In the last week of September, 2003, the President's Faith-Based Initiative took another major step as the Bush administration issued final rules and notices of proposed rulemaking that cover social service programs in six federal departments. These rules reflect the administration's continued commitment to advancing the Faith-Based Initiative in the executive branch agencies, even as the Initiative makes little headway in Congress. The final rules govern Temporary Aid to Needy Families (TANF), the Community Services Block Grant (CSBG), and substance abuse programs, all in the Department of Health and Human Services (HHS), along with eight programs in the Department of Housing and Urban Development (HUD). The proposed rules cover programs in four other departments: Education, Justice, Labor, and Veterans' Affairs. In addition, the Department of Justice (DOJ) announced a change in its policies concerning the participation of faith-based organization in DOJ's asset forfeiture program.
The final rules, with the exception of one provision in the HUD rules, are essentially unchanged from those proposed by the Administration in January, 2003. Thus, our earlier analysis of these rules remains relevant. Nevertheless, the agencies’ responses to comments received about these rules, along with the expansion of the Faith-Based Initiative into the wide range of government programs covered by the newly proposed rules, warrant further legal analysis. As explained below, we believe that these rules, both final and proposed,provide helpful clarifications for several aspects of the Faith-Based Initiative, but on the most important legal question – the extent to which government may directly finance religious activity – the rules perpetuate a fundamental misunderstanding of the law of the Establishment Clause.
Our analysis will focus first on the elements common to all the final and newly-proposed rules, and then turn to questions raised by particular rules.
1. Common Themes
A. No Direct Financing of “Inherently Religious Activities.”
Each of the final and proposed rules identifies the same standard for distinguishing between constitutionally impermissible and permissible objects of direct funding: government may not fund “inherently religious activities, such as worship, religious instruction, or prosyletization,” but may finance any activity that is not “inherently religious.” We have three reasons for concern with this standard.
1. “Inherently religious activity” does not reflect the Supreme Court’s current law on direct financing of religious activities.
In our January, 2003 analysis of proposed regulations and guidance documents, we addressed the administration’s choice of “inherently religious” as its definition of the meaning and scope of the Establishment Clause. We argued that this choice represents a misunderstanding of relevant Supreme Court precedents.In Bowen v. Kendrick, a case dealing with government-financed counseling on matters of sexuality, the Court indeed said that government was forbidden to finance “inherently religious activities.” That category did not, however, exhaust the Establishment Clause’s limits on direct financing. We wrote:
In Bowen, the phrase “inherently religious activities” is used in order to distinguish activities that are exclusively religious (e.g., worship) from those that may or may not have a religious character, such as a silent moment, education, counseling, or other forms of training. All Bowen teaches is the common-sense proposition that government is not automatically barred from supporting activities that may have either secular or religious character, depending on how they are conducted. The content of those activities, not any a priori categorization of them as “inherently religious,” controls the permissibility of government support for them.
In our review of the Supreme Court’s caselaw on direct financing of religious organizations, we identified a different constitutional standard. From Bowen v. Kendrick through the most recent Establishment Clause cases, Agostini v. Felton and Mitchell v. Helms, the Court has asked whether the government should be held responsible for any “religious indoctrination” of a beneficiary receiving government-financed services from a religious provider, even if the service itself is not “inherently religious” (such as substance abuse treatment). The focus, then, must be on the content of the service provided. In a series of important decisions, lower federal courts have recently blocked faith-intensive service programs – programs involving activities that are not “inherently religious,” but that nevertheless resulted in government-financed religious indoctrination.[2] In short, that government may never directly finance “inherently religious activities,” as these rules provide, does not mean that the government may finance anything but “inherently religious activities.”
2. The agencies’ responses to comments on the rules do not adequately address the constitutional limits on government-financed religious activity.
In their notices of final rules, HHS and HUD acknowledge receiving a number of comments questioning the appropriateness of using “inherently religious activity” as the operative constitutional boundary. Their responses to these comments, however, do not sufficiently address the most difficult, and most important, constitutional questions, however. For example, the response to comments on the proposed TANF rules provides the following defense of the “inherently religious” standard:
As some commentators noted, it would be difficult to establish an acceptable list of all inherently religious activities. Inevitably, the definition would fail to include some inherently religious activities or include certain activities that are not inherently religious. Our approach is consistent with Supreme Court precedent, which likewise has not comprehensively defined inherently religious activities. The Court has explained, however, that prayer and worship are inherently religious, but that social services do not become inherently religious merely because they are conducted by individuals who are religiously motivated to undertake them or view the activities as a form of “ministry.”
The passage – and indeed every place in the final and proposed rules – studiously avoids any discussion of the ground between “inherently religious activity” and secular acts motivated by a person’s religious beliefs
Everyone is likely to agree that “inherently religious activities” may not be directly funded; and everyone is likely to agree that a person’s religious motivation for performing a government-financed service with secular content is constitutionally irrelevant. Between these two poles, however, lies a vast middle ground. It is precisely in this middle ground, involving activities that are not inherently religious, such as substance abuse treatment, or preparation for employment, that the issue of impermissible religious content must be addressed.
The responses to the comments on the proposed agency rules have been an opportunity missed to provide this much-needed guidance. Indeed, commenters on the proposed rules were in many cases asking for clarification on permissible and impermissible activity that the responses do not supply. For example, in replying to comments on substance abuse treatment programs, HHS offered the following:
Comment: Questions were also raised about whether 12-step programs or, specifically, AA programs, are religious programs.
Response: With regard to 12-step and AA meetings, we note that any inherently religious activities must be voluntary and must be offered separately in time or location from the program that receives direct SAMHSA funding.
In 2001, the U.S. Court of Appeals for the Second Circuit provided a direct answer to that question, holding that direct government support for the inculcation of the views of Alcoholics Anonymous constituted government subsidy for religious indoctrination, in violation of the Establishment Clause.[3]
3. By their silence on the question of religious content, the final and proposed rules implicitly invite faith-based organizations to test the limits of Establishment Clause law.
The agencies’ reluctance to confront this middle ground may reflect their perception of legal uncertainty or a strategy designed to minimize faith-based organizations’ concern with constitutional limitations. Either way, the lack of clear guidance on the range of constitutionally permissible religious activity holds potentially severe consequences for faith groups drawn into these programs. The HHS response to comments on the proposed SAMHSA rules concerning the “inherently religious activity” standard is again illustrative:
This limitation on the use of the direct funds... is not meant to put an organization in the position of having to deny its religious perspective on social issues, or in the position of having to reject government funds for its programs that are consistent with the purposes of the SAMHSA program. We recognize that while the government regards services like feeding the hungry or helping substance abusers return to their communities as social services or secular work, some organizations may regard these same activities as acts of mercy, spiritual service, fulfillment of religious duty, good works, or the like. Therefore, providing social services that otherwise satisfy the requirements for funding under a government program – e.g., providing food for the hungry or helping substance abusers rejoin their communities – would constitute an appropriate use of funds, as long as government funds are not used to pay for inherently religious activities such as prayer and worship.
Rather than focusing on the content of the service provided (i.e., does the help for substance abusers involve faith-intensive treatment?), this response seems to focus attention exclusively on whether the service fulfills the secular purpose of the funding program.
It is no secret that the Bush Administration would like to create as welcome an environment as legally possible for faith-based organizations participating in government-financed service programs. Moreover, it is equally well known that the Supreme Court is closely divided on these questions. In these circumstances, the agencies have an incentive to imply a wider range of permissible government-financed religious activities than a careful review of Establishment Clause law would indicate. From the agencies’ perspective, “pushing the limits” of the constitutional doctrine may be attractive on policy and political grounds as a way to test whether or not Establishment Clause principles limiting the direct financing of services with religious content will change in the future. Our concern with this tactic lies not in its chances for ultimate success or failure, but rather in its implicit invitation to faith-based organizations to rely on norms that are highly vulnerable to constitutional challenge – a challenge that could easily exhaust the resources and energies of such organizations. At the least, a strategy of transparency, in which faith-based organizations could assess their level of legal risk, would be far preferable to one resting on ambiguity.
B. “Level Playing Field” for Faith-Based Organizations.
Each of the final and newly-proposed rules commits the relevant federal agency to a policy of non-discrimination with respect to faith-based organizations, as directed by the President in Executive Order 13279 (issued December 12, 2002). For example, the rules proposed by the Departments of Education and Justice apply across the full range of funding programs administered by the Departments, and provide that a “faith-based organization is eligible to participate in the Department’s . . . programs on the same basis as any other private organization, with respect to programs for which such other organizations are eligible.” These non-discrimination rules are fully consistent with current Establishment Clause doctrine. The era in which “pervasively sectarian” institutions were categorically excluded from participation in government social welfare programs is over.
The end of the ban on financing “pervasively sectarian institutions” does not, however, signal the end of all distinctions between religious and non-religious organizations. We are concerned that several of the final and proposed rules erase all distinctive treatment for faith-based organizations. For example, regulations proposed by the Departments of Justice and Veterans’ Affairs eliminate a requirement imposed on religious grantees to formally promise that they will not use government funds for improper religious purposes. The proposed regulations justify removal of the requirement by recourse to the principle of non-discrimination: “The Department imposes no comparable assurance requirements in any other context, and the Department believes it is unfair to require religious organizations alone to provide additional assurances, above and beyond those any other organization is required to provide, that they will comply with Department requirements.” The HUD regulations take a similar approach to religious grantees:
HUD finds no basis for requiring greater oversight and monitoring of faith-based organizations than other program participants simply because they are faith-based organizations. All program participants must be monitored for compliance with program requirements, and no program participant may use HUD funds for any ineligible activity, whether that activity is an inherently religious activity or a non-religious activity that is outside the scope of the program at issue.
To the extent that distinctive requirements for religious grantees reflected hostility to their participation in government programs, removal of such requirements seems justified. But not all distinctions should be regarded as marks of hostility; some differences are compelled by the Constitution.
The previous section’s discussion of constitutional limitations on direct financing of religious activity highlights the most important difference: the government is constitutionally forbidden to fund certain practices that are characteristic of religious institutions, whereas the Constitution generally does not prohibit the government to finance practices characteristic of non-religious institutions. To comply with the Constitution’s ban on direct financing of religious activity, the government should provide, in the words of Justice O’Connor in Mitchell v. Helms, “adequate safeguards” against diversion of government funds to religious uses. Such safeguards could take the form special instructions for faith-based organizations; alternatively the safeguards might be neutral with respect to the religious character of service providers. All that is essential is that the safeguards against diversion of government funds to religious uses be articulated and enforced.
C. Faith-Based Organizations “Retain their Independence” as Grantees.
Each of the final and proposed rules guarantees that any faith-based organization participating in the agency’s programs will “retain its independence and may continue to carry out its mission, including the definition, practice, and expression of its religious beliefs....” The rule specifically permits religious institutions to retain religious imagery in premises used to deliver government-financed services, to use religion as a criterion in selecting board members, and to have religious language in its governing documents. If these examples define the scope of “independence” under the final and proposed rules, this standard simply reflects that “pervasively sectarian institutions” are no longer constitutionally barred from participating in government service programs. We remain concerned, however, about the rules’ failure to draw a clear line between religious character and religious activity, especially in the rules’ broad promise of independence for the “practice and expression” of religious beliefs. As we discussed in section A, above, government may finance services provided by institutions with a religious character, but may not directly finance religious activity.
D. Protections for Beneficiaries of Government-Financed Services.
The final and proposed rules offer a range of protections for the religious liberty of those who receive government services from faith-based organizations. The most robust protections are found in the TANF and SAMHSA rules, both of which require notice to program beneficiaries of their right to receive alternative services if they object to a religious provider, and prompt referral to an accessible provider of equivalent services that is able to provide such services to the beneficiary.
A more modest set of protections is found in each of the other final and proposed rules. First, providers that are directly financed by the government are forbidden to “discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.”[4] Second, the rules require that “inherently religious activities” conducted by a service provider must be held in either a separate place or time than the government-financed services, and “participation [in such activities] must be voluntary for the beneficiaries” of the services. Taken together, these two protections seem to – and should – ensure that program beneficiaries are not required to accept unwanted religious indoctrination as a condition of receiving government-financed services.
However, the confusion surrounding the category of “inherently religious activities,” discussed above, makes these protections less secure. Except in the TANF and SAMHSA programs, in which beneficiaries have the right to receive alternative services if they object to a particular faith-based provider, a beneficiary could be offered only a service with significant religious content, and yet have no grounds for relief. Under these circumstances, the beneficiary would neither have been discriminated against on religious grounds, nor involuntarily subjected to an “inherently religious activity.” By clarifying the standard for impermissible religious content, the agencies could simultaneously encourage compliance with the law of the Establishment Clause, and strengthen their protection for the religious liberty of program beneficiaries.
E. Title VII Exemption and the Co-Religionist Hiring Preference.
In the past two years, legislative debates over the Faith-Based Initiative have been dominated by the question of whether faith-based organizations should be free to prefer co-religionists in employment decisions when the positions are part of government-funded services. A careful reading of the final and proposed rules highlights the complex regulatory environment in which that question now must be answered for faith-based organizations participating in government service programs. Several of the rules – those covering TANF, CSBG, and SAMHSA programs – are based on statutes that contain Charitable Choice provisions, including a specific affirmation that participating faith-based organizations retain their exemption from Title VII’s prohibition on religious discrimination in employment decisions. In other places, the rules reflect and implement President Bush’s amendment to Executive Order 11246, which now permits faith-based organizations that contract with the federal government to prefer co-religionists in employment decisions, and the policies stated in the recent publication of the White House Office of Faith-Based and Community Initiatives, Protecting the Civil Rights and Religious Liberty of Faith-Based Organizations: Why Religious Hiring Rights Must Be Preserved. Where restrictions on religious organizations’ ability to prefer co-religionists in hiring were imposed by agency regulations, the final or proposed rules remove such restrictions. In yet other places, however, statutory provisions do not exempt religious organizations from the prohibition on religion-based employment discrimination, and the regulations may not contradict such statutory directives.[5]
The regulatory context for this question becomes even more complicated when we
consider state and local employment discrimination rules.[6] In some states and localities, faith-based organizations that participate in government-financed service programs are forbidden to prefer co-religionists in hiring decisions, while in other states religious organizations are exempted from such restrictions. The relationship between federal funding programs and these state and local rules is not easy to discern, and we believe that several of the final and proposed rules make this discernment much more difficult, and unnecessarily so. For example, one commenter on the proposed TANF regulations asked about the relationship between the federal exemption from Title VII employment discrimination rules, and state or local anti-discrimination rules that might also apply to a faith-based service provider. The HHS response is quite confusing:
Comment: Several commenters noted that State and local governments have contracting laws that prohibit employment discrimination, beyond the Civil Rights Act of 1964. These commenters asked that the final rule clarify that nothing in the rule is intended to modify or affect any State law or regulation that relates to discrimination in employment.
Response: The Charitable Choice provision at section 104(f) of PRWORA ... expressly guarantees that a religious organization’s Title VII exemption shall not be affected by its participation in or receipt of TANF funds. Hence Charitable Choice applies whenever a State or local government uses Federal TANF funds or expends State or local funds claimed to meet the State’s MOE requirement to procure services and benefits from non-governmental organizations ....
The only exception is found in section 104(k) of the PRWORA ... which clarifies that the Charitable Choice requirements do not preempt any provision of a State constitution or State statute that prohibits or restricts the expenditure of State funds in or by religious organizations. We do not believe that this “preemption” provision can be interpreted to cover State or local employment discrimination law.[7]
This discussion is difficult to follow even for lawyers already well-versed in this area. The passage seems to indicate that HHS believes that the federal statute’s exemption from employment discrimination rules preempts state or local laws that would prohibit faith-based organizations from preferring co-religionists in hiring. Such a reading, however, would be wrong – both a misunderstanding of the law, and a misreading of this confusing passage. The response is, in fact, non-responsive. The commenters asked HHS to clarify the effect of the Charitable Choice provisions on state and local employment discrimination rules. HHS responds by reciting the Charitable Choice provision that maintains a religious organization’s exemption from Title VII. The response then discusses the general question of whether Charitable Choice preempts state laws or local ordinances, and concludes by saying that the Charitable Choice provision which permits special allowances for state rules that prohibit funding of religious organizations does not extend to “state or local employment discrimination law.” In short, the response says that state or local laws do not affect a religious organizations’ exemption from Title VII, but does not answer the question that was asked. Commenters wanted to know whether Charitable Choice preempted state or local anti-discrimination rules, and the simple answer should have been: “No, unless the state or local rules require no more than compliance with Title VII.” If state and local rules are not limited to the incorporation of Title VII by reference, the federal Charitable Choice law leaves such rules entirely untouched.
2. Specific Program Areas
A. DOL: Individual Training Accounts & Indirect Financing Rules
The Department of Labor’s proposed regulations, which cover the use of Individual Training Accounts (ITAs) under the Workforce Investment Act (WIA), highlight the crucial constitutional distinction between direct financing programs and indirectly financed, or beneficiary choice, programs.[8] The present regulation that governs financial assistance under WIA prohibits recipients from using the funds for employment or training in “sectarian activities” (29 CFR 37.6(f)(1)). That regulation is not required by the WIA legislation. Instead, the regulation was implemented under a prior statutory program for financing employment training programs. The prior scheme, the Job Training Partnership Act, provided for direct financing of employment and training services, and the Constitution clearly bars direct government expenditures on “sectarian activities.” The current program, WIA, distributes much of its financial support for employment services (ITAs) through mechanisms that permit beneficiaries to choose from among a range of service providers. The proposed regulations, relying on the U.S. Supreme Court’s decision in Zelman v. Simmons-Harris, would now permit the inclusion of religious providers – even those whose programs have intensely religious content – in programs that allow beneficiaries a “genuine and independent choice” among providers. Where such a range of choices is not available, however, the existing prohibition on financing of sectarian employment or training would remain.
The WIA legislation does impose one important limitation even on beneficiary choice programs. WIA beneficiaries – whether directly or indirectly financed – cannot receive program resources for “being employed to carry out the construction, operation, or maintenance of any part of any facility that is used or to be used for sectarian instruction or as a place for religious worship” (29 CFR 37.6(f)(3)). After Zelman, such a restriction most likely would not be required by the Establishment Clause. Nevertheless, the restriction does point toward greater concerns about government financial support for houses of worship.
B. HUD: Payment for Structures Owned by Religious Institutions.
A similar concern about government financing of houses of worship seems to have provoked the one significant change in the regulations proposed in January, 2003, and now made final. As originally proposed, the HUD rules would have permitted the government to finance the “acquisition, construction, or rehabilitation of real property” owned by religious organizations, “to the extent that [the real property is] used for eligible, HUD-funded activities,” even if the HUD-financed property will also be used for “inherently religious activities.” The final rule partially limits such arrangements: “Sanctuaries, chapels, or other rooms that a [HUD]-funded religious congregation uses as its principal place of worship... are ineligible for [HUD]-funded improvements.[9]
While an improvement over the proposed rule, this modification does not solve the serious constitutional problems with these HUD regulations. The problems are not unique to the HUD rules – they merely reiterate concerns noted above – but the HUD rules present them in a particularly stark form.
First is the use of “inherently religious activities” to define the scope of impermissible government support. Even though the final rules exclude “rooms that a [HUD]-funded religious congregation uses as its principal place of worship,” those rooms are not the sole locations in which religious activity might occur, as the HUD rules acknowledge. To distinguish between permitted and forbidden objects of government support, the HUD rules return to the formula seen in every other proposed and final rule, and provide that HUD funds can be used to finance the portion of a room’s use that is not attributed to “inherently religious uses,” and that is attributed to activities eligible for HUD support. We return to the question of apportionment below, but note first that although the HUD rules share much of the ambiguity of the “inherently religious” standard, they represent the only place in which that standard approaches a constitutionally appropriate interpretation. In response to a question about case management services that might be “infused with religious teachings and doctrine,” HUD replies: “HUD believes that existing HUD regulations and this rule are sufficiently explicit that direct HUD funds may not be used for religious proselytization. Program participants cannot use supportive services directly funded by HUD, such as counseling, to serve as a format for proselytization.” While one can imagine counseling sessions short of “proselytization” that might still run afoul of constitutional limitations, the HUD analysis at least recognizes the significance of religious content in service settings that are not “inherently religious.”
A second problem is far more significant. Even if HUD were to consistently follow this more accurate reading of the Establishment Clause, the rule of apportioning costs for real property improvements between religious and non-religious uses is fraught with constitutional perils. And yet HUD fails even to acknowledge the practical difficulties posed by this rule, much less its constitutional implications. Of the four examples HUD uses to illustrate its new legal standard, three represent the easiest possible situations to resolve. Example 1 involves a one room church that is also used as a soup kitchen – a case resolved by the revised standard that deems ineligible a congregation’s principal place of worship. Example 2 deals with HUD funding of a room used “exclusively for the soup kitchen,” thus avoiding the issue of proportional financing. Example 4 describes a structure owned by a religious organization but used exclusively as a day care facility; again, the use raises no issue of proportional financing. Only example 3 comes close, but even here HUD avoids the central question: this example involves a HUD-financed homeless shelter that also includes one room for a chapel, while all other rooms will be used for the shelter. Although example 3 seems to involve apportionment between religious and non-religious uses, the division can be determined (and monitored) with relative ease: religious activities will be confined to that room alone. None of the examples deals with the difficult – and readily predictable – situation of a religious organization that uses a room at some times for religious education, at other times perhaps for faith-intensive substance abuse treatment, and at still other times for a secular adult literacy class or homeless shelter.
At the very least, HUD needs to provide “adequate safeguards” against diversion of government resources to religious use. While the exclusive use arrangements identified in Examples 2 and 4 would easily meet such requirements, even the arrangement in Example 3 permits determinate and not especially intrusive monitoring – all one would need to see is that religious activity is restricted to the designated chapel. Shared religious and non-religious use of the same space would not be as amenable to such safeguards. And yet, instead of recognizing the need for monitoring in such situations, the HUD rules invoke a general principle of neutrality, and find that religious organizations that own and use HUD-financed property need no different or additional monitoring than similarly financed non-religious entities. “HUD has a responsibility to monitor all program participants to ensure that HUD funds (taxpayer funds) are used in accordance with HUD program and any government-wide requirements.” That is certainly tru
Notes:
[1] Ira C. Lupu is the F. Elwood & Eleanor Davis Professor of Law at The George Washington University Law School; Robert W. Tuttle is a Professor of Law at The George Washington University Law School.
[2]See our analyses of Freedom from Religion Foundation v. McCallum I, ACLU of Louisiana v. Foster, American Jewish Congress v. Bost.
[3]DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397 (2d Cir. 2001).
[4]The TANF and SAMHSA rules, based on the Charitable Choice provisions in their respective statutes, slightly modify this first protection. After “...on the basis of religion or religious belief,” the SAMHSA rule adds “...or a refusal to actively participate in a religious practice,” while the TANF rule adds “...refusal to hold a religious belief, or a refusal to actively participate in a religious practice.” Some who commented on the proposed rule raised concerns about the word “actively,” suggesting that it might reflect a tacit endorsement of “passive” exposure to religious practices.
[5]The SAMHSA rules provide an interesting and complicated exception to the standard rule that statutory provisions take precedence over administrative regulations. In both the proposed and now the final rule interpreting the SAMHSA Charitable Choice provisions, the agency turns to the Religious Freedom Restoration Act as the ground for exempting from a ban on religious discrimination in employment any participating faith-based organization that feels “sincerely burdened” by the applicable non-discrimination statute. For further analysis of this provision in the SAMHSA rule, see our January, 2003 analysis of the proposed rule.
[6]For a survey of state and local employment discrimination rules, see our 2002 annual report.
[7]The response then directs readers to a more extended discussion of the preemption provision in section 104(k), but the extended discussion provides no more illumination on applicability of state and local employment discrimination rules than found in this quoted passage.
[8]This constitutionally significant distinction between direct and indirect financing is reflected in all of the final and proposed regulations covered in this analysis. See, for example, the discussion of indirectly financed services in the proposed DOJ regulations, § 38.1(h).
[9]See, e.g., 24 CFR §570.200(j)(5) (limits on Community Development Block Grant financing of structures owned and used by religious organizations).
[10]Since the HUD rule was first proposed, the administration has made two additional moves in the direction of financing properties owned by religious institutions and used, at least in part, for religious purposes. Both moves resulted from opinion letters drafted by the Justice Department’s Office of Legal Counsel. The first approved a grant from the Federal Emergency Management Agency to the Seattle Hebrew Academy, which had been damaged in an earthquake. The second approved a historic preservation grant to Old North Church in Boston, made under the Save America’s Treasures program. The opinions conclude that structures owned by religious institutions – even if used as houses of worship or places of religious instruction – may receive government funds if the structure is among a broad class of beneficiaries, defined without reference to religion. Our analysis of these OLC opinions can be found at http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=16
[11]Freedom from Religion Foundation, Inc. v. McCallum, 179 F. Supp. 2d 950 (WD Wisc. 2002) (holding unconstitutional state support for a faith-intensive substance abuse treatment program, where the directors of the program stated that 20 percent of its counselors’ time was devoted to religious counseling, and the state covered only the 80 percent of time during which the counselors were purported to be providing non-religious substance abuse counseling).
[12]HUD’s rules for control and disposition of real property can be found at 24 CFR parts 84 and 85.
[13]Compare Flast v. Cohen, 393 U.S. 83 (1968) (granting taxpayer standing to challenge expenditures in violation of the Establishment Clause) with Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464 (1982) (denying taxpayer standing to challenge disposal of surplus government property).
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