Rehnquist Court: Bowen v. Kendrick
Adolescent Family Life Act
US Supreme Court
BOWEN v. KENDRICK, 487 U.S. 589 (1988)
487 U.S. 589
BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. KENDRICK ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
No. 87-253.
Argued March 30, 1988
Decided June 29, 1988
A group of federal taxpayers, clergymen, and the American Jewish Congress (hereinafter
appellees) filed this action in Federal District Court, seeking declaratory and injunctive
relief, and challenging the constitutionality, under the Religion Clauses of the First
Amendment, of the Adolescent Family Life Act (AFLA or Act), which authorizes federal
grants to public or nonprofit private organizations or agencies for services and research
in the area of premarital adolescent sexual relations and pregnancy. The Act provides,
inter alia, that a grantee must furnish certain types of services, including various
types of counseling and education relating to family life and problems associated
with adolescent premarital sexual relations; that the complexity of the problem requires
the involvement of religious and charitable organizations, voluntary associations,
and other groups in the private sector, as well as governmental agencies; and that
grantees may not use funds for certain purposes, including family planning services
and the promotion of abortion. Federal funding under the Act has gone to a wide variety
of recipients, including organizations with institutional ties to religious denominations.
Granting summary judgment for appellees, the court declared that the Act, both on
its face and as applied, violated the Establishment Clause insofar as it provided
for the involvement of religious organizations in the federally funded programs.
Held:
1. The Act, on its face, does not violate the Establishment Clause. Pp. 600-618.
(a) With regard to the first factor of the applicable three-part test set forth in
Lemon v. Kurtzman, 403 U.S. 602 , the AFLA has a valid secular purpose. The face of
the Act shows that it was motivated primarily, if not entirely, by the legitimate
purpose of eliminating or reducing social and economic problems caused by teenage
sexuality, pregnancy, [487 U.S. 589, 590] and parenthood. Although the Act, in amending
its predecessor, increased the role of religious organizations in programs sponsored
by the Act, the challenged provisions were also motivated by other, entirely legitimate
secular concerns, such as attempting to enlist the aid of other groups in the private
sector to increase broad-based community involvement. Pp. 602-604.
(b) As to the second Lemon factor, the Act does not have the primary effect of advancing
religion. It authorizes grants to institutions that are capable of providing certain
services to adolescents, and requires that potential grantees describe how they will
involve other organizations, including religious organizations, in the funded programs.
However, there is no requirement that grantees be affiliated with any religious denomination,
and the services to be provided under the Act are not religious in character. The
Act's approach toward dealing with adolescent sexuality and pregnancy is not inherently
religious, although it may coincide with the approach taken by certain religions.
The provisions expressly mentioning the role of religious organizations reflect at
most Congress' considered judgment that religious organizations can help solve the
problems to which the Act is addressed. When, as Congress found, prevention of adolescent
sexual activity and pregnancy depends primarily upon developing close family ties,
it seems sensible for Congress to recognize that religious organizations can influence
family life. To the extent that this congressional recognition has any effect of advancing
religion, the effect is at most "incidental and remote." Moreover, to the extent that
religious institutions, along with other types of organizations, are allowed to participate
as recipients of federal funds, nothing on the Act's face suggests that it is anything
but neutral with respect to the grantee's status as a sectarian or purely secular
institution. The possibility that AFLA grants may go to religious institutions that
can be considered "pervasively sectarian" is not sufficient to conclude that no grants
whatsoever can be given to religious organizations. Nor does the Act necessarily have
the effect of advancing religion because religiously affiliated AFLA grantees will
be providing educational and counseling services to adolescents; because it authorizes
"teaching" by religious grantees on matters that are fundamental elements of religious
doctrine; because of any "crucial symbolic link" between government and religion;
or because the statute lacks an express provision preventing the use of federal funds
for religious purposes. Pp. 604-615.
(c) With regard to the third Lemon factor, the Act does not create an excessive entanglement
of church and state. The monitoring of AFLA grants is necessary to ensure that public
money is to be spent in the way that Congress intended and in a way that comports
with the Establishment Clause. However, there is no reason to assume that the religious
[487 U.S. 589, 591] organizations which may receive AFLA grants are "pervasively sectarian"
in the same sense as parochial schools have been held to be in cases finding excessive
"entanglement." There is accordingly no reason to fear that the less intensive monitoring
involved here will cause the Government to intrude unduly in the day-to-day operations
of the religiously affiliated grantees. Pp. 615-618.
2. The case is remanded for further consideration of whether the statute, as applied,
violates the Establishment Clause. Pp. 618-624.
(a) Appellees have standing to raise the claim that the AFLA is unconstitutional
as applied. Federal taxpayers have standing to raise Establishment Clause claims against
exercises of congressional power under the taxing and spending power of Article I,
8, of the Constitution. Flast v. Cohen, 392 U.S. 83 . There is no merit to appellants'
contention that a challenge to the AFLA "as applied" is really a challenge to executive
action. The claim that AFLA funds are being used improperly by individual grantees
is not any less a challenge to congressional taxing and spending power simply because
the funding authorized by Congress has flowed through and been administered by the
Secretary of Health and Human Services. Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464 ; and Schlesinger v. Reservists
Committee to Stop the War, 418 U.S. 208 , distinguished. Pp. 618-620.
(b) On the merits of the "as applied" challenge, the District Court did not follow
the proper approach in assessing appellees' claim that the Secretary is making grants
under the Act that violate the Establishment Clause. Although the record contains
evidence of specific incidents of impermissible behavior by grantees, the case must
be remanded for consideration of the evidence insofar as it sheds light on the manner
in which the statute is presently being administered. If the Court concludes on the
evidence presented that grants are being made by the Secretary in violation of the
Establishment Clause, an appropriate remedy would be to require the Secretary to withdraw
the approval of such grants. Pp. 620-622.
657 F. Supp. 1547, reversed and remanded.
REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA,
and KENNEDY, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 622.
KENNEDY, J., filed a concurring opinion, in which SCALIA, J., joined, post, p. 624.
BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and STEVENS,
JJ., joined, post, p. 625.
[ Footnote * ] Together with No. 87-431, Bowen, Secretary of Health and Human Services
v. Kendrick et al., No. 87-462, Kendrick et al. v. Bowen, Secretary of Health and
Human Services, et al., and No. 87-775, United Families of America v. Kendrick et
al., also on appeal from the same court. [487 U.S. 589, 592]
Solicitor General Fried argued the cause for appellant in Nos. 87-253 and 87-431,
and for the federal appellee in No. 87-462. With him on the briefs were Assistant
Attorney General Willard, Acting Assistant Attorney General Spears, Deputy Solicitor
General Ayer, Deputy Assistant Attorney General Cynkar, Lawrence S. Robbins, Michael
Jay Singer, Jay S. Bybee, and Theodore C. Hirt. Michael W. McConnell argued the cause
for appellant in No. 87-775. With him on the briefs were Edward R. Grant, Clarke D.
Forsythe, Paul Arneson, and Michael J. Woodruff.
Janet Benshoof argued the cause for appellees in Nos. 87-253, 87-431, and 87-775
and appellants in No. 87-462. With her on the briefs were Lynn M. Paltrow, Nan D.
Hunter, Rachael N. Pine, and Bruce J. Ennis, Jr.Fn
Fn [487 U.S. 589, 592] Briefs of amici curiae urging reversal were filed for the
Attorney General of Arizona et al. by Gary B. Born and James S. Campbell; for the
Catholic League for Religious and Civil Rights et al. by Steven Frederick McDowell;
for the Institute for Youth Advocacy by Gregory A. Loken; for the National Jewish
Commission on Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National
Right to Life Committee, Inc., by James Bopp, Jr.; for the Rutherford Institute et
al. by John W. Whitehead, David E. Morris, Alfred J. Lindh, Ira W. Still III, William
B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, William Bonner, John F. Southworth,
Jr., and W. Charles Bundren; and for the United States Catholic Conference by Mark
E. Chopko and Philip H. Harris.
Briefs of amici curiae urging affirmance were filed for the American Public Health
Association et al. by John H. Hall, Nadine Taub, and Judith Levin; for the Baptist
Joint Committee on Public Affairs et al. by Oliver S. Thomas; for the Committee for
Public Education and Religious Liberty by Leo Pfeffer; for the Council on Religious
Freedom by Lee Boothby, Robert W. Nixon, and Rolland Truman; for the National Coalition
for Public Education and Religious Liberty et al. by David B. Isbell, David H. Remes,
and Herman Schwartz; and for the NOW Legal Defense and Education Fund et al. by Sarah
E. Burns and Marsha Levick.
Briefs of amici curiae were filed for the Anti-Defamation League of B'nai B'rith
et al. by Ruti G. Teitel, Justin J. Finger, Jeffrey P. Sinensky, Meyer Eisenberg,
and Steven M. Freeman; for Catholic Charities, [487 U.S. 589, 593] U.S. A., et al.
by Patrick Francis Geary; and for the Unitarian Universalist Association et al. by
Patricia Hennessey. [487 U.S. 589, 593]
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
This litigation involves a challenge to a federal grant program that provides funding
for services relating to adolescent sexuality and pregnancy. Considering the federal
statute both "on its face" and "as applied," the District Court ruled that the statute
violated the Establishment Clause of the First Amendment insofar as it provided for
the involvement of religious organizations in the federally funded programs. We conclude,
however, that the statute is not unconstitutional on its face, and that a determination
of whether any of the grants made pursuant to the statute violate the Establishment
Clause requires further proceedings in the District Court.
I
The Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U.S.C.
300z et seq. (1982 ed. and Supp. IV), was passed by Congress in 1981 in response to
the "severe adverse health, social, and economic consequences" that often follow pregnancy
and childbirth among unmarried adolescents. 42 U.S.C. 300z(a)(5) (1982 ed., Supp.
IV). Like its predecessor, the Adolescent Health Services and Pregnancy Prevention
and Care Act of 1978, Pub. L. 95-626, Tit. VI, 92 Stat. 3595-3601 (Title VI), the
AFLA is essentially a scheme for providing grants to public or nonprofit private organizations
or agencies "for services and research in the area of premarital adolescent sexual
relations and pregnancy." S. Rep. No. 97-161, p. 1 (1981) (hereinafter Senate Report).
These grants are intended to serve several purposes, including the promotion of "self
discipline and other prudent approaches to the problem of adolescent premarital sexual
relations," 300z(b)(1), the promotion of adoption as an alternative for adolescent
parents, 300z(b)(2), the [487 U.S. 589, 594] establishment of new approaches to the
delivery of care services for pregnant adolescents, 300z(b)(3), and the support of
research and demonstration projects "concerning the societal causes and consequences
of adolescent premarital sexual relations, contraceptive use, pregnancy, and child
rearing," 300z(b)(4).
In pertinent part, grant recipients are to provide two types of services: "care services,"
for the provision of care to pregnant adolescents and adolescent parents, 300z-1(a)(7),
and "prevention services," for the prevention of adolescent sexual relations, 300z-1(a)(8).
1 While the AFLA leaves it up to the Secretary of Health and Human Services (the Secretary)
to define exactly what types of services a grantee must provide, see 300z-1(a)(7),
(8), 300z-1(b), the statute contains a listing of "necessary services" that may be
funded. These services include pregnancy testing and maternity counseling, adoption
counseling and referral services, prenatal and postnatal health care, nutritional
information, counseling, child care, mental health services, and perhaps most importantly
for present purposes, "educational services relating to family life and problems associated
with adolescent premarital sexual relations," 300z-1(a)(4). 2 [487 U.S. 589, 595]
In drawing up the AFLA and determining what services to provide under the Act, Congress
was well aware that "the problems of adolescent premarital sexual relations, pregnancy,
and parenthood are multiple and complex." 300z(a) (8)(A). Indeed, Congress expressly
recognized that legislative or governmental action alone would be insufficient:
"[S]uch problems are best approached through a variety of integrated and essential
services provided to adolescents and their families by other family members, religious
and charitable organizations, voluntary associations, and other groups in the private
sector as well as services provided by publicly sponsored initiatives." 300z(a)(8)(B).
[487 U.S. 589, 596]
Accordingly, the AFLA expressly states that federally provided services in this area
should promote the involvement of parents, and should "emphasize the provision of
support by other family members, religious and charitable organizations, voluntary
associations, and other groups." 300z(a)(10)(C). The AFLA implements this goal by
providing in 300z-2 that demonstration projects funded by the government
"shall use such methods as will strengthen the capacity of families to deal with
the sexual behavior, pregnancy, or parenthood of adolescents and to make use of support
systems such as other family members, friends, religious and charitable organizations,
and voluntary associations."
In addition, AFLA requires grant applicants, among other things, to describe how
they will, "as appropriate in the provision of services[,] involve families of adolescents[,
and] involve religious and charitable organizations, voluntary associations, and other
groups in the private sector as well as services provided by publicly sponsored initiatives."
300z-5(a)(21). This broad-based involvement of groups outside of the government was
intended by Congress to "establish better coordination, integration, and linkages"
among existing programs in the community, 300z(b)(3) (1982 ed., Supp. IV), to aid
in the development of "strong family values and close family ties," 300z(a)(10)(A),
and to "help adolescents and their families deal with complex issues of adolescent
premarital sexual relations and the consequences of such relations." 300z(a)(10)(C).
In line with its purposes, the AFLA also imposes limitations on the use of funds
by grantees. First, the AFLA expressly states that no funds provided for demonstration
projects under the statute may be used for family planning services (other than counseling
and referral services) unless appropriate family planning services are not otherwise
available in the community. 300z-3(b)(1). Second, the AFLA restricts the awarding
of grants to "programs or projects [487 U.S. 589, 597] which do not provide abortions
or abortion counseling or referral," except that the program may provide referral
for abortion counseling if the adolescent and her parents request such referral. 300z-10(a).
Finally, the AFLA states that "grants may be made only to projects or programs which
do not advocate, promote, or encourage abortion." 300z-10(a). 3
Since 1981, when the AFLA was adopted, the Secretary has received 1,088 grant applications
and awarded 141 grants. Brief for Federal Appellant 8. Funding has gone to a wide
variety of recipients, including state and local health agencies, private hospitals,
community health associations, privately operated health care centers, and community
and charitable organizations. It is undisputed that a number of grantees or subgrantees
were organizations with institutional ties to religious denominations. See App. 748-756
(listing grantees).
In 1983, this lawsuit against the Secretary was filed in the United States District
Court for the District of Columbia by appellees, a group of federal taxpayers, clergymen,
and the American Jewish Congress. Seeking both declaratory and injunctive relief,
appellees challenged the constitutionality of the AFLA on the grounds that on its
face and as applied the statute violates the Religion Clauses of the First Amendment.
4 Following cross-motions for summary judgment, the [487 U.S. 589, 598] District Court
held for appellees and declared that the AFLA was invalid both on its face and as
applied "insofar as religious organizations are involved in carrying out the programs
and purposes of the Act." 657 F. Supp. 1547, 1570 (DC 1987).
The court first found that under Flast v. Cohen, 392 U.S. 83 (1968), appellees had
standing to challenge the statute both on its face and as applied. Turning to the
merits, the District Court applied the three-part test for Establishment Clause cases
set forth in Lemon v. Kurtzman, 403 U.S. 602 (1971). 5 The court concluded that the
AFLA has a valid secular purpose: the prevention of social and economic injury caused
by teenage pregnancy and premarital sexual relations. In the court's view, however,
the AFLA does not survive the second prong of the Lemon test because it has the "direct
and immediate" effect of advancing religion insofar as it expressly requires grant
applicants to describe how they will involve religious organizations in the provision
of services. 300z-5(a)(21)(B). The statute also permits religious organizations to
be grantees and "envisions a direct role for those organizations in the education
and counseling components of AFLA grants." 657 F. Supp., at 1562. As written, the
AFLA makes it possible for religiously affiliated grantees to teach adolescents on
issues that can be considered "fundamental elements of religious doctrine." The [487
U.S. 589, 599] AFLA does all this without imposing any restriction whatsoever against
the teaching of "religion qua religion" or the inculcation of religious beliefs in
federally funded programs. As the District Court put it, "[t]o presume that AFLA counselors
from religious organizations can put their beliefs aside when counseling an adolescent
on matters that are part of religious doctrine is simply unrealistic." Id., at 1563
(citing Grand Rapids School District v. Ball, 473 U.S. 373 (1985)).
The District Court then concluded that the statute as applied also runs afoul of
the Lemon effects test. 6 The evidence presented by appellees revealed that AFLA grants
had gone to various organizations that were affiliated with religious denominations
and that had corporate requirements that the organizations abide by religious doctrines.
Other AFLA grantees were not explicitly affiliated with organized religions, but were
"religiously inspired and dedicated to teaching the dogma that inspired them." 657
F. Supp., at 1564. In the District Court's view, the record clearly established that
the AFLA, as it has been administered by the Secretary, has in fact directly advanced
religion, provided funding for institutions that were "pervasively sectarian," or
allowed federal funds to be used for education and counseling that "amounts to the
teaching of religion." Ibid. As to the entanglement prong of Lemon, the court ruled
that because AFLA funds are used largely for counseling and teaching, it would require
overly intrusive monitoring or oversight to ensure that religion is not advanced by
religiously affiliated AFLA grantees. Indeed, the court felt that "it is impossible
to comprehend entanglement more extensive and continuous [487 U.S. 589, 600] than
that necessitated by the AFLA." 657 F. Supp., at 1568. 7
In a separate order, filed August 13, 1987, the District Court ruled that the "constitutionally
infirm language of the AFLA, namely its references to `religious organizations,'"
App. to Juris. Statement in No. 431, p. 53a, is severable from the Act pursuant to
Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987). The court also denied the Secretary's
Federal Rule of Civil Procedure 59(e) motion to clarify what the court meant by "religious
organizations" for purposes of determining the scope of its injunction. On the same
day that this order was entered, appellants docketed their appeal on the merits directly
with this Court pursuant to 28 U.S.C. 1252. A separate appeal from the District Court's
August 13 order was also docketed, as was a cross-appeal by appellees on the severability
issue. On November 9, 1987, we noted probable jurisdiction in all three appeals and
consolidated the cases for argument. 484 U.S. 942 (1987).
II
The District Court in this lawsuit held the AFLA unconstitutional both on its face
and as applied. Few of our cases in the Establishment Clause area have explicitly
distinguished between facial challenges to a statute and attacks on the statute as
applied. Several cases have clearly involved challenges to a statute "on its face."
For example, in Edwards v. Aguillard, 482 U.S. 578 (1987), we considered the validity
of the Louisiana "Creationism Act," finding the Act "facially invalid." Indeed, in
that case it was clear that only a facial challenge could have been considered, as
the Act had not been implemented. Id., at 581, n. 1. Other cases, as well, have considered
the validity of statutes without the benefit of a record as to how the statute had
actually been applied. [487 U.S. 589, 601] See Wolman v. Walter, 433 U.S. 229 (1977);
Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973).
In other cases we have, in the course of determining the constitutionality of a statute,
referred not only to the language of the statute but also to the manner in which it
had been administered in practice. Levitt v. Committee for Public Education & Religious
Liberty, 413 U.S. 472, 479 (1973); Meek v. Pittenger, 421 U.S. 349 (1975). See also
Grand Rapids School District v. Ball, supra, at 377-379; Aguilar v. Felton, 473 U.S.
402 (1985). In several cases we have expressly recognized that an otherwise valid
statute authorizing grants might be challenged on the grounds that the award of a
grant in a particular case would be impermissible. Hunt v. McNair, 413 U.S. 734 (1973),
involved a challenge to a South Carolina statute that provided for the issuance of
revenue bonds to assist "institutions of higher learning" in constructing new facilities.
The plaintiffs in that case did not contest the validity of the statute as a whole,
but contended only that a statutory grant to a religiously affiliated college would
be invalid. Id., at 736. In Tilton v. Richardson, 403 U.S. 672 (1971), the Court reviewed
a federal statute authorizing construction grants to colleges exclusively for secular
educational purposes. We rejected the contention that the statute was invalid "on
its face" and "as applied" to the four church-related colleges that were named as
defendants in the case. However, we did leave open the possibility that the statute
might authorize grants which could be invalid, stating that "[i]ndividual projects
can be properly evaluated if and when challenges arise with respect to particular
recipients and some evidence is then presented to show that the institution does in
fact possess" sectarian characteristics that might make a grant of aid to the institution
constitutionally impermissible. Id., at 682. See also Roemer v. Maryland Bd. of Public
Works, 426 U.S. 736, 760 -761 (1976) (upholding a similar statute authorizing grants
to colleges against [487 U.S. 589, 602] a "facial" attack and pretermitting the question
whether "particular applications may result in unconstitutional use of funds").
There is, then, precedent in this area of constitutional law for distinguishing between
the validity of the statute on its face and its validity in particular applications.
Although the Court's opinions have not even adverted to (to say nothing of explicitly
delineated) the consequences of this distinction between "on its face" and "as applied"
in this context, we think they do justify the District Court's approach in separating
the two issues as it did here.
This said, we turn to consider whether the District Court was correct in concluding
that the AFLA was unconstitutional on its face. As in previous cases involving facial
challenges on Establishment Clause grounds, e. g., Edwards v. Aguillard, supra; Mueller
v. Allen, 463 U.S. 388 (1983), we assess the constitutionality of an enactment by
reference to the three factors first articulated in Lemon v. Kurtzman, 403 U.S. 602
(1971). Under the Lemon standard, which guides "[t]he general nature of our inquiry
in this area," Mueller v. Allen, supra, at 394, a court may invalidate a statute only
if it is motivated wholly by an impermissible purpose, Lynch v. Donnelly, 465 U.S.
668, 680 (1984); Stone v. Graham, 449 U.S. 39, 41 (1980), if its primary effect is
the advancement of religion, Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 708
(1985), or if it requires excessive entanglement between church and state, Lemon,
supra, at 613; Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). We consider each of these
factors in turn.
As we see it, it is clear from the face of the statute that the AFLA was motivated
primarily, if not entirely, by a legitimate secular purpose - the elimination or reduction
of social and economic problems caused by teenage sexuality, pregnancy, and parenthood.
See 300z(a), (b) (1982 ed. and Supp. IV). Appellees cannot, and do not, dispute that,
on the whole, religious concerns were not the sole motivation [487 U.S. 589, 603]
behind the Act, see Lynch, supra, at 680, nor can it be said that the AFLA lacks a
legitimate secular purpose, see Edwards v. Aguillard, 482 U.S., at 585 . In the court
below, however, appellees argued that the real purpose of the AFLA could only be understood
in reference to the AFLA's predecessor, Title VI. Appellees contended that Congress
had an impermissible purpose in adopting the AFLA because it specifically amended
Title VI to increase the role of religious organizations in the programs sponsored
by the Act. In particular, they pointed to the fact that the AFLA, unlike Title VI,
requires grant applicants to describe how they will involve religious organizations
in the programs funded by the AFLA. 300z-5(a)(21)(B).
The District Court rejected this argument, however, reasoning that even if it is
assumed that the AFLA was motivated in part by improper concerns, the parts of the
statute to which appellees object were also motivated by other, entirely legitimate
secular concerns. We agree with this conclusion. As the District Court correctly pointed
out, Congress amended Title VI in a number of ways, most importantly for present purposes
by attempting to enlist the aid of not only "religious organizations," but also "family
members . . ., charitable organizations, voluntary associations, and other groups
in the private sector," in addressing the problems associated with adolescent sexuality.
300z(a)(8)(B); see also 300z-5(a)(21)(A), (B). Cf. Title VI, 601(a) (5) ("[T]he problems
of adolescent [sexuality] . . . are best approached through a variety of integrated
and essential services"). Congress' decision to amend the statute in this way reflects
the entirely appropriate aim of increasing broad-based community involvement "in helping
adolescent boys and girls understand the implications of premarital sexual relations,
pregnancy, and parenthood." See Senate Report, at 2, 15-16. In adopting the AFLA,
Congress expressly intended to expand the services already authorized by Title VI,
to insure the increased participation of parents in education [487 U.S. 589, 604]
and support services, to increase the flexibility of the programs, and to spark the
development of new, innovative services. Id., at 7-9. These are all legitimate secular
goals that are furthered by the AFLA's additions to Title VI, including the challenged
provisions that refer to religious organizations. There simply is no evidence that
Congress' "actual purpose" in passing the AFLA was one of "endorsing religion." See
Edwards v. Aguillard, 482 U.S., at 589 -594. Nor are we in a position to doubt that
Congress' expressed purposes are "sincere and not a sham." Id., at 587. 8
As usual in Establishment Clause cases, see, e. g., Grand Rapids School District
v. Ball, 473 U.S. 373 (1985); Mueller, supra, the more difficult question is whether
the primary effect of the challenged statute is impermissible. Before we address this
question, however, it is useful to review again just what the AFLA sets out to do.
Simply stated, it authorizes grants to institutions that are capable of providing
certain care and prevention services to adolescents. Because of the complexity of
the problems that Congress sought to remedy, potential grantees are required to describe
how they will involve other organizations, including religious organizations, in the
programs funded by the federal grants. 300z-5(a)(21)(B); see also 300z-2(a). There
is no requirement in the Act that grantees be affiliated with any religious denomination,
although the Act clearly does not rule out grants to religious organizations. 9 The
services to be provided [487 U.S. 589, 605] under the AFLA are not religious in character,
see n. 2, supra, nor has there been any suggestion that religious institutions or
organizations with religious ties are uniquely well qualified to carry out those services.
10 Certainly it is true that a substantial part of the services listed as "necessary
services" under the Act involve some sort of education or counseling, see, e. g.,
300z-1(a)(4)(D), (G), (H), (J), (L), (M), (O), but there is nothing inherently religious
about these activities and appellees do not contend that, by themselves, the AFLA's
"necessary services" somehow have the primary effect of advancing religion. Finally,
it is clear that the AFLA takes a particular approach toward dealing with adolescent
sexuality and pregnancy - for example, two of its stated purposes are to "promote
self discipline and other prudent approaches to the problem of adolescent premarital
sexual relations," 300z(b)(1), and to "promote adoption as an alternative," 300z(b)(2)
- but again, that approach is not inherently religious, although it may coincide with
the approach taken by certain religions.
Given this statutory framework, there are two ways in which the statute, considered
"on its face," might be said to have the impermissible primary effect of advancing
religion. First, it can be argued that the AFLA advances religion by expressly recognizing
that "religious organizations have a role to play" in addressing the problems associated
with teenage [487 U.S. 589, 606] sexuality. Senate Report, at 16. In this view, even
if no religious institution receives aid or funding pursuant to the AFLA, the statute
is invalid under the Establishment Clause because, among other things, it expressly
enlists the involvement of religiously affiliated organizations in the federally subsidized
programs, it endorses religious solutions to the problems addressed by the Act, or
it creates symbolic ties between church and state. Secondly, it can be argued that
the AFLA is invalid on its face because it allows religiously affiliated organizations
to participate as grantees or subgrantees in AFLA programs. From this standpoint,
the Act is invalid because it authorizes direct federal funding of religious organizations
which, given the AFLA's educational function and the fact that the AFLA's "viewpoint"
may coincide with the grantee's "viewpoint" on sexual matters, will result unavoidably
in the impermissible "inculcation" of religious beliefs in the context of a federally
funded program.
We consider the former objection first. As noted previously, the AFLA expressly mentions
the role of religious organizations in four places. It states (1) that the problems
of teenage sexuality are "best approached through a variety of integrated and essential
services provided to adolescents and their families by[, among others,] religious
organizations," 300z(a)(8)(B), (2) that federally subsidized services "should emphasize
the provision of support by[, among others,] religious and charitable organizations,"
300z(a)(10)(C), (3) that AFLA programs "shall use such methods as will strengthen
the capacity of families . . . to make use of support systems such as . . . religious
. . . organizations," 300z-2(a), and (4) that grant applicants shall describe how
they will involve religious organizations, among other groups, in the provision of
services under the Act. 300z-5(a)(21)(B).
Putting aside for the moment the possible role of religious organizations as grantees,
these provisions of the statute reflect at most Congress' considered judgment that
religious organizations can help solve the problems to which the [487 U.S. 589, 607]
AFLA is addressed. See Senate Report, at 15-16. Nothing in our previous cases prevents
Congress from making such a judgment or from recognizing the important part that religion
or religious organizations may play in resolving certain secular problems. Particularly
when, as Congress found, "prevention of adolescent sexual activity and adolescent
pregnancy depends primarily upon developing strong family values and close family
ties," 300z(a)(10)(A), it seems quite sensible for Congress to recognize that religious
organizations can influence values and can have some influence on family life, including
parents' relations with their adolescent children. To the extent that this congressional
recognition has any effect of advancing religion, the effect is at most "incidental
and remote." See Lynch, 465 U.S., at 683 ; Estate of Thornton v. Caldor, Inc., 472
U.S., at 710 ; Nyquist, 413 U.S., at 771 . In addition, although the AFLA does require
potential grantees to describe how they will involve religious organizations in the
provision of services under the Act, it also requires grantees to describe the involvement
of "charitable organizations, voluntary associations, and other groups in the private
sector," 300z-5(a)(21)(B). 11 In our view, this reflects the statute's successful
maintenance of "a course of neutrality among religions, and between religion and non-religion,"
Grand Rapids School District v. Ball, 473 U.S., at 382 . [487 U.S. 589, 608]
This brings us to the second ground for objecting to the AFLA: the fact that it allows
religious institutions to participate as recipients of federal funds. The AFLA defines
an "eligible grant recipient" as a "public or nonprofit private organization or agency"
which demonstrates the capability of providing the requisite services. 300z-1(a)(3).
As this provision would indicate, a fairly wide spectrum of organizations is eligible
to apply for and receive funding under the Act, and nothing on the face of the Act
suggests it is anything but neutral with respect to the grantee's status as a sectarian
or purely secular institution. See Senate Report, at 16 ("Religious affiliation is
not a criterion for selection as a grantee . . ."). In this regard, then, the AFLA
is similar to other statutes that this Court has upheld against Establishment Clause
challenges in the past. In Roemer v. Maryland Bd. of Public Works, 426 U.S. 736 (1976),
for example, we upheld a Maryland statute that provided annual subsidies directly
to qualifying colleges and universities in the State, including religiously affiliated
institutions. As the plurality stated, "religious institutions need not be quarantined
from public benefits that are neutrally available to all." Id., at 746 (discussing
Everson v. Board of Education, 330 U.S. 1 (1947) (approving busing services equally
available to both public and private school children), and Board of Education v. Allen,
392 U.S. 236 (1968) (upholding state provision of secular textbooks for both public
and private school students)). Similarly, in Tilton v. Richardson, 403 U.S. 672 (1971),
we approved the federal Higher Educational Facilities Act, which was intended by Congress
to provide construction grants to "all colleges and universities regardless of any
affiliation with or sponsorship by a religious body." Id., at 676. And in Hunt v.
McNair, 413 U.S. 734 (1973), we rejected a challenge to a South Carolina statute that
made certain benefits "available to all institutions of higher education in South
Carolina, whether or not having a religious affiliation." Id., at 741. In other cases
involving indirect [487 U.S. 589, 609] grants of state aid to religious institutions,
we have found it important that the aid is made available regardless of whether it
will ultimately flow to a secular or sectarian institution. See, e. g., Witters v.
Washington Dept. of Services for Blind, 474 U.S. 481, 487 (1986); Mueller v. Allen,
463 U.S., at 398 ; Everson v. Board of Education, supra, at 17-18; Walz v. Tax Comm'n,
397 U.S., at 676 .
We note in addition that this Court has never held that religious institutions are
disabled by the First Amendment from participating in publicly sponsored social welfare
programs. To the contrary, in Bradfield v. Roberts, 175 U.S. 291 (1899), the Court
upheld an agreement between the Commissioners of the District of Columbia and a religiously
affiliated hospital whereby the Federal Government would pay for the construction
of a new building on the grounds of the hospital. In effect, the Court refused to
hold that the mere fact that the hospital was "conducted under the auspices of the
Roman Catholic Church" was sufficient to alter the purely secular legal character
of the corporation, id., at 298, particularly in the absence of any allegation that
the hospital discriminated on the basis of religion or operated in any way inconsistent
with its secular charter. In the Court's view, the giving of federal aid to the hospital
was entirely consistent with the Establishment Clause, and the fact that the hospital
was religiously affiliated was "wholly immaterial." Ibid. The propriety of this holding,
and the long history of cooperation and interdependency between governments and charitable
or religious organizations is reflected in the legislative history of the AFLA. See
S. Rep. No. 98-496, p. 10 (1984) ("Charitable organizations with religious affiliations
historically have provided social services with the support of their communities and
without controversy").
Of course, even when the challenged statute appears to be neutral on its face, we
have always been careful to ensure that direct government aid to religiously affiliated
institutions does not have the primary effect of advancing religion. [487 U.S. 589,
610] One way in which direct government aid might have that effect is if the aid flows
to institutions that are "pervasively sectarian." We stated in Hunt that
"[a]id normally may be thought to have a primary effect of advancing religion when
it flows to an institution in which religion is so pervasive that a substantial portion
of its functions are subsumed in the religious mission . . . ." 413 U.S., at 743 .
The reason for this is that there is a risk that direct government funding, even
if it is designated for specific secular purposes, may nonetheless advance the pervasively
sectarian institution's "religious mission." See Grand Rapids School District v. Ball,
473 U.S., at 385 (discussing how aid to religious schools may impermissibly advance
religion). Accordingly, a relevant factor in deciding whether a particular statute
on its face can be said to have the improper effect of advancing religion is the determination
of whether, and to what extent, the statute directs government aid to pervasively
sectarian institutions. In Grand Rapids School District, for example, the Court began
its "effects" inquiry with "a consideration of the nature of the institutions in which
the [challenged] programs operate." Id., at 384.
In this lawsuit, nothing on the face of the AFLA indicates that a significant proportion
of the federal funds will be disbursed to "pervasively sectarian" institutions. Indeed,
the contention that there is a substantial risk of such institutions receiving direct
aid is undercut by the AFLA's facially neutral grant requirements, the wide spectrum
of public and private organizations which are capable of meeting the AFLA's requirements,
and the fact that, of the eligible religious institutions, many will not deserve the
label of "pervasively sectarian." 12 This is not a case like Grand Rapids, where the
[487 U.S. 589, 611] challenged aid flowed almost entirely to parochial schools. In
that case the State's "Shared Time" program was directed specifically at providing
certain classes for nonpublic schools, and 40 of 41 of the schools that actually participated
in the program were found to be "pervasively sectarian." Id., at 385. See also Nyquist,
413 U.S., at 768 ("`all or practically all'" of the schools entitled to receive grants
were religiously affiliated); Meek v. Pittenger, 421 U.S., at 371 . Instead, this
litigation more closely resembles Tilton and Roemer, where it was foreseeable that
some proportion of the recipients of government aid would be religiously affiliated,
but that only a small portion of these, if any, could be considered "pervasively sectarian."
In those cases we upheld the challenged statutes on their face and as applied to the
institutions named in the complaints, but left open the consequences which would ensue
if they allowed federal aid to go to institutions that were in fact pervasively sectarian.
Tilton, 403 U.S., at 682 ; Roemer, 426 U.S., at 760 . As in Tilton and Roemer, we
do not think the possibility that AFLA grants may go to religious institutions that
can be considered "pervasively sectarian" is sufficient to conclude that no grants
whatsoever can be given under the statute to religious organizations. We think that
the District Court was wrong in concluding otherwise.
Nor do we agree with the District Court that the AFLA necessarily has the effect
of advancing religion because the religiously affiliated AFLA grantees will be providing
educational and counseling services to adolescents. Of course, we have said that the
Establishment Clause does "prohibit government-financed or government-sponsored indoctrination
into the beliefs of a particular religious faith," Grand [487 U.S. 589, 612] Rapids,
supra, at 385, and we have accordingly struck down programs that entail an unacceptable
risk that government funding would be used to "advance the religious mission" of the
religious institution receiving aid. See, e. g., Meek, supra, at 370. But nothing
in our prior cases warrants the presumption adopted by the District Court that religiously
affiliated AFLA grantees are not capable of carrying out their functions under the
AFLA in a lawful, secular manner. Only in the context of aid to "pervasively sectarian"
institutions have we invalidated an aid program on the grounds that there was a "substantial"
risk that aid to these religious institutions would, knowingly or unknowingly, result
in religious indoctrination. E. g., Grand Rapids, supra, at 387-398; Meek, supra,
at 371. In contrast, when the aid is to flow to religiously affiliated institutions
that were not pervasively sectarian, as in Roemer, we refused to presume that it would
be used in a way that would have the primary effect of advancing religion. Roemer,
we refused to presume that it would be used in a way that would have the primary effect
of advancing religion. Roemer, 426 U.S., at 760 ("We must assume that the colleges
. . . will exercise their delegated control over use of the funds in compliance with
the statutory, and therefore the constitutional, mandate"). We think that the type
of presumption that the District Court applied in this case is simply unwarranted.
As we stated in Roemer: "It has not been the Court's practice, in considering facial
challenges to statutes of this kind, to strike them down in anticipation that particular
applications may result in unconstitutional use of funds." Id., at 761; see also Tilton,
supra, at 682.
We also disagree with the District Court's conclusion that the AFLA is invalid because
it authorizes "teaching" by religious grant recipients on "matters [that] are fundamental
elements of religious doctrine," such as the harm of premarital sex and the reasons
for choosing adoption over abortion. 657 F. Supp., at 1562. On an issue as sensitive
and important as teenage sexuality, it is not surprising that the Government's secular
concerns would either coincide or conflict [487 U.S. 589, 613] with those of religious
institutions. But the possibility or even the likelihood that some of the religious
institutions who receive AFLA funding will agree with the message that Congress intended
to deliver to adolescents through the AFLA is insufficient to warrant a finding that
the statute on its face has the primary effect of advancing religion. See Lynch, 465
U.S., at 682 ; id., at 715-716 (BRENNAN, J., dissenting); Harris v. McRae, 448 U.S.
297, 319 -320 (1980). Nor does the alignment of the statute and the religious views
of the grantees run afoul of our proscription against "fund[ing] a specifically religious
activity in an otherwise substantially secular setting." Hunt, 413 U.S., at 743 .
The facially neutral projects authorized by the AFLA - including pregnancy testing,
adoption counseling and referral services, prenatal and postnatal care, educational
services, residential care, child care, consumer education, etc. - are not themselves
"specifically religious activities," and they are not converted into such activities
by the fact that they are carried out by organizations with religious affiliations.
As yet another reason for invalidating parts of the AFLA, the District Court found
that the involvement of religious organizations in the Act has the impermissible effect
of creating a "crucial symbolic link" between government and religion. 657 F. Supp.,
at 1564 (citing, e. g., Grand Rapids, 473 U.S., at 390 ). If we were to adopt the
District Court's reasoning, it could be argued that any time a government aid program
provides funding to religious organizations in an area in which the organization also
has an interest, an impermissible "symbolic link" could be created, no matter whether
the aid was to be used solely for secular purposes. This would jeopardize government
aid to religiously affiliated hospitals, for example, on the ground that patients
would perceive a "symbolic link" between the hospital - part of whose "religious mission"
might be to save lives - and whatever government entity is subsidizing the purely
secular medical services provided to the patient. We decline to adopt the [487 U.S.
589, 614] District Court's reasoning and conclude that, in this litigation, whatever
"symbolic link" might in fact be created by the AFLA's disbursement of funds to religious
institutions is not sufficient to justify striking down the statute on its face.
A final argument that has been advanced for striking down the AFLA on "effects" grounds
is the fact that the statute lacks an express provision preventing the use of federal
funds for religious purposes. 13 Cf. Tilton, 403 U.S., at 675 ; Roemer, supra, at
740-741. Clearly, if there were such a provision in this statute, it would be easier
to conclude that the statute on its face could not be said to have the primary effect
of advancing religion, see, e. g., Roemer, supra, at 760, but we have never stated
that a statutory restriction is constitutionally required. The closest we came to
such a holding was in Tilton, where we struck down a provision of the statute that
would have eliminated Government sanctions for violating the statute's restrictions
on religious uses of funds after 20 years. 403 U.S., at 683 . The reason we did so,
however, was because the 20-year limit on sanctions created a risk that the religious
institution would, after the 20 years were up, act as if there were no longer any
constitutional or statutory limitations on its use of the federally funded building.
This aspect of the decision in Tilton was thus intended to indicate that the constitutional
limitations on use of federal funds, as embodied in the statutory restriction, could
not simply "expire" at some point during the economic life of the benefit that the
grantee received from the Government. In this litigation, although there is no express
statutory limitation on religious use of funds, there is also no intimation in the
statute that at some point, or for some grantees, religious uses are permitted. To
the contrary, the 1984 Senate Report on the AFLA states that "the use of Adolescent
Family Life Act funds to [487 U.S. 589, 615] promote religion, or to teach the religious
doctrines of a particular sect, is contrary to the intent of this legislation." S.
Rep. No. 98-496, p. 10 (1984). We note in addition that the AFLA requires each grantee
to undergo evaluations of the services it provides, 300z-5(b)(1), and also requires
grantees to "make such reports concerning its use of Federal funds as the Secretary
may require," 300z-5(c). The application requirements of the Act, as well, require
potential grantees to disclose in detail exactly what services they intend to provide
and how they will be provided. 300z-5(a). These provisions, taken together, create
a mechanism whereby the Secretary can police the grants that are given out under the
Act to ensure that federal funds are not used for impermissible purposes. Unlike some
other grant programs, in which aid might be given out in one-time grants without ongoing
supervision by the Government, the programs established under the authority of the
AFLA can be monitored to determine whether the funds are, in effect, being used by
the grantees in such a way as to advance religion. Given this statutory scheme, we
do not think that the absence of an express limitation on the use of federal funds
for religious purposes means that the statute, on its face, has the primary effect
of advancing religion.
This, of course, brings us to the third prong of the Lemon Establishment Clause "test"
- the question whether the AFLA leads to "`an excessive government entanglement with
religion.'" Lemon, 403 U.S., at 613 (quoting Walz v. Tax Comm'n, 397 U.S., at 674
). There is no doubt that the monitoring of AFLA grants is necessary if the Secretary
is to ensure that public money is to be spent in the way that Congress intended and
in a way that comports with the Establishment Clause. Accordingly, this litigation
presents us with yet another "Catch-22" argument: the very supervision of the aid
to assure that it does not further religion renders the statute invalid. See Aguilar
v. Felton, 473 U.S., at 421 (REHNQUIST, J., dissenting); id., at 418 (Powell, J.,
concurring) [487 U.S. 589, 616] (interaction of entanglement and effects tests forces
schools "to tread an extremely narrow line"); Roemer, 426 U.S., at 768 -769 (WHITE,
J., concurring in judgment). For this and other reasons, the "entanglement" prong
of the Lemon test has been much criticized over the years. See, e. g., Aguilar v.
Felton, supra, at 429 (O'CONNOR, J., dissenting); Wallace v. Jaffree, 472 U.S. 38,
109 -110 (1985) (REHNQUIST, J., dissenting); Lynch v. Donnelly, 465 U.S., at 689 (O'CONNOR,
J., concurring); Lemon, supra, at 666-668 (WHITE, J., concurring and dissenting).
Most of the cases in which the Court has divided over the "entanglement" part of the
Lemon test have involved aid to parochial schools; in Aguilar v. Felton, for example,
the Court's finding of excessive entanglement rested in large part on the undisputed
fact that the elementary and secondary schools receiving aid were "pervasively sectarian"
and had "`as a substantial purpose the inculcation of religious values.'" 473 U.S.,
at 411 (quoting Nyquist, 413 U.S., at 768 ); see also 473 U.S., at 411 (expressly
distinguishing Roemer, Hunt, and Tilton as cases involving aid to institutions that
were not pervasively sectarian). In Aguilar, the Court feared that an adequate level
of supervision would require extensive and permanent on-site monitoring, 473 U.S.,
at 412 -413, and would threaten both the "freedom of religious belief of those who
[were] not adherents of that denomination" and the "freedom of . . . the adherents
of the denomination." Id., at 409-410.
Here, by contrast, there is no reason to assume that the religious organizations
which may receive grants are "pervasively sectarian" in the same sense as the Court
has held parochial schools to be. There is accordingly no reason to fear that the
less intensive monitoring involved here will cause the Government to intrude unduly
in the day-to-day operation of the religiously affiliated AFLA grantees. Unquestionably,
the Secretary will review the programs set up and run by the AFLA grantees, and undoubtedly
this will involve a review of, for example, the educational materials that a [487
U.S. 589, 617] grantee proposes to use. The Secretary may also wish to have Government
employees visit the clinics or offices where AFLA programs are being carried out to
see whether they are in fact being administered in accordance with statutory and constitutional
requirements. But in our view, this type of grant monitoring does not amount to "excessive
entanglement," at least in the context of a statute authorizing grants to religiously
affiliated organizations that are not necessarily "pervasively sectarian." 14
In sum, in this somewhat lengthy discussion of the validity of the AFLA on its face,
we have concluded that the statute has a valid secular purpose, does not have the
primary effect of advancing religion, and does not create an excessive entanglement
of church and state. We note, as is proper given the traditional presumption in favor
of the constitutionality of statutes enacted by Congress, that our conclusion that
the statute does not violate the Establishment Clause is consistent with the conclusion
Congress reached in the course of its deliberations on the AFLA. As the Senate Committee
Report states:
"In the committee's view, provisions for the involvement of religious organizations
[in the AFLA] do not violate the constitutional separation between church and state.
Recognizing the limitations of Government in dealing with a problem that has complex
moral and social dimensions, the committee believes that promoting the involvement
of religious organizations in the solution to [487 U.S. 589, 618] these problems is
neither inappropriate or illegal." Senate Report, at 15-16.
For the foregoing reasons we conclude that the AFLA does not violate the Establishment
Clause "on its face."
III
We turn now to consider whether the District Court correctly ruled that the AFLA
was unconstitutional as applied. Our first task in this regard is to consider whether
appellees had standing to raise this claim. In Flast v. Cohen, 392 U.S. 83 (1968),
we held that federal taxpayers have standing to raise Establishment Clause claims
against exercises of congressional power under the taxing and spending power of Article
I, 8, of the Constitution. Although we have considered the problem of standing and
Article III limitations on federal jurisdiction many times since then, we have consistently
adhered to Flast and the narrow exception it created to the general rule against taxpayer
standing established in Frothingham v. Mellon, 262 U.S. 447 (1923). Accordingly, in
this case there is no dispute that appellees have standing to raise their challenge
to the AFLA on its face. What is disputed, however, is whether appellees also have
standing to challenge the statute as applied. The answer to this question turns on
our decision in Valley Forge Christian College v. Americans United for Separation
of Church & State, Inc., 454 U.S. 464 (1982). In Valley Forge, we ruled that taxpayers
did not have standing to challenge a decision by the Secretary of Health, Education,
and Welfare (HEW) to dispose of certain property pursuant to the Federal Property
and Administrative Services Act of 1949, 63 Stat. 377, as amended, 40 U.S.C. 471 et
seq. We rejected the taxpayers' claim of standing for two reasons: first, because
"the source of their complaint is not a congressional action, but a decision by HEW
to transfer a parcel of federal property," 454 U.S., at 479 , and second, because
"the property transfer about which [the taxpayers] complain was not an exercise of
[487 U.S. 589, 619] authority conferred by the Taxing and Spending Clause of Art.
I, 8," id., at 480. Appellants now contend that appellees' standing in this case is
deficient for the former reason; they argue that a challenge to the AFLA "as applied"
is really a challenge to executive action, not to an exercise of congressional authority
under the Taxing and Spending Clause. We do not think, however, that appellees' claim
that AFLA funds are being used improperly by individual grantees is any less a challenge
to congressional taxing and spending power simply because the funding authorized by
Congress has flowed through and been administered by the Secretary. Indeed, Flast
itself was a suit against the Secretary of HEW, who had been given the authority under
the challenged statute to administer the spending program that Congress had created.
In subsequent cases, most notably Tilton, we have not questioned the standing of taxpayer
plaintiffs to raise Establishment Clause challenges, even when their claims raised
questions about the administratively made grants. See Tilton, 403 U.S., at 676 ; see
also Hunt, 413 U.S., at 735 -736 (not questioning standing of state taxpayer to file
suit against state executive in an "as applied" challenge); Roemer, 426 U.S., at 744
(same). This is not a case like Valley Forge, where the challenge was to an exercise
of executive authority pursuant to the Property Clause of Article IV, 3, see 454 U.S.,
at 480 , or Schlesinger v. Reservists Committee to Stop the War, 418 U.S. 208, 228
(1974), where the plaintiffs challenged the executive decision to allow Members of
Congress to maintain their status as officers of the Armed Forces Reserve. See also
United States v. Richardson, 418 U.S. 166, 175 (1974) (rejecting standing in challenge
to statutes regulating the Central Intelligence Agency's accounting and reporting
requirements). Nor is this, as we stated in Flast, a challenge to "an incidental expenditure
of tax funds in the administration of an essentially regulatory statute." 392 U.S.,
at 102 . The AFLA is at heart a program of disbursement of funds pursuant to Congress'
[487 U.S. 589, 620] taxing and spending powers, and appellees' claims call into question
how the funds authorized by Congress are being disbursed pursuant to the AFLA's statutory
mandate. In this litigation there is thus a sufficient nexus between the taxpayer's
standing as a taxpayer and the congressional exercise of taxing and spending power,
notwithstanding the role the Secretary plays in administering the statute. 15
On the merits of the "as applied" challenge, it seems to us that the District Court
did not follow the proper approach in assessing appellees' claim that the Secretary
is making grants under the Act that violate the Establishment Clause of the First
Amendment. Although the District Court stated several times that AFLA aid had been
given to religious organizations that were "pervasively sectarian," see 657 F. Supp.,
at 1564, 1565, 1567, it did not identify which grantees it was referring to, nor did
it discuss with any particularity the aspects of those organizations which in its
view warranted classification as "pervasively sectarian." 16 The District Court did
identify certain instances in which it felt AFLA funds were used for constitutionally
improper purposes, but in our view the court did not adequately design its remedy
to address the specific problems it found in the Secretary's administration of the
statute. Accordingly, although there is no dispute that the record contains evidence
of specific incidents of impermissible behavior by AFLA grantees, we feel that this
lawsuit should be remanded to the District [487 U.S. 589, 621] Court for consideration
of the evidence presented by appellees insofar as it sheds light on the manner in
which the statute is presently being administered. It is the latter inquiry to which
the court must direct itself on remand.
In particular, it will be open to appellees on remand to show that AFLA aid is flowing
to grantees that can be considered "pervasively sectarian" religious institutions,
such as we have held parochial schools to be. See Hunt, supra, at 743. As our previous
discussion has indicated, and as Tilton, Hunt, and Roemer make clear, it is not enough
to show that the recipient of a challenged grant is affiliated with a religious institution
or that it is "religiously inspired."
The District Court should also consider on remand whether in particular cases AFLA
aid has been used to fund "specifically religious activit[ies] in an otherwise substantially
secular setting." Hunt, supra, at 743. In Hunt, for example, we deemed it important
that the conditions on which the aid was granted were sufficient to preclude the possibility
that funds would be used for the construction of a building used for religious purposes.
Here it would be relevant to determine, for example, whether the Secretary has permitted
AFLA grantees to use materials that have an explicitly religious content or are designed
to inculcate the views of a particular religious faith. As we have pointed out in
our previous discussion, evidence that the views espoused on questions such as premarital
sex, abortion, and the like happen to coincide with the religious views of the AFLA
grantee would not be sufficient to show that the grant funds are being used in such
a way as to have a primary effect of advancing religion.
If the District Court concludes on the evidence presented that grants are being made
by the Secretary in violation of the Establishment Clause, it should then turn to
the question of the appropriate remedy. We deal here with a funding statute with respect
to which Congress has expressed the view that the use of funds by grantees to promote
religion, [487 U.S. 589, 622] or to teach religious doctrines of a particular sect,
would be contrary to the intent of the statute. See S. Rep. No. 98-496, p. 10 (1984).
The Secretary has promulgated a series of conditions to each grant, including a prohibition
against teaching or promoting religion. See App. 757. While these strictures may not
be coterminous with the requirements of the Establishment Clause, they make it very
likely that any particular grant which would violate the Establishment Clause would
also violate the statute and the grant conditions imposed by the Secretary. Should
the court conclude that the Secretary has wrongfully approved certain AFLA grants,
an appropriate remedy would require the Secretary to withdraw such approval.
IV
We conclude, first, that the District Court erred in holding that the AFLA is invalid
on its face, and second, that the court should consider on remand whether particular
AFLA grants have had the primary effect of advancing religion. Should the court conclude
that the Secretary's current practice does allow such grants, it should devise a remedy
to insure that grants awarded by the Secretary comply with the Constitution and the
statute. The judgment of the District Court is accordingly
Reversed.
Footnotes
[ Footnote 1 ] In addition to these services, the AFLA also provides funding for
research projects. See 300z(b)(4)-(6), 300z-7. This aspect of the statute is not involved
in this case.
[ Footnote 2 ] Section 300z-1(a)(4) provides in full:
"(4) `necessary services' means services which may be provided by grantees which
are -
"(A) pregnancy testing and maternity counseling;
"(B) adoption counseling and referral services which present adoption as an option
for pregnant adolescents, including referral to licensed adoption agencies in the
community if the eligible grant recipient is not a licensed adoption agency;
"(C) primary and preventive health services including prenatal and postnatal care;
"(D) nutrition information and counseling;
"(E) referral for screening and treatment of venereal disease;
"(F) referral to appropriate pediatric care; [487 U.S. 589, 595]
"(G) educational services relating to family life and problems associated with adolescent
premarital sexual relations, including -
"(i) information about adoption;
"(ii) education on the responsibilities of sexuality and parenting;
"(iii) the development of material to support the role of parents as the provider
of sex education; and
"(iv) assistance to parents, schools, youth agencies, and health providers to educate
adolescents and preadolescents concerning self-discipline and responsibility in human
sexuality;
"(H) appropriate educational and vocational services and referral to such services;
"(I) referral to licensed residential care or maternity home services; and
"(J) mental health services and referral to mental health services and to other appropriate
physical health services;
"(K) child care sufficient to enable the adolescent parent to continue education
or to enter into employment;
"(L) consumer education and homemaking;
"(M) counseling for the immediate and extended family members of the eligible person;
"(N) transportation;
"(O) outreach services to families of adolescents to discourage sexual relations
among unemancipated minors;
"(P) family planning services; and
"(Q) such other services consistent with the purposes of this subchapter as the Secretary
may approve in accordance with regulations promulgated by the Secretary."
[ Footnote 3 ] Section 300z-10(a) reads in full:
"Grants or payments may be made only to programs or projects which do not provide
abortions or abortion counseling or referral, or which do not subcontract with or
make any payment to any person who provides abortions or abortion counseling or referral,
except that any such program or project may provide referral for abortion counseling
to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent
request such referral; and grants may be made only to projects or programs which do
not advocate, promote, or encourage abortion."
[ Footnote 4 ] On October 2, 1984, the District Court allowed United Families of
America (UFA) to intervene and participate as a defendant-intervenor in support of
the constitutionality of the AFLA.
[ Footnote 5 ] The court rejected appellees' claim that a strict-scrutiny standard
should apply to the AFLA because the statute's restriction of funding to organizations
that oppose abortion explicitly and deliberately discriminates among religious denominations.
See Larson v. Valente, 456 U.S. 228 (1982). The court found that the AFLA does not
precondition the award of a grant on a grantee's having a particular religious belief;
it merely restricts the grantees from using federal tax dollars to advocate a certain
course of action. See 300z-10. While the AFLA's restriction on the advocacy of abortion
does coincide with certain religious beliefs, that fact by itself did not, in the
District Court's opinion, trigger the application of strict scrutiny under Larson.
This aspect of the District Court's opinion has not been challenged on this appeal.
[ Footnote 6 ] Prior to this, the court reviewed "the motions, the statements of
material fact not in dispute, the allegations of disputed facts, the golconda of documents
submitted to the Court, and the case law," and concluded that the material facts were
not in dispute and that summary judgment would be proper. 657 F. Supp., at 1554.
[ Footnote 7 ] The court also found that the AFLA's funding of religious organizations
is likely to incite political divisiveness. See id., at 1569 (citing, e. g., Lynch
v. Donnelly, 465 U.S. 668, 689 (1984) (O'CONNOR, J., concurring)).
[ Footnote 8 ] We also see no reason to conclude that the AFLA serves an impermissible
religious purpose simply because some of the goals of the statute coincide with the
beliefs of certain religious organizations. See Harris v. McRae, 448 U.S. 297, 319
-320 (1980); McGowan v. Maryland, 366 U.S. 420, 442 (1961).
[ Footnote 9 ] Indeed, the legislative history shows that Congress was aware that
religious organizations had been grantees under Title VI and that it did not disapprove
of that practice. The Senate Report, at 16, states:
"It should be noted that under current law [Title VI], the Office of Adolescent Pregnancy
Programs has made grants to two religious-affiliated organizations, two Christian
organizations and several other groups that are [487 U.S. 589, 605] indirectly affiliated
with religious bodies. Religious affiliation is not a criterion for selection as a
grantee under the adolescent family life program, but any such grants made by the
Secretary would be a simple recognition that nonprofit religious organizations have
a role to play in the provision of services to adolescents."
[ Footnote 10 ] One witness before the Senate Committee testified that "projects
which target hispanic and other minority populations are more accepted by the population
if they include sectarian, as well as non-sectarian, organizations in the delivery
of those services." S. Rep. No. 98-496, p. 10 (1984). This indicates not that sectarian
grantees are particularly well qualified to perform AFLA services, but that the inclusion
of both secular and sectarian grantees can improve the effectiveness of the Act's
programs.
[ Footnote 11 ] This undercuts any argument that religion has been "advanced" simply
because AFLA added to Title VI the various references to religious organizations.
As we noted previously, the amendments to Title VI were motivated by the secular purpose
of increasing community involvement in the problems associated with adolescent sexuality.
Although the AFLA amendments may have the effect of increasing the role of religious
organizations in services provided under the AFLA, at least relative to services provided
under Title VI, this reflects merely the fact that the AFLA program as a whole was
expanded, with the role of all community organizations being increased as a result.
This expansion of programs available under the AFLA, as opposed to Title VI, has only
the "incidental" effect, if that, of advancing religion.
[ Footnote 12 ] The validity of this observation is borne out by the statistics for
the AFLA program in fiscal year 1986. According to the record of funding for that
year, some $10.7 million in funding was awarded under the AFLA to a total of 86 organizations.
Of this, about $3.3 million went to 23 religiously [487 U.S. 589, 611] affiliated
grantees, with only $1.3 million of this figure going to the 13 projects that were
cited by the District Court for constitutional violations. App. 748-756. Of these
13 projects, 4 appear to be state or local government organizations, and at least
1 is a hospital. Id., at 755. Of the 13 religiously affiliated organizations listed,
2 are universities. Id., at 756.
[ Footnote 13 ] Section 300z-3 does, however, expressly define the uses to which
federal funds may be put, including providing care and prevention services to eligible
individuals. Nowhere in this section is it suggested that use of funds for religious
purposes would be permissible.
[ Footnote 14 ] We also disagree with the District Court's conclusion that the AFLA
is invalid because it is likely to create political division along religious lines.
See 657 F. Supp., at 1569. It may well be that because of the importance of the issues
relating to adolescent sexuality there may be a division of opinion along religious
lines as well as other lines. But the same may be said of a great number of other
public issues of our day. In addition, as we said in Mueller v. Allen, 463 U.S. 388,
404 , n. 11 (1983), the question of "political divisiveness" should be "regarded as
confined to cases where direct financial subsidies are paid to parochial schools or
to teachers in parochial schools."
[ Footnote 15 ] Because we find that the taxpayer appellees have standing, we need
not consider the standing of the clergy or the American Jewish Congress.
[ Footnote 16 ] The closest the court came was to identify "at least ten AFLA grantees
or subgrantees [that] were themselves `religious organizations,' in the sense that
they have explicit corporate ties to a particular religious faith and by-laws or policies
that prohibit any deviation from religious doctrine." 657 F. Supp., at 1565. While
these factors are relevant to the determination of whether an institution is "pervasively
sectarian," they are not conclusive, and we do not find the court's conclusion that
these institutions are "religious organizations" to be equivalent to a finding that
their secular purposes and religious mission are "inextricably intertwined."
JUSTICE O'CONNOR, concurring.
This litigation raises somewhat unusual questions involving a facially valid statute
that appears to have been administered in a way that led to violations of the Establishment
Clause. I agree with the Court's resolution of those questions, and I join its opinion.
I write separately, however, to explain why I do not believe that the Court's approach
reflects any tolerance for the kind of improper administration that seems to have
occurred in the Government program at issue here.
The dissent says, and I fully agree, that "[p]ublic funds may not be used to endorse
the religious message." Post, at [487 U.S. 589, 623] 642. As the Court notes, "there
is no dispute that the record contains evidence of specific incidents of impermissible
behavior by AFLA grantees." Ante, at 620. Because the District Court employed an analytical
framework that did not require a detailed discussion of the voluminous record, the
extent of this impermissible behavior and the degree to which it is attributable to
poor administration by the Executive Branch is somewhat less clear. In this circumstance,
two points deserve to be emphasized. First, any use of public funds to promote religious
doctrines violates the Establishment Clause. Second, extensive violations - if they
can be proved in this case - will be highly relevant in shaping an appropriate remedy
that ends such abuses. For that reason, appellees may yet prevail on remand, and I
do not believe that the Court's approach entails a relaxation of "the unwavering vigilance
that the Constitution requires against any law `respecting an establishment of religion.'"
See post, at 648 (quoting U.S. Const., Amdt. 1); cf. post, at 630, n. 4.
The need for detailed factual findings by the District Court stems in part from the
delicacy of the task given to the Executive Branch by the Adolescent Family Life Act
(AFLA). Government has a strong and legitimate secular interest in encouraging sexual
restraint among young people. At the same time, as the dissent rightly points out,
"[t]here is a very real and important difference between running a soup kitchen or
a hospital, and counseling pregnant teenagers on how to make the difficult decisions
facing them." Post, at 641. Using religious organizations to advance the secular goals
of the AFLA, without thereby permitting religious indoctrination, is inevitably more
difficult than in other projects, such as ministering to the poor and the sick. I
nonetheless agree with the Court that the partnership between governmental and religious
institutions contemplated by the AFLA need not result in constitutional violations,
despite an undeniably greater risk than is present in cooperative undertakings that
involve less sensitive objectives. If the District Court finds [487 U.S. 589, 624]
on remand that grants are being made in violation of the Establishment Clause, an
appropriate remedy would take into account the history of the program's administration
as well as the extent of any continuing constitutional violations.
JUSTICE KENNEDY, with whom JUSTICE SCALIA joins, concurring.
I join the Court's opinion, and write this separate concurrence to discuss one feature
of the proceedings on remand. The Court states that "it will be open to appellees
on remand to show that AFLA aid is flowing to grantees that can be considered `pervasively
sectarian' religious institutions, such as we have held parochial schools to be."
Ante, at 621. In my view, such a showing will not alone be enough, in an as-applied
challenge, to make out a violation of the Establishment Clause.
Though I am not confident that the term "pervasively sectarian" is a well-founded
juridical category, I recognize the thrust of our previous decisions that a statute
which provides for exclusive or disproportionate funding to pervasively sectarian
institutions may impermissibly advance religion and as such be invalid on its face.
We hold today, however, that the neutrality of the grant requirements and the diversity
of the organizations described in the statute before us foreclose the argument that
it is disproportionately tied to pervasively sectarian groups. Ante, at 610-611. Having
held that the statute is not facially invalid, the only purpose of further inquiring
whether any particular grantee institution is pervasively sectarian is as a preliminary
step to demonstrating that the funds are in fact being used to further religion. In
sum, where, as in this litigation, a statute provides that the benefits of a program
are to be distributed in a neutral fashion to religious and nonreligious applicants
alike, and the program withstands a facial challenge, it is not unconstitutional as
applied solely by reason of the religious character of a specific recipient. The question
in an as-applied challenge is not [487 U.S. 589, 625] whether the entity is of a religious
character, but how it spends its grant.
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS
join, dissenting.
In 1981, Congress enacted the Adolescent Family Life Act (AFLA), 95 Stat. 578, 42
U.S.C. 300z et seq. (1982 ed. and Supp. IV), thereby "involv[ing] families[,] . .
. religious and charitable organizations, voluntary associations, and other groups,"
300z-5(a)(21), in a broad-scale effort to alleviate some of the problems associated
with teenage pregnancy. It is unclear whether Congress ever envisioned that public
funds would pay for a program during a session of which parents and teenagers would
be instructed:
"You want to know the church teachings on sexuality. . . . You are the church. You
people sitting here are the body of Christ. The teachings of you and the things you
value are, in fact, the values of the Catholic Church." App. 226.
Or of curricula that taught:
"The Church has always taught that the marriage act, or intercourse, seals the union
of husband and wife, (and is a representation of their union on all levels.) Christ
commits Himself to us when we come to ask for the sacrament of marriage. We ask Him
to be active in our life. God is love. We ask Him to share His love in ours, and God
procreates with us, He enters into our physical union with Him, and we begin new life."
Id., at 372.
Or the teaching of a method of family planning described on the grant application
as "not only a method of birth regulation but also a philosophy of procreation," id.,
at 143, and promoted as helping "spouses who are striving . . . to transform their
married life into testimony[,] . . . to cultivate their matrimonial spirituality[,
and] to make themselves better instruments [487 U.S. 589, 626] in God's plan," and
as "facilitat[ing] the evangelization of homes." Id., at 385.
Whatever Congress had in mind, however, it enacted a statute that facilitated and,
indeed, encouraged the use of public funds for such instruction, by giving religious
groups a central pedagogical and counseling role without imposing any restraints on
the sectarian quality of the participation. As the record developed thus far in this
litigation makes all too clear, federal tax dollars appropriated for AFLA purposes
have been used, with Government approval, to support religious teaching. Today the
majority upholds the facial validity of this statute and remands the action to the
District Court for further proceedings concerning appellees' challenge to the manner
in which the statute has been applied. Because I am firmly convinced that our cases
require invalidating this statutory scheme, I dissent.
I
The District Court, troubled by the lack of express guidance from this Court as to
the appropriate manner in which to examine Establishment Clause challenges to an entire
statute as well as to specific instances of its implementation, reluctantly proceeded
to analyze the AFLA both "on its face" and "as applied." Thereafter, on cross-motions
for summary judgment supported by an extensive record of undisputed facts, the District
Court applied the three-pronged analysis of Lemon v. Kurtzman, 403 U.S. 602 (1971),
and declared the AFLA unconstitutional both facially and as applied. 657 F. Supp.
1547 (DC 1987). The majority acknowledges that this Court in some cases has passed
on the facial validity of a legislative enactment and in others limited its analysis
to the particular applications at issue; yet, while confirming that the District Court
was justified in analyzing the AFLA both ways, the Court fails to elaborate on the
consequences that flow from the analytical division. [487 U.S. 589, 627]
While the distinction is sometimes useful in constitutional litigation, the majority
misuses it here to divide and conquer appellees' challenge. 1 By designating appellees'
broad attack on the statute as a "facial" challenge, the majority justifies divorcing
its analysis from the extensive record developed in the District Court, and thereby
strips the challenge of much of its force and renders the evaluation of the Lemon
"effects" prong particularly sterile and meaningless. By characterizing appellees'
objections to the real-world operation of the AFLA an "as-applied" challenge, the
Court risks misdirecting the litigants and the lower courts toward piece-meal litigation
continuing indefinitely throughout the life of the AFLA. In my view, a more effective
way to review Establishment Clause challenges is to look to the type of relief [487
U.S. 589, 628] prayed for by the plaintiffs, and the force of the arguments and supporting
evidence they marshal. Whether we denominate a challenge that focuses on the systematically
unconstitutional operation of a statute a "facial" challenge - because it goes to
the statute as a whole - or an "as-applied" challenge - because we rely on real-world
events - the Court should not blind itself to the facts revealed by the undisputed
record. 2
As is evident from the parties' arguments, the record compiled below, and the decision
of the District Court, this law-suit has been litigated primarily as a broad challenge
to the statutory scheme as a whole, not just to the awarding of grants to a few individual
applicants. The thousands of pages of depositions, affidavits, and documentary evidence
were not intended to demonstrate merely that particular grantees should not receive
further funding. Indeed, because of the 5-year grant cycle, some of the original grantees
are no longer AFLA participants. This record was designed to show that the AFLA had
been interpreted and implemented by the Government in a manner that was clearly unconstitutional,
and appellees sought declaratory and injunctive relief as to the entire statute. [487
U.S. 589, 629]
In discussing appellees' as-applied challenge, the District Court recognized that
their objections went further than the validity of the particular grants under review:
"The undisputed record before the Court transforms the inherent conflicts between
the AFLA and the Constitution into reality. . . . While the Court will not engage
in an exhaustive recitation of the record, references to representative portions of
the record reveal the extent to which the AFLA has in fact `directly and immediately'
advanced religion, funded `pervasively sectarian' institutions, or permitted the use
of federal tax dollars for education and counseling that amounts to the teaching of
religion." 657 F. Supp., at 1564 (footnote omitted).
The majority declines to accept the District Court's characterization of the record,
yet fails to review it independently, relying instead on its assumptions and casual
observations about the character of the grantees and potential grantees. 3 [487 U.S.
589, 630] See ante, at 610, 611-612, 616-617. In doing so, the Court neglects its
responsibilities under the Establishment Clause and gives uncharacteristically short
shrift to the District Court's understanding of the facts. 4
II
Before proceeding to apply Lemon's three-part analysis to the AFLA, I pause to note
a particular flaw in the majority's method. A central premise of the majority opinion
seems to be that the primary means of ascertaining whether a statute that appears
to be neutral on its face in fact has the effect of advancing religion is to determine
whether aid flows to "pervasively sectarian" institutions. See ante, at 609-610, 616,
621. This misplaced focus leads the majority to ignore the substantial body of case
law the Court has developed in analyzing programs providing direct aid to parochial
schools, [487 U.S. 589, 631] and to rely almost exclusively on the few cases in which
the Court has upheld the supplying of aid to private colleges, including religiously
affiliated institutions.
"Pervasively sectarian," a vaguely defined term of art, has its roots in this Court's
recognition that government must not engage in detailed supervision of the inner workings
of religious institutions, and the Court's sensible distaste for the "picture of state
inspectors prowling the halls of parochial schools and auditing classroom instruction,"
Lemon v. Kurtzman, 403 U.S., at 650 (BRENNAN, J., concurring); see also Aguilar v.
Felton, 473 U.S. 402, 411 (1985); Roemer v. Maryland Public Works Board, 426 U.S.
736, 762 (1976) (plurality opinion). Under the "effects" prong of the Lemon test,
the Court has used one variant or another of the pervasively sectarian concept to
explain why any but the most indirect forms of government aid to such institutions
would necessarily have the effect of advancing religion. For example, in Meek v. Pittenger,
421 U.S. 349, 365 (1975), the Court explained:
"[I]t would simply ignore reality to attempt to separate secular educational functions
from the predominantly religious role performed by many of Pennsylvania's church-related
elementary and secondary schools and to then characterize Act 195 as channeling aid
to the secular without providing direct aid to the sectarian."
See also Hunt v. McNair, 413 U.S. 734, 743 (1973).
The majority first skews the Establishment Clause analysis by adopting a cramped
view of what constitutes a pervasively sectarian institution. Perhaps because most
of the Court's decisions in this area have come in the context of aid to parochial
schools, which traditionally have been characterized as pervasively sectarian, the
majority seems to equate the characterization with the institution. 5 In support of
that [487 U.S. 589, 632] illusion, the majority relies heavily on three cases in which
the Court has upheld direct government funding to liberal arts colleges with some
religious affiliation, noting that such colleges were not "pervasively sectarian."
But the happenstance that the few cases in which direct-aid statutes have been upheld
have concerned religiously affiliated liberal arts colleges no more suggests that
only parochial schools should be considered "pervasively sectarian," than it suggests
that the only religiously affiliated institutions that may ever receive direct government
funding are private liberal arts colleges. In fact, the cases on which the majority
relies have stressed that the institutions' "predominant higher education mission
is to provide their students with a secular education." Tilton v. Richardson, 403
U.S. 672, 687 (1971) (emphasis added); see Roemer v. Maryland Public Works Board,
426 U.S., at 755 (noting "high degree of institutional autonomy" and that "the encouragement
of spiritual development is only one secondary objective of each college") (internal
quotations omitted); Hunt v. McNair, 413 U.S., at 744 (finding "no basis to conclude
that the College's operations are oriented significantly towards sectarian rather
than secular education"). In sharp contrast, the District Court here concluded that
AFLA grantees and participants included "organizations with institutional ties to
religious denominations and corporate requirements that the organizations abide by
and not contradict religious doctrines. In addition, other recipients of AFLA funds,
while not explicitly affiliated with a religious denomination, are religiously inspired
and dedicated to teaching the dogma that inspired them" (emphasis [487 U.S. 589, 633]
added). 657 F. Supp., at 1564. On a continuum of "sectarianism" running from parochial
schools at one end to the colleges funded by the statutes upheld in Tilton, Hunt,
and Roemer at the other, the AFLA grantees described by the District Court clearly
are much closer to the former than to the latter.
More importantly, the majority also errs in suggesting that the inapplicability of
the label is generally dispositive. While a plurality of the Court has framed the
inquiry as "whether an institution is so `pervasively sectarian' that it may receive
no direct state aid of any kind," Roemer v. Maryland Public Works Board, 426 U.S.,
at 758 , the Court never has treated the absence of such a finding as a license to
disregard the potential for impermissible fostering of religion. The characterization
of an institution as "pervasively sectarian" allows us to eschew further inquiry into
the use that will be made of direct government aid. In that sense, it is a sufficient,
but not a necessary, basis for a finding that a challenged program creates an unacceptable
Establishment Clause risk. The label thus serves in some cases as a proxy for a more
detailed analysis of the institution, the nature of the aid, and the manner in which
the aid may be used.
The voluminous record compiled by the parties and reviewed by the District Court
illustrates the manner in which the AFLA has been interpreted and implemented by the
agency responsible for the aid program, and eliminates whatever need there might be
to speculate about what kind of institutions might receive funds and how they might
be selected; the record explains the nature of the activities funded with Government
money, as well as the content of the educational programs and materials developed
and disseminated. There is no basis for ignoring the volumes of depositions, pleadings,
and undisputed facts reviewed by the District Court simply because the recipients
of the Government funds may not in every sense resemble parochial schools. [487 U.S.
589, 634]
III
As is often the case, it is the effect of the statute, rather than its purpose, that
creates Establishment Clause problems. Because I have no meaningful disagreement with
the majority's discussion of the AFLA's essentially secular purpose, and because I
find the statute's effect of advancing religion dispositive, I turn to that issue
directly.
A
The majority's holding that the AFLA is not unconstitutional on its face marks a
sharp departure from our precedents. While aid programs providing nonmonetary, verifiably
secular aid have been upheld notwithstanding the indirect effect they might have on
the allocation of an institution's own funds for religious activities, see, e. g.,
Board of Education v. Allen, 392 U.S. 236 (1968) (lending secular textbooks to parochial
schools); Everson v. Board of Education, 330 U.S. 1 (1947) (providing bus services
to parochial schools), direct cash subsidies have always required much closer scrutiny
into the expected and potential uses of the funds, and much greater guarantees that
the funds would not be used inconsistently with the Establishment Clause. Parts of
the AFLA prescribing various forms of outreach, education, and counseling services
6 specifically authorize the expenditure of funds in ways previously held unconstitutional.
For example, the Court has upheld the use of public funds to support a parochial school's
purchase of secular textbooks already approved for use in public schools, see Wolman
v. Walter, 433 U.S. 229, 236 -238 (1977); Meek v. Pittenger, 421 U.S., at 359 -362,
or its grading and administering of state-prepared tests, Committee for Public Education
& Religious Liberty v. Regan, 444 U.S. 646 (1980). When the books, teaching materials,
or examinations were to [487 U.S. 589, 635] be selected or designed by the private
schools themselves, however, the Court consistently has held that such government
aid risked advancing religion impermissibly. See, e. g., Wolman v. Walter, 433 U.S.,
at 248 -251; Levitt v. Committee for Public Education & Religious Liberty, 413 U.S.
472 (1973); Lemon v. Kurtzman, 403 U.S., at 620 -621. The teaching materials that
may be purchased, developed, or disseminated with AFLA funding are in no way restricted
to those already selected and approved for use in secular contexts. 7
Notwithstanding the fact that Government funds are paying for religious organizations
to teach and counsel impressionable adolescents on a highly sensitive subject of considerable
religious significance, often on the premises of a church or parochial school and
without any effort to remove religious symbols from the sites, 657 F. Supp., at 1565-1566,
the majority concludes that the AFLA is not facially invalid. The majority acknowledges
the constitutional proscription on [487 U.S. 589, 636] government-sponsored religious
indoctrination but, on the basis of little more than an indefensible assumption that
AFLA recipients are not pervasively sectarian and consequently are presumed likely
to comply with statutory and constitutional mandates, dismisses as insubstantial the
risk that indoctrination will enter counseling. Ante, at 611-612. Similarly, the majority
rejects the District Court's conclusion that the subject matter renders the risk of
indoctrination unacceptable, and does so, it says, because "the likelihood that some
of the religious institutions who receive AFLA funding will agree with the message
that Congress intended to deliver to adolescents through the AFLA" does not amount
to the advancement of religion. Ante, at 613. I do not think the statute can be so
easily and conveniently saved.
(1)
The District Court concluded that asking religious organizations to teach and counsel
youngsters on matters of deep religious significance, yet expect them to refrain from
making reference to religion is both foolhardy and unconstitutional. The majority's
rejection of this view is illustrative of its doctrinal misstep in relying so heavily
on the college-funding cases. The District Court reasoned:
"To presume that AFLA counselors from religious organizations can put their beliefs
aside when counseling an adolescent on matters that are part of religious doctrine
is simply unrealistic. . . . Even if it were possible, government would tread impermissibly
on religious liberty merely by suggesting that religious organizations instruct on
doctrinal matters without any conscious or unconscious reference to that doctrine.
Moreover, the statutory scheme is fraught with the possibility that religious beliefs
might infuse instruction and never be detected by the impressionable and unlearned
adolescent to whom the instruction is directed" (emphasis in original). 657 F. Supp.,
at 1563. [487 U.S. 589, 637]
The majority rejects the District Court's assumptions as unwarranted outside the
context of a pervasively sectarian institution. In doing so, the majority places inordinate
weight on the nature of the institution receiving the funds, and ignores altogether
the targets of the funded message and the nature of its content.
I find it nothing less than remarkable that the majority relies on statements expressing
confidence that administrators of religiously affiliated liberal arts colleges would
not breach statutory proscriptions and use government funds earmarked "for secular
purposes only," to finance theological instruction or religious worship, see ante,
at 612, citing Roemer, 426 U.S., at 760 -761, and Tilton, 403 U.S., at 682 , in order
to reject a challenge based on the risk of indoctrination inherent in "educational
services relating to family life and problems associated with adolescent premarital
sexual relations," or "outreach services to families of adolescents to discourage
sexual relations among unemancipated minors." 300z-1(a)(4)(G), (O). The two situations
are simply not comparable. 8 [487 U.S. 589, 638]
The AFLA, unlike any statute this Court has upheld, pays for teachers and counselors,
employed by and subject to the direction of religious authorities, to educate impressionable
young minds on issues of religious moment. Time and again we have recognized the difficulties
inherent in asking even the best-intentioned individuals in such positions to make
"a total separation between secular teaching and religious doctrine." Lemon v. Kurtzman,
403 U.S., at 619 . Accord, Levitt v. Committee for Public Education & Religious Liberty,
413 U.S., at 481 ; Meek v. Pittenger, 421 U.S., at 370 -371; Roemer v. Maryland Public
Works Board, 426 U.S., at 749 (plurality opinion); Wolman v. Walter, 433 U.S., at
254 ; Grand Rapids School District v. Ball, 473 U.S. 373, 388 (1985). Where the targeted
audience is composed of children, of course, the Court's insistence on adequate safeguards
has always been greatest. See, e. g., Grand Rapids School District v. Ball, 473 U.S.,
at 383 , 390; Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S.
756, 796 -798 (1973), Lemon v. Kurtzman, 403 U.S., at 622 -624. In those cases in
which funding of colleges with religious affiliations has been upheld, the Court has
relied on the assumption that "college students are less impressionable and less susceptible
to religious indoctrination. . . . The skepticism of the college student is not an
inconsiderable barrier to any attempt or tendency to subvert the congressional objectives
and limitations" (footnote omitted). Tilton v. Richardson, 403 U.S., at 686 (plurality
opinion). See also Widmar v. Vincent, 454 U.S. 263, 274 , n. 14 (1981) ("University
students are, of course, young adults. They are less impressionable than younger students
and should be able to appreciate that the University's policy is one of neutrality
toward religion").
(2)
By observing that the alignment of the statute and the religious views of the grantees
do not render the AFLA a statute which funds "specifically religious activity," the
majority [487 U.S. 589, 639] makes light of the religious significance in the counseling
provided by some grantees. Yet this is a dimension that Congress specifically sought
to capture by enlisting the aid of religious organizations in battling the problems
associated with teenage pregnancy. See S. Rep. No. 97-161, pp. 15-16 (1981); S. Rep.
No. 98-496, pp. 9-10 (1984). Whereas there may be secular values promoted by the AFLA,
including the encouragement of adoption and premarital chastity and the discouragement
of abortion, it can hardly be doubted that when promoted in theological terms by religious
figures, those values take on a religious nature. Not surprisingly, the record is
replete with observations to that effect. 9 It [487 U.S. 589, 640] should be undeniable
by now that religious dogma may not be employed by government even to accomplish laudable
secular purposes such as "the promotion of moral values, the contradiction to the
materialistic trends of our times, the perpetuation of our institutions and the teaching
of literature." Abington School District v. Schempp, 374 U.S. 203, 223 (1963) (holding
unconstitutional daily reading of Bible verses and recitation of the Lord's Prayer
in public schools); Stone v. Graham, 449 U.S. 39 (1980) (holding unconstitutional
posting of Ten Commandments despite notation explaining secular application thereof).
10
It is true, of course, that the Court has recognized that the Constitution does not
prohibit the government from supporting secular social-welfare services solely because
they are provided by a religiously affiliated organization. See ante, at 609. But
such recognition has been closely tied to the nature of the subsidized social service:
"the State may send a [487 U.S. 589, 641] cleric, indeed even a clerical order, to
perform a wholly secular task" (emphasis added). Roemer v. Maryland Public Works Board,
426 U.S., at 746 (plurality opinion). There is a very real and important difference
between running a soup kitchen or a hospital, and counseling pregnant teenagers on
how to make the difficult decisions facing them. The risk of advancing religion at
public expense, and of creating an appearance that the government is endorsing the
medium and the message, is much greater when the religious organization is directly
engaged in pedagogy, with the express intent of shaping belief and changing behavior,
than where it is neutrally dispensing medication, food, or shelter. 11
There is also, of course, a fundamental difference between government's employing
religion because of its unique appeal to a higher authority and the transcendental
nature of its message, and government's enlisting the aid of religiously committed
individuals or organizations without regard to their sectarian motivation. In the
latter circumstance, religion plays little or no role; it merely explains why the
individual or organization has chosen to get involved in the publicly funded program.
In the former, religion is at the core of the subsidized activity, and it affects
the manner in which the "service" is dispensed. For some religious organizations,
[487 U.S. 589, 642] the answer to a teenager's question "Why shouldn't I have an abortion?"
or "Why shouldn't I use barrier contraceptives?" will undoubtedly be different from
an answer based solely on secular considerations. 12 Public funds may not be used
to endorse the religious message.
B
The problems inherent in a statutory scheme specifically designed to involve religious
organizations in a government-funded pedagogical program are compounded by the lack
of any statutory restrictions on the use of federal tax dollars to promote religion.
Conscious of the remarkable omission from the AFLA of any restriction whatsoever on
the use of public funds for sectarian purposes, the Court disingenuously argues that
we have "never stated that a statutory restriction is constitutionally required."
Ante, at 614. In Tilton v. Richardson, this Court upheld a statute providing grants
and loans to colleges for the construction of academic facilities because it "expressly
prohibit[ed] their use for religious instruction, training, or worship . . . and the
record show[ed] that some church-related institutions ha[d] been required to disgorge
benefits for failure to obey" the restriction, 403 U.S., at 679 -680, but severed
and struck a provision of the statute that permitted the restriction to lapse after
20 years. The Tilton Court noted that the statute required applicants to [487 U.S.
589, 643] provide assurances only that use of the funded facility would be limited
to secular purposes for the initial 20-year period, and that this limitation, "obviously
opens the facility to use for any purpose at the end of that period." Id., at 683.
Because they expired after 20 years, "the statute's enforcement provisions [were]
inadequate to ensure that the impact of the federal aid will not advance religion."
Id., at 682.
The majority interprets Tilton "to indicate that the constitutional limitations on
use of federal funds, as embodied in the statutory restriction, could not simply `expire'"
after 20 years, but concludes that the absence of a statutory restriction in the AFLA
is not troubling, because "there is also no intimation in the statute that at some
point, or for some grantees, religious uses are permitted." Ante, at 614. Although
there is something to the notion that the lifting of a pre-existing restriction may
be more likely to be perceived as affirmative authorization than would the absence
of any restriction at all, there was in Tilton no provision that stated that after
20 years facilities built under the aid program could be converted into chapels. What
there was in Tilton was an express statutory provision, which lapsed, leaving no restrictions;
it was that vacuum that the Court found constitutionally impermissible. In the AFLA,
by way of contrast, there is a vacuum right from the start. 13 [487 U.S. 589, 644]
If Tilton were indeed the only indication that cash-grant programs must include prohibitions
on the use of public funds to advance or endorse religion, one might argue more plausibly
that ordinary reporting requirements, in conjunction with some presumption that Government
agencies administer federal programs in a constitutional fashion, 14 might suffice
to [487 U.S. 589, 645] protect a statute against facial challenge. That, however,
is simply not the case. In Committee for Public Education & Religious Liberty v. Regan,
444 U.S. 646 (1980), for example, the Court upheld a state program whereby private
schools were reimbursed for the actual cost of administering state-required tests.
The statute specifically required that no payments be made for religious instruction
and incorporated an extensive auditing system. The Court warned, however: "Of course,
under the relevant cases the outcome would likely be different were there no effective
means for insuring that the cash reimbursements would cover only secular services."
Id., at 659. In this regard, the Regan Court merely echoed and reaffirmed what was
already well established. In Committee for Public Education & Religious Liberty v.
Nyquist, the Court explained:
"Nothing in the statute, for instance, bars a qualifying school from paying out of
state funds the salaries of employees who maintain the school chapel, or the cost
of renovating classrooms in which religion is taught, or the cost of heating and lighting
those same facilities. Absent appropriate restrictions on expenditures for these and
similar purposes, it simply cannot be denied that this section has a primary effect
that advances religion in that it subsidizes directly the religious activities of
sectarian elementary and secondary schools" (emphasis added). 413 U.S., at 774 . [487
U.S. 589, 646]
See id., at 780 ("In the absence of an effective means of guaranteeing that the state
aid derived from public funds will be used exclusively for secular, neutral, and nonideological
purposes, it is clear from our cases that direct aid in whatever form is invalid");
Lemon v. Kurtzman, 403 U.S., at 621 ("The history of government grants of a continuing
cash subsidy indicates that such programs have almost always been accompanied by varying
measures of control and surveillance"). See also Roemer v. Maryland Public Works Board,
426 U.S., at 760 (upholding grant program containing statutory restriction on using
state funds for "sectarian purposes"); Hunt v. McNair, 413 U.S., at 744 (noting that
the statute at issue "specifically states that a project `shall not include' any buildings
or facilities used for religious purposes"). 15
Despite the glaring omission of a restriction on the use of funds for religious purposes,
the Court attempts to resurrect the AFLA by noting a legislative intent not to promote
religion, and observing that various reporting provisions of the statute "create a
mechanism whereby the Secretary can police the grants." Ante, at 615. However effective
this "mechanism" might prove to be in enforcing clear statutory directives, it is
of no help where, as here, no restrictions are found on the face of the statute, and
the Secretary has not promulgated any by regulation. Indeed, the only restriction
[487 U.S. 589, 647] on the use of AFLA funds for religious purposes is found in the
Secretary's "Notice of Grant Award" sent to grantees, which specifies that public
funds may not be used to "teach or promote religion," 657 F. Supp., at 1563, n. 13,
and apparently even that clause was not inserted until after this litigation was underway.
Furthermore, the "enforcement" of the limitation on sectarian use of AFLA funds, such
as it is, lacks any bite. There is no procedure pursuant to which funds used to promote
religion must be refunded to the Government, as there was, for example, in Tilton
v. Richardson, 403 U.S., at 682 .
Indeed, nothing in the AFLA precludes the funding of even "pervasively sectarian"
organizations, whose work by definition cannot be segregated into religious and secular
categories. And, unlike a pre-enforcement challenge, where there is no record to review,
or a limited challenge to a specific grant, where the Court is reluctant to invalidate
a statute "in anticipation that particular applications may result in unconstitutional
use of funds," Roemer v. Maryland Public Works Board, 426 U.S., at 761 , in this litigation
the District Court expressly found that funds have gone to pervasively sectarian institutions
and tax dollars have been used for the teaching of religion. 657 F. Supp., at 1564.
Moreover, appellees have specifically called into question the manner in which the
grant program was administered and grantees were selected. See n. 14, supra. These
objections cannot responsibly be answered by reliance on the Secretary's enforcement
mechanism. See, e. g., Levitt v. Committee for Public Education & Religious Liberty,
413 U.S., at 480 ("[T]he State is constitutionally compelled to assure that the state-supported
activity is not being used for religious indoctrination"); Lemon v. Kurtzman, 403
U.S., at 619 ("The State must be certain, given the Religion Clauses, that subsidized
teachers do not inculcate religion"). [487 U.S. 589, 648]
C
By placing unsupportable weight on the "pervasively sectarian" label, and recharacterizing
appellees' objections to the statute, the Court attempts to create an illusion of
consistency between our prior cases and its present ruling that the AFLA is not facially
invalid. But the Court ignores the unwavering vigilance that the Constitution requires
against any law "respecting an establishment of religion," U.S. Const., Amdt. 1, which,
as we have recognized time and again, calls for fundamentally conservative decision-making:
our cases do not require a plaintiff to demonstrate that a government action necessarily
promotes religion, but simply that it creates such a substantial risk. See, e. g.,
Grand Rapids School District v. Ball, 473 U.S., at 387 (observing a "substantial risk
that, overtly or subtly, the religious message . . . will infuse the supposedly secular
classes"); Committee for Public Education & Religious Liberty v. Regan, 444 U.S.,
at 656 (describing as "minimal" the chance that religious bias would enter process
of grading state-drafted tests in secular subjects, given "complete" state safeguards);
Wolman v. Walter, 433 U.S., at 254 (noting "unacceptable risk of fostering of religion"
as "an inevitable byproduct" of teacher-accompanied field trips); Meek v. Pittenger,
421 U.S., at 372 (finding "potential for impermissible fostering of religion"); Levitt
v. Committee for Public Education & Religious Liberty, 413 U.S., at 480 (finding dispositive
"the substantial risk that . . . examinations, prepared by teachers under the authority
of religious institutions, will be drafted with an eye, unconsciously or otherwise,
to inculcate students in the religious precepts of the sponsoring church"); Lemon
v. Kurtzman, 403 U.S., at 619 (finding "potential for impermissible fostering of religion").
Given the nature of the subsidized activity, the lack of adequate safeguards, and
the chronicle of past experience with this statute, there is no room for doubt that
the AFLA creates a substantial risk of impermissible fostering of religion. [487 U.S.
589, 649]
IV
While it is evident that the AFLA does not pass muster under Lemon's "effects" prong,
the unconstitutionality of the statute becomes even more apparent when we consider
the unprecedented degree of entanglement between Church and State required to prevent
subsidizing the advancement of religion with AFLA funds. The majority's brief discussion
of Lemon's "entanglement" prong is limited to (a) criticizing it as a "Catch-22,"
and (b) concluding that because there is "no reason to assume that the religious organizations
which may receive grants are `pervasively sectarian' in the same sense as the Court
has held parochial schools to be," there is no need to be concerned about the degree
of monitoring which will be necessary to ensure compliance with the AFLA and the Establishment
Clause. Ante, at 615-616. As to the former, although the majority is certainly correct
that the Court's entanglement analysis has been criticized in the separate writings
of some Members of the Court, the question whether a government program leads to "`an
excessive government entanglement with religion'" nevertheless is and remains a part
of the applicable constitutional inquiry. Lemon v. Kurtzman, 403 U.S., at 613 , quoting
Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). I accept the majority's conclusion that
"[t]here is no doubt that the monitoring of AFLA grants is necessary . . . to ensure
that public money is to be spent . . . in a way that comports with the Establishment
Clause," ante, at 615, but disagree with its easy characterization of entanglement
analysis as a "Catch-22." To the extent any metaphor is helpful, I would be more inclined
to characterize the Court's excessive entanglement decisions as concluding that to
implement the required monitoring, we would have to kill the patient to cure what
ailed him. See, e. g., Lemon v. Kurtzman, 403 U.S., at 614 -615; Meek v. Pittenger,
421 U.S., at 370 ; Aguilar v. Felton, 473 U.S., at 413 -414. [487 U.S. 589, 650]
As to the Court's conclusion that our precedents do not indicate that the Secretary's
monitoring will have to be exceedingly intensive or entangling, because the grant
recipients are not sufficiently like parochial schools, I must disagree. As discussed
above, the majority's excessive reliance on the distinction between the Court's parochial-school-aid
cases and college-funding cases is unwarranted. Lemon, Meek, and Aguilar cannot be
so conveniently dismissed solely because the majority declines to assume that the
"pervasively sectarian" label can be applied here.
To determine whether a statute fosters excessive entanglement, a court must look
at three factors: (1) the character and purpose of the institutions benefited; (2)
the nature of the aid; and (3) the nature of the relationship between the government
and the religious organization. See Lemon v. Kurtzman, 403 U.S., at 614 -615. Thus,
in Lemon, it was not solely the fact that teachers performed their duties within the
four walls of the parochial school that rendered monitoring difficult and, in the
end, unconstitutional. It seems inherent in the pedagogical function that there will
be disagreements about what is or is not "religious" and which will require an intolerable
degree of government intrusion and censorship.
"What would appear to some to be essential to good citizenship might well for others
border on or constitute instruction in religion. . . .
. . . . .
". . . Unlike a book, a teacher cannot be inspected once so as to determine the extent
and intent of his or her personal beliefs and subjective acceptance of the limitations
imposed by the First Amendment." Id., at 619.
Accord, Aguilar v. Felton, 473 U.S., at 413 . See also New York v. Cathedral Academy,
434 U.S. 125, 133 (1977) (noting that the State "would have to undertake a search
[487 U.S. 589, 651] for religious meaning in every classroom examination . . . . The
prospect of church and state litigating in court about what does or does not have
religious meaning touches the very core of the constitutional guarantee against religious
establishment").
In Roemer, Tilton, and Hunt, the Court relied on "the ability of the State to identify
and subsidize separate secular functions carried out at the school, without on-the-site
inspections being necessary to prevent diversion of the funds to sectarian purposes,"
Roemer v. Maryland Public Works Board, 426 U.S., at 765 (emphasis added), and on the
fact that one-time grants require "no continuing financial relationships or dependencies,
no annual audits, and no government analysis of an institution's expenditures on secular
as distinguished from religious activities." Tilton v. Richardson, 403 U.S., at 688
. AFLA grants, of course, are not simply one-time construction grants. As the majority
readily acknowledges, the Secretary will have to "review the programs set up and run
by the AFLA grantees[, including] a review of, for example, the educational materials
that a grantee proposes to use." Ante, at 616-617. And, as the majority intimates,
monitoring the use of AFLA funds will undoubtedly require more than the "minimal"
inspection "necessary to ascertain that the facilities are devoted to secular education,"
Tilton, 403 U.S., at 687 . Since teachers and counselors, unlike buildings, "are not
necessarily religiously neutral, greater governmental surveillance would be required
to guarantee that state salary aid would not in fact subsidize religious instruction."
Id., at 687-688.
V
The AFLA, without a doubt, endorses religion. Because of its expressed solicitude
for the participation of religious organizations in all AFLA programs in one form
or another, the statute creates a symbolic and real partnership between the clergy
and the fisc in addressing a problem with substantial [487 U.S. 589, 652] religious
overtones. Given the delicate subject matter and the impressionable audience, the
risk that the AFLA will convey a message of Government endorsement of religion is
overwhelming. The statutory language and the extensive record established in the District
Court make clear that the problem lies in the statute and its systematically unconstitutional
operation, and not merely in isolated instances of misapplication. I therefore would
find the statute unconstitutional without remanding to the District Court. I trust,
however, that after all its labors thus far, the District Court will not grow weary
prematurely and read into the Court's decision a suggestion that the AFLA has been
constitutionally implemented by the Government, for the majority deliberately eschews
any review of the facts. 16 After such further [487 U.S. 589, 653] proceedings as
are now to be deemed appropriate, and after the District Court enters findings of
fact on the basis of the testimony and documents entered into evidence, it may well
decide, as I would today, that the AFLA as a whole indeed has been unconstitutionally
applied. 17
[ Footnote 1 ] A related point on which I do agree with the majority is worth acknowledging
explicitly. In his appeal to this Court, the Secretary of Health and Human Services
vigorously criticized the District Court's analysis of the AFLA on its face, asserting
that it "cannot be squared with this Court's explanation in United States v. Salerno,
[ 481 U.S. 739, 745 (1987),] that in mounting a facial challenge to a legislative
Act, `the challenger must establish that no set of circumstances exists under which
the Act would be valid.'" Brief for Federal Appellant 30. The Court, however, rejects
the application of such rigid analysis in Establishment Clause cases, explaining:
"As in previous cases involving facial challenges on Establishment Clause grounds,
. . . we assess the constitutionality of an enactment by reference to the three factors
first articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971)." Ante, at 602. Indeed,
the Secretary's proposed test is wholly incongruous with analysis of an Establishment
Clause challenge under Lemon, which requires our examination of the purpose of the
legislative enactment, as well as its primary effect or potential for fostering excessive
entanglement. Although I may differ with the majority in the application of the Lemon
analysis to the AFLA, I join it in rejecting the Secretary's approach which would
render review under the Establishment Clause a nullity. Even in a statute like the
AFLA, with its solicitude for, and specific averment to, the participation of religious
organizations, one could hypothesize some "set of circumstances . . . under which
the Act would be valid," as, for example, might be the case if no religious organization
ever actually applied for or participated under an AFLA grant. The Establishment Clause
cannot be eviscerated by such artifice.
[ Footnote 2 ] Of course, the manner in which the challenge is characterized does
not limit the relief available. Where justified by the nature of the controversy and
the evidence in the record, a federal district court may invoke broad equitable powers
to prevent continued unconstitutional activity. See Hutto v. Finney, 437 U.S. 678,
687 , and n. 9 (1978); Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S.
1, 15 (1971) ("[B]readth and flexibility are inherent in equitable remedies"). In
Milliken v. Bradley, 433 U.S. 267 (1977), the Court reiterated that in exercising
its broad equitable powers, a district court should focus on the "nature and scope
of the constitutional violation," and ensure that decrees be "remedial in nature."
Id., at 280 (emphasis omitted). On remand, therefore, as instructed by the majority,
the District Court must undertake the delicate task of fashioning relief appropriate
to the scope of any particular violation it discovers.
[ Footnote 3 ] The majority finds support for its "observation[s]" in the statistics
for the AFLA program in fiscal 1986. See ante, at 610, n. 12. Because there are some
organizations that were funded in 1982, but not in 1986, and vice versa, I find the
cumulative funding figures for FY 1982-1986 more helpful. Looking at those figures,
and the same group of recipients identified by the majority, I find that of approximately
$53.5 million in AFLA funding, over $10 million went to the 13 organizations specifically
cited in the District Court's opinion for constitutional violations. App. 748-756.
The District Court, of course, did not "engage in an exhaustive recitation of the
record," but made references only to "representative portions." 657 F. Supp. 1547,
1564 (DC 1987). Another 13 organizations characterized as "religiously affiliated"
in a tabulation prepared by the Department of Health and Human Services in connection
with this litigation, received an additional $6 million during this period. Looking
at the figures from a different perspective, a third of the approximately 100,000
"clients served" by all AFLA grantees during the 1985-1986 period received their services
from the "cited" grantees, and nearly 11,000 more from the other "religiously affiliated"
institutions. App. 748-756. At a minimum, these figures already demonstrate substantial
constitutionally suspect funding through the AFLA, rendering the majority's expectations
unrealistic and [487 U.S. 589, 630] unwarranted. And, because of the Government's
failure to require grantees to report on subgrant and subcontract arrangements, id.,
at 745, we only can speculate as to what additional public funds subsidized the religious
missions of groups that the secular grantees brought in to fulfill their statutory
obligation to involve religious organizations in the provision of services. See 300z-5(a)(21)(B).
[ Footnote 4 ] The Court leaves for the District Court on remand the "consideration
of the evidence presented by appellees insofar as it sheds light on the manner in
which the statute is presently being administered," ante, at 621, conceding, as it
must, that the factual record could paint a troubling picture about the true effect
of the AFLA as a whole. See Witters v. Washington Dept. of Services for the Blind,
474 U.S. 481, 488 (1986) (finding significant that "nothing in the record indicates
that, if petitioner succeeds, any significant portion of the aid expended under the
. . . program as a whole will end up flowing to religious education"); Aguilar v.
Felton, 473 U.S. 402, 412 , n. 8 (1985) ("`If any significant number of the . . .
schools create the risks described in Meek, Meek applies'"), quoting Felton v. Secretary,
United States Dept. of Education, 739 F.2d 48, 70 (CA2 1984); Widmar v. Vincent, 454
U.S. 263, 275 (1981) (noting absence of empirical evidence that religious groups would
dominate university's open forum).
I fully agree with the majority's determination that appellees have standing as taxpayers
to challenge the operation of the AFLA, ante, at 618-620, and note that appellees
may yet prevail on remand.
[ Footnote 5 ] In rejecting the claim that the AFLA leads to excessive government
entanglement with religion, the Court declines "to assume that the religious [487
U.S. 589, 632] organizations which may receive grants are `pervasively sectarian'
in the same sense as the Court has held parochial schools to be." Ante, at 616. With
respect to the claim that the AFLA is unconstitutional at least as applied, if not
on its face, the Court - apparently unsatisfied with findings the District Court already
made to that very effect - instructs that on remand, appellees may show that "AFLA
aid is flowing to grantees that can be considered `pervasively sectarian' religious
institutions, such as we have held parochial schools to be." Ante, at 621.
[ Footnote 6 ] The District Court observed that 9 of 17 "necessary services," see
300z-1(a)(4), expressly involved some sort of education, counseling, or an intimately
related service. 657 F. Supp., at 1562.
[ Footnote 7 ] Thus, for example, until discovery began in this lawsuit, St. Ann's,
a home for unmarried pregnant teenagers, operated by the Order of the Daughters of
Charity and owned by the Archdiocese of Washington, D.C., purchased books containing
Catholic doctrine on chastity, masturbation, homosexuality, and abortion, using AFLA
funds, and distributed them to participants. See App. 336, 354-359, 362. Catholic
Family Services of Amarillo, Tex., used a curriculum outline guide for AFLA-funded
parent workshops with explicit theological references, as well as religious "reference"
materials, including the film "Everyday Miracle," described as "depicting the miracle
of the process of human reproduction as a gift from God." Record 155, Plaintiffs'
Appendix, Vol. IV, p. 119. The District Court concluded:
"The record demonstrates that some grantees have included explicitly religious materials,
or a curriculum that indicates an intent to teach theological and secular views on
sexual conduct, in their HHS-approved grant proposals. . . . One such application,
which was funded for one year, included a program designed, inter alia, `to communicate
the Catholic diocese, Mormon (Church of Jesus Christ of Latter Day Saints) and Young
Buddhist Association's approaches to sex education.'" 657 F. Supp., at 1565-1566.
[ Footnote 8 ] In addition to funding activity of a wholly different character, the
AFLA differs from the statutes reviewed in those cases in its expressed solicitude
for the participation of religious organizations. In Tilton v. Richardson, 403 U.S.
672, 675 (1971), the statute "authorize[d] federal grants and loans to `institutions
of higher education' for the construction of a wide variety of `academic facilities'";
in Hunt v. McNair, 413 U.S. 734, 736 (1973), South Carolina had established a state
agency "the purpose of which [was] `to assist institutions for higher education in
the construction, financing and refinancing of projects' . . . primarily through the
issuance of revenue bonds"; in Roemer v. Maryland Public Works Board, 426 U.S. 736,
740 (1976) (plurality opinion), the State provided funding to "`any [qualified] private
institution of higher learning within the State of Maryland.'" The AFLA, in contrast,
expressly requires applicants for grants to describe how they "will, as appropriate
in the provision of services . . . (B) involve religious . . . organizations." 300z-5(a)(21)(B),
and the legislative history conclusively shows that Congress intended religious organizations
to participate as grantees and as participants under grants awarded to other organizations.
See S. Rep. No. 97-161, pp. 15-16 (1981).
[ Footnote 9 ] The District Court's conclusion, which I find compelling, is that
the AFLA requires teaching and counseling "on matters inseparable from religious dogma."
657 F. Supp., at 1565. This conclusion is borne out by statements of AFLA administrators
and participants. For example, the Lyon County, Kan., Health Department's grant proposal
acknowledges that "[s]uch sensitive and intimate material cannot be presented without
touching on . . . religious beliefs." Record 155, Plaintiffs' Appendix, Vol. IV, p.
221. Patrick J. Sheeran, the Director of the Division of Program Development and Monitoring
in the Office of Adolescent Pregnancy Programs explained:
"Broadly speaking, I find it hard to find any kind of educational or value type of
program that doesn't have some kind of basic religious or ethical foundation, and
while a sex education class may be completely separate from a religious class, it
might relate back to it in terms of principles that are embedded philosophically or
theologically or religiously in another discipline." App. 122.
Mr. Sheeran's views were echoed by Dr. Paul Simmons, a Baptist clergyman and professor
of Christian Ethics:
"The very purpose of religion is to transmit certain values, and those values associated
with sex, marriage, chastity and abortion involve religious values and theological
or doctrinal issues. In encouraging premarital chastity, it would be extremely difficult
for a religiously affiliated group not to impart its own religious values and doctrinal
perspectives when teaching a subject that has always been central to its religious
teachings." Id., at 597.
In any event, regardless of the efforts AFLA teachers and counselors may have undertaken
in attempting to separate their religious convictions from the advice they actually
dispensed to participating teenagers, the [487 U.S. 589, 640] District Court found
that "the overwhelming number of comments shows that program participants believed
that these federally funded programs were also sponsored by the religious denomination."
657 F. Supp., at 1566.
[ Footnote 10 ] Religion plays an important role to many in our society. By enlisting
its aid in combating certain social ills, while imposing the restrictions required
by the First Amendment on the use of public funds to promote religion, we risk secularizing
and demeaning the sacred enterprise. Whereas there is undoubtedly a role for churches
of all denominations in helping prevent the problems often associated with early sexual
activity and unplanned pregnancies, any attempt to confine that role within the strictures
of a government-sponsored secular program can only taint the religious mission with
a "corrosive secularism." Grand Rapids School District v. Ball, 473 U.S. 373, 385
(1985). The First Amendment protects not only the State from being captured by the
Church, but also protects the Church from being corrupted by the State and adopted
for its purposes. A government program that provides funds for religious organizations
to carry out secular tasks inevitably risks promoting "the pernicious tendency of
a state subsidy to tempt religious schools to compromise their religious mission without
wholly abandoning it." Roemer v. Maryland Public Works Board, 426 U.S., at 775 (STEVENS,
J., dissenting); see also Lynch v. Donnelly, 465 U.S. 668, 726 -727 (1984) (BLACKMUN,
J., dissenting).
[ Footnote 11 ] In arguing that providing "social welfare services" is categorically
different from educating schoolchildren for Establishment Clause purposes, appellants
relied heavily on Bradfield v. Roberts, 175 U.S. 291 (1899), a case in which the Court
upheld the appropriation of money for the construction of two buildings to be part
of a religiously affiliated hospital. Unlike the AFLA, however, which seeks "to promote
self discipline and other prudent approaches to the problem of adolescent premarital
sexual relations," 300z(b)(1), the Act of Congress by which the hospital at issue
in Bradfield had been incorporated expressed that "`the specific and limited object
of its creation' is the opening and keeping a hospital in the city of Washington for
the care of such sick and invalid persons as may place themselves under the treatment
and care of the corporation." 175 U.S., at 299 -300.
[ Footnote 12 ] Employees of some grantees must follow the directives set forth in
a booklet entitled "The Ethical and Religious Directives for Catholic Health Facilities,"
approved by the Committee on Doctrine of the National Conference of Catholic Bishops.
App. 526, 540-544. Solely because of religious dictates, some AFLA grantees teach
and refer teenagers for only "natural family planning," which "has never been used
successfully with teenagers," id., at 535, and may not refer couples to programs that
offer artificial methods of birth control, because those programs conflict with the
teachings of the Roman Catholic Church. Id., at 407, 628. One nurse midwife working
at an AFLA program was even reprimanded for contravening the hospital's religious
views on sex when she answered "yes" to a teenager who asked, as a medical matter,
whether she could have sex during pregnancy. Id., at 552.
[ Footnote 13 ] This vacuum is particularly noticeable when we consider the pains
to which Congress went to specify other restrictions on the use of AFLA funds. For
example, the AFLA expressly provides:
"Grants or payments may be made only to programs or projects which do not provide
abortions or abortion counseling or referral, or which do not subcontract with or
make any payment to any person who provides abortions or abortion counseling or referral,
except that any such program or project may provide referral for abortion counseling
to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent
request such referral; and grants may be made only to projects or programs which do
not advocate, promote, or encourage abortion." 300z-10.
The AFLA also sets certain conditions on funding for family planning services, 300z-3(b)(1),
and requires of applicants some 18 separate [487 U.S. 589, 644] "assurances" covering
everything from confidentiality of patient records, 300z-5(a)(11), to a commitment
that the applicant will "make every reasonable effort . . . to secure from eligible
persons payment for services in accordance with [structured fee] schedules," 300z-5(a)(16)(B).
Yet nowhere in the statute is there a single restriction on the use of federal funds
to promote or advance religion. See ante, at 614-615.
[ Footnote 14 ] Appellees have challenged that presumption here, calling into question
the manner in which grantees were selected and supervised. Mr. Sheeran, the Director
of the Division of Program Development and Monitoring in the Office of Adolescent
Pregnancy Programs, testified that he was surprised at the lack of experience, yet
high proportion of religious affiliation, among those selected to read and evaluate
grant applications. App. 98. Some of the reader's comments strongly suggest they considered
religious indoctrination indispensable to achieve the AFLA's stated purpose, see,
e. g., id., at 509; Record 155, Plaintiffs' Appendix Vol. I, pp. 354-355, and that
evidence of no involvement by religious organizations was a factor in rejecting applications,
see, e. g., Record 155, Plaintiffs' Appendix, Vol. I-A, pp. 505D, 505E, 505G; Record
155, Plaintiffs' Appendix, Vol. I, pp. 340, 346.
Despite the clear religious mission of many applicants, pre-award investigations
or admonitions against the use of AFLA funds to promote religion were minimal. Mr.
Sheeran was instructed to call Catholic grantees already selected for funding, and
obtain assurances that the grant money would not be used for "teaching of morals,
dogmas, [or] religious principles." App. 107. The calls lasted two or three minutes,
and involved no detailed discussion of the use of church and parochial school facilities,
or religious literature. Id., at 112-113.
The District Court found that the problems that should have been noted at the application
stage remained uncured in implementation:
"Nor do the facts suggest that the programs in operation cured the First Amendment
problems evident from these approved grant applications. At least one grantee actually
included `spiritual counseling' in its AFLA program. Other AFLA programs used curricula
with explicitly religious [487 U.S. 589, 645] materials. In addition, a very large
number of AFLA programs took place on sites adorned with religious symbols . . . .
"Similarly, the record reveals that some grantees attempted to evade restrictions
they perceived on AFLA-funded religious teaching by establishing programs in which
an AFLA-funded staffer's presentations would be immediately followed, in the same
room and in the staffer's presence, by a program presented by a member of a religious
order and dedicated to presentation of religious views on the subject covered by the
AFLA staffer" (citations omitted). 657 F. Supp., at 1566.
[ Footnote 15 ] Indeed, the AFLA stands out among similar grant programs, precisely
because of the absence of such restrictions. Cf., e. g., 20 U.S.C. 27 (support for
vocational education); 20 U.S.C. 241-1(a)(4) (federal disaster relief for local education
agencies); 20 U.S.C. 1021(c) (assistance to college and research libraries); 20 U.S.C.
1070e(c)(1)(B) (1982 ed., Supp. IV) (assistance to institutions of higher education);
20 U.S.C. 1134e(g) (1982 ed., Supp. IV) (fellowships for graduate and professional
study); 20 U.S.C. 1210 (1982 ed. and Supp. IV) (grants to adult education programs);
42 U.S.C. 2753(b)(1)(C) (college work-study grants); 42 U.S.C. 5001(a)(2) (grants
to retired senior-citizen volunteer service programs).
[ Footnote 16 ] JUSTICE KENNEDY, joined by JUSTICE SCALIA, would further constrain
the District Court's consideration of the evidence as to how grantees spent their
money, regardless of whether the grantee could be labeled "pervasively sectarian,"
see ante, at 624-625, asserting that "[t]he question in an as-applied challenge is
not whether the entity is of a religious character." This statement comes without
citation to authority and is contrary to the clear import of our cases. As ill-defined
as the concept behind the "pervasively sectarian" label may be, this Court consistently
has held, and reaffirms today, that "`[a]id normally may be thought to have a primary
effect of advancing religion when it flows to an institution in which religion is
so pervasive that a substantial portion of its functions are subsumed in the religious
mission.'" Ante, at 610, quoting Hunt v. McNair, 413 U.S., at 743 .
See also Roemer v. Maryland Public Works Board, 426 U.S., at 758 ("[T]he question
[is] whether an institution is so `pervasively sectarian' that it may receive no direct
state aid of any kind"). Indeed, to suggest that because a challenge is labeled "as-applied,"
the character of the institution receiving the aid loses its relevance is to misunderstand
the very nature of the concept of a "pervasively sectarian" institution, which is
based in part on the conclusion that the secular and sectarian activities of an institution
are "inextricably intertwined," see ante, at 620, n. 16. Not surprisingly, the Court
flatly rejects JUSTICE KENNEDY's suggestion, observing that "it will be open to appellees
on remand to show that AFLA aid is flowing to grantees that can be considered `pervasively
sectarian' religious institutions." Ante, at 621.
[ Footnote 17 ] Appellees argued in the District Court, and here as cross-appellants,
that the portions of the statute inviting the participation of religious organizations
were not severable, and thus that the entire statute must be held unconstitutional.
I take no position on this issue. [487 U.S. 589, 654]