BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES v. KENDRICK ET AL.
No. 87-253
SUPREME COURT OF THE UNITED STATES
Argued March 30, 1988—Decided June 29, 1988
487 U.S. 589
*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.
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.†
†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,
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),
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,
“[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) .
“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.”
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.
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
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.
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
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
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.
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
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
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.
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.
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 teen-
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,”
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
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
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.
“[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
Nor we do 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 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, 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
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
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
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)
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
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
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
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
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,
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.
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
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
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
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,
“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 in-
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.
As is evident from the parties’ arguments, the record compiled below, and the decision of the District Court, this lawsuit 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.
“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.1
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,
“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
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
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.
As is often the case, it is the effect of the statute, rather than its purpose, that creates
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
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.5 The majority acknowledges the constitutional proscription on
(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.
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.”
(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
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
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,
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
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.11
“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.
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
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. 12, 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“).
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,”
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
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
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 substan-
Notes
“(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;
“(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.”
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. 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.“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.”
In rejecting the claim that the AFLA leads to excessive government entanglement with religion, the Court declines “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.” 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.“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 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.”
In arguing that providing “social welfare services” is categorically different from educating schoolchildren for