CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, Plаintiff and Appellant, v. ALL PERSONS INTERESTED IN THE MATTER OF THE VALIDITY OF A PURCHASE AGREEMENT, Respondents.
No. S124195
Supreme Court of California
Mar. 5, 2007
[No. S124195. Mar. 5, 2007.]
CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY, Plaintiff and Appellant, v. ALL PERSONS INTERESTED IN THE MATTER OF THE VALIDITY OF
COUNSEL
Orrick, Herrington & Sutcliffe, Norman C. Hile, Margaret Carew Toledo, Michael C. Weed, Eugene J. Carron, Megan V. Hamilton, Richard I. Hiscocks; and Gerald F. Uelmen for Plaintiff and Appellant.
Sidley Austin Brown & Wood, Jeffrey A. Berman, Mark E. Haddad, Gene C. Schaerr and Nicholas O. Miler for Asuza Pacific University, California Baptist University, Oaks Christian School, Loma Linda University, The Association of Independent California Colleges and Universities,
Center for Law & Religious Freedom, Gregory S. Baylor, Steven H. Aden, M. Casey Mattox and Samuel B. Casey for Council for Christian Colleges and Universities and Christian Legal Society as Amici Curiae on behalf of Plaintiff and Appellant.
Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, James M. Humes, Chief Assistant Attorney General, Louis R. Mauro, Assistant Attorney General, Catherine Van Aken, Leslie R. Lopez and Zackery P. Morazzini, Deputy Attorneys General, for Respondents.
Jordan Budd, Elvie Cacciavillani; Margaret C. Crosby; and Peter Eliasberg for American Civil Liberties Union Foundation of San Diego and Imperial Counties, American Civil Liberties Union Foundation of Northern California, Inc., and ACLU Foundation of Southern California as Amici Curiae on behalf of Respondents.
OPINION
KENNARD, J.—Recognizing that an educated citizenry and workforce are vital to the preservation of the rights and liberties of the people of this state, California in 1879 included in its new Constitution a provision directing the state Legislature to encourage “by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement.” (
Against that backdrop, this court in California Educational Facilities Authority v. Priest (1974) 12 Cal.3d 593 [116 Cal.Rptr. 361, 526 P.2d 513] (Priest), upheld a state bond program funding the construction of educational facilities at religiously affiliated colleges, which were expressly prohibited from using the bond proceeds (paid for by privatе purchasers of the bonds) for specified religious purposes. We concluded that neither the state nor the federal Constitution prohibited this form of indirect assistance to religiously affiliated colleges, a rule that for more than three decades has allowed California public entities to issue revenue bonds to raise private funds for campus improvements at religiously affiliated colleges. We declined in Priest, however, to decide whether that rule would also apply if a college were “pervasively sectarian,” a term the United States Supreme Court had used in Hunt v. McNair (1973) 413 U.S. 734 [37 L.Ed.2d 923, 93 S.Ct. 2868] (Hunt) to describe a religiously affiliated school that devotes a substantial portion of its functions to its religious mission. (Priest, supra, at p. 602, fn. 8.) Our decision in Priest is pivotal here.
This case involves bond financing agreements between a public entity and three religiously affiliated schools that, for purposes of this litigation, the parties have assumed to be pervasively sectarian. These schools are thus likely to include a religious perspective in their teachings. Each agreement, as in Priest, supra, 12 Cal.3d 593, expressly prohibits use of the bond proceeds for specified religious purposes. And, as in Priest, funds for the projects will not come from any government entity, but from private-sector purchasers of the
The trial court invalidated the agreements as violating the state Constitution‘s
As explained below, in resolving the state constitutional issue we conclude that the pertinent inquiry should center on the substance of the education provided by these three schools, not on their religious character. Therefore, whether the schools are pervasively sectarian (as the parties have assumed) is not a controlling factor in determining the validity of the bond funding program under our state Constitution. Rather, the program‘s validity turns on two questions: (1) Does each of the recipient schools offer a broad curriculum in secular subjects? (2) Do the schools’ secular classes consist of information and coursework that is neutral with respect to religion? This test ensures that the state‘s interest in promoting the intellectual improvement of its residents is advanced through the teaching of secular information and coursework, and that the expression of a religious viewpoint in otherwise secular classes will
provide a benefit to religion that is merely incidental to the bond program‘s primary purpose of promoting secular education.
Finally, we conclude that a public bond program satisfying our state Constitution would not violate the establishment clause of the First Amendment to the federal Constitution.
I
A. The Nature of This Action
As relevant here, some 350 California cities, counties, and special districts have entered into agreements to create a joint powers authority, known as the California Statewide Communities Development Authority (the Authority), plaintiff in this case. By issuing tax-exempt revenue bonds to finance industrial projects and residential units, as well as health care and educational facilities, the Authority promotes economic development for the benefit of its members. The Authority does not fund these projects or otherwise provide any financial subsidy in connection with the issuance of the bonds. It is involved in the financing transaction solely to provide a tax exemption to the private investors who purchase the bonds and thereby fund the private development. Because the government merely provides access to favorable tax treatment and does not itself finance the projects, this form of financing is commonly referred to as “pass through” or “conduit” financing; the government‘s issuance of the bonds provides a “conduit” for private financing to “pass through” to the recipient of the bond proceeds. (See Note, Revenue Bonds and Religious Education: The Constitutionality of Conduit Financing Involving Pervasively Sectarian Institutions (2002) 100 Mich. L.Rev. 1108, 1111 (Revenue Bonds and Religious Education).) No public monies are expended in this type of arrangement,
Under the statutory scheme, the Authority may issue tax-exempt bonds “whenever there are significant public benefits for taking that action.” (
In May and July 2002, the Authority adopted resolutions approving agreements to issue revenue bonds to fund campus improvements at three private schools (Oaks Christian School, California Baptist University, and Azusa Pacific University), all operated by tax-exempt religious corporations. As to each school, the Authority found that the planned projects would produce one or more of the significant public benefits set out in
Each of the three lawsuits is a validation action, a form of “proceeding in rem” brought against “all persons interested” in a specified matter. (
must publish notice of the lawsuit in a newspaper of general circulation and set a date for anyone “interested” to “appear and contest
The trial court, on its own initiative, continued the matters to solicit the views of the California Department of Fair Employment and Housing as well as the California Attorney General. The former declined to participate. The latter responded by letter brief, expressing no view on the Authority‘s entitlement to the default judgments. Instead, the Attorney General merely pointed out possible state and federal constitutional issues raised by the proposed bond funding agreements. The trial court found the agreements invalid under
The Authority appealed. The Court of Appeal consolidated the three cases, and, in a two-to-one decision, affirmed the trial court. Relying solely on the California Constitution, as the trial court had done in its order denying validation of the bond funding agreements, the Court of Appeal held that issuing revenue bonds to raise capital in the private sector for improvements at pervasively sectarian schools would violate
The Authority sought review in this court. It contended that the Court of Appeal‘s decision “casts doubt on the eligibility of all sectarian schools to obtain government services” and threatens to impede “educational opportunities for hundreds of thousands of students in California.” We granted review, and thereafter we granted the Attorney General‘s motion to intervene as respondent in the case.
B. The Financing Agreements
Each of the three financing agreements provides for the appointment of an independent trustee to receive and handle the bond proceeds.4 Each school
authorizes the trustee to disburse funds to pay for the facilities’ construction, and the school then pays the principal plus interest on the bonds to the trustee, which in turn pays the private purchasers of the government bonds.
Repaying the private-sector bond purchasers for the bond proceeds falls to the recipient schools and will “not constitute a charge against the general credit of [the Authority]” or be secured by any public property. The bond purchasers have no recourse for nonpayment against the State of California or any public agency. All costs incurred in the course of the bond issuance are reimbursed by the schools.
Each agreement includes a covenant by the recipient school that “no facility, place or building financed or refinanced with a portion of the proceeds of the Bonds will be used for ... sectarian instruction or as a place for religious worship or in connection with any part of the programs of any school or department of divinity for the
In support of the validation actions it had filed in the superior court, the Authority submitted declarations describing each of the three schools, all located in Southern California. The Authority‘s materials comprise the only evidence presented to the trial court. A summary follows.
Oaks Christian School, in the City of Westlake Village, provides a private, comprehensive, college preparatory, Christian education for students in the sixth through the 12th grades. The school intends to use the bond proceeds to build administrative offices, classrooms, and athletic facilities. The school seeks to foster student growth “in knowledge and wisdom through God‘s grace,” and to encourage students “to dedicate [themselves] to the pursuit of academic excellence, athletic distinction and Christian values.” It admits students without regard to religion, and in the 2001-2002 school year about 35 percent of those enrolled were not Christian. Students and parents must agree, however, to support the school‘s mission, statement of faith, and “biblical goals.” Faculty members must adhere to the Christian faith and must sign a statement of faith.
California Baptist University, located in Riverside, is an accredited Christian liberal arts institution that grants undergraduate and graduate degrees in a wide range of disciplines. The bond proceeds will fund the acquisition, construction, and improvement of classrooms, administrative offices, a student center, residence halls, and athletic facilities. The university‘s undergraduate students are expected to accept and to live by “biblically based
Christian principles,” and to attend services at a church of their choosing. In the 2000-2001 academic year, the school awarded some 450 student degrees, of which only about 5 percent were to students who had majored in Christian or ministry studies. The university requires its faculty members to adhere to a Christian faith, and it reserves 51 percent of faculty positions for members of the Baptist denomination. Faculty members must agree with the school‘s theological and philosophical views but need not sign any statement of faith.
Azusa Pacific University, whose main campus is in Azusa, is an accredited Christian liberal arts school offering both undergraduate and graduate degrees. It intends to use the bond proceeds to improve and build campus facilities, “including but not limited to a residence facility, a dining facility, [and] a mail center.” The declaration of a campus administrator at Azusa Pacific University describes the school as “an evangelical Christian community of disciples and scholars who seek to advance the work оf God in the world through academic excellence in liberal arts and professional programs of higher education that encourage students to develop a Christian perspective of truth and life.” Student applicants are expected to “exhibit moral character in harmony” with the University‘s purpose. Applicants are chosen for their academic ability as well as their church involvement and participation in school and community activities. Undergraduates must complete “120 hours of student ministry assignments.” In the 2001-2002 academic year, less than 7 percent (39 of more than 600) of the undergraduate degrees awarded by Azusa Pacific University went to those who had completed majors in religious studies. All faculty members are Christian.
II
At issue is whether the Authority‘s conduit financing agreements with Oaks
Under the bond funding agreements, the Authority, which is a municipal corporation, does not provide public money to the three private schools in question. Thus, there is no violation of the prohibition in the state Constitution‘s
At issue is whether the Authority‘s proposed indirect assistance to the three schools, through its issuance of revenue bonds, would be “aid of any ... sectarian purpose” or “help to support any school ... controlled by any ... sectarian denomination,” as prohibited by
Priest concerned the California Educational Facilities Authority Act (hereafter sometimes Act) (Ed. Code, former § 30301 et seq.), which is not involved here. That former statutory scheme authorized public entities to issue revenue bonds to assist private colleges in building classrooms and other campus facilities, but it prohibited the use of the monies to construct any facility for ” ‘sectarian instruction or as a place for religious worship or ... in connection with any part of the program of a school or department of divinity.’ ” (Priest, supra, 12 Cal.3d at p. 596.) In Priest, the school that was the subject of the financing agreement, University of the Pacific (UOP), had no religious affiliation.5
Of
“This section has been said to constitute ‘the definitive statement of the principle of government impartiality in the field of religion.’ (37 Ops.Cal.Atty.Gen. 105, 107 (1961).) An examination of the debates of the constitutional convention which drafted the Constitution of 1879 indicates that the provision was intended to insure the separation of сhurch and state and to guarantee that the power, authority, and financial resources of the government shall never be devoted to the advancement or support of religious or sectarian purposes....
“The section has never been interpreted, however, to require governmental hostility to religion, nor to prohibit a religious institution from receiving an indirect, remote, and incidental benefit from a statute which has a secular primary purpose....
“The Act here challenged clearly provides a ‘benefit’ in that it enables sectarian institutions to borrow money through the use of a state instrumentality at a cost below that of the marketplace. Thus the crucial question is not whether the Act provides such a benefit, but whether that benefit is incidental to a primary public purpose. The framers of the [state] Constitution recognized the importance of education in our social fabric, and imposed a constitutional duty on the Legislature to ‘encourage by all suitable means the promotion of intellectual ... improvement.’ (
Art. IX, § 1 .) The present law is responsive to that mandate. The Legislature has expressly determined that the Act, in supporting the maintenance and improvement of facilities for higher education, is in the public interest [citations], and that determination is entitled to great deference. [Citations.] The benefits of the Act are granted to sectarian and nonsectarian colleges on an equal basis; in both cases all aid for religious projects is strictly prohibited; and in no event is a financial burden imposed upon the state. In these circumstances the Act does not have a substantial effect of supporting religious activities. Rather, its primary purpose is to advance legitimate public ends, and it therefore does not violatearticle XIII, section 24 .” (Priest, supra, 12 Cal.3d at pp. 604-606, italics added, fn. omitted.)6
It is undisputed that the Authority has issued tax-exempt bonds to encourage private investment in a wide variety of private institutions, secular as well as sectarian. This satisfies Priest‘s second requirement—that the state bond program not discriminate between secular and sectarian institutions, treating both categories alike. (Priest, supra, 12 Cal.3d at p. 606.)
The bond agreements expressly prohibit each of the three schools from using the bond proceeds to construct or improve any facility for “religious projects,” that is ” ‘sectarian instruction or as a place for religious worship or in connection with any part of the programs of any school or department of divinity for the useful life of the Project.’ ” (See p. 797, ante.) This satisfies Priest‘s third requirement. (Priest, supra, 12 Cal.3d at p. 606.)
Because of the utilization of conduit or passthrough financing, the capital for the construction projects at the three private schools is funded solely by private-sector purchasers of the bonds. The schools repay the advanced capital plus interest to an independent trustee, who then pays the private bondholders, who have no recourse for nonpayment against the Authority. All of the Authority‘s costs of issuing the bonds are reimbursed by the schools. Thus, the bond funding places no financial burden on the Authority or any other public entity. This satisfies Priest‘s fourth requirement, that the program not impose a financial burden on the government. (Priest, supra, 12 Cal.3d at p. 606.)7
As mentioned earlier at pages 793 and 799, our decision in Priest concerned state bond financing to construct or improve facilities at schools that were “religiously affiliated“—schools connected to a religious organization—but not “pervasively sectarian“—schools ” ‘in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission’ ” (Priest, supra, 12 Cal.3d at p. 601, quoting Hunt, supra, 413 U.S. at p. 743). Because the schools in Priest were not pervasively sectarian, Priest did not question that the religiously affiliated schools were providing education in secular subjects, thus furthering the state‘s interest in promoting the intellectual improvement of its residents though secular education, and no more than incidentally benefiting religion.
Here, the proposed state bond program would benefit three schools that the Authority throughout this litigation has described as “pervasively sectarian.” Would that bond program satisfy Priest‘s first requirement, that the program serve the public interest and no more than incidentally benefit religion? To answer that question, we need to examine the bond program‘s purpose and effects. The program must have a “primary purpose ... to advance legitimate public ends” (Priest, supra, 12 Cal.3d at p. 606), and its effects may not include a benefit to religious activity that is other than “indirect, remote, [or] incidental” to the primary secular purpose (id. at p. 605). When a court attempts to determine how, if at all, a bond program would have the effect of supporting religious activity at schools, the characterization of the schools as “pervasively sectarian” does not provide a reliable or satisfactory answer. A
more useful and effective approach, we conclude, is to examine the substance of the education that each of these religious schools offers its students, as explained below.8
The goal of the Authority‘s proposed issuance of revenue bonds here is to enhance the ability of private schools to improve their facilities through funding provided exclusively by private investors. By providing a tax exemption on interest earned on the bonds, the government makes the bonds more attractive to private
First, the school that is the subject of the revenue bond financing arrangement must provide a broad curriculum in secular subjects. When it does, the bond program assists the religious school in providing educational opportunities to California residents, enhancing their employment prospects and deepening their understanding of critical political, social, scientific, and cultural issues. This broad curriculum requirement excludes from the bond funding program religious schools that offer classes in only a few secular subjects, because to provide bond funding for such schools would not sufficiently advance the program‘s goal of expanding secular educational opportunities for Californians.
We are mindful of the concern that a school with a religious perspective may use the facilities built or improved with the revenue bond proceeds to substantially further its religious mission. Such use would
provide more than an incidental benefit to religion, in violation of the principles we enunciated in Priest, supra, 12 Cal.3d 593. To ensure that the classes in secular subjects promote the state‘s interest in secular education and no more than incidentally benefit religion, the religious school must meet a second requirement: the information and coursework used to teach secular subjects must be neutral with respect to religion. Of course, religion may be an object of study in classеs such as history, social studies, and literature, just as in public schools, in a manner that neither promotes nor opposes any particular religion or religion in general. But a class that includes as part of the instruction information or coursework that promotes or opposes a particular religion or religious beliefs may not be taught in facilities financed through tax-exempt bond financing.9
On remand, in determining religious
Notes
Of course, the three schools involved in this case are private and need not exclude religion from their programs. Moreover, tax-exempt bond financing is in the nature of a tax policy rather than an aid program, and the government is not involved in the provision of the schools’ education programs. Therefore, the program at issue is quite different from the government actions and policies evaluated in McCreary and Epperson. Nonetheless, the concept of religious neutrality is useful here to the assessment of the academic cоntent of the schools’ secular classes. To ensure that the state‘s legitimate purpose—promoting the intellectual development of its residents in secular areas of study—is advanced through the provision of tax-exempt bond financing, these schools must demonstrate that their secular curriculum provides an education that is secular in substance—i.e., neutral with respect to religion. The schools’ inclusion of a religious viewpoint in otherwise secular classes would not impair or diminish the secular education that the students receive.
more than incidental to the state‘s primary purpose of enhancing secular education opportunities for California residents.
As we stated in Priest in addressing
As we have pointed out, tax-exempt bond financing is a mechanism by which the government makes available to private investors a tax exemption on income earned on government bonds, thereby encouraging private investment in community development and enabling the recipients of these investments to borrow private funds at a lower interest rate. As the Virginia Supreme Court has observed, in concluding that issuing government bonds to benefit a religious college (the Reverend Pat Robertson‘s Regent University, excluding its divinity school) did not violate the establishment clause of the federal Constitution‘s First Amendment: “The nature of this aid is properly defined as the granting of tax-exempt status to the bonds which has the incidental result of permitting a qualifying institution to borrow funds at an interest rate lower than conventional private financing.” (Virginia College Bldg. Authority v. Lynn (2000) 260 Va. 608, 638 [538 S.E.2d 682, 698] (Virginia College).)
More recently, in 2002, the federal Court of Appeals for the Sixth Circuit in Steele v. Industrial Development Bd. of Metro. (6th Cir. 2002) 301 F.3d 401 (Steele), rejected an establishment clause challenge to a bond financing program benefiting Lipscomb University, a Tennessee college run by the Churches of Christ. Steele viewed the bond funding program as a form of tax policy, equating the issuance of revenue bonds to tax exemptions benefiting religious organizations that the high court has held do not violate the establishment clause. (See Hernandez v. Commissioner (1989) 490 U.S. 680, 688 [104 L.Ed.2d 766, 109 S.Ct. 2136] [deductions from taxable income for gifts to religious organizations]; Mueller v. Allen (1983) 463 U.S. 388, 396
[77 L.Ed.2d 721, 103 S.Ct. 3062] [state tax deductions for amounts paid for school tuition and textbooks even though such deductions substantially benefited religious schools]; Walz v. Tax Commission (1970) 397 U.S. 664, 675 [25 L.Ed.2d 697, 90 S.Ct. 1409] [city tax exemption for real estate owned by religious organizations].) In neither situation, the federal appellate court in Steele stressed, did the government transfer any public funds to the recipient institutions. (Steele, supra, at p. 409.) Steele concluded that the benefit to the recipient school from the issuance of the tax-exempt bonds was analogous “to an indirect financial benefit conferred by a religiously neutral tax or deduction.” (Id. at p. 413.) Steele explained: “The purchaser of a bond has recourse for repayment against Lipscomb University only,” and not against the issuing governmental entity. (Ibid.) Also: “No government funds are involved in the entire transaction. The interest paid to the bond holders by Lipscomb University is not subject to federal, state, or local income taxes. Since the bonds are tax-exempt, Lipscomb University reaps the benefit of a lower interest rate than that paid to a lender paying income taxes on the interest received. Only by the potential loss of tax revenue does the conduit financing involve any impact on public funds.” (Ibid.)10
The trial court here, in denying the Authority‘s request to validate its bond funding agreements with the three religious schools, did not consider the substance of the education at those schools. Accordingly, we remand this case to the Court of Appeal, which in turn is to remand the matter to the trial court for that evaluation.
The trial court is to determine whether each religious school benеfiting from the state bond program offers a sufficiently broad curriculum in secular subjects—e.g., English literature, history, math, sciences, professional or preprofessional training—that the school‘s use of the educational facilities built or improved with the bond funding may be expected to promote the public interest in making secular education more available to California residents in general. The trial court‘s inquiry should center on the school‘s curriculum as a whole, but it should exclude theological or divinity programs because, under the terms of their agreements, the schools may not use the
facilities built or improved with the state bond proceeds for those programs. If the school does offer this sort of broad secular curriculum, the trial court should consider whether the academic content of the classes in secular subjects is typical of such classes when taught in nonreligious schools and is thus neutral with respect to religion. In resolving this issue, the court may consider the school‘s course descriptions or any other information submitted to establish the content or coursework of the secular classes. The circumstance that a religious viewpoint may also be expressed in these otherwise secular classes does not preclude a determination that providing the proposed tax-exempt bond financing to the school promotes the state‘s interest in the intellectual development of its residents and only incidentally benefits religion.11
Having concluded that the proposed state bond funding, as discussed on pages 803 to 805, ante, would not violate our state Constitution if certain conditions are satisfied (a determination to be made by the trial court on remand), we now consider whether the proposed bond funding, on the conditions we have articulated, would pass muster under the establishment clause of the First Amendment to the federal Constitution. We discuss this issue below.
III
The First Amendment to the federal Constitution states that “Congress shall make no law respecting an establishment of religion....” (Italics added.) This provision is incorporated in the due process clause of the Fourteenth Amendment, thus making it applicable not only to Congress but also to the states. (See Everson v. Board of Education (1947) 330 U.S. 1, 8 [91 L.Ed. 711, 67 S.Ct. 504].)
In Lemon v. Kurtzman (1971) 403 U.S. 602 [29 L.Ed.2d 745, 91 S.Ct. 2105] (Lemon), the United States Supreme Court adopted a three-part test to determine when a particular law or government practice would not constitute an establishment of religion: (1) The government program must have “a secular legislative purpose“; (2) the program‘s “principal or primary effect must be one that neither advances nor inhibits religion“; and (3) the program “must not foster ‘an excessive government entanglement with religion.’ ” (Id. at pp. 612-613.) Failure to satisfy any one of Lemon‘s three requirements
would render a governmental program unconstitutional. (See id. at pp. 619-620, 622.) In Agostini v. Felton (1997) 521 U.S. 203 [138 L.Ed.2d 391, 117 S.Ct. 1997] (Agostini), the high court refined that three-part test.
Addressing the Lemon test‘s third criterion—excessive entanglement between church and state—Agostini rejected the idea that “entanglement” should be treated as a separate inquiry. Rather, Agostini stated, the entanglement inquiry was an aspect of Lemon‘s second inquiry, whether the government aid at issue has the impermissible “effect” of advancing religion. (Agostini, supra, 521 U.S. at pp. 232-233.) In determining such effect, Agostini explained, the pertinent inquiry is whether the government aid program “result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement [between church and state].” (Id. at p. 234.) By folding Lemon‘s “entanglement inquiry into the primary effect inquiry” (Zelman v. Simmons-Harris (2002) 536 U.S. 639, 668 [153 L.Ed.2d 604, 122 S.Ct. 2460]), the high court in Agostini has collapsed Lemon‘s three-part test into just two parts.
The high court has acknowledged that it does not apply the Lemon test in every establishment clause case (see Van Orden v. Perry (2005) 545 U.S. 677, 686 [162 L.Ed.2d 607, 125 S.Ct. 2854, 2861] (plur. opn. of Rehnquist, C. J.) [“[m]any of our recent cases simply have not applied the Lemon test“]; id. at p. 699 [125 S.Ct. at p. 2868] (conc. opn. of Breyer, J.) [“the Court has found no single mechanical formula that can accurately draw the constitutional line in every case“]); and some members of the court have expressed disagreement with that test (e.g., Lamb‘s Chapel v. Center Moriches Union Free School Dist. (1993) 508 U.S. 384, 398-400 [124 L.Ed.2d 352, 113 S.Ct. 2141] (conc. opn. of Scalia, J., joined by Thomas, J.)). But the high court has resorted to the Lemon test in dealing with issues involving government aid to sectarian educational institutions. (E.g., Mitchell v. Helms (2000) 530 U.S. 793, 807-808 [147 L.Ed.2d 660, 120 S.Ct. 2530] (plur. opn. of Thomas, J.) (Mitchell); Agostini, supra, 521 U.S. at pp. 222-223, 232-233; Hunt, supra, 413 U.S. 734.) Because Hunt is the case most closely on point here, we summarize it below.
At issue in Hunt was whether South Carolina‘s issuance of revenue bonds benefiting the Baptist College of Charleston, a religiously affiliated institution, constituted an impermissible establishment of religion in violation of the
Most pertinent here, however, is the high court‘s discussion in Hunt of Lemon‘s second requirement, that the bond funding not have the primary result of advancing religion. Concluding that the second Lemon requirement was met with respect to the Baptist College of Charleston, the court observed that it had “no religious qualifications for faculty membership or student admission,” and that in its student body Baptists comprised only some 60 percent, “a percentage roughly equivalent to the percentage of Baptists in that area of South Carolina.” (Hunt, supra, 413 U.S. at pp. 743-744.) The court cautioned, however, that a similar bond program might have the impermissible effect of advancing religion if the proceeds “flow[] to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting.” (Id. at p. 743.)
The high court in Hunt, supra, 413 U.S. 734, left open whether the state bond program in that case would have violated the establishment clause of the
Certain observations in the high court‘s more recent establishment clause cases suggest that even if state bond funding were to benefit a pervasively sectarian school, the program might still survive scrutiny under the federal Constitution. In Mitchell, supra, 530 U.S. 793, the high court upheld a federal aid program that provided library and media materials, as well as computer software, to private elementary and secondary schools, including religiously affiliated schools. Four of the court‘s nine members who comprised the Mitchell plurality unequivocally stated: “[N]othing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it.” (Id. at p. 829 (plur. opn. of Thomas, J., joined by Rehnquist, C. J., Kennedy, J., and Scalia, J.).) Moreover, the two justices who in a separate concurrence became part of the Mitchell majority did not consider whether the recipients of government aid in that case were pervasively sectarian. (Mitchell, supra, at pp. 836-867 (conc. opn. of O‘Connor, J., joined by Breyer, J.).)
Furthermore, since 1985 the United States Supreme Court has not invalidated any government aid program on the ground that thе recipients were
Here, we need not decide whether extending the benefit of a government bond funding program to a pervasively sectarian school could ever violate the
As we have discussed in greater detail on pages 808 and 809, ante, in 1973 the high court in Hunt, supra, 413 U.S. 734, upheld a South Carolina revenue bond program benefiting a religiously affiliated college. In reaching that decision, Hunt applied the three-part test of Lemon, supra, 403 U.S. 602, which provides courts with a means of determining the constitutionality of government programs that aid religious institutions. We too apply the Lemon test here, but we do so using the test as refined in the high court‘s 1997 decision in Agostini, supra, 521 U.S. at pages 232-233, which reduced Lemon‘s test to just two parts.
The first of these requirements is that the government program have a secular purpose. As we explained on pages 803, 804 and 805, ante, to
The second, and final, inquiry under Lemon, as refined by the high court in Agostini, is whether the government program will have the impermissible effect of advancing religion. Pertinent to this inquiry is whether the program will “result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement” between the government and the religiously affiliated beneficiaries of the program. (Agostini, supra, 521 U.S. at p. 234.) We first address governmental indoctrination below.
Governmental indoctrination of religion occurs when “any use of [the government] aid to indoctrinate religion [can] be attributed to the State.” (Agostini, supra, 521 U.S. at p. 230.) Here, the Authority‘s issuance of revenue bonds to finance campus improvements at the three religious schools will not result in governmental indoctrination. As we have explained, a school cannot qualify for the bond funding unless it offers a broad curriculum in secular subjects and the academic content of its classes in secular subjects is similar to that offered in nonreligious schools. (See pp. 803-805, ante.) The mere incidental expression of a religious viewpoint while teaching a secular class does not constitute religious indoctrination. Moreover, the Authority‘s financing agreements with the three schools expressly prohibit them from using the bond proceeds to build or improve facilities for “‘sectarian instruction or as a place for religious worship or in connection with any part of the programs of any school or department of divinity.‘” (See p. 797, ante.)
We now consider whether the Authority here defines the recipients of its revenue bond funding “by reference to religion.” (Agostini, supra, 521 U.S. at p. 234.) As we have explained on page 794, ante, the Authority is by statute a joint powers authority, which is comprised of some 350 cities, counties and other public entities, and which has since its creation issued tax-exempt bonds to promote economic development within its members’ boundaries, based on principles of neutrality, without taking into account the recipient‘s religious affiliation, if any.
Nor will the state bond funding here “create an excessive entanglement” (Agostini, supra, 521 U.S. at p. 234) between the state and the religious schools in question. As mentioned earlier, the Authority‘s agreements with the three schools strictly prohibit them from using the bond-funded educational facilities for religious purposes, and we have conditioned
In addition, the state bond funding agreements here provide for the appointment of an independent trustee, with the right of access to the three schools to ascertain their compliance with the restrictions imposed. The trustee‘s right of access could be exercised by occasional unannounced visits. We note that even when the monitoring visits are by the government entity, rather than as here by a trustee independent of the public entity issuing the bonds, such visits have been held insufficient to create an excessive entanglement between the monitoring agency and the sectarian schools. (See Agostini, supra, 521 U.S. at p. 233; see also Bowen v. Kendrick (1988) 487 U.S. 589, 615-617 [101 L.Ed.2d 520, 108 S.Ct. 2562] [government monitoring of educational materials used by grantee is not excessive entanglement with religion]; Roemer v. Maryland Public Works Bd. (1976) 426 U.S. 736, 764-765 [49 L.Ed.2d 179, 96 S.Ct. 2337] [no excessive entanglement with religion where state conducts annual audits of religious colleges to ensure state aid is not used for “sectarian purposes“].)
For all of these reasons we conclude that the Authority‘s issuance of government bonds benefiting religious schools under the conditions we have here set forth (see pp. 803-805, ante) does not violate the establishment clause of the
DISPOSITION
The judgment of the Court of Appeal is reversed, and the matter is remanded to that court with directions to remand the case to the trial court so it can reconsider the Authority‘s request for validation of its bond funding agreements with Oaks Christian School, California Baptist University, and Azusa Pacific University in light of our opinion here.
George, C. J., Baxter, J., and Corrigan, J., concurred.
CHIN, J., Dissenting.—In sweeping terms,
Given the trial court‘s uncontested factual findings that “[r]eligion is both mandatory and integral to every aspect of student life” at the schools here at issue, and that the schools are “organized primarily or exclusively for religious purposes,” “restrict[] admission of students by religious criteria,” “discriminate[] on the basis of religion in hiring faculty,” and “integrate[]” “[r]eligion... into classroom instruction,” I conclude that the proposed bond financing agreements now before us are invalid under both the plain language and our judicial construction of
FACTUAL BACKGROUND
Because the majority completely ignores the trial court‘s factual findings and glosses over the details of the proposed bond financings, I begin by discussing those matters.
In each of the three validation actions here at issue, the California Statewide Communities Development Authority (the Authority) moved for a default judgment. In its moving papers, the Authority “assumed,” but did not concede, that each school “would be considered” to be “pervasively sectarian,” meaning that “‘religion is so pervasive [at the school] that a substantial portion of its functions are subsumed in [its] religious mission.‘”
The Authority also submitted declarations in support of its motions. Regarding Oaks Christian School, the Authority‘s supporting declarations stated: (1) the school is a “Christian school for the education of children in the sixth through twelfth grades“; (2) its “mission statement is ‘to grow in knowledge and wisdom through God‘s grace, and to dedicate [oneself] to the pursuit of academic excellence, athletic distinction and Christian values‘“; (3) students and their parents “must agree” to “support the School‘s mission, statement of faith and Biblical goals and objectives“; (4) “[f]aculty members must be Christian and... sign a statement of faith“; and (5) the school “seeks,” among other things, “to develop ‘each student‘s mind, body and spirit... through... spiritual training by the finest Christian teachers and coaches in the nation,‘” “foster an understanding of the sovereignty of God to provide a framework for the application of knowledge,” “refine the body and character through teamwork and in competition that honors God,” and “encourage a passion to love God.” In its supporting brief, the Authority added that the school “require[s]... that students attend assembly period twice a week during which prayers may be held.”
Regarding California Baptist University, the Authority‘s supporting declarations stated: (1) the school is “a Christian liberal arts institution offering undergraduate and graduate programs of study“; (2) it “seeks” students who “believe in biblically-based Christian principles” and “expect[s]” students “to live in accordance with such principles“; (3) it “require[s]” students “to attend a church of their choosing” and to “complete a certain number of courses in... Christian studies“; (4) it “requires that [all] faculty members be Christian, and [that] at least 51% of the faculty members... be Baptist“; and (5) it “expect[s]” all faculty members “to maintain a theological and philosophical position consistent with the University‘s principles.”
Regarding Azusa Pacific University, the Authority‘s supporting declarations stated: (1) the school “is an evangelical Christian community of disciples and scholars who seek to advance the work of God in the world through academic excellence in liberal arts and professional programs of higher education that encourage students to develop a Christian perspective of truth and life“; (2) applicants “must evidence appreciation for the standards and spirit of the University, and exhibit moral character in harmony with its purpose“; (3) an applicant‘s “involvement in church” is “reviewed” during the admission process; (4) students “must complete... 120 hours of student ministry assignments“; and (5) all faculty members must “be Christian and are expected to maintain a theological and philosophical position consistent with the University‘s principles.” The Authority‘s supporting brief added that the school requires students to “attend chapel.”
In each action, the trial court denied the Authority‘s motion for default judgment. In its orders, the court first set forth the facts regarding the schools
In the Court of Appeal, the Authority did not contest the trial court‘s factual findings. On the contrary, it argued that because “there [were] no contested factual issues,” the only issue was whether the trial court had applied the correct “legal analysis” in focusing “on the religious nature of the school[s]” instead of “the nature of the benefit being provided.” Moreover, “[f]or purposes of th[е] appeal,” the Authority did “not dispute that [the schools] could be characterized as ‘pervasively sectarian,‘” and it explained that “an educational institution is considered ‘pervasively sectarian’ when a substantial portion of [its] function is subsumed in its religious mission and it is impossible to separate its religious aspects from its secular aspects.” Similarly, in this court, the Authority does not contest the trial court‘s findings. Thus, we must accept the trial court‘s factual findings regarding the nature of the schools.2
The details of the proposed bond financing are set forth in purchase and sale agreements between the schools and the Authority, the governing statutes, and declarations the Authority submitted in support of its motions for default judgment. Under these agreements, the Authority, which is a public entity, promises to issue, sell, and deliver the bonds and to “apply the proceeds received from the sale” to pay for the costs of the bond sales and the specified projects at the schools. By both statute and the agreements with the schools, the bonds constitute “special obligations” of the Authority. (
With respect to each school, the Authority simultaneously executes both a purchase agreement and a separate sale agreement. In the purchase agreements, the schools sell and transfer to the Authority all of their right, title and interest in and to the school property оn which the improvements will be made. In the sale agreements, the Authority sells and transfers back to the schools all of the interest in the schools’ property it acquired under the purchase agreements. The purchase price for the school property the Authority sells back to the schools is essentially the amount needed to pay off the principal, interest, and any premium on the bonds. “As security for the payment of the [b]onds, the Authority” assigns to a trustee its right to receive the schools’ payments for repurchasing the property, and directs the schools to make these payments directly to the trustee. The trustee, as assignee of the Authority, uses this money to pay off the bondholders on behalf of the Authority and to satisfy the “special obligation [] . . . of the [A]uthority” to pay the bondholders. (
The purpose of these machinations is to save the schools considerable money in financing costs. In general, bond investors will accept a lower interest rate on investments where the interest is tax-exempt. However, interest on bonds cannot be tax-exempt unless a governmental entity like the Authority is the bond issuer. Thus, as the Authority explained in the Court of Appeal, the schools, through the Authority‘s participation as bond issuer, will
The agreements also describe the projects to be financed through the bond sales. Oaks Christian School intends to use the funds to “acqui[re], construct[], improve[], renovat[e], remodel[], furnish[] and equip[] . . . classrooms, laboratories, administration offices, dining facilities, athletic facilities, parking facilities, [and] a co-generation facility.” California Baptist University intends to make similar use of the funds for “residence facilities, parking facilities, classrooms, administration offices, the academic and student center complex, [and] athletic facilities.” Azusa Pacific University intends to use the funds for similar purposes regarding “certain educational facilities . . . including... a new... residence facility, a dining facility, [and] a mail center.” In the agreements, the schools “agree[] that no facility, place or building financed or refinanced with a portion of the proceeds of the Bonds will be used... for sectarian instruction or as a place for religious worship or in connection with any part of the programs of any school or department of divinity for the useful life of the Project.”4
DISCUSSION
“The determination of [California‘s] public policy... resides, first, with the people as expressed in their Constitution ....” (Jensen v. Traders & General Ins. Co. (1959) 52 Cal.2d 786, 794 [345 P.2d 1].) In other words, the California Constitution is both “the highest expression of the will of the people of the state” (Ex parte Braun (1903) 141 Cal. 204, 211 [74 P. 780]) and “the preeminent expression of California law.” (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 314 [66 Cal.Rptr.2d 210, 940 P.2d 797] (Lungren).) Accordingly, when construing a provision of the
In light of the trial court‘s uncontested factual findings, the proposed bond agreements in this case unquestionably are invalid under the ordinary meaning of
In several relevant cases, we have explored the reach of
In Riles, to determine the constitutional validity of the textbook lending program, we first considered “whether it only indirectly benefit[ed] parochial schools.” (Riles, supra, 29 Cal.3d at p. 809.) The trial court had concluded that the program had “a clearly secular... purpose” and that the benefit it provided the schools, “though substantial, [was] only indirect and incidental.” (Id. at p. 800.) We disagreed, holding that the benefit sectarian schools received from the program could not “be characterized as . . . only indirect, remote, and incidental.” (Id. at p. 809.) In reaching this conclusion, we focused principally on “the inseparability of the benefit to the pupil and the school, and the impossibility of characterizing the advantage to one as remote and to the other as direct.” (Id. at p. 810.) We explained: “The books are supplied for use in the school, and we are unable to perceive any significant distinction from a constitutional standpoint whether they are loaned to the students for use in the school, or to the school for use by the students. In either circumstance, both the child and the school benefit. The United States Supreme Court has recognized as much in characterizing textbook loan programs as a form of financial assistance to the school even though the loan is nominally made to the student. There is no rational reason for concluding that the school benefits only indirectly or remotely from the loan if the child is the nominal recipient, for it is an undeniable fact that books are a critical element in enabling the school to carry out its essential mission to teach the students.” (Ibid., fn. omitted.)
We next explained in Riles that our conclusion that the benefit was “neither indirect nor remote [did] not end our inquiry,” because not all aid that “directly” benefits sectarian schools is “prohibited (e.g., providing fire protection),” and not all aid that indirectly benefits sectarian schools is “valid (e.g., reimbursement for the purchase of religious articles by students in public and nonpublic schools).” (Riles, supra, 29 Cal.3d at p. 811.) Ultimately, we explained, the program‘s validity under
Finally, we held in Riles that the textbook lending program was invalid under
Applying Riles and its analytical framework to this case, I conclude that the proposed bond financings at issue here are invalid under
Several years before we decided Riles, in Priest, we discussed the scope of
After setting forth these general principles, we opined in Priest that the statutory bond program there at issue, although “appear[ing] to approach state involvement with religion [citation],” could not be said “in the abstract” to “cross[] the forbidden line.” (Priest, supra, 12 Cal.3d at p. 606Id. at p. 605.) We next noted, and deferred to, the Legislature‘s determination that the statutory program, “in supporting the maintenance and improvement of facilities for higher education, [was] in the public interest [citations].” (Ibid.) Finally, we stated: “The benefits of the [program] are granted to sectarian and nonsectarian colleges on an equal basis; . . . all aid for religious projects is strictly prohibited; and in no event is a financial burden imposed upon the state. In these circumstances the [statutory program] does not have a substantial effect of supporting religious activities.” (Id. at p. 606.)
Unlike the majority, which wholly embraces Priest without either analysis or hesitation, I believe there is good reason to question that decision‘s authority and persuasiveness. To begin with, as Priest itself noted, the school seeking bond financing in that case was “not affiliated with any religious organizаtion, and therefore [was] not directly concerned with a challenge to the [statutory program‘s] validity . . . under”
Moreover, Priest‘s assertion that
These concerns aside, unlike the majority, I believe that the proposed bond financings in this case are invalid even under Priest‘s dictum. As explained above, Priest stated that the purpose of
In any event, Priest must be read in light of our subsequent decision in Riles. As explained above, the benefit the schools would receive in this case under the bond financing program would be “direct” as we interpreted that term in Riles. (Riles, supra, 29 Cal.3d at p. 810.) As also explained above, we held in Riles that the key question under
The majority virtually ignores Riles, declaring in a footnote that it, unlike this case, involved “direct public aid” to parochial schools in the form of textbooks provided “at public expense.” (Maj. opn., ante, at p. 801, fn. 7.) By contrast, the majority asserts, because “no public funds are expended” in connection with the proposed bond financings here (ibid.), only “indirect assistance” is at issue in this case. (Id., at p. 799.)
For several reasons, the majority‘s stated basis for disregarding Riles is invalid. Initially, the majority‘s view rests on its unsupported assertion that the proposed bond financings would involve “no [expenditure of] public funds.” (Maj. opn., ante, at p. 801, fn. 7.) As noted above, the bonds here will be issued and sold by a public entity: the Authority. The majority does not explain why the proceeds from the sales, which will be used at the schools, are not public funds. Nor does the majority explain why the interest on those proceeds, which also will be used at the schools, are not public funds. Moreover, although the majority asserts that the obligation to pay the bondholders “falls to the recipient schools” and that the payment obligation will not be “secured by any public property” (maj. opn., ante, at p. 797), as noted above, payment of the bondholders is, by statute and by agreement, a special obligation of the Authority, and the Authority‘s payment obligation is secured by its right to receive from the schools payments to repurchase school property from the Authority. The majority simply glosses over these aspects of the proposed bond financings.7
More broadly, the majority‘s focus on whether the benefit would involve a direct expenditure of public funds is inconsistent with the language of
The majority‘s analysis is at odds with Riles in another important respect. As noted above, we unanimously held in Riles that the textbook lending program there at issue was invalid under
Another problem with the majority‘s newly minted test—which has not been proposed by any party to this case and which is not based on the language of
The majority‘s test is also vague in directing trial courts to determine whether “the academic content” of a religious school‘s courses in secular subjects is typical of that provided in nonreligious schools. (Maj. opn., ante, at p. 804.) The majority fails to define what it means by the term “academic
The majority‘s test is tautological in another sense. According to the majority, a school that includes a religious perspective in its curriculum may be the beneficiary of a bond financing only if two purportedly separate requirements are met: the school must offer “a sufficiently broad curriculum in secular subjects” (maj. opn., ante, at p. 806, italics added) and “the information and coursework used to teach [those] secular subjects must be neutral with respect to religion.” (Id., at p. 804.) In my view, a subject qualifies as “secular,” by definition, only if it consists of information and coursework that is neutral with respect to religion. In other words, any subject that qualifies as secular will necessarily consist of information and coursework that is neutral with respect to religion. Thus, these two separately stated requirements of the majority‘s test are, in actuality, but one.
The majority‘s test is also ambiguous in that it announces seеmingly inconsistent standards. On the one hand, the majority states that a benefited school may not use the bond proceeds “for ‘religious projects,’ that is ‘sectarian instruction or as a place for religious worship or in connection with any part of the programs of any school or department of divinity for the useful life of the Project.‘” (Maj. opn., ante, at p. 801.) On the other hand, the majority states that it is constitutionally permissible for a religious school, in those same facilities, to express its religious viewpoints and perspectives in the course of teaching secular subjects. (Maj. opn., ante, at p. 794.) The majority fails to explain why a school‘s expression of its religious viewpoints and perspectives in secular classes does not constitute “sectarian instruction,” or why the building or improvement of a facility in which a school will express its religious viewpoints and perspectives does not constitute a “religious project.” In this regard, the majority‘s analysis seems to be internally inconsistent; the first part of the majority‘s four-part test appears to permit what the third part prohibits. More importantly, the majority‘s analysis expressly permits the schools to impart their religious viewpoints and perspectives in secular courses, in classrooms built, improved, furnished and equipped with money raised by a public entity—the Authority—on the schools’ behalf through the Authority‘s issuance and sale of bonds. In my view, this violates both the plain meaning and our judicial construction of
A related ambiguity in the majority‘s test is the distinction the majority appears to draw between religious instruction and the expression of religious viewpoints and perspectives. On the one hand, the majority declares that a religious school may not, in facilities financed with bond proceeds, teach a “class that includes as part of the instruction information or coursework that promotes or opposes a particular religion or religious beliefs.” (Maj. opn., ante, at p. 804.) On the other hand, the majority states, a school may “express[]” its “religious viewpoint[s] in [its] otherwise secular classes.” (Maj. opn., ante, at p. 793.) Thus, in the majority‘s view, there is a difference between expressing a religious viewpoint, which is permissible, and “includ[ing] as part of the instruction information or coursework that promotes or opposes a particular religion or religious beliefs,” which is not permissible. (Maj. opn., ante, at p. 804.) Unfortunately, the majority fails to explain where the difference lies, or how a court is supposed to tell one from the other.
The majority‘s test also gives rise to several other concerns. First, it appears to require significant and unworkable monitoring to determine whether the schools, in teaching secular courses, are impermissibly including information or coursework that promotes or opposes a particular religion or religious beliefs, or are merely expressing religious viewpoints and perspectives. In this regard, notwithstanding the majority‘s claim to the contrary (maj. opn., ante, at p. 804), the majority‘s test will require scrutiny of the schools’ day-to-day operations by the Authority and the courts.9 Second, the majority‘s test appears to be too narrow to address the constitutional concerns the proposed bond financings raise. Although the majority acknowledges “concern that a school with a religious perspective may [impermissibly] use the facilities built or improved with the revenue bond proceeds to substantially further its religious mission,” the test the majority announces to address this concern focuses only on what happens inside the schools’ classrooms. (Maj. opn., ante, at p. 803.) Notably, as already explained, the schools here intend to use the bond proceeds not just for classrooms, but also for dining and residence halls and an academic and student center complex. The majority‘s analysis appears to ignore the extent to which the schools may use those facilities to further their religious missions.10
Finally, for several reasons, I disagree with the majority‘s view that the proposed bond financings here are valid because they are “in the nature of a tax policy rather than an aid program.” (Maj. opn., ante, at p. 804, fn. 9.) First, the majority‘s discussion rests on the untested and unwarranted assumption that anything that may be characterized as being “in the nature of a tax policy” because it somehow involves a “tax exempt[ion]” (ibid.) does not, for that reason, violate
The majority‘s “tax policy” discussion suffers from a fourth flaw: it is based on an analysis we long ago criticized and rejected in Riles. There, as noted above, we explained that the “‘child benefit’ theory“—which looks to whether a school is benefited only as an incidental result of a benefit provided directly to students—“ha[s] been criticized by courts and commentators” (Riles, supra, 29 Cal.3d at p. 807), produces “dissonant decisions” that cannot be “harmonize[d]” (id. at pp. 807-808), and “in most instances . . . leads to results which are logically indefensible.” (Id. at p. 809.) The majority here
In the end, this case seems relatively simple. By issuing and selling bonds, making the proceeds available to the schools, and accepting the special obligation to pay the bondholders, the Authority—a public entity—would be raising money on behalf of the schools at below-market interest rates that the schools could not obtain on their own. As the majority explains, the Authority‘s purpose in taking these actions would be “to encourage” the “development” of the schools (maj. opn., ante, at p. 795) and to “enhance[]” their “ability . . . to expand . . . .” (Id. at p. 803.) By so interceding in the marketplace on the schools’ behalf, the Authority would save the schools millions of dollars in financing costs and would significantly enhance their ability to carry out their mission. Given the trial court‘s factual findings regarding that mission and the religious nature of these schools, even if no transfer of public funds is involved, the proposed bond financings violate
I emphasize that my conclusion does not reflect “‘hostility to religion‘” (maj. opn., ante, at p. 805) any more than did our unanimous holding in Riles that lending secular textbooks to religious schools violates
Werdegar, J., and Moreno, J., concurred.
Unlike the majority, I am not convinced that it will be sufficient merely to examine the schools’ “course descriptions.” (Maj. opn., ante, at p. 804.) There is no reason to suppose that the actual religious content of a purportedly secular course taught in a sectarian school will be accurately reflected in a formal course description.