Full opinion text
OPINION AND ORDER CRABB, District Judge. This is a civil action for declaratory and injunctive relief brought pursuant to 42 U.S.C. § 1983. Plaintiffs Freedom From Religion Foundation, Inc., Anne Nicol Gay-lor, Annie Laurie Gaylor and Dan Barker contend that defendants violated the establishment clause of the First Amendment to the Constitution by funding defendant-in-tervenor Faith Works, Milwaukee, Inc., a faith-based, long-term alcohol and other drug addiction treatment program. Specifically, plaintiffs contend that two of Faith Works’ funding streams violate the establishment clause: a grant from the Department of Workforce Development and a contract with the Department of Corrections. Subject matter jurisdiction is present under 28 U.S.C. § 1331. Presently before the court are plaintiffs’ and defendant-intervenor Faith Works’ cross-motions for summary judgment. As a preliminary matter, I note that defendants have not filed a motion for summary judgment, but have filed briefs and proposed findings of fact in response to plaintiffs’ and defendant-intervenor’s motions. I construe defendants’ briefs and proposed findings of fact to include a motion for leave to file them, which I will grant. Although this court’s Procedure to be Followed on Motions for Summary Judgment presupposes that the party filing briefs and proposed findings of fact has also filed a motion for summary judgment, nothing in the court’s procedures prohibits a defendant from supplementing a co-defendant’s motion. Therefore, I have considered defendants’ submissions. Because I find that the Department of Workforce Development’s grant to Faith Works constitutes unrestricted, direct funding of an organization that engages in religious indoctrination, I conclude that this funding stream violates the establishment clause. Accordingly, I will grant plaintiffs’ motion for summary judgment and deny defendant-intervenor Faith Works’ motion for summary judgment as to the Department of Workforce Development funding. Because the undisputed facts do not establish whether offenders under the supervision of the Department of Corrections who participate in the Faith Works program do so of their own independent, private choice, I am unable to determine whether the Department of Corrections funding represents direct or indirect funding of an organization that engages in religious indoctrination. Therefore, it is not possible to determine whether this funding stream violates the establishment clause. It will be necessary to hold a trial on plaintiffs’ establishment clause claim with respect to the Department of Corrections funding of Faith Works in order to establish whether the funding is direct or indirect. In addition, I conclude that Faith Works’ rights under the free speech and free exercise clauses of the First Amendment would not be violated if this court were to bar state funding of its program because of its sectarian viewpoint. Finally, I find that this case does not involve a challenge to the constitutionality of the charitable choice statute, 42 U.S.C. § 604a, which requires that public funds be distributed to faith-based organizations in accordance with the establishment clause. Therefore, it will not be necessary to address the constitutionality of this statute. For the purpose of summary judgment, I find from the facts proposed by the parties that the following are material and undisputed. UNDISPUTED FACTS A. Parties Plaintiffs Anne Nicol Gaylor, Annie Laurie Gaylor and Dan Barker are Wisconsin residents and state and federal taxpayers opposed to the use of state appropriations to advance and promote religion. Plaintiff Freedom From Religion Foundation, Inc. is a representative organization advocating establishment clause issues on behalf of its members who are opposed to the use of state appropriations to promote religion. Defendant Scott McCallum is Governor of the State of Wisconsin. Defendant Jennifer Reinert is Secretary of the Wisconsin Department of Workforce Development. Defendant Richard Gartner is Administrator of the Division of Workforce Excellence in the Department of Workforce Development. Defendant George Lightbourn is Secretary of the Department of Administration. Defendant Jon E. Litscher is Secretary of the Department of Corrections. Defendant-intervenor Faith Works, Milwaukee, Inc. provides a faith-based approach to drug and alcohol addiction through long-term residential treatment. Faith Works receives funds derived from taxes paid by the taxpayers of the state of Wisconsin. B. The Faith Works Program 1. General program aspects Faith Works provides long-term residential treatment to male drug and alcohol addicts. It is an independent “faith-based program designed to meet the needs of individuals recovering from addiction to alcohol and other drugs” and to assist them in becoming employed and fully functioning members of society. It has been operating for approximately two years, since it opened its treatment program in Milwaukee, Wisconsin on December 6, 1999. The Faith Works program is “committed from day one of [the] clients’ enrollment to empower them to live in their community with the best possible chance for societal and economic success.” Faith Works strives to incorporate all available community services into the participants’ recovery process, on the theory that the participants need to learn how to gain access to those services after completion of the program “for continued support for themselves and the family for whom they have now taken responsibility.” A goal of the program is to have each participant have either a spiritual mentor or an Alcoholics Anonymous sponsor (a spiritual person with the AA 12-step program perspective). The Faith Works Milwaukee Annual Report 2000 states that the program has four important aspects: recovery; employment; family services; and spiritual enrichment. 2. Faith Works staff Faith Works counselors work 40 hours a week. The counselors estimate that they spend approximately eight hours a week, or 20 percent of their time, addressing questions of faith or spirituality. They are open to spiritual discussions at any time. The rest of their time is spent on the day-to-day efforts necessary to help recovering alcoholics and drug abusers reorder their lives so that they do not fall back into their addictions. Commitment to Christian beliefs and values is a hiring consideration for counseling staff, but Faith Works does not impose religious restrictions on staff appointments. Church attendance is expected for Faith Works staff. Faith Works staff counsel participants to develop a personal relationship with God. Counselors discuss issues of faith in order to promote the state objectives of providing alcohol and other drug addiction treatment to noncustodial parents and obtaining unsubsidized employment. Faith Works counselors help participants (1) develop a personal service plan addressing each of the individual’s needs; (2) get involved in a supervised work internship; (3) assess progress in achieving goals; (4) identify and discuss which aspects of the participant’s life need attention; (5) develop a money management plan; (6) write résumés; (7) reconcile with their families; (8) connect with high school equivalency training, computer learning labs and other related services; (9) learn how to function in society at large without drugs or alcohol; (10) find housing; (11) solidify independent living skills; and (12) develop a community-based support network. Counselors also help participants find unsubsidized employment and serve as job coaches once participants are employed. In addition to counselors, Faith Works employs security personnel, non-counseling administrative staff and food service personnel to support its overall programming and to provide housing and meals to its residents. The Department of Workforce Development grant agreement and the Department of Corrections contract require Faith Works not to discriminate by hiring on the basis of religion. The Faith Works Standards of Practice list the following guidelines for all staff: We are a Christian faith-based treatment center. This means all staff is to serve as Jesus served; with compassion, concern and love for all persons, regardless of race, creed, background or whatever sins a person is struggling to overcome through this program. We are serving the Lord in evangelistic outreach and will respect the Holy Spirit’s ability to work in each person’s life whether staff or resident. We need to be mature in our faith and work habits in order to be truly able to be witnesses to the Lord and His Grace. 3. The Faith Works phases Participation in the Faith Works program can last up to a year. It has four phases, each of which lasts as long as each individual participant requires. During all of the phases, participants are required to attend AA and group meetings unless they are engaged in educational or job-related activities off-campus. During phase one, each participant meets with a counselor once a week for a one-on-one session to discuss the individual’s needs and goals. In phase one, the daily schedule includes the following agenda: wakeup; breakfast; chapel; phase one meeting (AA); house detail; prayer; relapse prevention; house detail; step meeting (AA); dinner; AA/NA meeting; free time; curfew; and lights out. The second phase builds on the first, but concentrates more on employment and educational needs. Phase three starts the transition to the private sector; it begins when a resident has secured outside employment. The fourth and final phase seeks to reintegrate the participant with his community. Counselors help participants find housing, solidify their independent living skills and develop a community-based support network. When Faith Works and the participant have accomplished these objectives, the participant graduates from the program. 4. The Faith Works “faith” component As the name implies, Faith Works is a faith-based organization. As a practical matter, this means that, although the majority of time staff spends at Faith Works involves the everyday aspects of helping the participants recover from addiction, become gainfully employed and re-establish ties with their families and reintegrate with their communities, staff members also offer those who acknowledge some spiritual significance to their lives an opportunity to develop that aspect in their recovery. In its grant proposals, Faith Works promotes spirituality as a basis of the program’s success, along with the extended length of the program. According to Faith Works, recovery is accomplished when participants address their spirituality. Faith Works seeks to help its participants grow and define their spirituality. It describes its residential recovery program facility as a spiritual center because part of the program offerings are spiritually based. It requires its residents to participate in a faith-enhanced 12-step AA program that is mandatory for participants. Faith Works’ version of AA involves more explicit references to God than the standard AA. Faith Works makes Bible studies, prayer time and chapel services available on a voluntary basis. Staff meetings at Faith Works begin with a prayer. The Faith Works Standards of Practice for all staff includes the requirement that staff members “[grow] in [their] own faith life by regular church attendance, prayer, Bible study and seeking Spiritual direction from a Pastor/Shepard in our faith community.” The Faith Works counseling staff has an extensive knowledge of scripture. According to Robert Polito, the former executive director of Faith Works, Milwaukee, the majority of Faith Works clients are not in a practicing faith when they enter the program but most graduates have some sort of relationship with God when they leave. Participants are not required to profess any religious faith; at the same time, discussion about spiritual matters occurs during mandatory meetings. Active participation in the faith component of these meetings is not required but attendance is mandatory. Discussion of faith in these meetings is encouraged. Polito believes that organized religion is a potential aid to program participants because “dependence on a higher or supreme being is helpful when dealing with problems that are viewed as bigger than yourself.” For Polito, faith is the essence of sobriety. Faith Works relies heavily on the Christian experience of staff members who have combatted addiction successfully. According to Polito, goals of the program include participants’ openness to “discipleship” and membership in an organized church, attendance at Bible studies, finding a spiritual advisor and participation in Christian counseling services. Participants may take advantage of the counselors’ availability to discuss matters of spirituality. Faith Works’ counselors are equipped to study the Bible, pray with participants and provide guidance on becoming part of a local faith community. Counselors make themselves available to “facilitate a transformation of the heart and soul as a part of the healing process.” In all things, though, staff members are admonished to “lead by example not by dictates.” Thus, they allow their “faith and work habits ... to be witnesses to the Lord and His Grace.” Whenever the counselors discuss matters of faith or spirituality, it is in the context of helping the participants to achieve the goals of sobriety, employment and responsible fatherhood. The Faith Works Statement of Faith makes clear that “[t]he essence of this ministry is to develop a community of believers that would foster rigorous honesty; first with God, second with oneself and third with the Body of Christ.” Counselors welcome discussions regarding the participants’ spiritual issues but never require them. When a participant chooses not to address matters of faith, Faith Works staff still helps that person with recovery; he does not receive any less attention, services or welcome from staff. When issues of spirituality are raised, counselors do not attempt to convert participants from one faith to another or from faithlessness to faith. Counselors’ interactions with the participants on this topic consist of describing the effect of their own spiritual experiences on their lives and assisting participants in addressing matters of faith to the extent desired by the participants. At the same time, participants are encouraged to integrate spirituality into their recovery program. Although the people who staff Faith Works are predominantly Christian and the statement of faith emphasizes the Christian experience, Faith Works staff serve those of all religious backgrounds. In addition to Christians, Faith Works has served Jews, Muslims, Native Americans and atheists. No one is required to switch allegiance to any other religion or faith. The program accepts each participant without religious preconditions, tests or requirements. The program does not administer religious sacraments. Faith Works’ bylaws state that its program addresses the needs of “[a]ddiction recovery, relying on a faith enhanced model of the 12-step program.” The bylaws state that the “program seeks to put a holistic, faith-based approach to bring healing to mind, body, heart and soul. While the program is inherently Christian, services will be offered to all persons who seek it, regardless of their faith background.” Faith Works identified the religious component of its program in grant proposals submitted to the Wisconsin Department of Workforce Development. In one, the author states that Faith Works “is a faith based, long-term residential, holistic program that emphasizes spiritual, physical, emotional and economic wellness.” He adds that Faith Works offers a “12-step recovery process in a faith based setting provided by counselors and 12-step volunteer leaders.” According to the proposal, one of the goals of Faith Works is to “facilitate stability in employment and recovery, successfully transition to independent living after nine months residency, with assistance in locating housing, as well as support services, church affiliation, 12-step meetings and other support programs that would replace in the new neighborhood what was supplied in the [Faith Works] resident program.” In one description of its program, Faith Works states, “As a member of the faith community we rely heavily on churches, synagogues and mosques for assistance in all aspects of our program design. We believe that our client will benefit greatly from the relationships built and services offered. Key elements include: (1) stressing the importance of church affiliation and membership; and (2) teaching reliance on the faith community for various social services needs.” Reverend Susan Vergeront was president of the Faith Works board of directors until January of 2000. According to Ver-geront, faith and spirituality are integral components of the Faith Works program and contribute to the success of the program. Vergeront explains that the spiritual component of Faith Works involves addressing “where [clients] are in their faith relationship with God, and [giving] them opportunities to develop and deepen that faith.” Vergeront believes that the Christian-based faith component is essential to Faith Works’ holistic approach, which involves the physical, spiritual and emotional elements of an individual’s life. Faith Works utilizes connections to the Milwaukee religious community and makes available information about the surrounding Milwaukee faith community to participants. Vergeront believes that the emphasis on the Christian faith is appropriate in the Milwaukee area, which, she estimates, has a population that is approximately 80% Christian. Linda Zick, director of counseling and assistant director of Faith Works, considers the faith component of Faith Works to be a significant factor in achieving and sustaining recovery for participants. Although Zick does not believe the Faith Works program promotes one particular faith, she does understand the program to be evangelistic in terms of bringing participants to a faith experience. Zick states that program expectations about religion are made known to participants during an intake evaluation, at which time participants are asked about their belief system. Zick tells potential participants that Faith Works is a faith-based program, “which means that we ask them to seek out something to believe in. If they have a belief system, we encourage them to enhance that, get whatever that is going more in [their] life. And if [they] don’t [have a belief system], we’re hoping that through the time that [they’re] here [they] will search that out.” Although participants may attend non-Christian off-premises services, they still must attend Faith Works meetings. In general, the level of spirituality of participants entering the program is not high, but approximately half of the program graduates progress spiritually. According to Zick, about half of the program graduates have a spiritual mentor. 5. Faith Works’ statement of faith Faith Works’ employee handbook opens with a five-page document entitled “Statement of Faith,” which is a statement of Christian principles that guide the organization. The statement of faith is included in the employee handbook distributed to all employees to explain the general philosophy of the program and the responsibilities of its employees. Polito prepared the statement in New York in 1995 for another organization, the Bowery Mission, to explain to the Mission’s board of directors the basic purpose and operation of the new “Avenue D” program the Mission was undertaking. The Mission model existed to win converts to Christianity and conditioned the receipt of secular benefits on attending religious services and professing faith. The Avenue D program followed a different model for delivery of social services; it focused on the secular goals of drug therapy, education, jobs and housing. Faith Works was intended to replicate the New York City Avenue D program and not the Mission model. Faith Works, Milwaukee is the only Faith Works program that has been established outside New York City. The Faith Works statement of faith provides in part: The essence of this ministry is to develop a community of believers that would foster rigorous honesty; first with God, second with oneself and third with the Body of Christ. We believe that if a person can approach his relationship with the Lord with brutal honesty, he can begin to be honest with himself. When a person is honest with God and oneself he can develop relationships with other believers, which is a tremendous source of God’s grace and healing. It is our experience that the two most common hindrances to an effective ministry are denial and fear. “Perfect love casts out all fear.” 1 John 4:18. The addict learns that he had a deep “soul sickness,” and it is only by connecting to God through profession, confession, prayer and involvement in a worshipping community that he has any hope of sustaining a life in recovery. AA teaches this but stops short of recommending Christ to all. However, at Faith Works we do. (The statement of faith is reprinted in full in Addendum A.) According to the statement of faith, Faith Works counselors should suggest to participants that they find a relationship with God through the person of Jesus Christ. C. Funding Streams for Faith Works The success of the Faith Works model program is determined by four criteria, one of which is the “success of blending government money with a faith based institution, measured by ongoing funding streams and fundraising abilities.” Government contracts are integral to Faith Works’ operation; Faith Works could not have begun operations without prior public commitments of money. Approximately two-thirds of Faith Works’ revenues come from public funding. Faith Works receives its funds through four sources: (1) private institutions; (2) Wisconsin Works agencies; (3) Department of Corrections contracts; and (4) Department of Workforce Development grants from the Wisconsin governor’s discretionary portion of a federal Temporary Assistance to Needy Families block grant. (Although the facts relating to the Department of Corrections contract and the Department of Workforce Development grant are specific to 1999 and 2000, defendants have not notified the court that the funding streams have changed for 2001 or 2002). Plaintiffs do not contend that the first two funding sources violate the establishment clause. Instead, they are challenging only the latter two funding sources in this lawsuit. 1. Private foundation grants Faith Works has received grants from private foundations in varying amounts. In 1998, it received $100,000 for general operations; in 1999, it received $100,000 to offset startup costs. In 2000, it received a grant of $25,000 for general operations and a grant of $50,000 for start up expenses, half of which was paid in 2000 and the other half in 2001. In 2001, it received $20,000 of Community Building Initiative funds, an award of $10,000 for general operating expenses and $150,000, to be paid out over two years. The last amount is available for general operating expenses. 2. Wisconsin Works contracts Wisconsin Works, or “W-2,” is a comprehensive, state-wide program that helps participants obtain employment. It is funded through the 85% formula grant of federal Welfare-to-Work funds. Wisconsin Works agencies are county-based agencies that receive funds under contract with the Division of Economic Support in the Department of Workforce Development to provide cash assistance to applicants who are eligible for welfare and supportive services to move people from welfare to work. When a non-custodial father decides he needs alcohol and other drug addiction treatment and employment services, he approaches a Wisconsin Works agency. If the father qualifies for assistance, the agency allows him to choose a service provider. If the father selects Faith Works, he meets with a staff member to discuss the elements of the program, including the faith-based components. The prospective enrollee is informed that enrollment in the program is voluntary. Participants may leave the program at any time with no adverse consequences and may seek treatment from another service provider. Faith Works has service contracts with each of the four regional Wisconsin Works agencies for the provision of social services. These contracts establish indirect funding to Faith Works as a means for Wisconsin residents to obtain social services. 3.Department of Corrections contracts Faith Works has a contract with the Wisconsin Department of Corrections to operate a halfway house providing twenty-four hour supervised residential care and related services. The department reimburses Faith Works for the services it provides on a monthly basis; it funds Faith Works only when supervised offenders enroll in the program. A service provider such as Faith Works must have a state-approved contract as a condition to being paid for providing alcohol and other drug addiction services. In fiscal year 1998, approximately $1 million of the governor’s 15% discretionary Welfare-to-Work grant funds were allocated to the Department of Corrections for its Non-custodial Parent Project. In September 1998, the Department of Corrections Secretary, the Assistant Regional Chief of Region III (Milwaukee County), Kathleen Ware, and others met with Susan Vergeront and State Senator Robert Welch to decide whether the department would contract with Faith Works to provide alcohol and other drug addiction treatment to persons within the control of the department. After deciding to do so, the Department of Corrections drafted a proposed contract that required the approval of former Governor Thompson because the contract amount exceeded the department’s unilateral contracting authority. Kathleen Ware prepared the request for purchasing authority. Most Department of Corrections purchases are obtained by competitive bid. The governor’s bid waiver is a procedure that eliminates the need to obtain competitive bids before entering into a contract for the purchase of goods or services. A waiver may be requested for a number of reasons, including the uniqueness of a proposed service or time constraints on the availability of funds. The department did not follow the competitive bid process during the Faith Works procurement. It considered the Faith Works services unique because no other provider in Milwaukee provided a long-term residential program like Faith Works. Residential halfway houses involve only three months of treatment. As far as Ware knew, the Faith Works program was not being replicated in the Milwaukee area. On August 23, 1999, Ware wrote to the department’s purchasing agent to request a governor’s bid waiver to purchase long-term residential male alcohol and other drug addiction treatment from Faith Works. She stated that “[g]iven the uniqueness of this program[,] there does not appear to be any other resource in Milwaukee County that offers long term, faith based AODA [alcohol and other drug addiction] programming that also emphasizes employment and responsible fatherhood.” The memorandum described the Faith Works program as a long term (9 months) residential treatment program for males that is faith based_ The- program is based on Christian principles; however, will accept any male of any faith who wants to strengthen their faith. The program is 9 months in length with an emphasis on employment, responsible parenting and overcoming addiction problems. The program is based on a phase system wherein residents first address their addiction problems and then must find employment and begin paying child support. Offenders admitted would have to voluntarily agree to participation and to working on their faith. Faithworks is a well known program in New York City that is praised for their success in working with homeless, drug or alcohol addicted men. In a separate document, the Department of Corrections described the Faith Works program as a “faith-based program offering some alcohol and drug abuse services based on the principles of Alcoholics Anonymous and Christianity.” In November 1999, after former Governor Thompson signed the necessary documents, the Department of Corrections entered into a contract with Faith Works in an amount not to exceed $49,961 for five beds over a period of nine months. The contract provides that Faith Works will deliver the following services: twenty-four hour residential care, services and supervision; individual and group counseling; sufficient qualified staff; intake assessments; individual treatment and supervision plans for each resident; programming; monitoring; transportation; drug screening; entrance physical examinations; medical services; and aftercare plans. The contract also provides that the provider “agrees to comply with State and Federal constitutions, laws or rules and regulations.... ” The department renewed its contract with Faith Works in 2000, again bypassing competitive procurement procedures because of the allegedly unique nature of the Faith Works services. The renewal contract was funded with state general purpose revenue and funding from the Temporary Assistance to Needy Families program. The department anticipated renewing the Faith Works contract in 2001, again following the request for purchasing authority and bid waiver procedures. Region III of the Department of Corrections, which includes Milwaukee County, contracts with several providers of residential and outpatient alcohol and other drug addiction services for persons within its control. The department has outpatient counseling contracts with three organizations, offering male and female day treatment centers as well as alcohol and other drug addiction groups at field offices. The department has a female halfway house contract with one provider. In addition, the department has contracted with two providers to provide three male alcohol and other drug addiction halfway house programs. All of the residential halfway house programs are three months in duration. In placing offenders under supervision into programs, an agent assesses the level of service needed by an offender, then directs him or her to participate in Faith Works or other appropriate services as a condition of his or her supervision. These services may include alcohol and other drug addiction treatment, living skills, transitional and emergency housing, anger management and domestic violence. In order to be directed to Faith Works, an offender must meet the eligibility requirements for non-custodial parents under the Welfare-to-Work grant, have a significant alcohol and other drug addiction problem needing treatment, need residential care or services and have an addiction so disabling that he cannot be placed in the community without supervision. In general, the probation or parole officer, and not the offender, contacts Faith Works after determining that the offender should receive services from Faith Works. Offenders are interviewed by a Faith Works staff member before attending the program to assess their level of commitment; potential participants need to have a willingness to develop their faith and the spiritual aspects of their lives. Offenders do not have to accept treatment at Faith Works and may go to an alternative treatment facility, but no other program in the Milwaukee area provides long-term residential treatment. Ware understood that faith was an integral part of the Faith Works program. When the contract with Faith Works was negotiated, she knew that the program incorporated prayer and Bible study and required participants to be willing to work on their faith and their spiritual needs. The department has no rules or regulations relating to the purchase of faith-based services. Contracts with the state do not prohibit integration of religion into the substantive services purchased by the state. The department contracts with faith-based service providers with the understanding that offenders under the control of the department may not be compelled to participate in faith-based programs. The Department of Corrections has never objected to the content of the Faith Works program. 4. Department of Workforce Development grants to Faith Works In May of 1999, Vergeront sought funding from the governor’s 15% discretionary funds as a Welfare-to-Work special project. Welfare-to-Work is a federal program with funds earmarked to “create job opportunities for the hardest to employ Temporary Assistance to Needy Families recipients.” The program’s target population includes non-eustodial parents with two or more barriers to employment who receive only limited services under the Wisconsin Works program. The Welfare-to-Work grant funds may be used for “allowable costs” as determined by the “applicable rules, regulations, state policies” and the grant documents. Allowable costs include personnel salaries and wages, administration and computer expenses, facility lease payments and program expenses not met by contract income with the Wisconsin Works agencies. Welfare-to-Work grant recipients may use the funds for job readiness activities, job placement services, employment activities, post-employment services and job retention and support services. In looking for funding, Vergeront contacted Toya Nelson, the Chief of the Local Employment Programs and Job Center Section of the Division of Workforce Excellence because Nelson’s section reviews and makes recommendations to the governor regarding proposals for funding from the governor’s discretionary pool of money. The governor’s discretionary funds are allocated to innovative and unique programs. Eligibility to apply for Welfare-to-Work grant funds is not based on the religious or non-religious character of an entity and no entity is ineligible to apply for the funds. In the summer of 1999, Faith Works submitted a proposal to the Division of Workforce Excellence, proposing an “addiction recovery program for men” that is “a faith based, long-term residential, holistic program that emphasizes spiritual, physical, emotional and economic wellness.” The proposal states that Faith Works “provide[s] a 9 month, residential, addiction recovery program for men that addresses not only the addiction, but all areas of life that addiction has damaged: economic, social, family, and spiritual.” The proposal identifies the following specific services to be offered by Faith Works, among others: 12-step recovery process in a faith-based setting provided by counselors and 12-step volunteer leaders; individual and group counseling by Faith Works counselors; job readiness skills; living skills; housing assistance; and aftercare counselor and staff. The Faith Works proposal provides that Faith Works “plants] to recruit the neighborhood churches to help lead Bible Studies and worship services for the men. These would be optional attendance for participants. [Faith Works] will link up with 12-step programs through AA to lead nightly meetings. This would be mandatory.” Nelson recommended funding from the governor’s discretionary funds. In fiscal year 1998, Faith Works was awarded $150,000 from the governor’s discretionary funds. These funds were not disbursed on the basis of the number of individuals referred to Faith Works but rather as a block amount. In fiscal year 1999, Faith Works received a second grant in the amount of $450,000. This larger amount was contemplated at the time the original appropriation was made to Faith Works. Faith Works has received the entirety of these funds. Nelson understood Faith Works to be a holistic program, in the sense that it provided comprehensive services relating to a person’s whole life, such as life skills, self-discipline, recovery counseling and moving from sheltered employment to outside employment. Nelson was unaware that Faith Works included any faith component. Nelson evaluated the Faith Works program in terms of the allowable services it would provide; under the department’s contract, faith was not labeled as a deliverable service. Nelson understood that Faith Works was generally Christian-based but did not know about the specific faith component of the Faith Works delivery model for services and made no inquiry into it. In her meetings with Verger-ont, Nelson did not have any discussions about faith or religion as they related to the Faith Works program. Vergeront provided Nelson with literature about Faith Works describing the program as inherently Christian, including use of a faith-enhanced 12-step AA protocol. Nelson paid no attention to the faith component in these descriptions of the program. No one from the state government, including the governor’s office or the Department of Workforce Development, has informed Faith Works that the grant funding should not be allocated to religious activities. Counseling services are an integral component of the services Faith Works agreed to provide under the grant agreement. The Department of Workforce Development funding for Faith Works was intended to promote employment and the “employment and training services offered are fully integrated with alcohol and other drug counseling, as well as job and life skills training.” The grant agreement states that “[gjrant funds may not be used to attempt to support either religious or anti-religious activities.” The grant agreement also provides that the “Grantor, the State or the Federal Government may conduct any monitoring or other reviews as they may deem necessary.” Faith Works sends invoices to the Department of Workforce Development on a periodic basis as it incurs expenses eligible for reimbursement, including part of its employees’ salaries. These invoices are not based on a per capita enrollment but are part of a block grant. In summary, defendant-intervenor Faith Works receives funding from four sources: private foundations; Wisconsin Works agencies; the Department of Corrections; and the Department of Workforce Development. Plaintiffs are not challenging the funding that Faith Works receives from private sources or Wisconsin Works agencies, but are challenging the funding from the Department of Corrections and the Department of Workforce Development. Under the Department of Corrections contract, Faith Works is a pre-selected provider for offenders under the supervision of the department. When offenders are directed to Faith Works and enroll there, the Department of Corrections reimburses Faith Works on the basis of the number of offenders participating in the program. The Department of Workforce Development grant does not depend on the number of eligible Wisconsin Works recipients enrolled in the program but instead is issued to Faith Works in a pre-determined amount. D. Use of Funds Faith Works uses the funds it receives to pay for personnel, food, utilities, furniture and equipment, client supplies and laundry, office equipment, client transportation, insurance, professional fees, maintenance supplies and the lease on the physical facility. Of its total operating expenses, Faith Works spends $114,300 on salaries for its three counselors and the administrator who oversees their responsibilities. Faith Works amended its 2001 budget to demonstrate that it receives sufficient non-restricted funds to pay for the entirety of its counselors’ salaries. Both the original and the amended budgets show the same categories of expense and the same estimated expenses for each category. The amended budget reflects Faith Works’ receipt of $300,000 through the Welfare-to-Work grant rather than $375,000 as indicated in the original budget. This difference is made up through an increase in private funding. In 2001, Faith Works expected to receive approximately $215,000 in private funding instead of the originally projected $140,000. The current budget allocates $160,000 to the payment of employee salaries. The 2001 budget anticipates approximately $165,000 from contracts with Wisconsin Works agencies and the Department of Corrections. State money and private foundation money are deposited into the same bank account from which counselors’ salaries are paid. At any given time, it is not possible to trace the source of bank deposits, to determine that money from private grants has been earmarked to pay counselors’ salaries or to determine that state funds are not being used to pay counseling staff. OPINION A. Standing “In essence the question of standing is whether the litigant is entitled to have the court decide the merits of the dispute.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). A litigant must show the existence of an actual case or controversy within the meaning of Art. Ill of the Constitution, which means that he or she must allege “an actual injury redressable by the court,” Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) (citation omitted), in which he or she has a personal stake. Gonzales v. North Township, 4 F.3d 1412, 1415 (7th Cir.1993). This is intended to insure sharply focused adversarial positions and to avoid the issuance of advisory opinions. At the summary judgment stage, a plaintiff must produce evidence to support the injury allegation in the form of affidavits or documents. See United States v. Students Challenging Regulatory Agency Procedures (SCRAP), 412 U.S. 669, 689, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). In this case, plaintiffs have submitted affidavits establishing that they are state and federal taxpayers who are opposed to use of government funds to advance or promote religion and a representative organization whose members oppose the endorsement of religion. See Affidavits of Anne Nicol Gaylor, Annie Laurie Gaylor and Dan Barker, dkts. ##41, 42, 43. As in Freedom from Religion Foundation, Inc. v. Bugher, 249 F.3d 606 (7th Cir.2001), plaintiffs have met the standing requirement “by showing that as taxpayers their tax dollars have gone to support an allegedly unconstitutional program which contributes unrestricted cash grants to religious [programming].” Id. at 610 (citing Freedom from Religion Foundation, Inc. v. Zielke, 845 F.2d 1463, 1470 (7th Cir.1988)). Faith Works contends that the exclusion of faith-based providers from state funding would burden the rights of program beneficiaries under the free exercise clause of the First Amendment. This contention raises the question whether Faith Works has standing to assert the claim of its participants. In general, a party cannot raise the claims of third parties who are not part of the lawsuit. Warth, 422 U.S. at 499, 95 S.Ct. 2197. However, under circumstances in which there exists a close relationship between the advocate and the third party, a party that has suffered an injury has standing to raise a claim for third parties not before the court. Erwin Chemerinsky, Federal Jurisdiction § 2.3.4 (3d ed.1999). See, e.g., Singleton v. Wulff, 428 U.S. 106, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976) (because doctors are denied payments for medical services, they have standing to assert claim of patients in challenging law restricting Medicaid repayments for abortions); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (because vendors suffer economic loss, they have standing to assert rights of customers in challenging alcohol law). Faith Works asserts that it has a legally protected interest in free speech and that it would suffer injury if it were excluded from public funding because of its religious viewpoint. For the purpose of determining standing, I will assume that Faith Works has a close relationship with its participants and, therefore, that it has standing to raise the free exercise claim of its participants. B. First Amendment: Establishment Clause The establishment clause of the First Amendment states that “Congress shall make no law respecting an establishment of religion.” It prevents the government from promoting any religious doctrine or organization or affiliating itself with one. County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 589, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989). It “is a specific prohibition on forms of state intervention in religious affairs.” Lee v. Weisman, 505 U.S. 577, 591, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), and its proscription applies equally to state legislatures under the due process clause of the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). In an attempt to help the lower courts identify improper sponsorship, financial support or active involvement of the government in religious activity, the United States Supreme Court has developed a three-pronged test to determine whether a statute or program complies with the establishment clause. Lemon v. Kurtzman, 403 U.S. 602, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). Under this test, a statute does not violate the establishment clause if (1) it has a secular legislative purpose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not create excessive entanglement between government and religion. Id. at 612-13, 91 S.Ct. 2105. In Agostini v. Felton, 521 U.S. 203, 222-23, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997), the Supreme Court modified the Lemon test, emphasizing the continuing importance of the first two prongs, but determining that entanglement could be considered an aspect of the second prong’s “effect” inquiry. In Agos-tini the Court used three primary criteria in evaluating whether government aid has the primary effect of advancing religion: whether the statute or program in question “result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or ereate[s] an excessive entanglement.” Id. at 234, 117 S.Ct. 1997. Under the resulting Lemon Agostini test, a publicly funded program does not violate the establishment clause if (1) it has a secular purpose; (2) it does not result in governmental indoctrination; (3) it does not define its participants by reference to religion; and (4) it does not create excessive entanglement. Plaintiffs concede that Faith Works is not unconstitutional under the first prong because it has a secular purpose: providing drug treatment and employment training. Plaintiffs do not assert that Faith Works defines its recipients by reference to religion. Therefore, I will focus on the two remaining criteria, (2) and (4), addressing them in reverse order. Before doing so, I note that plaintiffs assert that the state’s funding of Faith Works constitutes the governmental endorsement of religion. Such a challenge is inapposite in this case. Although endorsement remains applicable to a narrow window of cases involving matters such as prayer, the display of religious symbols and imagery on public property, see, e.g., Books v. City of Elkhart, 235 F.3d 292, 301-2 (7th Cir.2000), matters such as these are not present in this case. This makes it unnecessary to address plaintiffs’ endorsement argument, although if I were to do so, I would analyze it using the same factors used in analyzing the primary effect prong of the Lemon test, as prescribed by a majority of the Court in Mitchell v. Helms, 530 U.S. 793, 120 S.Ct. 2530, 147 L.Ed.2d 660 (2000). 1. Excessive entanglement In assessing excessive entanglement, the Court looks to the “character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority.” Lemon, 403 U.S. at 615, 91 S.Ct. 2105. Excessive entanglement exists where “(i) the program would require ‘pervasive monitoring by public authorities’ to ensure [that the publicly funded employees] did not inculcate religion; (ii) the program required ‘administrative cooperation’ between the [government and sectarian organizations]; and (iii) the program might increase the dangers of ‘political divisiveness.’ ” Agostini, 521 U.S. at 233, 117 S.Ct. 1997 (citing Aguilar v. Felton, 473 U.S. 402, 413-14, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985)). In Agostini, the Court concluded that unannounced monthly visits by public supervisors to entities receiving government assistance were not constitutionally objectionable. Id. at 234, 117 S.Ct. 1997 (“[W]e have not found excessive entanglement in cases in which States imposed far more onerous burdens on religious institutions than the monitoring system at issue here.”) (citing Bowen v. Kendrick, 487 U.S. 589, 615-17, 108 S.Ct. 2562, 101 L.Ed.2d 520 (1988) (finding no excessive entanglement where state reviewed use of materials and programs conceived by religious grantees of federal aid and monitored recipients’ activities through periodic visits)). When the constitutionality of state funding is measured by how taxpayer money is used by a recipient, the state must monitor the activities that are supported by that funding. Such monitoring does not necessarily amount to excessive entanglement, especially given the parameters established in Agostini In this case, plaintiffs have presented no evidence that the Faith Works program would require more state supervision than the type of periodic monitoring deemed constitutional in Agostini. Thus, the evidence provides no reason to conclude that the state has become excessively entangled in religion by funding Faith Works or that it risks becoming so entangled. 2. Governmental indoctrination Because plaintiffs have failed to show that Faith Works has no secular purpose or that it defines recipients by religion or that the state’s funding of the program creates excessive entanglement, I turn to the question whether the challenged action “result[s] in governmental indoctrination.” Agostini, 521 U.S. at 223, 117 S.Ct. 1997. To meet this criterion, plaintiffs must establish that the public funding of Faith Works constitutes indoctrination or results in it and that such indoctrination is attributable to the government. Id. at 226, 117 S.Ct. 1997 (question of governmental indoctrination hinges on whether funding is result of private decision of individuals and could be attributed to state decision making) (citing Zobrest v. Catalina Foothills School District, 509 U.S. 1, 10, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993)). Despite the unsettled nature of establishment clause law, it is clear that not every governmental action that results in indoctrination constitutes “governmental indoctrination.” See, e.g.,Rosenberger v. Rector and Visitors of University of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (upholding state reimbursement of religious student group for costs incurred in printing indoctrinating publication); Zobrest, 509 U.S. at 3, 113 S.Ct. 2462 (allowing state to provide interpreter for deaf student at parochial school); Witters v. Washington Dept. of Services for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986) (upholding state funding of visually impaired student’s rehabilitative assistance at religious school). However, direct state funding of persons who actively inculcate religious beliefs crosses the line between permissible and impermissible government action under the First Amendment. DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397, 416 (2d Cir.2001). a. Presence of indoctrination It is well settled that the establishment clause prohibits “government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.” Bowen, 487 U.S. at 611, 108 S.Ct. 2562. Although it is “inappropriate to presume inculcation of religion,” Mitchell, 530 U.S. at 858, 120 S.Ct. 2530, it is not necessary to make any presumptions to conclude that the Faith Works program inculcates religion. As its name suggests, Faith Works is a faith-based treatment program whose bylaws state that it employs a Christian-enhanced model of the Alcoholics Anonymous 12-step program. Participants are told at an intake interview that the program is faith-based. They are not required to discuss issues of spirituality at the AA meetings or at any other time, but that attendance at the enhanced AA meetings is mandatory. Although AA is not a traditional form of religious worship, the First Amendment applies to “any religious activit[y] or institution[ ], whatever [it] may be called, or whatever form [it] may adopt to teach or practice religion.” Everson v. Board of Education, 330 U.S. 1, 16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). The Court of Appeals for the Seventh Circuit has held that the content of traditional AA meetings is religious as a matter of law even when the meetings did not employ a “Christian-enhanced” model such as the one Faith Works uses. Kerr v. Farrey, 95 F.3d 472, 480 (7th Cir.1996) (“A straightforward reading of the twelve steps shows clearly that the steps are based on the monotheistic idea of a single God or Supreme Being ... [or, in other words,] on a religious concept of a Higher Power.”). See also Bausch v. Sumiec, 139 F.Supp.2d 1029, 1033 (E.D.Wis.2001) (defendant program based on principles of AA and NA and having substantial religious component concedes it is religious in nature). In addition to its AA programming, Faith Works sponsors other religious activities, such as Bible study, chapel services and prayer time each day. Faith Works counselors are available to “facilitate a transformation of the mind and soul” and they are prepared to study the Bible, pray with participants and provide guidance on getting connected with a local faith community. Counselors are not required to be of a particular faith, but their Christian-based spirituality is considered a factor in the hiring process. The Faith Works Standards of Practice, a guideline for all staff, states that ‘We are as individuals to be growing in our own faith life by regular church attendance, prayer, Bible study and seeking Spiritual direction from a Pastor/Shepherd in our faith community.” Although faith is only one aspect of the participants’ lives that counselors strive to improve, Faith Works staff encourage participants to integrate spirituality into their recovery program. In the employee handbook distributed to all employees, Faith Works includes a statement of faith that describes in detail the Christian beliefs that provide the framework for the Faith Works program: “The essence of this ministry is to develop a community of believers that would foster rigorous honesty; first with God, second with oneself and third with the Body of Christ.” Defendants assert that the statement of faith does not reflect the Milwaukee Faith Works program because the statement was prepared for a different program, under which conversion to Christianity was a goal. They argue that Faith Works is based on a different model that focuses on the secular goals of drug therapy, education, employment and housing and that these secular goals are motivated by the Christian values expressed in the statement of faith, but that in practice Faith Works is not pervasively sectarian. Defendants encourage this court to look beyond “institutional rhetoric,” Hunt v. McNair, 413 U.S. 734, 743, 93 S.Ct. 2868, 37 L.Ed.2d 923 (1973), to determine whether Faith Works is pervasively sectarian. Tilton v. Richardson, 403 U.S. 672, 681, 91 S.Ct. 2091, 29 L.Ed.2d 790 (1971) (examining actual practices of institution in determining whether it is “characterized by an atmosphere of ... freedom rather than religious indoctrination”). In short, defendants argue that this court should not conclude that Faith Works indoctrinates religion simply because the services it provides are consistent with the director’s or employees’ religious values. Defendants’ argument is unpersuasive. The fact that the statement of faith was prepared for a different program does not change the fact that staff at Faith Works in Milwaukee included the statement of faith in the employee handbook distributed to every Faith Works employee. Regardless of the original target audience, the statement appears at the beginning of the Faith Works handbook as the vision of Faith Works to be read by employees who have intimate, daily contact with participants. Although Faith Works may have the secular purposes of providing drug treatment, education and job training, this does not mean that religion does not permeate the programming. A “pervasively sectarian” institution is one in which the organization’s “secular activities cannot be separated from sectarian ones.” Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 755, 96 S.Ct. 2337, 49 L.Ed.2d 179 (1976). Defendants contend that the religious components of Faith Works can be separated from its secular ones. They point to the Department of Workforce Development grant, which funds secular services such as room, board, job readiness training, employment placement services, housing assistance and family reunification, but ostensibly not religious indoctrination. Defendants neglect to point out that they used the integration of religion into Faith Works’ recovery model as a strong selling point for obtaining funding. The governor chose to fund Faith Works from his discretionary funds because of its unique holistic recovery model and the extended length of the program. Faith Works won the Department of Corrections grant in part because of its unique long-term, faith-based approach to drug treatment. Faith Works cannot now try to excise religion from its offerings, saying that it contracted with the state to provide the wholly secular services of room and board without any reference to religion. This assertion rings hollow in light of the literature Faith Works provided the state. Taking into consideration Faith Works’ daily activities as well as its faith-based approach to drug treatment, I conclude that the Faith Works program indoctrinates its participants in religion, primarily through its counselors. b. Attribution of indoctrination to the state Simply because a state-funded program engages in indoctrination does not mean that the program’s funding is unconstitutional. The establishment clause targets only indoctrination that “could reasonably be attributed to governmental action.” Mitchell, 530 U.S. at 809, 120 S.Ct. 2530 (Thomas, J., plurality). To determine whether the religious activities of Faith Works constitute governmental indoctrination, it must be determined whether the activities are supported by unrestricted, direct state funding. “[S]tates may not make unrestricted cash payments directly to religious institutions.” Bugher, 249 F.3d at 612 (citing Tilton, 403 U.S. at 680-83, 91 S.Ct. 2091). Direct subsidies are viewed as governmental advancement or indoctrination of religion. Rosenberger, 515 U.S. at 842, 115 S.Ct. 2510 (“special Establishment Clause dangers [exist] where the government makes direct money payments to sectarian institutions”). In contrast, when public funding flows to faith-based organizations solely as a result of the “genuinely independent and private choices of individuals,” the funding is considered indirect. Agostini, 521 U.S. at 226, 117 S.Ct. 1997. When a program receives indirect funding, it is the individual participant, and not the state, who chooses to support the religious organization, reducing the likelihood that the public funding has the primary effect of advancing religion in violation of the establishment clause. A plurality of the Supreme Court has held that as long as the individual selects the publicly funded program freely, thus making the funding truly indirect, it is irrelevant whether the funding passes through the hands of the individual first or goes directly to the selected program. Mitchell, 530 U.S. at 817, 120 S.Ct. 2530 (Thomas