sharply remonstrated with the chief justice for failing to direct judges to arraign criminal defendants in churches, he was not simply nudging the court to cross a line that was indistinct or blurred. It clearly called for a step that would be off-limits. Not only would such a practice seriously compromise judicial neutrality and independence, it would place the courts literally and figuratively in the religious domain.

    As noted, the request of the U.S. attorney was the second time the judiciary had been approached for its approval of this church-sponsored program. Indeed, it was reported that the U.S. attorney would likely renew his request with the successor of Chief Justice Poritz. We strongly commend and applaud the chief justice for her stand. We have noted recent laudatory commentary on her legacy. Her stand for judicial independence and neutrality, and her clear recognition of the importance of the separation of church and state, of established religion and the courts, may be added to that legacy. We fully expect that her understanding and wisdom will be appreciated and that her stand will be maintained and continued by her successor.

article reprinted with the gracious permission of New Jersey Lawyer

note: this is the first of a series I'll be doing on Talk To Action, covering the new "church courts" of the US Marshals Service's "Fugitive Safe Surrender" program