In Council for Secular Humanism, Inc. v. McNeil, (FL App., April 27, 2010), a Florida appellate court in an Establishment Clause case, by a 7-7 vote, denied a motion for en banc review of a decision by a 3-judge panel. However the 3 judges did file an amended panel decision and certified to the state Supreme Court as a matter of great public importance the question of whether the "no aid" provision in Florida's constitution prohibits the state from contracting with religious organizations for the provision of faith based transitional housing for inmates. In certifying the question, the panel observed that this was the first instance in which the no-aid provisions had been applied outside the school context.
As the panel had done in its original decision (see prior posting), the revised decision struck down the state payments to these religious organizations, but held that plaintiffs lacked standing to challenge the constitutionality of the contracts that were entered into with these organizations and required them to provide faith-based transitional housing. Finally the court rejected a challenge to provisions requiring consultation with a chaplain before an inmate is placed in a faith-based substance-abuse transitional housing program.
Justice Thomas (joined by 4 others) wrote a dissenting opinion to the denial of en banc review urging the court to use this case as an opportunity to reverse earlier precedent and hold that paying a religious institution to provide a public benefit does not amount to "aid" to the institution. Yesterday's Miami Herald reported on the decision.
