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.
The Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U. S. C. § 300z et seq. (1982 ed. and Supp. IV), was passed by Congress in 1981 in response to the "severe adverse health, social, and economic consequences" that often follow pregnancy and childbirth among unmarried adolescents. 42 U. S. C. § 300z(a)(5) (1982 ed., Supp. IV). Like its predecessor, the Adolescent Health Services and Pregnancy Prevention and Care Act of 1978, Pub. L. 95-626, Tit. VI, 92 Stat. 3595-3601 (Title VI), the AFLA is essentially a scheme for providing grants to public or nonprofit private organizations or agencies "for services and research in the area of premarital adolescent sexual relations and pregnancy." S. Rep. No. 97-161, p. 1 (1981) (hereinafter Senate Report). These grants are intended to serve several purposes, including the promotion of "self discipline and other prudent approaches to the problem of adolescent premarital sexual relations," § 300z(b)(1), the promotion of adoption as an alternative for adolescent parents, § 300z(b)(2), the
In pertinent part, grant recipients are to provide two types of services: "care services," for the provision of care to pregnant adolescents and adolescent parents, § 300z-1(a)(7), and "prevention services," for the prevention of adolescent sexual relations, § 300z-1(a)(8).
In addition, AFLA requires grant applicants, among other things, to describe how they will, "as appropriate in the provision of services[,] involve families of adolescents[, and] involve religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives." § 300z-5(a)(21). This broad-based involvement of groups outside of the government was intended by Congress to "establish better coordination, integration, and linkages" among existing programs in the community, § 300z(b)(3) (1982 ed., Supp. IV), to aid in the development of "strong family values and close family ties," § 300z(a)(10)(A), and to "help adolescents and their families deal with complex issues of adolescent premarital sexual relations and the consequences of such relations." § 300z(a)(10)(C).
In line with its purposes, the AFLA also imposes limitations on the use of funds by grantees. First, the AFLA expressly states that no funds provided for demonstration projects under the statute may be used for family planning services (other than counseling and referral services) unless appropriate family planning services are not otherwise available in the community. § 300z-3(b)(1). Second, the AFLA restricts the awarding of grants to "programs or projects
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.
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).
The District Court then concluded that the statute as applied also runs afoul of the Lemon effects test.
In a separate order, filed August 13, 1987, the District Court ruled that the "constitutionally infirm language of the AFLA, namely its references to `religious organizations,' " App. to Juris. Statement in No. 431, p. 53a, is severable from the Act pursuant to Alaska Airlines, Inc. v. Brock, 480 U.S. 678 (1987). The court also denied the Secretary's Federal Rule of Civil Procedure 59(e) motion to clarify what the court meant by "religious organizations" for purposes of determining the scope of its injunction. On the same day that this order was entered, appellants docketed their appeal on the merits directly with this Court pursuant to 28 U. S. C. § 1252. A separate appeal from the District Court's August 13 order was also docketed, as was a cross-appeal by appellees on the severability issue. On November 9, 1987, we noted probable jurisdiction in all three appeals and consolidated the cases for argument. 484 U.S. 942 (1987).
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 §§ 300z(a), (b) (1982 ed. and Supp. IV). Appellees cannot, and do not, dispute that, on the whole, religious concerns were not the sole motivation
The District Court rejected this argument, however, reasoning that even if it is assumed that the AFLA was motivated in part by improper concerns, the parts of the statute to which appellees object were also motivated by other, entirely legitimate secular concerns. We agree with this conclusion. As the District Court correctly pointed out, Congress amended Title VI in a number of ways, most importantly for present purposes by attempting to enlist the aid of not only "religious organizations," but also "family members. . . , charitable organizations, voluntary associations, and other groups in the private sector," in addressing the problems associated with adolescent sexuality. § 300z(a)(8)(B); see also §§ 300z-5(a)(21)(A), (B). Cf. Title VI, § 601(a) (5) ("[T]he problems of adolescent [sexuality] . . . are best approached through a variety of integrated and essential services"). Congress' decision to amend the statute in this way reflects the entirely appropriate aim of increasing broad-based community involvement "in helping adolescent boys and girls understand the implications of premarital sexual relations, pregnancy, and parenthood." See Senate Report, at 2, 15-16. In adopting the AFLA, Congress expressly intended to expand the services already authorized by Title VI, to insure the increased participation of parents in education
As usual in Establishment Clause cases, see, e. g., Grand Rapids School District v. Ball, 473 U.S. 373 (1985); Mueller, supra, the more difficult question is whether the primary effect of the challenged statute is impermissible. Before we address this question, however, it is useful to review again just what the AFLA sets out to do. Simply stated, it authorizes grants to institutions that are capable of providing certain care and prevention services to adolescents. Because of the complexity of the problems that Congress sought to remedy, potential grantees are required to describe how they will involve other organizations, including religious organizations, in the programs funded by the federal grants. § 300z-5(a)(21)(B); see also § 300z-2(a). There is no requirement in the Act that grantees be affiliated with any religious denomination, although the Act clearly does not rule out grants to religious organizations.
Given this statutory framework, there are two ways in which the statute, considered "on its face," might be said to have the impermissible primary effect of advancing religion. First, it can be argued that the AFLA advances religion by expressly recognizing that "religious organizations have a role to play" in addressing the problems associated with teenage
We consider the former objection first. As noted previously, the AFLA expressly mentions the role of religious organizations in four places. It states (1) that the problems of teenage sexuality are "best approached through a variety of integrated and essential services provided to adolescents and their families by[, among others,] religious organizations," § 300z(a)(8)(B), (2) that federally subsidized services "should emphasize the provision of support by[, among others,] religious and charitable organizations," § 300z(a)(10)(C), (3) that AFLA programs "shall use such methods as will strengthen the capacity of families . . . to make use of support systems such as . . . religious . . . organizations," § 300z-2(a), and (4) that grant applicants shall describe how they will involve religious organizations, among other groups, in the provision of services under the Act. § 300z-5(a)(21)(B).
Putting aside for the moment the possible role of religious organizations as grantees, these provisions of the statute reflect at most Congress' considered judgment that religious organizations can help solve the problems to which the
We note in addition that this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs. To the contrary, in Bradfield v. Roberts, 175 U.S. 291 (1899), the Court upheld an agreement between the Commissioners of the District of Columbia and a religiously affiliated hospital whereby the Federal Government would pay for the construction of a new building on the grounds of the hospital. In effect, the Court refused to hold that the mere fact that the hospital was "conducted under the auspices of the Roman Catholic Church" was sufficient to alter the purely secular legal character of the corporation, id., at 298, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter. In the Court's view, the giving of federal aid to the hospital was entirely consistent with the Establishment Clause, and the fact that the hospital was religiously affiliated was "wholly immaterial." Ibid. The propriety of this holding, and the long history of cooperation and interdependency between governments and charitable or religious organizations is reflected in the legislative history of the AFLA. See S. Rep. No. 98-496, p. 10 (1984) ("Charitable organizations with religious affiliations historically have provided social services with the support of their communities and without controversy").
Of course, even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government aid to religiously affiliated institutions does not have the primary effect of advancing religion.
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."
Nor do we agree with the District Court that the AFLA necessarily has the effect of advancing religion because the religiously affiliated AFLA grantees will be providing educational and counseling services to adolescents. Of course, we have said that the Establishment Clause does "prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith," Grand
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.
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:
For the foregoing reasons we conclude that the AFLA does not violate the Establishment Clause "on its face."
We turn now to consider whether the District Court correctly ruled that the AFLA was unconstitutional as applied. Our first task in this regard is to consider whether appellees had standing to raise this claim. In Flast v. Cohen, 392 U.S. 83 (1968), we held that federal taxpayers have standing to raise Establishment Clause claims against exercises of congressional power under the taxing and spending power of Article I, § 8, of the Constitution. Although we have considered the problem of standing and Article III limitations on federal jurisdiction many times since then, we have consistently adhered to Flast and the narrow exception it created to the general rule against taxpayer standing established in Frothingham v. Mellon, 262 U.S. 447 (1923). Accordingly, in this case there is no dispute that appellees have standing to raise their challenge to the AFLA on its face. What is disputed, however, is whether appellees also have standing to challenge the statute as applied. The answer to this question turns on our decision in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464 (1982). In Valley Forge, we ruled that taxpayers did not have standing to challenge a decision by the Secretary of Health, Education, and Welfare (HEW) to dispose of certain property pursuant to the Federal Property and Administrative Services Act of 1949, 63 Stat. 377, as amended, 40 U. S. C. § 471 et seq. We rejected the taxpayers' claim of standing for two reasons: first, because "the source of their complaint is not a congressional action, but a decision by HEW to transfer a parcel of federal property," 454 U. S., at 479, and second, because "the property transfer about which [the taxpayers] complain was not an exercise of
On the merits of the "as applied" challenge, it seems to us that the District Court did not follow the proper approach in assessing appellees' claim that the Secretary is making grants under the Act that violate the Establishment Clause of the First Amendment. Although the District Court stated several times that AFLA aid had been given to religious organizations that were "pervasively sectarian," see 657 F. Supp., at 1564, 1565, 1567, it did not identify which grantees it was referring to, nor did it discuss with any particularity the aspects of those organizations which in its view warranted classification as "pervasively sectarian."
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,
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
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, 42 U. S. C. § 300z et seq. (1982 ed. and Supp. IV), thereby "involv[ing] families[,] . . . religious and charitable organizations, voluntary associations, and other groups," § 300z-5(a)(21), in a broad-scale effort to alleviate some of the problems associated with teenage pregnancy. It is unclear whether Congress ever envisioned that public funds would pay for a program during a session of which parents and teenagers would be instructed:
Or of curricula that taught:
Or the teaching of a method of family planning described on the grant application as "not only a method of birth regulation but also a philosophy of procreation," id., at 143, and promoted as helping "spouses who are striving . . . to transform their married life into testimony[,] . . . to cultivate their matrimonial spirituality[, and] to make themselves better instruments
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.
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 law-suit has been litigated primarily as a broad challenge to the statutory scheme as a whole, not just to the awarding of grants to a few individual applicants. The thousands of pages of depositions, affidavits, and documentary evidence were not intended to demonstrate merely that particular grantees should not receive further funding. Indeed, because of the 5-year grant cycle, some of the original grantees are no longer AFLA participants. This record was designed to show that the AFLA had been interpreted and implemented by the Government in a manner that was clearly unconstitutional, and appellees sought declaratory and injunctive relief as to the entire statute.
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.
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:
See also Hunt v. McNair, 413 U.S. 734, 743 (1973).
The majority first skews the Establishment Clause analysis by adopting a cramped view of what constitutes a pervasively sectarian institution. Perhaps because most of the Court's decisions in this area have come in the context of aid to parochial schools, which traditionally have been characterized as pervasively sectarian, the majority seems to equate the characterization with the institution.
More importantly, the majority also errs in suggesting that the inapplicability of the label is generally dispositive. While a plurality of the Court has framed the inquiry as "whether an institution is so `pervasively sectarian' that it may receive no direct state aid of any kind," Roemer v. Maryland Public Works Board, 426 U. S., at 758, the Court never has treated the absence of such a finding as a license to disregard the potential for impermissible fostering of religion. The characterization of an institution as "pervasively sectarian" allows us to eschew further inquiry into the use that will be made of direct government aid. In that sense, it is a sufficient, but not a necessary, basis for a finding that a challenged program creates an unacceptable Establishment Clause risk. The label thus serves in some cases as a proxy for a more detailed analysis of the institution, the nature of the aid, and the manner in which the aid may be used.
The voluminous record compiled by the parties and reviewed by the District Court illustrates the manner in which the AFLA has been interpreted and implemented by the agency responsible for the aid program, and eliminates whatever need there might be to speculate about what kind of institutions might receive funds and how they might be selected; the record explains the nature of the activities funded with Government money, as well as the content of the educational programs and materials developed and disseminated. There is no basis for ignoring the volumes of depositions, pleadings, and undisputed facts reviewed by the District Court simply because the recipients of the Government funds may not in every sense resemble parochial schools.
As is often the case, it is the effect of the statute, rather than its purpose, that creates Establishment Clause problems. Because I have no meaningful disagreement with the majority's discussion of the AFLA's essentially secular purpose, and because I find the statute's effect of advancing religion dispositive, I turn to that issue directly.
The majority's holding that the AFLA is not unconstitutional on its face marks a sharp departure from our precedents. While aid programs providing nonmonetary, verifiably secular aid have been upheld notwithstanding the indirect effect they might have on the allocation of an institution's own funds for religious activities, see, e. g., Board of Education v. Allen, 392 U.S. 236 (1968) (lending secular textbooks to parochial schools); Everson v. Board of Education, 330 U.S. 1 (1947) (providing bus services to parochial schools), direct cash subsidies have always required much closer scrutiny into the expected and potential uses of the funds, and much greater guarantees that the funds would not be used inconsistently with the Establishment Clause. Parts of the AFLA prescribing various forms of outreach, education, and counseling services
Notwithstanding the fact that Government funds are paying for religious organizations to teach and counsel impressionable adolescents on a highly sensitive subject of considerable religious significance, often on the premises of a church or parochial school and without any effort to remove religious symbols from the sites, 657 F. Supp., at 1565-1566, the majority concludes that the AFLA is not facially invalid. The majority acknowledges the constitutional proscription on
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:
I find it nothing less than remarkable that the majority relies on statements expressing confidence that administrators of religiously affiliated liberal arts colleges would not breach statutory proscriptions and use government funds earmarked "for secular purposes only," to finance theological instruction or religious worship, see ante, at 612, citing Roemer, 426 U. S., at 760-761, and Tilton, 403 U. S., at 682, in order to reject a challenge based on the risk of indoctrination inherent in "educational services relating to family life and problems associated with adolescent premarital sexual relations," or "outreach services to families of adolescents to discourage sexual relations among unemancipated minors." §§ 300z-1(a)(4)(G), (O). The two situations are simply not comparable.
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,
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.
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. 14, supra. These objections cannot responsibly be answered by reliance on the Secretary's enforcement mechanism. See, e. g., Levitt v. Committee for Public Education & Religious Liberty, 413 U. S., at 480 ("[T]he State is constitutionally compelled to assure that the state-supported activity is not being used for religious indoctrination"); Lemon v. Kurtzman, 403 U. S., at 619 ("The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion").
By placing unsupportable weight on the "pervasively sectarian" label, and recharacterizing appellees' objections to the statute, the Court attempts to create an illusion of consistency between our prior cases and its present ruling that the AFLA is not facially invalid. But the Court ignores the unwavering vigilance that the Constitution requires against any law "respecting an establishment of religion," U. S. Const., Amdt. 1, which, as we have recognized time and again, calls for fundamentally conservative decisionmaking: our cases do not require a plaintiff to demonstrate that a government action necessarily promotes religion, but simply that it creates such a substantial risk. See, e. g., Grand Rapids School District v. Ball, 473 U. S., at 387 (observing a "substantial risk that, overtly or subtly, the religious message . . . will infuse the supposedly secular classes"); Committee for Public Education & Religious Liberty v. Regan, 444 U. S., at 656 (describing as "minimal" the chance that religious bias would enter process of grading state-drafted tests in secular subjects, given "complete" state safeguards); Wolman v. Walter, 433 U. S., at 254 (noting "unacceptable risk of fostering of religion" as "an inevitable byproduct" of teacher-accompanied field trips); Meek v. Pittenger, 421 U. S., at 372 (finding "potential for impermissible fostering of religion"); Levitt v. Committee for Public Education & Religious Liberty, 413 U. S., at 480 (finding dispositive "the substantial risk that. . . examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church"); Lemon v. Kurtzman, 403 U. S., at 619 (finding "potential for impermissible fostering of religion"). Given the nature of the subsidized activity, the lack of adequate safeguards, and the chronicle of past experience with this statute, there is no room for doubt that the AFLA creates a substantial risk of impermissible fostering of religion.
While it is evident that the AFLA does not pass muster under Lemon's "effects" prong, the unconstitutionality of the statute becomes even more apparent when we consider the unprecedented degree of entanglement between Church and State required to prevent subsidizing the advancement of religion with AFLA funds. The majority's brief discussion of Lemon's "entanglement" prong is limited to (a) criticizing it as a "Catch-22," and (b) concluding that because there is "no reason to assume that the religious organizations which may receive grants are `pervasively sectarian' in the same sense as the Court has held parochial schools to be," there is no need to be concerned about the degree of monitoring which will be necessary to ensure compliance with the AFLA and the Establishment Clause. Ante, at 615-616. As to the former, although the majority is certainly correct that the Court's entanglement analysis has been criticized in the separate writings of some Members of the Court, the question whether a government program leads to " `an excessive government entanglement with religion' " nevertheless is and remains a part of the applicable constitutional inquiry. Lemon v. Kurtzman, 403 U. S., at 613, quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970). I accept the majority's conclusion that "[t]here is no doubt that the monitoring of AFLA grants is necessary . . . to ensure that public money is to be spent . . . in a way that comports with the Establishment Clause," ante, at 615, but disagree with its easy characterization of entanglement analysis as a "Catch-22." To the extent any metaphor is helpful, I would be more inclined to characterize the Court's excessive entanglement decisions as concluding that to implement the required monitoring, we would have to kill the patient to cure what ailed him. See, e. g., Lemon v. Kurtzman, 403 U. S., at 614-615; Meek v. Pittenger, 421 U. S., at 370; Aguilar v. Felton, 473 U. S., at 413-414.
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.
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.
The AFLA, without a doubt, endorses religion. Because of its expressed solicitude for the participation of religious organizations in all AFLA programs in one form or another, the statute creates a symbolic and real partnership between the clergy and the fisc in addressing a problem with substantial
"(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;
"(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."
"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."
"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."
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.
"The record demonstrates that some grantees have included explicitly religious materials, or a curriculum that indicates an intent to teach theological and secular views on sexual conduct, in their HHS-approved grant proposals. . . . One such application, which was funded for one year, included a program designed, inter alia, `to communicate the Catholic diocese, Mormon (Church of Jesus Christ of Latter Day Saints) and Young Buddhist Association's approaches to sex education.' " 657 F. Supp., at 1565-1566.
"Broadly speaking, I find it hard to find any kind of educational or value type of program that doesn't have some kind of basic religious or ethical foundation, and while a sex education class may be completely separate from a religious class, it might relate back to it in terms of principles that are embedded philosophically or theologically or religiously in another discipline." App. 122.
Mr. Sheeran's views were echoed by Dr. Paul Simmons, a Baptist clergyman and professor of Christian Ethics:
"The very purpose of religion is to transmit certain values, and those values associated with sex, marriage, chastity and abortion involve religious values and theological or doctrinal issues. In encouraging premarital chastity, it would be extremely difficult for a religiously affiliated group not to impart its own religious values and doctrinal perspectives when teaching a subject that has always been central to its religious teachings." Id., at 597.
In any event, regardless of the efforts AFLA teachers and counselors may have undertaken in attempting to separate their religious convictions from the advice they actually dispensed to participating teenagers, the District Court found that "the overwhelming number of comments shows that program participants believed that these federally funded programs were also sponsored by the religious denomination." 657 F. Supp., at 1566.
"Grants or payments may be made only to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion." § 300z-10.
The AFLA also sets certain conditions on funding for family planning services, § 300z-3(b)(1), and requires of applicants some 18 separate "assurances" covering everything from confidentiality of patient records, § 300z-5(a)(11), to a commitment that the applicant will "make every reasonable effort . . . to secure from eligible persons payment for services in accordance with [structured fee] schedules," § 300z-5(a)(16)(B). Yet nowhere in the statute is there a single restriction on the use of federal funds to promote or advance religion. See ante, at 614-615.
Despite the clear religious mission of many applicants, pre-award investigations or admonitions against the use of AFLA funds to promote religion were minimal. Mr. Sheeran was instructed to call Catholic grantees already selected for funding, and obtain assurances that the grant money would not be used for "teaching of morals, dogmas, [or] religious principles." App. 107. The calls lasted two or three minutes, and involved no detailed discussion of the use of church and parochial school facilities, or religious literature. Id., at 112-113.
The District Court found that the problems that should have been noted at the application stage remained uncured in implementation:
"Nor do the facts suggest that the programs in operation cured the First Amendment problems evident from these approved grant applications. At least one grantee actually included `spiritual counseling' in its AFLA program. Other AFLA programs used curricula with explicitly religious materials. In addition, a very large number of AFLA programs took place on sites adorned with religious symbols . . . .
"Similarly, the record reveals that some grantees attempted to evade restrictions they perceived on AFLA-funded religious teaching by establishing programs in which an AFLA-funded staffer's presentations would be immediately followed, in the same room and in the staffer's presence, by a program presented by a member of a religious order and dedicated to presentation of religious views on the subject covered by the AFLA staffer" (citations omitted). 657 F. Supp., at 1566.
See also Roemer v. Maryland Public Works Board, 426 U. S., at 758 ("[T]he question [is] whether an institution is so `pervasively sectarian' that it may receive no direct state aid of any kind"). Indeed, to suggest that because a challenge is labeled "as-applied," the character of the institution receiving the aid loses its relevance is to misunderstand the very nature of the concept of a "pervasively sectarian" institution, which is based in part on the conclusion that the secular and sectarian activities of an institution are "inextricably intertwined," see ante, at 620, n. 16. Not surprisingly, the Court flatly rejects JUSTICE KENNEDY's suggestion, observing that "it will be open to appellees on remand to show that AFLA aid is flowing to grantees that can be considered `pervasively sectarian' religious institutions." Ante, at 621.