On May 16, 2005, the American Civil Liberties Union ("ACLU") of Massachusetts filed suit in the U.S. District Court for the District of Massachusetts against Mike Leavitt, Secretary of the U.S. Department of Health & Human Services ("HHS")[1]. The suit challenges the constitutionality of a series of direct government grants -- running from August 1, 2003, and continuing through the period ending July 31, 2006 -- to an organization known as the "Silver Ring Thing" (hereafter "SRT"). SRT operates programs of sexual abstinence education for teenagers. According to the complaint in the lawsuit[2], SRT's methods include:
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Staging high-tech, multi-media presentations that are designed to culminate in students taking an abstinence pledge and putting on an SRT ring, which is inscribed with a Biblical verse reference, and which represents a vow of sexual abstinence until marriage;
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Aggressively proselytizing for Christianity on its website, in its presentations, and in the 12-step, individualized follow-up to the presentations;
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Distributing Bibles along with silver rings to those students who pledge sexual abstinence until marriage;
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Offering what appears to be a very weak secular option as an alternative to the religious program. (As described in the complaint, the presentation's leaders strongly encourage the students to pursue the religious version of the program, and the secular option does not produce any organizational follow-up.)
The complaint provides considerably more detail about the religious content and proselytizing methods associated with the presentations, the 12-step follow-up, and other details of SRT's abstinence program. The complaint sets out the sources of federal financing of SRT, which has received earmarked grants from Congress in each of the last three fiscal years, totaling over one million dollars. The complaint alleges that the SRT has used these federal funds "for the salaries and benefits of positions the SRT described as 'integral to the development and production of the Silver Ring Thing's abstinence education and follow-up initiatives'" (Complaint, par. 68). The complaint also alleges that federal funds have been used for equipment, vehicles, office space, supplies, and computers involved in the production of SRT's high-tech show aimed at leading students to a religion-based abstinence pledge.
The complaint alleges that SRT "makes no effort to segregate government funds for solely secular uses," (Complaint, Par. 71), and "uses taxpayer dollars to promote religious content, instruction, and indoctrination" (Complaint, par. 73). The complaint also alleges that the defendant government officials have "failed to establish safeguards sufficient to prevent the SRT from using government funds for religious activities and purposes" (Complaint, Par. 72). The complaint asserts that the defendants' failure to establish safeguards and to prevent diversion of federal funds to religious uses violates the Establishment Clause of the First Amendment, and asks the court to: 1) declare the defendants' actions unlawful, and 2) enjoin the defendants and their agencies from disbursing federal funds to SRT.
Analysis
At this stage of the proceeding, the case involves only plaintiffs' allegations and legal arguments that rest on those allegations. The government has thus far not responded to the complaint. SRT has issued a statement to the effect that it has spent the federal grants consistently with the law, but has not provided any details about those expenditures. Our analysis rests on the plaintiffs' allegations, and is subject to revision based on further development of the facts in the case.
Government-financed abstinence education has been a source of constitutional controversy at least since the 1980's, when Congress enacted the Adolescent Family Life Act and began to fund programs that aimed at teaching sexual abstinence to unmarried minors. In Bowen v. Kendrick (1988), the Supreme Court upheld the Act against a claim that its inclusion of religious organizations as grantees violated the Establishment Clause. In a majority opinion by Chief Justice Rehnquist, the Court noted that a philosophy of sexual abstinence among unmarried persons might coincide with the teachings of certain faiths, but that such coincidence did not itself make abstinence a religious precept. Although it rejected a constitutional attack on the Act on its face, the Court remanded the case to the lower courts to decide whether or not particular grants had been made to "pervasively sectarian organizations" or to finance "specifically religious activities." The lower courts were instructed to determine "for example, whether the Secretary [of HHS] has permitted . . . grantees to use materials that have an explicitly religious content or are designed to inculcate the views of a particular religious faith."
Although there are strong signs that a majority of the Supreme Court has jettisoned the concept of "pervasively sectarian organizations" as a disqualification for government financial support, the relevant law still forbids direct government financing of "specifically religious activities." Justice O'Connor's controlling opinion in Mitchell v. Helms restates this proposition in terms of the government's duty to avoid direct financing of religious indoctrination, a concept that seems quite consistent with the principle advanced in Bowen. Moreover, the lower courts have continued to follow this principle in cases involving sexual abstinence. In ACLU of Louisiana v. Foster (2002), for example, a U.S. District Court in Louisiana enjoined the officials responsible for the Governor's Program on Abstinence from disbursing state funds to abstinence programs that used explicitly religious themes in their literature and programming[3]. The court required the state to institute safeguards against diversion of state abstinence funds to religious uses. Faith-based organizations may be grantees of such funds, but they must conduct their publicly-financed program with exclusively secular language and themes.
If plaintiffs' factual allegations in ACLU of Massachusetts v. Leavitt are accurate, the court is highly likely to order HHS officials to stop disbursing federal funds to SRT. The allegations paint a picture of a program that is heavily and explicitly associated with evangelical Christianity. SRT's primary methodology for encouraging abstinence appears to be one of fostering in participants a personal relationship with Jesus Christ, as well as maintaining systems and symbols (the silver ring) of accountability to a religious pledge. If government funds are being used to pay the salaries of personnel who run such a program, or to pay for materials used to create the high-tech assemblies which SRT puts on to attract crowds, then the government officials who permit such uses are acting in violation of the Constitution.
After the lawsuit was filed, SRT took down some of the more explicitly religious features of its website, and posted (apparently for the first time) a ten-step secular follow-up program along with its twelve-step religious follow-up[4]. These changes in the website cannot cure past violations of the Constitution, although they do suggest the possibility that courts might allow funding of SRT in the future. If both SRT's high-tech show and its follow-up measures can be segregated into secular and religious components, and if government funds can be segregated in ways that ensure that public money is not being used to promote religious indoctrination, it is possible that future government grants restricted to SRT's secular programs will be held constitutionally acceptable. Such prospective changes by SRT cannot affect the determination of whether prior grants have been spent unlawfully, nor would such changes likely affect the terms of any injunction against the future diversion of government funds to impermissible religious uses.
One key question raised by this lawsuit relates to the conduct of the HHS officials who have been responsible for the administration of this and other programs on the subject of sexual abstinence. HHS regulations on direct federal grants to faith-based organizations specify that such grants cannot be used to finance "inherently religious activities," such as worship, religious instruction, or proselytizing. The court may find that this guidance is insufficiently detailed, and order the government to explicitly counsel faith-based grantees that they may not intermingle religious themes with social services in government-financed programs. Alternatively, the court may find that the HHS regulations are sufficient, but that SRT failed to adequately comply with them.
The court in ACLU of Massachusetts v. Leavitt may also find that, even if the government's guidance is adequate, HHS failed to provide sufficient safeguards against religious use, and failed to monitor SRT so as to properly enforce such restrictions. The Establishment Clause imposes an affirmative duty on government to ensure that its funds are not being used to support religious indoctrination. The court in this case may find that HHS has failed in this duty, and order changes in the relationship between HHS and SRT. But it is possible that the court could impose a broader remedy. When the court in ACLU v. Foster, noted above, determined that the relevant state officials were not policing faith-based grantees use of state money for religious purposes, the court ordered into place a system of reporting and monitoring designed to enforce strict guidelines against use of state money for religious indoctrination. Similarly, in this case, the court might order a broad remedy applying to the entire federal abstinence education program. If the court in this case chose the latter, broader course, HHS might find itself under court-ordered pressure to: 1) articulate clearer standards concerning the religious content of social services; 2) establish safeguards against violations of those standards; and 3) monitor compliance with those standards and safeguards. Such a court order would force the government to take these steps far more aggressively than has been the government's practice to date.
Finally, we note that the grant to SRT was part of a legislative earmark - a grant made specifically by Congress to SRT - and not a grant made by HHS officials as part of a publicly-announced invitation for grant applications. Legislatively earmarked grants to faith-based entities can present special constitutional problems, especially when faith groups only are singled out for favorable treatment. Here, however, the legislative earmarks included abstinence programs both public and private, and both secular and religious. In such circumstances, the earmark is arguably religion-neutral enough to avoid judicial condemnation as an unconstitutional endorsement or favoritism for religion in general or a particular faith. Moreover, in this case HHS disbursed the funds to SRT only after agency review of the organization's application. In those circumstances, the relevant agency officials retain full constitutional responsibility for the content of the government-financed services, for safeguards against diversion to religious use, and for monitoring compliance with those safeguards. On the facts as alleged in the ACLU complaint, the agency has failed in some or all of those responsibilities. If the facts turn out to be other than as alleged, our conclusions might of course be very different.
Notes:
[1] The suit also named as defendants two additional officials from within HHS - Wade Horn, Assistant Secretary for Children and Families, and Harry Wilson, Associate Commissioner for the Administration on Children, Youth, and Families.
[2] The complaint is linked to the ACLU's website at http://www.aclu.org/ReproductiveRights/ReproductiveRights.cfm?ID=18242&c=147.
[3] Additional description and our analysis of the issues in this case can be viewed at http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=7.
[4] The 12-step Faith-Centered Follow-Up Program can be viewed at http://www.silverringthing.com/follow_faith.html. The 10-step secular folow-up program can be viewed at http://www.silverringthing.com/follow_secular.html. The secular program omits steps relating to the SRT Bible and the "faith decision" represented by a vow of abstinence until marriage.
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