Amicus Curiae Brief — Bowen v. Kendrick

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JAN

No. 87-431 JOSEPH F SPanici

——————— ee ee RK

IN THE

Suprene Court of the United States

OCTOBER TERM, 1987

OTIS R. BOWEN, SECRETARY OF

HEALTH AND HUMAN SERVICES,

Appellant

CHAN KENDRICK, et al.,

Appellees

On Appeal From the United States District Court

for the District of Columbia

BRIEF FOR THE ATTORNEYS GENERAL OF

ARIZONA, LOUISIANA, MISSOURI, NEW HAMPSHIRE,

NEW MEXICO, UTAH, AND WASHINGTON

AS AMICI CURIAE IN SUPPORT OF APPELLANT

Of Counsel: GARY B. Born

JAMES S. CAMPBELL Counsel of Record

WILMER, CUTLER & PICKERING R. ScoTT KILGORE

2445 M Street, N.W. WILMER, CUTLER & PICKERING

Washington, D.C. 20037 2445 M Street, N.W.

Washington, D.C. 200387

(202) 663-6000

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

g.. Supreme Court, US.

FILED

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............

INTEREST OF AMICI CURIAE

ARISES EES SN See ree iestidosasasinsmdiion i cmlaniiciiies :

SUMMARY OF ARGUMENT

CERES ER EAP et

I. THE ESTABLISHMENT CLAUSE SHOULD

BE INTERPRETED IN LIGHT OF THE

LONG TRADITION OF COOPERATION BE-

TWEEN RELIGIOUS GROUPS AND GOV-

ERNMENT AGENCIES IN PROVIDING SO-

CIAL WELFARE SERVICES.

II. RELIGIOUS GROUPS CONTINUE TO PLAY

A VITAL ROLE IN CONTEMPORARY GOV-

ERNMENTAL SOCIAL WELFARE PRO-

SII idliscieotenshehanicepogunesesdeasnemensebabicecensiones

Il. THE ESTABLISHMENT CLAUSE DOES

NOT FORBID THE PARTICIPATION OF

RELIGIOUS GROUPS IN GOVERNMENTAL

SOCIAL WELFARE PROGRAMS LIKE THE

ADOLESCENT FAMILY LIFE ACT

A. The District Court Erred By Mechanically

Applying Parochial School Precedents in

the Social Welfare Context

B. There is No Basis for a Facial Establish-

ment Clause Challenge to the Act

C. The District Court Erred in Striking Down

the Act on “As-Applied” Grounds

CONCLUSION

APPENDIX A—States in Which Language of State

Constitution Permits Aid to Reli-

gious Groups for Social Welfare Pur-

poses

TABLE OF CONTENTS—Continued

APPENDIX B—States in Which State Courts or At-

torney General Permit Aid to Reli-

gious Groups for Social Welfare Pur-

poses

APPENDIX C—States in Which State Constitution

Apparently Forbids Direct Govern-

ment Aid to Religious Groups for

Social Welfare Purposes ........

Page

iii

TABLE OF AUTHORITIES

Cascs Page

Abington School District v. Schempp, 374 U.S.

ST en cetessvcasess A Re 18

Aguilar v. Felton, ‘473 2 US. 402 (198: 5) ae,

Ashwander v. i aiaeiies Valley Authority, 297

EEE a I 28

Board of Education v. Allen, 392 U.S. 236 (1968)... 19, 23

Bob Jones University v. United States, 461 U.S.

574 (1983)........... 2 Sue te cea A a 26

*Bradfield v. Roberts, 175 US. 291 (1899) SaaS passim

Committee for Public Education & Religious Lib-

erty v. Nyquist, 413 U.S. 756 (1973) ...............5, 18, 22

Epperson v. Arkansas, 393 U.S. 97 (1968) ......... 18

Everson v. Board of Education, 330 U.S. 1

a eet | Qf

Gillette v. United States, 401 US. 437 (asm). 26

Grand Rapids School District v. Ball, 473 U.S.

Re il es 17, 18, 19

Harris v. McRae, 448 U.S. 297 (1980) . eceeeeeey 26-27

Hunt v. McNair, 413 U.S. 734 (1973) ....................passim

Illinois ex rel. McCollum v. Board of Education,

333 U.S. 203 (1948) - 5, 17,18

Kendrick v. Bowen, 657 F. Supp. 1547 (D.D.C.

1987) i at tna Bi | passim

Larson v. Valen‘e, 456 U. S. 228 (1982) . Pon 17

Lemon v. Kurtzman, 403 U.S. 602 (197 1). passim

Lynch v. Donnelly, 465 U.S. 668 (1984) ................passim

Marsii v. Chambers, 463 U.S. 783 (1983) 0.00... 6, 17, 27

McGowan v. Maryland, 366 U.S. 420 (1961) 25, 26

Meek v. Pittenger, 421 U.S. 349 (1975) ........... 19

Mueiler v. Allen, 1463 U.S. 388 (1983) ........ 16, 27

New York v. Ferber, 458 U.S. 747 (1982)....... 25

*Roemer v. Maryland Public Works Board, 426

U.S. 736 (1976) . : __....... passim

Sargent v. Board of Education, 177 N. Y. 317, 69

Num. tan (1906) ................. 11

Schade v. Allegheny County Institution District,

386 Pa. 507, 126 A.2d 911 (1956) 000... 12

Schall v. Martin, 467 U.S. 253 (1984) 25

* Cases or authorities chiefly relied upon are marked by asterisks.

TABLE OF AUTHORITIES—Continued

Page TABLE OF AUTHORITIES—Continued

Page

Stat ‘el. Orr v. City of New Orleans, 50 La.

podeg? 24 So. 666 fre ee ecsaiaanm nancial 12 F. Boan, A History of Poor Relief Legislation and

Tilton v. Richardson, 403 U.S. 672 (1971) ...20, 22, 23, 24 The Administration in Missouri (1941) ............. 8

United States v. Salerno, 107 S. Ct. 2095 (1987). 4, 25 V. Bornet, California Social Welfare (1956) ........ 8, 15

Wallace v. Jaffree, 472 U.S. 88 (1985) 0.0... 5, 22 Bremner, Private Philanthropy and Public Needs:

Walters v. National Ass'n of Radiation Survivors, Historical P erspective reprinted in Commission

6 US Oe Oe | 27 on Private Philanthropy and Public Needs, Re-

Walz v. Tax Commission, 397 U.S. 664 (1970)....passim search Papers 89 (Dep't. of Treasury 1977)... 6,8

Widmar v. Vincent, 454 U.S. 263 Se ek. 22 R. Bremner, The Public Good: Philanthropy and

Wolman v. Walter, 433 U.S. 229 (1977) .......----.----- 28 Welfare in the Civil War Era (1980) ................. 7

Catholic Charities USA, 1986 Annual Survey........ 15

Statutes C. Chakerian, The Churches and Social Welfare

GR TET, TIS CI cect nein nsrcsntetectesenssnenecienctinnal passim I 15

Act to Incorporate Providence Hospital, Washing- Choper, The Religion Clauses of the First Amend-

ton, D.C., ch. 50, § 2, 13 Stat. 43 (1864) ......... ; 21 ment: Reconciling the Conflict, 41 U. Pitt. L.

FR 6 RS | Reeenoncees oneseiastebainiatianins pe 12 Rev. 673 (1980) .............. Wa rare tt AO 22

La. Comat, Art. Eb ..............02--ceecceecceencernssencesssonecsscssens 12 B. Coughlin, Church and State in Social Welfare

La. Ops. Att’y Gen. 857 (19: 38- 10) sedunbiqeamniberenseshGuest 4: 12 (1965) PA et ge Oe a ON RSL Ne Rae en passim

N.Y. Const. Art. VIII § 1 ................. sesnceessenseensensessnens 10 R. Current, The History of Wisconsin (1976)........ s

N.Y. Const. Art. Al, § S ..............--.-----0c--c-enssnssesnserees 10 R. Dripps, The Policy of State Aid to Private

Va. Const. Art. IV, § 16 nreeecenereeneeeercn es seee-terennnes Ie Charities in Proceedings of the National Confer-

Va. Code § V5 nnn eese seen seen escnteeeeseeteneecees ssooeenseseee 12 ence of Charities and Correction 458 (1915)... 12

Congressional Material D. Gavin, The National Conference of Catholic

Judicial Review: Hearings Before the Subcomm. Charities (1962). eeeeeeceeeesneceeecseeseeeennees 15

on Constitutional Rights of the Senate Comm. Giannella, Religious Liberty, Nonestablishment,

on the Judiciary, 89th Cong., 2d Sess. (1966) ....passim and Doctrinal Development: Part II. The Non-

S. Rep. No. 161, 97th Cong., Ist Sess. (1981) ..2, 3, 24, 27 establishment Principle, 81 Harv. L. Rev. 513

S. Rep. No. 196, 98th Cong., 2d Sess. (1984)... 3,7, 27 (1968) ........... scribe llaictass sl dvieinintntianiecesiet 9, 13-14, 20, 23

4 Cong. Rec. 174 (1875) ............. oe ee ee | 10 G. Grob, Mental — in America: Social

oe FR ea en ee 10 Policy to 1875 (1973 Ie peak x

GQ Coomems, Tim. BERG GIO ccecace- cccccsscccscescnecvessses: =< 10 Guilfoyle, Posttn rt Relations in Welfare, 3

4 Cong. Rec. 5561 (1876)... BS en eae 10 Cath. Law. 112 (1957) .. te ae 9, 18, 14

4 Cong. Rec. 5580 (1876) amen 9-10 _ Interfaith Research Comnnittes, A Study ad Reli-

4 Cong. Rec. 5584 (1876) .................. icsaeaees peated 10 | gious Receipts and Expenditures in the United

; States reprinted in Commission on Private Phi-

Miscellaneous Material '

ER City Subsidies to Private Charitabl lanthropy and Public Needs, Research Papers

‘ even, iy “uosidies te rivate wari eé 26 D % f T ‘ 197 : re

Agencies in New Orleans (1934)................--....--.. 11,12 > (Dept. of Treasury DD vevsseeeesesteeeseeeeceeeee 14-15

* Cases or authorities chiefly relied upon are marked by asterisks.

TABLE OF AUTHORITIES—Continued

Page

Jewish Federation of Metropolitan Chicago—

Annual Federation Report for 1986 0.000000... 15

Laycock, Towards a General Theory of the Reli-

gion Clauses: The Case of Church Labor Rela-

tions and the Right to Church Autonomy, 81

A, Tha, Fe, TTD EER | vvsicenccsntenccicncsceceseccneies 22

Lee, The Religion Clauses: Problems and Pros-

pects, 1986 B.Y.U.L. Rev. 387 ............................... 22

J. Leiby, A History of Social Welfare and Social

Work in the United States (1978)... passim

P. McCandless, A History of Missouri 1820-1860

RTI rot REIT NE AE SS ERD E SEE Oe 8

D. McColgan, A Century of Charity (1951) .......... 15

McConnell, Political and Religious Disestablish-

ment, 1986 B.Y.U.L. Rev. 405 ....... 000.0... 13-14, 23

A. Miles, An Introduction to Public Welfare

|, ee TOA DE AAR T PRE et A OR Deca d ...8, 12, 15

Mississippi State Block Grant Plan, FY1986 ......... 15

Missouri State Block Grant Plan, FY1987 ............. 15

New Hampshire State Block Grant Plan, FY1986.. 15

J. O’Grady, Catholic Charities in the United

CERISE pete sats A ER aA GO 15

Pickrell & Horwick, “Religion as an Engine of

Civil Policy,” 44 Law & Contemp. Probs. 111

(1981) .......

J. Pratt, Religion, Politics and Diversity (1967) ..passim

D. Schneider, The History of Public Welfare in

New York State 1609-1866 (1938)... 10

Stein, Jewis Social Work in the United States,

1654-1954, in American Jewish Committee,

American Jewish Year Book (1956) ..........0........ 7,15

M. Stevenson, Public Welfare and Administration

(1938 Ln a Ee En 6

E. Sunley, The Kentucky Poor Law 1792- 1936

RUE ISAS EMR ee a vee Eo TET x

Urban Institute, The Reagan Experiment (1982)... 14

* Cases or authorities chiefly relied upon are marked by asterisks.

vii

TABLE OF AUTHORITIES—Continued

Page

E. Wisner, Public Welfare Administration in Lou-

I ee ia ta 11

E. Wisner, Social Welfare in the South (1970) _... 1l

Wood, Religion and the Public Schools, 1986

i: Os ceeapmedunadeniasamensesaios 17

1986 Annual Report—Lutheran Social Services

eR eA Cos ST SOU 15

IN THE

Supreme Court of the United States

OCTOBER TERM, 1987

No. 87-431

OTIS R. BOWEN, SECRETARY OF

HEALTH AND HUMAN SERVICES,

me Appellant

CHAN KENDRICK, et al.,

Appellees

On Appeal From the United States District Court

for the District of Columbia

BRIEF FOR THE ATTORNEYS GENERAL OF

ARIZONA, LOUISIANA, MISSOURI, NEW HAMPSHIRE,

NEW MEXICO, UTAH, AND WASHINGTON

AS AMICI CURIAE IN SUPPORT OF APPELLANT

This amicus curiae brief is submitted in support of

appellant Otis R. Bowen, Secretary of Eealth and Hu-

man Services. By letters filed with the Clerk of the Court,

appellant and appellees Chan Kendrick, Reverend Robert

E. Vaughn, Reverend Lawrence W. Buxton, Dr. Emmett

W. Cocke, Jr., Shirley Pedler, Reverend Homer A. God-

dard, Joyce Armstrong, John Roberts and The American

Jewish Congress have consented to the filing of this brief.

INTEREST OF AMICI CURIAE

Amici curiae are the Attorney. General of Arizona,

Louisiana, Missouri, New Hampshire, New Mexico, Utah,

and Washington. These States devote substantial re-

sources to welfare programs that provide vital social

services for the misfortunate and less-privileged. As de-

a Ce

scribed below, many State welfare programs involve pri-

vate organizations, including both religious and non-

religious groups. The district court’s decision threatens

to disrupt these welfare programs and the social services

they provide. The amici curiae are responsible for de-

fending the legality of the welfare programs in their

States and for coping with the social consequences of

any disruption in welfare services. The amici curiae

accordingly have a direct interest in this case.

STATEMENT

This case involves an Establishment Clause challenge

to a social welfare program administered by the Federal

Government. The challenged program was established by

the Adolescent Family Life Act, 42 U.S.C. 300z et seq.

(1982) (“AFLA’), which authorized appropriations

“for services and research in the area of premarital

adolescent sexual relations and pregnancy.” S. Rep. No.

161, 97th Cong., Ist Sess. 1 (1981). The AFLA was en-

acted after Congress concluded that premarital adolescent

pregnancy and childbirth caused “severe adverse health,

social, and economic consequences.” 42 U.S.C. 300z(a)

(5) (1982).

To combat these social ills, AFLA authorized funding

for “prevention services” and “care services” for adoles-

cents and their families.' Like many other government

welfare programs, AFLA funding is available to “reli-

gious and charitable organizations, voluntary associa-

tions, and other groups in the private sector.” 42 U.S.C.

300z-5(a)'(21)(B) (1982). There are two major lim-

itations on appropriations under the Act. First, no

1 These services include: (A) pregnancy testing; (B) mental and

physical health services; (C) referrai for venereal diseases, pediat-

ric care, residential care, and mental health services; (D) adoption

counselling; (E) sex education; (F) child care; (G) transportation;

(H) outreach services and counselling for families; and (1) family

planning. 42 U.S.C. 300z-1(a)(4) (1982).

grants may be made for abortion, abortion counselling,

or certain abortion referrals. 42 U.S.C. 300z-10(a)

(1982). Second, the Act’s legislative history explicitly

prohibits “the use of [AFLA] funds to promote religion,

or to teach the religious doctrines of a particular sect.”

S. Rep. No. 496, 98th Cong., 2d Sess. 10 (1984); S. Rep.

No. 161, 97th Cong,, Ist Sess. 15-16 (1981).

The district court declared AFLA unconstitutional,

both on its face and as applied, “insofar as religious

organizations are involved in carrying out the programs

and purposes of the Act.” Kendrick v. Bowen, 657 F.

Supp. 1547, 1551 n.2, 1570 (D.D.C. 1987). Relying on

this Court’s parochial school decisions, the lower court

held that AFLA has the “primary effect” of advancing

religion, both on its face and as applied. The court also

held AFLA facially unconstitutional because it ‘“en-

tangles’ government with religion.

SUMMARY OF ARGUMENT

This case requires the Court to decide fundamental

questions regarding the Nation’s social welfare programs.

Since the founding of the Republic, religious organiza-

tions have cooperated with federal, state and local gov-

ernments in caring for the unfortunate and _less-

privileged. In contrast to government aid to parochial

schools, cooperation in the social welfare field has pro-

duced relatively little controversy. Instead, for nearly

200 years, this cooperation has provided food, shelter,

medical care and other essentials to millions of needy

Americans. The lower court’s decision threatens to dis-

rupt these long-established patterns of religious-govern-

mental cooveration and the social services they provide.

The district court erred by applying the three-prong

Lemon test, which was fashioned in the uniquely sensitive

context of primary and secondary education. Particularly

intensive scrutiny of governmental aid in this field has

been justified by an unusual constellation of factors,

including historical controversy, the role of public schools

in fostering national cohesion, and the potential of paro-

chial schools for religious indoctrination. Because these

factors are largely absent in the social welfare field, it is

inappropriate to apply the Lemon test in this case.

The appropriate standard in this case should instead be

derived from Bradfield v. Roberts, 175 U.S. 291 (1899) —

this Court’s only Establishment Clause decision in the

social welfare context. Under Bradfield, governmental aid

to religious groups is permissible if the assistance is:

(1) neutrally available to both religious and nonreligious

groups; and (2) used for secular social welfare services.

AFLA clearly survives any constitutional challenge

under Brad field’s analysis. First, the Act neutrally pro-

vides funding to both religious and nonreligious groups.

Second, AFLA funding is available for social welfare

services which are plainly secular (including transporta-

tion and medical treatment). Because there are indisput-

ably circumstances in which religious groups could con-

stitutionally provide these services, the disirict court

erred in holding AFLA as a whole unconstitutional on its

face. United States v. Salerno, 107 S. Ct. 2095 (1987).

AFLA’s appropriations for counselling on sexual rela-

tions and abortion are also facially constitutional. As

Congress’s findings demonstrate, these are legitimate sub-

jects of secular concern which can readily be dealt with

in a secular, nonreligious manner. The fact that some

government-funded advice about sexual matters “hap-

pens to coincide or harmonize with the tenets of some or

all religions” is irrelevant. Harris v. McRae, 448 U.S.

297 (1980).

The district court also erred in striking down the Act

“as-applied.”” In addition to ignoring Congress’s prohibi-

tion against funding for religious indoctrination, the court

failed to examine rigorously either the individual AFLA

grantees or their services. Absent adequate findings on

these issues, there is no basis for the lower court’s con-

clusion that AFLA funds were used for “religious,”

rather than “secular,” activities.

ARGUMENT

I. THE ESTABLISHMENT CLAUSE SHOULD BE IN-

TERPRETED IN LIGHT OF THE LONG TRADI-

TION OF COOPERATION BETWEEN RELIGIOUS

GROUPS AND GOVERNMENT AGENCIES IN PRO-

VIDING SOCIAL WELFARE SERVICES

The Court has often recognized “the special relevance

in [the Establishment Clause] area of Mr. Justice

Holmes’ comment that ‘a page of history is worth a vol-

ume of logic.’”’? Thus, the Court’s parochial school deci-

sions have relied extensively on the fact that the “sub-

sidy of sectarian educational institutions became em-

broiled in bitter controversies very soon after the Nation

was formed.” * These decisions also relied on the pro-

hibitions against parochial school aid adopted during the

19th century in many States, usually by constitutional

amendment. In Justice Brennan’s words, “for more than

a century, the consensus, enforced by legislators and

2 Committee for Public Educ. v. Nyquist, 413 U.S. 756, 777 n.33

(1973). See also Walz v. Tax Comm'n, 397 U.S. 664, 675-76 (1970):

Wallace v. Jaffree, 472 U.S. 38, 79 (1985) (O’Connor, J., con-

curring).

3 Lemon v. Kurtzman, 403 U.S. 602, 645 (1971) (Brennan, J.,

concurring). See Jd. at 611-14, 624-25; Jd. at 628-30 (Douglas, J.

concurring) (“conflict and dissention” “often erupting into vio-

lence”); Everson v. Board of Educ., 330 U.S. 1, 14 (1947); Jd. at 23

(Jackson, J., dissenting) (“It is no exaggeration to say that the

whole historic conflict in temporal policy between the Catholic

Church and non-Catholics comes to a focus in their respective

school policies.”); Jd. at 33 (Rutledge, J., dissenting); Jllinois ex

rel. McCollum v. Board of Educ., 333 U.S. 203, 210-211 (1948);

Id. at 213-20 (Frankfurter, J., concurring) (“the Remonstrance of

James Madison, an event basic in the history of religious liberty,

was called forth by a proposal which involved support to religious

education” ).

courts with substantial consistency, has been that public

subsidy of sectarian schools constitutes an impermissible

involvement of secular with religious institutions.” *

Historical experience has been equally important in the

frequent rejection of Establishment Clause challenges

outside the parochial school context. Thus, the Court

relied heavily on historical practice in upholding tax

exemptions for religious groups, government funding for

legislative chaplains, and religious displays.° In these

and other areas, the Court has repeatedly “refused ‘to

construe the Religion Clauses with a literalness that

would undermine the ultimate constitutional objective

as illuminated by history.’ ” ®

Social welfare services have historically been controlled

at the state and local levels.? As a result, social welfare

programs and patterns of religious-governmental co-

operation have varied from locality to locality. Although

this loca] diversity makes it difficult to draw generaliza-

tions, several historical themes are clear.

4Lemon v. Kurtzman, 403 U.S. at 647-49 (Brennan, J., con-

curring) (listing State constitutional prohibitions against aid to

sectarian schools); Everson v. Board of Educ., 330 U.S. at 13-15.

5 See Walz v. Tax Comm'n, 397 U.S. at 678; Marsh v. Chambers,

463 U.S. 783, 792 (1983); Lynch v. Donnelly, 465 U.S. 668, 673

(1984).

® Lynch v. Donnelly, 465 U.S. at 678, quoting Walz v. Tax Comm’n,

397 U.S. at 671 (emphasis in Lynch).

7“Public welfare has always been recognized as a responsibility

of local government in the United States.” M. Stevenson, Public

Welfare Administration 67, 85 (1938). See Bremner, Private

Philanthropy and Public Needs: Historical Perspective 95 reprinted

in Commission on Private Philanthropy and Public Needs, Research

Papers 89 (Dep’t of Treasury 1977) [hereinafter “Public Needs’’] ;

J. Leiby, A History of Social Welfare and Social Work in the

United States 3-4, 25-26, 97-104 (1978) [hereinafter “Social

Welfare’ |.

First, governmental aid to religious groups in the so-

cial welfare field has a long, well-established history and

has played a significant role in providing social services

in the United States. In the words of one authority,

“(flor over a hundred years there has existed in the

United States a partnership between local governments

and sectarian welfare.’* As another commentator

described :

Until the turn of the century, local private religious

and charitable organizations provided most of the

relatively few social welfare services then available

in this country. ... As the cost of services began

to exceed the available funds of the private charities,

state and local governments began to subsidize these

efforts of private welfare groups and to establish

their own welfare agencies. This relationship be-

tween the Church and local governments has con-

tinued to the present day.®

In short, for much of the Nation’s history, “[c]haritable

organizations with religious affiliations . . . have pro-

vided social services with the support of . . . communi-

ties and without controversy.” '°

8 B. Coughlin, Church and State in Social Welfare 44, 129 (1965)

(“there is a long legal history of government aid to sectarian health

and welfare services”) | hereinafter “Church-State’’ }.

® Pickrell & Horwich, “Religion as an Engine of Civil Policy,”

44 Law & Contemp. Probs. 111, 112 (1981) [hereinafter “Civil

Policy” |.

10S. Rep. No. 496, 98th Cong., 2d Sess. 10 (1984). See also Stein,

Jewish Social Work in the United States, 1654-1954, 14 in American

Jewish Committee, American Jewish Year Book (1956) (“Sectarian

auspices for charitable organizations was part of the American

cultural landscape throughout the nineteenth century.”) [herein-

after “Jewish Social Work’’|; R. Bremner, The Public Good:

Philanthropy and Welfare in the Civil War Era 184 (1980) (“Many

voluntary associations [including sectarian groups] received aid

from the public treasury”); J. Pratt, Religion, Politics, and Diver-

sity 204-05 (1967) (“The policy of public support for private char-

Countless historical examples illustrate the long tradi-

tion of religious-governmental cooperation in the social

welfare field. Thus, in California “[p]ayment of public

tax funds to institutions caring for children has been the

practice for decades.” '' In Kentucky, public subsidies to

religious social welfare organizations were “widespread

in all levels of government, state, county, and municipal”

from before the turn of the century.” State assistance

to religious groups in Missouri dates to at least 1838,

with substantial assistance continuing through the

1900’s.** In Wisconsin, a number of hospitals, orphan-

ages, and other welfare institutions were historically

operated by religious groups with public assistance."

In Pennsylvania, “subsidies to private agencies [had been

granted] at least since 1751” and in “1929 the state

granted subsidies of $3,144,050 for hospitals and an

additional half million for institutions for the aged, de-

pendent children, and others.” *

itable institutions was developed almost by accident in the first

half of the nineteenth century.”) [hereinafter “Diversity” |; Public

Needs, at 103 (“throughout the greater part of American history,

governmental and voluntary forces have cooperated and collaborated

in meeting public needs”) ; G. Grob, Mental Institutions in America:

Social Policy to 1875 82-83 (1973); Social Welfare, at 48-70, 75-85

(“For a long time many states and municipal authorities had helped

or stimulated private philanthrophy by means of grants and con-

cessions.”’ ).

11V. Bornet, California Social Welfare 251 (1956) (noting pay-

ments to various religious institutions).

12E. Sunley, The Kentucky Poor Law 1792-1936 30-34 (1942)

(describing county and city aid to various religious groups).

13P. McCandless, A History of Missouri 1820-1860 (1972);

F. Boan, A History of Poor Relief Legislation and Administration

in Missouri 48-51 (1941).

14R. Current, The History of Wisconsin 185-87, 514 (1976).

15 A. Miles, An Introduction to Public Welfare 148 (1949).

Second, popular opposition to religious-governmental

cooperation in the social welfare field was a relatively

minor historical factor. Indeed, a sharp distinction was

frequently drawn between aid for religious social wel-

fare institutions (which was often expressly permitted)

and aid for sectarian schools (which was forbidden in

a number of States)."° An overwhelming majority of

State constitutions either did not forbid aid to religious

organizations or prohibited aid to sectarian schools while

specifically allowing public aid to religious groups for

social welfare purposes." A minority of the States did

adopt constitutional amendments during the mid- to late-

19th century more broadly forbidding state appropriations

to “sectarian” institutions."* Nonetheless, even in these

States, judicial decisions often permitted public aid for

social welfare services provided by religious groups.”

16 See Social Welfare, at 85 (“Ultimately there was a practical

compromise whereby the courts would accept public subsidies to

private welfare and health institutions but not to schools.’”);

Church-State, at 129 (“There is a long !egal history of government

aid to sectarian health and welfare services. . . . [T]he courts have

long distinguished government aid to sectarian welfare from gov-

ernment aid to sectarian education.” ) (emphasis added) ; Giannella,

Religious Liberty, Nonestablishment and Doctrinal Development:

Part II, The Nonestablishment, Principle, 81 Harv. L. Rev. 513,

554-60 (1968) [hereinafter “Nonestablishment Principle’’|; Guil-

foyle, Church-State Relations in Welfare, 3 Cath. Law. 112, 117

(1957).

17 See Appendix A.

18 See Appendices B and C.

19 See Appendix B.

This distinction between aid for s cial welfare and aid for paro-

chial schools was also sharply drawn in the Senate debates on the

short-lived “School Amendment” in 1876. These debates focussed

on a proposal by James Blaine to amend the U.S. Constitution to

forbid the States from using public school funds for sectarian

schools. 4 Cong. Rec. 5580 (1876). In addition, a broader proposal

was suggested in the Senate debates which arguably would have

prevented the States from providing financial assistance to any

The history of aid to religious institutions in New

York illustrates the sharp distinction that was ultimately

drawn in many States between schooling and social wel-

fare. Public assistance was provided to religious welfare

organizations in New York from the early 1800’s and

“these institutions soon became integral parts of the poor

relief system in the state.” *° Nonetheless, sectarian dis-

putes led to proposals in the late 1800’s to restrict aid to

religious groups.” Importantly, however, assistance for

social welfare purposes came to be viewed very differently

from aid to sectarian schools. Thus, the 1894 Constitu-

tional Convention resulted in amendments that cut off

public assistance to parochial schools, but expressly re-

fused to halt local aid to religious welfare institutions.”

religious institution. Jd. Of course, both proposals failed. Among

other things, however, the debate revealed that there was virtually

no support for halting aid to religious groups for social welfare

purposes. Thus, some Senators who supported a ban on State aid

to sectarian schools opposed any prohibition on aid for social welfare

purposes. E.g., 4 Cong. Rec. 5580, (Mr. Kernan); 4 Cong. Rec.

5454-56 (Mr. Randolph). Moreover, almost all supporters of either

proposal denied that the amendments would prohibit aid to religious

groups for social welfare purposes. Jd. at 5584, 5585, 5594 (Mr.

Christiancy, Mr. Morton). But ef. 4 Cong. Rec. 5561-62 (Mr.

Frelinghuysen referring to “theological institutions, sectarian col-

leges, monasteries, and nunneries”). Finally, several Senators

flatly expressed their opposition to any prohibition on State aid for

social welfare purposes. 4 Cong. Rec. 5580-83, 5592, 5593 (Mr.

Kernan, Mr. Eaton). Similarly, President Grant’s 1876 State of

the Union Address proposing the “School Amendment” referred only

to the need for non-sectarian public schools, 4 Cong. Rec. 174, 181

(1875). See also 4 Cong. Rec. 5189 (House debate focussing only on

aid to sectarian schools).

20 Diversity, at 206-11. Appropriations to religious groups in-

creased markedly through the 1850s and 1860s. Jd. at 209-11. See

also D. Schneider, The History of Public Welfare in New York

State 1609-1866 190-91 (1938) [hereinafter “Public Welfare.” |

21 Diversity, at 215-55; Public Welfare, at 126-29.

22 Diversity, at 254. See N.Y. Const. Art. 8, §1 and Art. 11, §3

(1895).

This compromise “did not please extremists,” but it pro-

vided a “settlement that placed the explosive sectarian

issue beyond the reach of partisan contention.” ** In sub-

sequent years, public appropriations to religious welfare

institutions in New York increased dramatically,“ with-

out significant popular opposition.”

A similarly pragmatic and durable compromise oc-

curred in Louisiana. Like many other States, public ap-

propriations were made to religious welfare institutions

in Louisiana as early as 1820.*° Public assistance had

reached substantial proportions by 1879,27 when popular

opposition resulted in a constitutional amendment for-

bidding appropriations from the state treasury for “any

church, sect or denomination or religion [or] for private,

23 Diversity, at 255. Subsequent New York judicial decisions

consistently approved the continuation of public aid to religious

social welfare institutions. E.g., Sargent v. Board of Educ., 69 N.E.

722 (N.Y. 1904).

*4 Diversity, at 267-70 (“By 1914, New York City was appropriat-

ing five million dollars annually to provide welfare services, [prin-

cipally] institutions conducted by one or another of the three major

religious faiths.” ).

25 Jd. at 269-70 (“This compromise, observed and maintained by

the state legislature, the Board of Charities, local authorities, and

the state courts, has continued in the present century. . . . With

the passing years, both Catholics and non-Catholics have observed

the spirit of the 1894 settlement of the school and charities ques-

tions.”) ; Social Welfare, at 85.

26 E. Wisner, Public Welfare Administration in Louisiana 187-89

(1930) (detailing aid to numerous different Catholic, Protestant

and Jewish hospitals, asylums, orphanages, and homes for the

aged); E. Wisner, Social Welfare in the South 92-93 (1970).

27 E. Wisner, Public Welfare Administration in Louisiana 189-92

(1930) ; E. Beven, City Subsidies to Private Charitable Agencies in

New Orleans 24-26 (1934) [hereinafter “City Subsidies’’}.

charitable or benevolent purposes.” * Nonetheless, public

subsidies to religious social welfare groups by municipal

authorities were allowed, and these dramatically in-

creased in the years following 1880.*° Similar solutions,

based on the principle of local autonomy, were reached

in other States.*°

In summary, religious groups have played vital roles

in federal, state, and local welfare programs for nearly

200 years. Moreover, this deeply-rooted religious-

governmental cooperation has provoked relatively little

popular opposition. In dramatic contrast to parochial

school aid, no popular consensus emerged against public

subsidy of religious welfare programs. On the contrary,

most States arrived at pragmatic, durable compromises

permitting public assistance to religious groups for social

services. This long history of religious-governmental co-

operation, which so sharply distinguishes the social wel-

fare and parochial school contexts, should play a substan-

tial role in interpreting the Establishment Clause.

28 La. Const. Art. 51 (1879). Compare La. Const. Art. 1, § 8.

29 City Subsidies, at 25-29. See also R. Dripps, The Policy of

State Aid to Private Charities 460-62, in Proceeding of the Na-

tional Conference of Charities and Correction (1915) [hereinafter

“Private Charities” |. Louisiana courts upheld local aid to religious

welfare institutions. State ex rel. Orr v. City of New Orleans, 50

La. Ann. 880, 24 So. 666 (1898) ; La. Ops. Att’y Gen. 837 (1938-40) ;

Id. at 2154 (1940-42).

30 See Private Charities, at 460-62 (showing 24 states providing

assistance to private charities in 1914 and noting tendency towards

“greatly increased” county and city aid to private charities in

other states); Social Welfare, at 75-85; A. Miles, An Introduction

to Public Welfare, 148-51 (1949) (“The subsidy system became so

well established . . . that by 1929 twenty-four states appropriated

more than seven million dollars to private charities. In all but five

states local authorities were authorized to make payments to pri-

vate agencies and institutions.”). See also Va. Const. Art. IV, § 16

and Va. Code 15.1-24-26, described in Appendix A; Schade v.

Allegheny County Inst. Dist., 386 Pa. 507, 126 A.2d 911 (1956).

II. RELIGIOUS GROUPS CONTINUE TO PLAY A

VITAL ROLE IN CONTEMPORARY GOVERNMEN-

TAL SCCIAL WELFARE PROGRAMS

Compelling public policies have led federal, state and

local governments to continue their historic cooperation

with religious groups in the social] welfare field. Religious

groups usually provide welfare services more efficiently

and effectively than governmental agencies.*' This is in

part because religious groups often show greater “indi-

vidual interest, creativity and responsibility” than their

governmental counterparts, and in part because of greater

experience and expertise.** Finally, the participation of

religious groups increases the diversity of welfare serv-

ices, which in turn broadens the appeal of governmental

programs.*

Because of these compelling public policies, federal,

state and local governments continue to provide substan-

tial funding to religious groups for contemporary social

welfare programs.** In one commentator’s words, “[t] here

31 Religious groups often have existing facilities, as well as

greater access to volunteer help or in-kind contributions than gov-

ernmental agencies. Diversity, at 254; Guilfoyle, Church-State Re-

lations in Welfare, 3 Cath. Law. 112, 117-20 (1957). In addition,

religious organizations generally have extensive community con-

tacts that governmental agencies often lack. See Judicial Review

Hearings before the Subcomm. on Constitutional Rights of the

Senate Comm. on the Judiciary, 86th Cong., 2d Sess. 132, 142-43

(1966) [hereinafter “Judicial Review Hearings’’| (antipathy to

“public authorities” makes church-affiliated organizations more

effective ).

32 Nonestablishment Principle, at 555; Church-State, at 123-37;

Social Welfare, at 75-89.

33 McConnell, Political and Religious Disestablishment, 1986

B.Y.U. L. Rev. 405, 421 [hereinafter “Disestablishment”|; Judicial

Review Hearings, at 132, 142-43; Church-State, at 128, 133-41 (“in

a pluralistic society good social services . . . must be based on the

principle of pluralism” ).

34 Governmental funding of religious groups takes a variety of

forms, including contracts for zervices, competitive grants to carry

are today many instances of direct state support of the

welfare programs of churches and religious agencies.” *

Although there is apparently little detailed information

about the precise extent of government aid to religious

groups to provide social services, the magnitude of such

assistance is very substantial. Thus, a 1965 study con-

cluded that “[a]n extremely large number of [religious

welfare agencies], 71 percent, have contractual agree-

ments with government agencies whereby they receive tax

funds, usually by way of selling services to govern-

ment.” *? More recently, a 1977 study sponsored by the

Commission on Private Philanthropy and Public Needs

concluded that Jewish and Catholic religious-related agen-

cies engaged in social welfare work received 35.4% of

their grants and contributions from governmental

sources.** Reports by various religious groups, including

out specific governmental programs, and fee reimbursement for

services provided to individuals at the request of governmental

agencies. See Disestablishment, at 420-21. The services performed

by religious groups run the gamut of social service functions, from

care for the homeless and aged to adoption services and day care to

counseling, sexual abuse therapy, drug rehabilitation and medical

care.

35 Nonestablishment Principle, at 554; Guilfoyle, Church-State

Relations in Welfare, 3 Cath. Law. 112, 117-19 (1957).

36 See Church-State, at 58 (1965); Interfaith Research Com-

mittee, A Study of Religious Receipts and Expenditures in the

United States 365 (1977) [hereinafter “Interfaith Study’’], re-

printed in Commission on Private Philanthropy and Public Needs,

Research Papers (1977); Urban Institute, The Reagan Experiment

232 (1982).

37 Church-State, at 74. The study also found that many religious

organizations receive more than 50% of their income from gov-

ernment sources. Jd.

38 Interfaith Study, at 372, Table 1. If earnings, service fees,

and “other” income are included, governmental grants account for

12.5% of total receipts. Jewish and Catholic religious-related

agencies received some 56% of such receipts from “service fees.”

The extent of government responsibility for payment of service

fees is not clear, but could be substantial. The study did not in-

Catholic Charities, Lutheran Social Services and Jewish

Federations, reveal similar levels of governmental

funding.”

Religious-governmental cooperation is particularly im-

portant at the state and local level. Cogent evidence of

this is provided by state block grant plans, which illus-

trate the broad spectrum of social services provided by

private religious and nonreligious organizations.” Similar

evidence is supplied by contemporary state court decisions

and commentary about social welfare services in partic-

ular states.‘ These sources, combined with extensive

religious-governmental cooperation at the federal level,‘

clude Protestant religious-related agencies in these figures, id. at

372, although government payments and service fees appear to play

an equally important role in Protestant welfare services. Jd. at 371.

39 See Catholic Charities USA, 1986 Annual Survey 6, Table II.1

(showing “Government Fees and Grants” as 44.7% of income

of Catholic Charities agencies total cash income in 1986 of

$603,876,037 ). See also C. Chakerian, The Churches and Social Wel-

fare 20 (1955); D. Gavin, The National Conference of Catholic

Charities 176-77 (1962); J. O’Grady, Catholic Charities in the

United States 183-225 (1930); II D. McColgan, A Century of

Charity 439 (1951).

See 1986 Annual Report—Lutheran Social a Pee of Minnesota

(68% of $16.6 million annual budget received from goverment fees

and grants).

See Jewish Federation of Metropolitan Chicago—Annual Fed-

eration Report for 1986 (21% of $58 million budget from govern-

emnt sources); Jewish Social Work, at 68-70, 256-61.

49 E.g., New Hampehire State Block Grant Plan, FY1986; Mis-

sissippi State Block Grant Plan, FY1986; Missouri State Block

Grant Plan, FY 1987 7-13.

41 F.g., V. Bornet, California Social Welfare 251 (1956); A. Miles.

An Introduction to Public Welfare 148-51 (1949). See cases cited

in Appendices A & B.

‘2 For descriptions of federal programs giving assistance to

religious groups providing social welfare services, see Judicial

Review Hearings, at 112-22, 367-78 (Memoranda of Department

demonstrate that religious-governmental cooperation con-

tinues to play a vital role in providing social welfare

services. Disrupting this well-established tradition would

seriously jeopardize a substantial portion of the Nation’s

most effective social services.

Ill. THE ESTABLISHMENT CLAUSE DOES NOT

FORBID THE PARTICIPATION OF RELIGIOUS

GROUPS IN GOVERNMENTAL SOCIAL WELFARE

PROGRAMS LIKE THE ADOLESCENT FAMILY

LIFE ACT

A. The District Court Erred By Mechanicaliy Apply-

ing Parochial School Precedents in the Social Wel-

fare Context

The three-prong Lemon test guides the “general nature”

of Establishment Clause inquiry in parochial school cases.

Nonetheless, even in this context, the Court has “empha-

sized that [the Lemon test] provides ‘no more than [a]

helpful sign-post.’” ** More importantly, in cases not

involving parochial schools, the Court has “repeatedly

emphasized {its} unwillingness to be confined to any sin-

gle test or criterion.” ** Consistent with this conviction

that “no fixed, per se rule can be framed,” the Court has

frequently refused to apply the Lemon test outside the

o: Health, Education and Welfare). See also Brief on Behalf of

the United States in Bradfield v. Roberts, 175 U.S. 291 (1899), at

11-12 (“It is a well-known fact that Congress has incorporated in

the District of Columbia many .. . religious societies, some ex-

pressly under church auspices, and has made grants to such”;

“it has been the practice of Congress for many years to make

provision for the care of the sick and .. . for other objects of

charity and reform, through appropriations for private institu-

tions.”’).

43 Mueller v. Allen, 463 U.S. 388, 394 (1983) (quoting Hunt v.

McNair, 413 U.S. 734, 741 (1973) ).

44 Lynch v. Donnelly 465 U.S. at 679.

context of primary and secondary schooling.” There are

good reasons for limiting the Lemon test to cases involv-

ing the “sensitive relationship between government and

religion in the education of our children.” *° As described

below, an unusual constellation of problems arises from

this “sensitive” educational relationship, which is largely

absent in other areas, particularly the social welfare

context.

A leading justification for the three-prong test has been

the history of sharp controversy surrounding aid to paro-

chial schools and the “consensus” among the States against

such aid. As detailed above, 10 comparable history exists

in the social welfare context. On the contrary, religious-

governmental cooperation in the social welfare field is a

well-established tradition that State constitutions often

specifically preserve. This cooperation has produced a

“harmonious relationship” with “beneficial and stabilizing

influences in community life” that the Court has encour-

aged in other circumstances,*

A second justification for the Lemon test has been the

felt need to safeguard the Nation’s public schools. De-

scriptions in seminal Establishment Clause cases of the

vital role of public schools illustrate the importance of

this concern in the Court’s reasoning. According to Jus-

tice Frankfurter, ‘“{t]he public school is at once the sym-

bol of our democracy and the most pervasive means for

promoting our common destiny.” ** Justice Brennan has

voiced similar views: “It is implicit in the history and

character of American pubiic education that the public

45 Jd. at 678. E.g., Marsh v. Chambers, 4623 U.S. 783 (1983);

Larson v. Valente, 456 U.S. 228 (1982).

46 Grand Rapids School Dist. v. Ball, 473 U.S. 373, 383 (1985).

47 Walz v. Tax Comm'n, 397 U.S. 664, 672-73 (1970).

48 Jllinois ex rel. McCollum v. Board of Edue., 333 U.S. 203, 231

(1948) (Frankfurter, J., concurring). See also Wood, Religion and

the Public Schools, 1986 B.Y.U.L. Rev. 349.

schools serve a uniquely public function: the training of

American citizens in an atmosphere free of parochial,

divisive, or separatist influences of any sort.” ”

Given this view of public schools, the Court has re-

peatedly expressed its concern that religious-governmental

cooperation could undercut the role of public schools in

fostering national cohesion.” In addition, the Court has

stressed the competition and “occasional rivalry” between

sectarian schools and public schools, as well as the “inter-

nal pressures” driving state aid to parochial schools.”'

For these reasons, government aid to sectarian schools

has been viewed with especial disfavor: “[i]n no activity

of the State is it more vital to keep out divisive forces

than in its schools.” **

Concerns about the Nation’s public schools have little

application in the social welfare context. Despite the vital

importance of welfare assistance to the needy, social wel-

fare programs simply do not have the same role in foster-

ing national cohesion that public schools do. Similarly,

governmental welfare agencies seldom face a competitive

threat from religious groups and instead have long coop-

erated successfully with such groups.

49 Lemon v. Kurtzman, 403 U.S. at 658 (Brennan, J., concurring),

quoting Abington School Dist. v. Schempp, 374 U.S. 203, 241-42

(1962) (Brennan, J., concurring). See also Everson v. Board of

Educ., 330 U.S. 1, 23-24 (Jackson, J., dissent‘ng); Epperson v.

Arkansas, 393 U.S. 97, 104 (1968).

50 Grand Repids Schools Dist. v. Ball, 473 U.S. at 383; Committee

for Public Educ. v. Nyquist, 413 U.S. at 772; Lemon v. Kurtzman,

403 U.S. at 624; Illinois ex rel. McCollum v. Board of Educ., 333 U.S.

at 231 (Frankfurter, J., concurring).

51 Grand Rapids School Dist. v. Ball, 473 U.S. at 383; Lemon v.

Kurtzman, 403 U.S. at 624.

52 Jllinois ex rel. McCollum v. Board of Educ., 333 U.S. at 231

(Frankfurter, J., concurring) (emphasis added).

Third, the participation of religious groups in social

welfare programs lacks the potential for religious indoc-

trination that sectarian schools possess. The Court has

frequently emphasized the unique capacity of “perva-

sively sectarian” schools for religious indoctrination:

these schools are “a powerful vehicle for transmitting

[religious] faith to the next generation,” ** whose domi-

nant purpose is “assur|ing] future adherents to a partic-

ular faith.” ** The potential for religious indoctrination

is greatly enhanced by the “impressionable” age of stu-

dents and by the fact that primary and secondary educa-

tion is an ongoing activity that dominates the lives of

students.

In contrast, welfare programs often have comparatively

limited capacity for religious indoctrination. Social wel-

fare programs typically involve more mature clients whose

contacts with the program’s operators are much mvre lim-

ited and structured.** Similarly, many social services

involve trained professionals who are subject to ethical

rules and professional standards that inhibit prosyletiz-

53 Lemon v. Kurtzman, 403 U.S. at 616.

54 Walz v. Tax Comm'n 397 U.S. at 671. See also Aguilar v.

Felton, 473 U.S. 402, 411-13 (1985); Lemon v. Kurtzman, 403

U.S. at 616; id. at 628, 635, 641 (Douglas, J., concurring) ; id. at

658 (Brennan, J., concurring) ; Meek v. Pittenger, 421 U.S. at 366;

Board of Educ. v. Allen, 392 U.S. 236, 245, 247-48 (1968).

"5 B.g., Roemer v. Maryland Public Works Bd., 426 U.S. 736,

752-53 (1976); Grand Rapids School Dist. v. Ball, 473 U.S. at 385.

‘6 Primary and secondary schooling typically occupies a major

part of students’ waking hours for most months during a twelve

year period. In contrast, social welfare programs (like emergency

shelters or medical care) usually involve short-term contacts, both

in terms of hours per week and length of treatment. Similarly,

primary and secondary education is broad in focus and subject

matter, with comparatively few structures or limits. In contrast,

many social welfare services (like medical care or drug abuse

treatment) are comparatively narrow in their focus and purpose.

ing.’ Finally, welfare programs typically occur within

a community context that restricts religious indoctrina-

tion.”*

As all this illustrates, the socia! welfare context lacks

the uniquely controversial history, the role in fostering

national cohesion, and the potential for religious indoc-

trination that exists in primary and secondary educa-

tion.” These fundamental differences between primary or

secondary schooling and social welfare programs make the

three-prong Lemon test inappropriate in social welfare

eases such as this.

Rather than mechanically applying the Lemon test, the

lower court should have applied this Court’s only previous

Establishment Clause precedent in the social welfare field.

57 Identical considerations have led the Court to distinguish

sharply between aid to higher education institutions and aid to

primary or secondary schools. See Tilton v. Richardson, 403 U.S.

672, 686 (1971).

58 Nonestablishment Principle, at 556 (“The interfaith compo-

sition of the staffs and patients of church-related health agencies,

for example, makes the welfare aspects of these organizations in

the public mind far overshadow their religious attributes.”) ; Judi-

cial Review Hearings, at 125-27 (“representative nature of the

community action agency . . . represents one safeguard”).

59 Social welfare programs, of course, involve a wide variety of

services. Indeed, AFLA itself contemplates a considerable range

of social services. 42 U.S.C. 300z-1(a)(4). Some social services

bear closer resemblances to primary and secondary education than

others. See, e.g., Church-State, at 48-56, 57 (“There are... in-

stances in which areas of aid to sectarian welfare and education

overlap.”) For example, counselling resembles education more than

transportation programs or soup kitchens do. Nonetheless, while

generalizations are difficult, counselling typically involves far more

limited, structured and discrete contact with clients than does pri-

mary or secondary schooling. Likewise, the professional training

and standards of counsellors minimize the potential for religious

indoctrination, as does the interfaith character and community

representation of many religious social welfare programs.

In Bradfield v. Roberts, the Court considered an Establish-

ment Clause chalienge to a federal grant of $30,000 to

a hospital operated by a congressionally-chartered cor-

poration “composed of members of a monastic order or

sisterhood of the Roman Catholic Church.” 175 U.S. at

297-298. Although the Roman Catholic Church “exer-

cise[d] great and perhaps controlling influence over the

management of the hospital,” id. at 298, the Bradfield

Court unanimously upheld Congress’s grant.

Two controlling principles governing aid to religious

groups for social welfare programs emerge from Brad-

field: (1) the federal grant was used to fund a secular

social welfare service, namely providing “for the care of

. sick and invalid persons;”® and (2) the federal

grant was generally available on a nondiscriminatory

basis for the benefit of both religious and nonreligious

persons." Subsequent decisions of this Court have spe-

cifically reaffirmed Bradfield, generally interpreting the

opinion as reflecting the two foregoing guide‘ines. Thus,

in Roemer v. Maryland Public Works Board, Justice

Blackmun observed that Bradfield “upheld the extension of

® Bradfield v. Roberts, 175 U.S. at 297 i i

' S. , quoting Act of April 8,

1864, ch. 50, § 2, 13 Stat. 43. See also id. at 299-300. .

61 Id. at 295, 299-300 (emphasizing that the appropriation was

contained in a “general appropriation act” that did not require

aid to religious groups and that the hospital’s “powers are to be

exercised in favor of any one seeking the ministrations of that

kind of an institution”). The Bradfield opinion noted that the

Providence Hospital had a congressional charter that made no ref-

erence to religious objectives. 175 U.S. at 297. The Court, of

course, did not suggest that a “secular” corporate charter would

insulate religious groups from Establishment Clause challenges. Jd.

at 298 (“There is no allegation that... in its management the

hospital has been conducted so as to violate its charter”).

“ E.9., Lemon v. Kurtzman, 403 U.S. at 633 (Vouglas, J., con-

curring); Roemer v. Maryland Public Works Bd., 426 U.S. at 746

(plurality opinion of Blackmun, J.); Hunt v. McNair, 41

734, 743 (1973). piles

public aid to a corporation which, although composed

entirely of members of a Roman Catholic sisterhood . . .

was limited by its corporate charter to the secular pur-

pose of operating a charitable hospital.” ® The opinion’s

discussion of Bradfield continued with an explanation

that “religious institutions need not be quarantined from

public benefits that are neutrally available to ali.” “ The

two Bradfield guidelines are also refiected in the Court’s

later Establishment Clause decisions outside the social

welfare field * and in cogent academic commentary.”

63 426 U.S. at 746 (plurality opinion of Blackmun, J.) (emphasis

added ).

64 Jd. at 746 (emphasis added). See Widmar v. Vincent, 454 U.S.

263 (1981).

65 See Tilton v. Richardson, 403 U.S. at 676-77, 679 (plurality

opinion of Burger, C.J.) (noting that “Congress intended the Act

to include all colleges . . . regardless of any affiliation with ...a

religious body” and that the Act ensured aid would be devoted to

“secular . . . function[{s]”); Hunt v. McNair, 413 U.S. at 741,

744 (“benefits of the Act are available to all institutions . . . whether

or not having a religious affiliation” and assistance was for “secu-

lar activities”); Roemer v. Maryland Public Works Bd., 426 U.S.

at 740, 759-60 (funds for “any private institution of higher learn-

ing” and not for “specifically reiigious activity”).

In Roemer, Tilton, Hunt and Widmar the Court also applied

Lemon's so-called “entanglement” analysis. As the absence of any

entanglement inquiry in Bradfield demonstrates, no such analysis

is appropriate in social welfare cases. There are good reasons not

to extend Lemon's “entanglement” prong to the social welfare con-

text. Aguilar v. Felton, 473 U.S. 402, 426-30 (1985) (O’Connor, J.,

dissenting) ; Wallace v. Jaffree, 472 U.S. 38, 110 (1985) (Rehnquist,

J., dissenting) ; Committee for Public Educ. v. Nyquist, 413 U.S. at

813 (White, J., dissenting). See also Choper, The Religion Clauses

of the First Amendment: Reconciling the Conflict, 41 U. Pitt. L.

Rev. 673, 681 (1980); Laycock, Towards a General Theory of the

Religion Clauses: The Case of Church Labor Relations and the

Right to Church Autonomy, 81 Colum. L. Rev. 1373, 1392-94 (1981) ;

Lee, The Religion Clauses: Problems and Prospects, 1986 B.Y.U.L.

Rev. 337, 340-42. Religious groups and governmental units have

long cooperated in providing welfare services without becoming

The Bradfield decision, of course, provides no mechan-

ical test for determining when a particular activity is

“secular” rather than “religious.” As the Court has ob-

served elsewhere, “the line of separation, far from being

a ‘wall,’ is a blurred, indistinct, and variable barrier de-

pending on all the circumstances of a particular rela-

tionship.” * Among the circumstances relevant to de-

termining whether a particular activity is “secular” are

the purpose of the activity, the extent to which purely

secular groups engage in such activities, the similarities

of the activity to pure religious worship or indoctrina-

tion, the character of the organization engaging in the

activity, and the setting where the activity occurs.”

B. There is No Basis for a Facial Establishment

Clause Challenge to the Act

There is no basis under the two Bradfield guidelines

for a facial Establishment Clause challenge to AFLA.

First, the Act does no more than authorize federal fund-

particularly “entangled.” See Judicial Review Hearings, at 128-

45; Diversity, at 269 (“a close working relationship has grown

up between public welfare officials and religious charitable orga-

nizations”). Equally important, the lower court’s order would

itself produce difficult entanglement issues such as defining whether

a group is “religious.” Judicial Review Hearings, at 46 (“the ques-

tion of what is a denominational or church-related institution is a

very difficult one to resolve”); Walz v. Tax Comm'n, 397 U.S. at

698-99 (Harlan, J., concurring) (risk of “entang[ling] government

in difficult classifications of what is or is not [a] religious or-

ganization” ).

*6 Church-State, at 44-57, 127-49; Nonestablishment Principle, at

554-60; Disestablishment, at 405.

*? Lemon v. Kurtzman, 403 U.S. at 614. See also Roemer v. Mary-

land Public Works Bd., 426 U.S. at 760; Board of Educ. v. Allen

392 U.S. at 242; Tilton v. Richardson, 403 U.S. at 677 (plurality

opinion of Burger, C.J.).

“E.9., Tilton v. Richardson, 403 U.S. at 679-82 (plurality opin-

ion of Burger, C.J.).

ing for both nonreligious and religious groups on an

entirely neutral basis. The language of AFLA includes

religious groups among the organizations entitled to re-

ceive federal grants, but contains no requirements or

preferences regarding these groups.” Similarly, the leg-

islative history of AFLA expressly reaffirms the statute’s

neutrality.” Finally, there is no suggestion that AFLA

grantees have discriminated on the basis of religion in

providing services.

Second, the Act plainly satisfies Bradfield’s require-

ment that governmental funding be available for secular

activities. Many of the services provided for by AFLA—

like postnatal medical care and transportation—are in-

disputably secular. These services are routinely pro-

vided by wholly nonreligious organizations and have no

connection to religious doctrine or practices. Moreover,

these services could readily be provided in settings with

few religious overtones by groups with minimal religious

affiliation.” Given these obviously constitutional possibil-

6® The Act is thus identical in substance and effect to the statutes

upheld in Roemer, Tilton, and Hunt. Roemer v. Maryland Public

Works Bd., 426 U.S. at 740-44 (state law providing funding for

“any private institution of higher learning” but not for “sectarian

purposes”); Tilton v. Richardson, 403 U.S. at 676-77 (“Congress

intended the Act to include all colleges and universities regardless

of any affiliation with . . . a religious body”) ; Hunt v. McNair, 413

U.S. at 736-39 (aid to “assist institutions for higher education”

but not for facilities used for sectarian instruction or worship).

7°“Religious affiliation is not a criterion for selection as a

grantee ... but any such grants . . . would be a simple recognition

that nonprofit religious organizations have a role to play in the

provision of services to adolescents.” S. Rep. No. 161, 97th Cong.,

Ist Sess. 16 (1981).

71 Even in the context of “pervasively sectarian” parochial

schools, public funding for “[b]us transportation, school lunches,

public health services, and secular textbooks supplied in common

to all students were not thought to offend the Establishment

Clause.” Lemon v. Kurtzman, 403 U.S. at 616-17.

ities for AFLA funding, appellees clear] i

, y cannot satisf

the well-settled rule that a facial challenge “must a

lish that no set of circumstances exists i

Act would be valid.” * under which the

The district court ignored the Act’s provision of fund-

ing for these obviously secular services, narrowly focus-

ing instead on AFLA’s funding for counselling pro-

grams. The court devoted particular attention to the

Act s prohibition against grants for projects providing

abortion : “i]t is a fundamental tenet of many reli-

gions that premarital sex and abortion are wrong, even

sinful . . . . [Bly contemplating the provision of aid to

organizations affiliated with these religions .. . AFLA

contemplates subsidizing a fundamental religious mis-

sion of these organizations.” **

Contrary to the district court’s suggestion, the coun-

selling contemplated by AFLA clearly can be provided in

circumstances in which such counselling would constitute

a “secular” activity. Congress’s purposes in funding

such counselling—coping with the severe economic. social

and health problems caused by premarital teenage preg-

nancies—were indisputably secular.** Moreover, there is

nothing inherently sectarian about counselling services

which ean readily be provided without reference to reli-

gious doctrine. Indeed, countless therapists with abso-

lutely no religious affiliations provide such services on a

daily basis all around the country.”

72 United States v. Salerno, 107 S. Ct. 2095. 2

es v. . ~ , 2100 (1987); Schall

v. Martin, 467 U.S. 253, 268-69 n. 18 (1984); New York v. Ferber

458 U.S. 747 (3982); McGowan v. Ma I nd -

(1961). ryland, 366 U.S. 420, 429-30

8 Kendrick v. Bowen, 657 F. Supp. at 1563.

7 See 42 U.S.C. 300z(a) (5) (1982) & pp. 26-27.

78 See, e.g., Bradfield v. Roberts, 175 U.S. 291 (1899); Walz v.

Tax Comm n, 397 US. at 693 (“The means churches use to carry

on their public service activities are not ‘essentially religious’ in

Nor is the secular character of the counselling services

that could be provided under AFLA affected by the fact

that the Act contemplates that grantees may encourage

sexual restraint and adoption. The Court has frequently

remarked that “{i]t is well settled... that a regulation

does not violate the Establishment Clause merely because

it ‘happens to coincide or harmonize with the tenets of

some or all religions.” * On the contrary, harmoniza-

tion of government policy with religious precepts is per-

missible so long as there is a “neutral, secular basis” for

AFLA’s treatment of sexual restraint and adoption.”

Congress’s findings make it clear that AFLA’s encour-

agement of adoption and sexual restraint among unwed

adolescents has a “neutral, secular basis” of the highest

order—the protection of the public health.”

nature. They are the same means used by any purely secular or-

ganization—-money, human time and skitis, physical facilities.”’)

(Brennan, J., concurring). For example, a religious service or-

ganization with minimal connections to its sponsor might provide

counselling with no sectarian overtones in a secular surrounding.

There would be no basis for characterizing this sort of counselling

as “religious activity.”

76 Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30

(1983) (quoting McGowan v. Maryland, 366 U.S. 420, 442 (1961) );

Gillette v. United States, 401 U.S. 487, 452 (1971).

17 Jd. at 452: McGowan v. Maryland, 366 U.S. at 442.

78 Congress specifically made detailed factual findings about the

“severe adverse health, social, and economic consequences” of pre-

marital pregnancy and childbirth. In particular, Congress noted a

number of serious health and social risks faced by unmarried ado-

lescent mothers and their children: a “higher percentage of preg-

nancy and childbirth complications”; a “higher frequency of devel-

opmental disabilities” ; “higher infant mortality and morbidity”;

and “higher risks of unemployment and welfare dependency.” See

42 U.S.C. 300z(a)(5) (1982).

Indeed. the Court squarely held in Harris v. McRae, that the

fact that a prohibition of funding for abortions “may coincide with

the religious tenets of the Roman C atholic Church does not, with-

out more, contravene the Establishment Clause.” 448 U.S. 297, 319-

The extraordinary breadth of the district court’s ra-

tionale demonstrates the error in holding AFLA facial]

unconstitutional. According to the lower court, the po

is unconstitutional because governmental finding of

counselling about premarital sex and adoption would

subsidize] a fundamental religious mission of [reli-

gious] organizations.” 657 F. Supp. at 1563. This logic

condemns literally every social welfare service voles

by religious groups. Feeding the hungry, sheltering the

homeless, tending the sick, and counselling the bereaved

are all “fundamentai religious mission[s]” of religious

groups. If applied consistently, the district court’s

sweeping rationale would forbid government aid for all

these services, thereby threatening countless welfare pro-

grams all around the Nation. Nothing in the Establish-

ment Clause requires a result that i

is so harsh in-

consistent with our history.” ape

20 (1980). See also Marsh v. Chambers, 463 U

Lynch v. Donnelly, 465 U.S. 668, 682 (1984). lec phage

concluded flatly that “ ‘traditionalist’ values towards abortion” 7

vided a valid basis for prohibiting the funding of abortions yr

U.S. at 319. The extensive congressional findings regarding the

medical and social effects of teena ,

e a

all the easier. ge pregnancies make this case

The district court’s conclusion ignored Congress’s conside

tion of possible Establishment Clause defects in AF LA, and ro

conclusion that no such defects existed. See S. Rep. No 161, 7th

— Ist Sess. 15-16 (1981) (“promoting the involvement of re-

gious organizations ... is neither inappropriate or illegal’): S

Rep. No. 496, 98th Cong., 2d Sess. 9-10 (1984). It is well-settled

that substantial deference should be accorded the considered vi

of coordinate branches of Government. Walters v. National om

of Radiation Survivors, 473 U.S. 305 (1985); Marsh v re at

463 U.S. at 791, 793-94; Mueller v. Allen, 463 U.S. at 396 Judici

deference to the conclusions of coordinate branches of * aren aseta

is particularly appropriate where, as here, a facial challenge to an

Act of Congress turns upon broad questions of legislative fact.

C. The District Court Erred in Striking Down the Act

on “As-Applied” Grounds

The district court’s conclusion that AFLA was uncon-

stitutional “as-applied” is also seriously flawed.*° The

district court rested its decision on conclusory generali-

zations about “some” or “several” AFLA grantees and

isolated aspects of a few projects. This broad-brush ap-

proach falls far short of the standards that must be

satisfied to invalidate an Act of Congress on Establish-

ment Clause grounds.”

There could be circumstances in which AFLA grantees

used funds for counselling that was so pervaded with reli-

gious imagery, @octrine and purpose that otherwise

secular activities would be converted into religious wor-

ship or indoctrination. Such conduct would, of course,

violate AFLA itself, quite apart from the Establishment

Clause.*? There appears, however, to be very little in the

lower court’s opinion supporting a conclusion that AFLA

funds were improperly used for religious activities.“ The

fact that AFLA grantees had religious affiliations does

80 The district court nowhere suggested that AFLA grants were

in fact not awarded in a neutral, nondiscriminatory manner. In-

deed, only 25% of the AFLA grantees have been religiously affili-

ated (Decl. of Jo Ann Gasper, May 12, 1987). Accordingly, the

first of the Bradfield guidelines is satisfied.

81 Lemon v. Kurtzman, 403 U.S. at 614; Roemer v. Maryland

Public Works Bd., 426 U.S. at 755-61; Wolman v. Walter, 433 US.

229, 236-54 (1977).

8 See S. Rep. No. 496, 98th Cong., 2d Sess. 10 (1984). See also

Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346 (1936)

(Brandeis, J., concurring).

83 It is, as shown earlier, irrelevant that some religious groups

received funds for counselling about issues coinciding with their

religious tenets. See p. 26 supra. Similarly, the purposes of

the AFLA grants were entirely secular and all of the challenged

counselling services could readily have been performed by wholly

secular entities. See pp. 24-25 supra.

oe —

SOO Le Rl et att

not, of course, render the grantees’ activi igious.**

Similarly, the presence of religious Pans & pel

that AFLA counselling occurred is of minimal impor-

tance.” Finaliy, a balanced treatment of both “theological

and secular views on secular conduct,” even using “‘ex-

plicitly religious materials,” provides no basis for con-

cluding that religious indoctrination has occurred.**

Because the district court made no adequate j

findin

regarding specific programs, because it did not pn

whether the activities in such programs were prohibited

by AFLA, and because the relief it ordered was directed

broadly against the entire AFLA program, the district

court's “as-applied” holding should be reversed.

PB ch a od eeortig~ In Bradfield v. Roberts, the hospital

as “composed of members of i

order” and the Roman Catholi » Pesca

_ Ror e Church “exercise[d

en poe ye influence over the management of ~d sane

S. a -98. Under Bradfield the mere f i

297-98. ct that a religi

controlled institution provides servi : “ged

rvices does

services constitute religious activity. et ooo cee

affiliation is a relatively minor factor

activity is secular.

Indeed, a group’s religious

in determining whether its

55 657 F. Supp. at 156. See L

" . 2 Lynch v. Donnelly, 465 U.S -

83; Roemer v. Maryland Public Works Bd., 426 US. py ny

oe yf “ Supp. at 1565. See Roemer v. Maryland Public Works

nec A S. at 156 (“Mandatory religious or theology courses

ent... primarily hy Roman Catholic clerics, but these only

supplement a curriculum coveri ‘ ‘tr +s

program’ ”’). ng ‘the spectrum of a iiberal arts

CONCLUSION

For these reasons, the judgment of the court below

should be reversed.

Respectfully submitted,

Of Counsel: GARY B. BORN

JAMES S. CAMPBELL Counsel of Record

WILMER, CUTLER & PICKERING R. ScoTt KILGORE

2445 M Street, N.W. WILMER, CUTLER & PICKERING *

Washington, D.C. 20037 2445 M Street, N.W.

Washington, D.C. 20037

(202) 663-6000

* Robert Swanson assisted in the preparation of this Brief.

APPENDICES

“

APPENDIX A

States in Which Language of State Constitution

Pe: aits Aid to Religious Groups

for Social Welfare Purposes

. Alabama—Ala. Const. Art. IV, § 73, permits aid to

private charitable or educational organizations on

two-thirds vote of legislature; Ala. Const. Art. XIV,

§ 263, only forbids use of public school funds for

“sectarian or cenominational school{s].” See Ala-

bama Educaticn Ass’n v. James, 373 So.2d 1076

(Ala. 1979).

Alaska—Alaska Const. Art. VII, §1, forbids only

payment of public funds to any “religious or other

private educational institution.” See Lien v. City of

Ketchikan, 383 P.2d 721 (Alas. 1963); 1959 Op.

Att’y Gen., No. 19 (Alas. 1959).

Arkansas—Ark. Const. Art. XIV, § 2, only requires

use of public school fund for dedicated purposes.

Cf. Cortez v. Independence County, 698 S.W.2d 291

(Ark. 1985).

California—Cal. Const. Art. IX, $8, and Art. XVI,

§ 3, prohibit only public funding of sectarian schools,

and permit aid for defined social welfare purposes.

See Cal. Op. Att’y Gen. No. 82-509 (1983).

Connecticut—Conn. Const. Art. VIII, only prohibits

use of public school fund for purposes other than

public schooling.

Delaware—Del. Const. Art. X, § 3, only prohibits

using educational funds for any “sectarian, church

or denominational school.”

Hawaii—Haw. Const. Art. X, $1, only prohibits

using public funds for “any sectarian or private

educational institution.”

10.

11.

12.

13.

14.

15.

its funding

Idaho—Idaho Const. Art. IX, §5, perm!

for religious health facilities. See Board of County

Commissioners of Twin Falls County v. Idaho

Health Bacilities Auth., 531 P.2d 588 (Idaho 1974).

lowa—lowa Const. Art. IX, § 2, requires University

funds to be used solely for State University.

Kan.

as—Kan. Const. Art. VI, § 6(c) and

gr 6, $8 (1861), only forbid “religious sect

or sects” from controlling “public education funds.

See Kan. Op. Att’y Gen. No. 78-392 (1978).

wky—Ky. Const. $189, only forbids _using

“auton” funds for “any church, sectarian or

denominational school.” See Abernathy v. City of

Irvine, 355 S.W.2d 159 (Ky. 1961), cert. denied,

871 U.S. 831 (1962); Kentucky Building Comm wv.

Effron, 220 S.W.2d 836 (Ky. Ct. Apps. 1949).

‘siana—La. Const. Art. I, §8 and La. Const.

aot WY, $8 (1921) and La. Const. Art. 51 (1879),

permitted local (but not state) aid to religious

groups for social welfare purposes. See State ex ve.

Orr v. City of New Orleans, 24 So. 666 (La. 1898) ;

La. Op. Att’y Gen. 837 (1938-40).

Maine—Maine Const. Art. I, §3. See Squires v.

Augusta, 153 A.2d 80 (Me. 1959).

Minnesota—Minn. Const. Art. XIII, § 2, only pro-

hibits public funding of “schools wherein the distine-

tive doctrines, creeds or tenets of any particular

Christian or other religious sect are promulgated or

taught.”

ississippi—Miss. Const. § 208 only forbids “reli-

aes pe te sect or sects” from controlling public

“educational funds” and public funding of any “‘sec-

tarian school.” See Craig v. Mercy Hospital—Street

Memorial, 45 So.2d 809 (Miss. 1950) and 47 So.2d

16.

17.

18.

19.

20.

21.

22.

867 (Miss. 1950); In re: Validation of $15,000,000

Hospital Revenue Bonds, 361 So.2d 44 (Miss. 1978).

Nebraska—Neb. Const. Art. VII, $11, only forbids

public funding of any private “school or institution

of learning,” except for handicapped children receiv-

ing “nonsectarian” instruction. See Neb. Op. Att’y

Gen. No. 103 (1981) (dicta).

New Hampshire—N.H. Const. Art. 83, only forbids

public funding of “schools or institutions of any

religious sect or denomination.” See Opinion of the

Justices, 113 A.2d 114 (N.H. 1955).

New Mexico—N.M. Const. Art. IV, §31 and Art.

IX, § 14 and Art. XII, § 3, only forbid public fund-

ing of “any sectarian, denominational or private

school, college or university” and authorizes local and

state assistance for defined charitable activities.

New York—N.Y. Const. Art. XI and Art. XVIII,

$3, only forbid public funding of “any school or

institution of learning wholly or in part under the

control or direction of any religious denomination,”

but permit local public aid for social welfare pur-

poses. See Sargent v. Board of Education, 69 N.E.

722 (N.Y. 1904); Shepherd’s Fold of Protestant

Church v. New York, 96 N.Y. 137 (1884).

North Carolina—N.C. Const. Art. IX, §6 and § 7,

only require use of state and county school funds for

“public schools.” See 43 N.C.A.G. 189 (1973).

North Dakota—N.D. Const. Art. VIII, §5 and Art.

XII, § 185, only forbid use of public school funds for

“any sectarian school” and specifically permit fund-

ing for “reasonable support of the poor.”

Ohio—Ohio Const. Art. VI, § 2, only forbids any

“religious or other sect, or sects,” from controlling

“the school funds of this state.” See Lazarus v.

24.

26.

27.

28.

Board of Commissioners, 217 N.E.2d 883 (Ohio

1966).

. Pennsylvania—Pa. Const. Art. HI, $17 and § 18

and Art. X, §2 (1874), permit appropriations to

private charitable and educational institutions, in-

cluding “denominational and sectarian” institutions,

upon two-thirds vote or for specified social welfare

purposes. See Shade v. Allegheny County Institution

Dist., 126 A.2d 911 (Pa. 1956). But see Collins v.

Martin, 139 A. 122 (Pa. 1927); Collins v. Kephart,

117 4. 440 (Pa. 1921).

Rhode Is'and—R.I. Const. Art. XII, § 2, only re-

quires use of public schools funds for dedicated

purposes.

Tennessee—Tenn. Const. Art. I, §3 and Art. XI,

£ 12. do not forbid public aid to religious groups for

social welfare purposes. See Tenn. Op. Att’y Gen.

80-32 (1980).

Utah—Utah Const. Art. IT, §4 and Art. X, § 13,

only require public schools to be free from “sectarian

control” and forbid appropriations to any “school,

seminary, academy, college, university or other in-

stitution, controlled in. whole, or in part, by any

church, sect or denomination whatever.” See Man-

ning v. Sevier County, 517 P.2d 549 (Utah 1973) ;

Stone v. Salt Lake City, 356 P.2d 631 (Utah 1960),

cert. denied, 365 U.S. 860 (1961).

Vermont—Vt. Const. Art. 3, contains no prohibition

en public funding of religious groups for social wel-

fare purposes. See Vermont Educationai Buildings

Financing Agency v. Mann, 247 A.2d 68 (Vt. 1968).

Virginia—Va. Const. Art. IV, § 16, permits General

Assembly to authorize “counties, cities, or towns” to

make appropriations to “any charitable institution

or association,” while forbidding state funding of

29.

“church[es] and sectarian societ[fies].”

Code § 15.1-24, § 15.1-25 and § te ( Parla

appropriations for YMCA and YWCA; ssiatalations

contracts with any sectarian institution for the

care of indigent, sick or injured persons”; and for-

bidding other appropriations to sectarian societies) .

West Virginia—W. Va. Const. A

' . . Art. III, §15 and

Art. XII, § 2 and § 5, only forbid aid for “the erec-

tion or repair of any house for publie worship, or

for the support of any church or mini

ministry.”

W. Va. Op. Att’y Gen. 201 (1977). ee

APPENDIX B

States in Which State Courts or Attorneys General

Permit Aid to Religious Groups

for Social Welfare Purposes

Arizona—Ariz. Const. Art. II, §12; Art. IX, § 10;

Art. XI. §8. See Community Council v. Jordan,

432 P.2d 460 (Ariz. 1967); Op. Att'y. Gen. No.

187-033 ( Ariz.)

Colorado—Colo. Const. Art. V, $34; Art. IX, § 7.

See Americans United for Separation of Church and

State Fund, Inc. v. State, 648 P.2d 1072 (Colo.

1982).

Florida—Fla. Const. Art. I, §3 & §6. See Fenske

v. Coddington, 57 So.2d 452 (Fla. 1952); Nohrr v.

Brevard County Educational Facilities Auth., 247

So 2d 304 (Fla. 1971); Op. Att’y. Gen. 284 (Fla.

1939).

Georgia—Ga. Const. Art. I, § 11, "VII. See Brad-

field v. Hospital Authority of Muscogee County,

176 S.E.2d 92 (Ga. 1970). But see Bennet v. City

of La Grange, 112 S.E. 482 (Ga. 1922); Savannah

v. Richter, 127 S.E. 148 (Ga. 1925).

Illinois—Ill. Const. Art. X, §3. See St. Hedwig’s

School v. Cook County, 124 N.E. 629 (Il. 1919) ;

Dunn v. Chicago Industrial School, 117 N.E. 739

(Ill. 1917), overruling Cook County v. Chicago In-

dustrial School, 18 N.E. 183 (Til. 1888).

Maryland—Ma. Const. Art. 36 and Art. 38. See St.

Mary’s Industrial School for Boys v. Brown, 45 Md.

910 (18761; Finan v. Mayor & City Council of

Cumberland, 141 A. 269 (Md. 1928); Truitt v.

Board of Public Works, 221 A.2d 370 (Md. 1966).

Massachusetts—Mass. Const. Art. XLVI, §2. See

Op. Att’y Gen. 132 (1942).

10.

11.

12.

14,

15.

16.

Michigan—Mich. Const. Art. I, § 4. Ellis v. City of

Grand Rapids, 257 F. Supp. 564 (W.D. Mich. 1966).

Missowri—Mo. Const. Art. I, $7. See Menorah

Medical Center v. Health and Educationa’ Facilities

Authority, 584 S.W.2d 73 (Mo. 1979) (en banc).

Montana—Mont. Const. Art. V, §11 and Art. X,

$6. See Mont. Op. Att’y Gen. No. 165 (1978).

Nevada—Nev. Const. Art. XI, §10. See Att’y Gen.

Op. B-40 (2-11-1941). But see State ex rel. Nevada

Orphan Asylum v. Hallock, 16 Nev. 373 (1882).

New Jersey—N.J. Const. Art. VIII, § III, 93. See

St. John’s Evangelical Lutheran Church v. City of

Hoboken, 479 A.2d 935 (N.J. 1983); Makar v. St.

Nicholas Ruthenian Greek Catholic Church

353 (N.J. 1963). vurch, 187 A.2d

Oklahoma—Okla. Const. Art. I, $5 and Art. IT. § 5.

See Murrow Indian Orphans Home v. Childers, 171

P.2d 600 (Okla. 1946); State v. Williamson, 347

fre 204 (Okla. 1959); Tulsa Area Hospital Coun-

ceil Ine. v. Oral Roherts University. 626

(Okla. 1981). pie an

Oreqon—Ore. Const. Art. I. $5. See Att’

st. . 1, §5. See y Gen. Op.

1956-58, p. 257; Att’y Gen. Op. 1966-68, p. $51.

Att’y Gen. Op. Vol. 44, No. 8148 (1982); Att’y Gen.

Op. No. OP 5726 (1985).

South Carolina—S.C. Const. Art. XI (1895) and

S.C. Const. Arts. X, $11 and XI, $4. S

° in » 3 4 ee S. ° °

Att’y Gen. No. 3831 (1974). ne

Washington—Wash. Const. Art. I, § 11 and Art. IX

S 4. See Washington Health Care Facilities Auther-

ity v. Spellman, 633 P.2d 866 (Wash. 1981).

17. Wisconsin—Wis. Const. Art. I, § 18 and Art. X, $3

prohibit appropriations for “religious societies, or

religious or theological seminaries.” See State ex.

rel. Wisconsin Health Facilities Authority v. Lind-

nev, 280 N.W.2d 773 (Wis. 1979); State ew. rel.

Warren v. Nusbaum, 219 N.W.2d 577 (Wis. 1974) ;

Op. Att’y Gen. 53-87 (1987); 21 Op. Att’y Gen. 727

(1932).

APPENDIX C

States in Which State Constitution Apparently

Forbids Direct Government Aid to Religious Groups

for Social Welfare Purposes

. Indiana—Ind. Const. Art. VIII, § 7. See Op. Att’y

Gen. 356 (1934).

. South Dakota—S.D. Const. Art. VI, $3 and Art.

VIII, § 16. See Synod of Dakota v. State, 50 N.W.

632 (S.D. 1891).

Texas-—Tex. Const. Art. I, §7 and Art. VII, § 5.

See Church v. Bullock, 109 S.W. 115 (Tex. 1908);

Op. Att’y Gen. No. M-1255 (1972).

W yoming—Wy. Const. Art. 1, $19 and Art. VIII, § 4

and § 12.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.