Overview
On March 20, 2007, Judge Franklin D. Burgess of the U.S. District Court for the Western District of Washington granted the defendants' motions for summary judgment in Christianson v. Leavitt, and dismissed the lawsuit.[1] As we described in a previous update,[2] the lawsuit alleged that the U.S. Department of Health and Human Services (HHS), along with two of its grantees, violated the Establishment Clause through grants to the Northwest Marriage Initiative (NMI), a faith-based marriage education and counseling provider. NMI received HHS grants under the Compassion Capital Fund (CCF) to build the provider's capacity for delivering services, and also received grants under the Healthy Marriage Initiative, to sponsor the provider's marriage education programs. In their original complaint, the plaintiffs asserted that religious messages pervaded all of NMI's programs, and therefore direct government aid for such programs violated the Establishment Clause's ban on government-financed religious indoctrination.
The government and other defendants filed motions to dismiss the case, and after allowing the parties an opportunity to develop the factual record, the judge granted that request. The judge determined that NMI had discontinued its religious programs and now offers programs with exclusively secular content. Furthermore, the judge found that the plaintiffs failed to produce evidence that NMI had ever used HHS funds to support the now-terminated religious programs. The judge therefore concluded that the grants to NMI did not violate the Establishment Clause, and dismissed the lawsuit.
This lawsuit has been especially important to watch because it is the first case to address the capacity-building grants that represent the core of the CCF's strategy for developing faith-based and community-based organizations. Because of NMI's shift from religious to secular content in its programs, however, the court was not required to take up the complex and novel questions raised in the plaintiffs' original complaint. Nonetheless, the court's decision remains noteworthy for two reasons. First, the court restated the core limitation that Establishment Clause law imposes on programs of direct public aid. Such funding may not be used to support "specifically religious activities," a category that includes any programming with explicitly religious content. Second, the decision reaffirmed that any faith-based organization (FBO) that offers programs with exclusively secular content is eligible to receive capacity-building grants and related forms of institutional support. Neither the religious identity of an FBO nor an FBO's past practice of offering religious programming will disqualify the organization from receiving such institutional support. The decision did not address the most difficult question originally presented by the lawsuit - whether the Establishment Clause permits public support for the capacity building of an FBO that provides both secular and religious programming.
Description
On September 12, 2006, Americans United for Separation of Church and State (AU), on behalf of Washington State taxpayers, brought suit against HHS officials, NMI, and another HHS grantee, the Institute for Youth Development (IYD). The lawsuit alleged that NMI received one grant directly from HHS and another through an intermediary organization, IYD, which was acting on behalf of HHS. These two grants were made under the Compassion Capital Fund, and AU alleged that the grants provided NMI with funds to design and maintain the organization's website; to acquire computers, audio-visual equipment, a copier, and other office equipment; for training and technical assistance in fundraising and financial management provided to NMI staff; and to pay the salaries of NMI staff. When NMI subsequently received another grant from HHS, under the Healthy Marriage Initiative, AU amended its complaint to allege that the HMI grant also violated the Establishment Clause.
During 2005 and early 2006, when NMI first applied for and received the HHS grants under the CCF, all of the organization's marriage counseling and education programs used explicitly religious language and concepts. The plaintiffs alleged that the grants to support development of NMI's capacity inevitably subsidized the religious services provided by the organization, and thus violated the Establishment Clause. After NMI removed all explicitly religious content from its services, and subsequently received the HMI grant to deliver marriage-related programs, the plaintiffs argued that public support for NMI remained unconstitutional because the underlying religious basis for the program had not changed, and the HHS grants lacked adequate mechanisms for monitoring NMI's compliance with the prohibition on religious use of public funds.
The plaintiffs asked the court for a preliminary injunction to bar NMI's use of public funds, and the defendants asked the court to dismiss the lawsuit. Both sides submitted a range of supporting documents, and the judge decided that the documents provided an adequate basis on which to resolve the dispute. The court agreed fully with the plaintiffs' statement of the relevant Establishment Clause standard, which bars direct government funding of religious activities. Moreover, the court agreed that NMI would have been ineligible to receive government funds if the organization had continued to offer its religious programs. The court determined, however, that the plaintiffs failed to show either that NMI had used the HHS grants to support its religious programs, or that the grants lacked adequate mechanisms to safeguard against such misuse in the future. Based on those determinations, the court granted the defendants' motions for summary judgment, and dismissed the case.
Analysis
At the time this lawsuit was originally filed, the case appeared to raise one of the most complex and timely questions of Establishment Clause law: May the government provide direct support to an FBO, in order to build the capacity of the FBO to deliver services, if the content of those services is partly or exclusively religious?[3] As the litigation developed more details about NMI's program, however, that complex constitutional question gave way to one that is significantly less difficult or controversial under current law: May the government provide direct support to an FBO, in order to build the capacity of the FBO to deliver services, if the content of those services is exclusively secular?
For the reasons given in Judge Burgess's decision, the answer to that less-complicated question is yes. The government may provide capacity-building funds to any organization that provides secular services, whether the entity is faith-based or secular. That answer, of course, has not always been uncontroversial. Over the past thirty years, the Supreme Court has gradually replaced a restriction on aid to religious institutions with the present ban on direct funding of religious activities. The district court provided a succinct but thorough summary of developments in the law of the Establishment Clause, and focused specifically on the criteria for assessing programs of direct aid, as set forth in the Supreme Court's decisions in Agostini v. Felton[4] and Mitchell v. Helms.[5] After outlining those criteria, the court focused on two closely related considerations: "(1) whether the institutions receiving the aid are pervasively sectarian and/or (2) whether the aid is used to fund specifically religious activities."[6]
Many who read this opinion are likely to be surprised, and some perhaps even offended, by the court's use of the phrase "pervasively sectarian." The phrase was originally adopted by the Supreme Court to explain why the Establishment Clause prohibited direct aid to religious schools. If the Establishment Clause bars the use of public funds for religious activities, religious schools might nonetheless be eligible for aid to support their non-religious activities, such as the teaching of math or science. During the 1970s and 1980s, however, the Supreme Court generally held that religious schools were categorically barred from receiving direct public aid, and gave two reasons for this prohibition.[7] First, the Court determined that religion "pervades" the educational experience in such schools, and thus it is impossible to segregate out the secular aspects of their activities. Second, the Court reasoned that even if secular activities, at least theoretically, could be segregated from the religious educational experience, the government would not be able to engage in constitutionally-mandated monitoring of such segregation without becoming "excessively entangled" with the religious governance and mission of the school. In other words, it represented a classic "Catch-22" scenario: the Establishment Clause required a safeguard that would violate the Establishment Clause to implement.
As the district court indicated, several members of the Supreme Court have sharply criticized the use of the phrase "pervasively sectarian," most notably Justice Thomas in his plurality opinion in Mitchell v. Helms. Thomas argued that inquiry into the "sectarian" character of an FBO was the product of a "shameful pedigree" of anti-Catholic bigotry in American legal and political history. Moreover, he found the inquiry "unnecessary and offensive" because it suggested that courts should, and could, determine the extent to which a religious institution was "really religious."[8] The district court defended its continued use of the "pervasively sectarian" standard by noting that it has not been expressly rejected by a majority of the Supreme Court. Only four justices joined Justice Thomas's plurality opinion.[9]
Although correct in one respect - no majority opinion has ever repudiated the phrase "pervasively sectarian" - the core legal presumptions embedded in the phrase have been rejected by a majority of the Court. In her opinions in Agostini and Mitchell, Justice O'Connor undermined one of those presumptions when she said that educational professionals, whether employed by the government or by religious schools, may generally be trusted to comply with restrictions on the use of public aid. By trusting the integrity of school professionals, it is possible to establish a line between permissible and impermissible uses of public aid, without involving the state in excessively intrusive monitoring of the school. This claim is the most important feature of O'Connor's majority opinion in Agostini and her decisive concurring opinion in Mitchell, because it meant that some forms of direct public aid for religious schools would pass constitutional muster, as long as the professionals were given a reasonable opportunity to segregate the publicly-supported program from any "specifically religious activities."[10] After Agostini and Mitchell, the categorical exclusion of "pervasively sectarian" entities rests on the thinnest of foundations.
Nonetheless, the court's use of "pervasively sectarian" in this context might suggest an important continuing relevance of the concept, although the phrase itself might best be avoided. As the court recognized, the Establishment Clause permits government to directly finance activities of an FBO, but only if the publicly funded activities can be segregated from activities that have "specifically religious content." The rule assumes that public funds are directed to a discrete activity of the organization. That assumption accurately reflects most streams of public support, including the Healthy Marriage Initiative grant awarded to NMI, which is now financing its marriage workshops.
Capacity building grants under the Compassion Capital Fund, however, do not fund a particular service, but instead offer generalized benefits to the funded organization. When the government funds office equipment, assistance in website design, or training in fundraising and financial management, the task of segregating secular from religious uses becomes significantly more difficult than it is with aid for delivery of a substantive program. It is possible, of course, to restrict some equipment - such as a video projector - for use only in secular programs. Other equipment, such as the computers used by the director or administrative assistant, seems far less amenable to segregation. Training to help with the organization's fundraising or financial management is even less amenable to such segregation, because the skills and resources generated inevitably benefit the entire organization. If an FBO receives a CCF capacity building grant, and provides activity with specifically religious content, it is quite likely that the public support will benefit the FBO's religious activity. The court thus reasoned that the federal grants to NMI would have violated the Establishment Clause if NMI had continued its religious programs of marriage education.
In applying the Establishment Clause standard to NMI's CCF grants, the court may have had this problem in mind when it invoked the prohibition on aid to "pervasively sectarian" entities. That phrase could have been avoided, however, if the court had focused on the underlying issue: if an FBO receives capacity-building aid, and provides only programs with religious content, then the aid cannot possibly be restricted to a secular activity, because all of the FBO's activities are religious. The question becomes closer, however, if the FBO provides both religious and secular programs. In such a case the issue of whether a capacity building grant unlawfully supports religious programming remains.
NMI mooted these questions, the court found, by dropping altogether the religious components of its marriage education program. As a provider of exclusively secular counseling programs, NMI easily satisfies the segregation requirement with respect to its current grant under the Healthy Marriage Initiative. The sole remaining explicitly religious activity of NMI is a newsletter, and the court determined that the newsletter was produced with exclusively private funds, using equipment located at the director's home, and not the NMI office. The plaintiffs argued that NMI merely eliminated religious references from its curriculum, and thus the current materials should still be treated as religious. The court disagreed. "Without reference to religion (God and the Bible), the Institute's curriculum cannot be considered sectarian. Otherwise, tenets of a healthy marriage, such as avoiding extra-marital affairs, could be considered religiously based simply because the same admonition is in the Bible."[11]
The court did have one opportunity, however, to engage the more complex issues underlying the case. NMI received its CCF grants in the summer and fall of 2005, during the time that it was conducting exclusively religious programs of marriage education. The plaintiffs alleged that these capacity-building grants inevitably subsidized NMI's religious activities, including both the workshops and the organization's website (which maintained significant religious content well into 2006). The court rejected the argument for three reasons. First, it found that the CCF grants were capable of segregation, because NMI used the aid to prepare for its transition to providing exclusively secular marriage workshops, and not to support its existing religious workshops.[12] Second, it determined that HHS provided CCF grantees, including NMI, with adequate notice of their obligations and monitoring of their compliance. Third, the court found that the plaintiffs did not provide "credible contradictory evidence" showing that NMI had used CCF aid to support its religious programs.[13]
One might raise reasonable objections to the first two of these findings. As to the first, the types of aid that NMI received, such as computers, software, and website development, seem likely to have benefited all facets of NMI's program, not just its planned transition to secular marriage workshops. As for the second, the court found HHS's guidance for CCF grantees to be adequate, but failed to note the important differences between the court's own statement of the governing Establishment Clause standard and that contained in the HHS guidance. Drawing from Supreme Court precedent, the court said that public funds may not be used to directly support "specifically religious activity," including human services provided through explicitly religious language. According to the court, "Faith-based marriage workshops and counseling premised on the words of the Bible is [sic] a specifically religious form of marriage counseling/education."[14] By contrast, the HHS regulations prohibit the use of direct public funds for "inherently religious activity, such as worship, religious instruction, or proselytization."[15] The regulations decline to address the question of using religious language in the delivery of otherwise secular services, such as marriage education. As we have argued elsewhere, this omission reflects an important weakness in the HHS guidance, because the gap occurs with respect to the very point most likely to need clarification.[16] Nonetheless, the court found no reason to question the guidance in this case, because NMI's eventual shift to a secular curriculum brought the program into compliance with constitutional norms.
Ultimately, the outcome of the case turned on the court's third finding, that the plaintiffs were unable to show diversion of NMI's grants to religious use. If public aid is capable of being segregated from the FBO's religious activity, then the plaintiff has the burden of showing that the aid has been misused.[17] Such a showing is likely to be more difficult with respect to capacity-building grants than it is for program grants, because evidence of the content delivered for a particular program will tend to be more readily, and perhaps even publicly, available, than will evidence of how an institution manages its infrastructure. This difficulty may be mitigated, at least somewhat, because the government and its grantees may have a harder time in other cases showing how capacity-building support can be segregated from the grantee's religious activity. In that respect, NMI may prove to be an unusual case, because the court was able to find in NMI's transformation a clean line between religious and secular uses. For organizations that continue to provide religious and secular services, that line may be more difficult to detect.
Conclusion
The court's ruling in Christianson v. Leavitt reaffirmed the core principle of Establishment Clause law governing public aid to religion. The government may directly fund FBOs, but it may not directly fund specifically religious activities, including social welfare programs with explicitly religious content. That principle applies both to grants for particular programs and to capacity-building grants, although the case illustrates the potential complexity in applying the principle to institution-focused, rather than programmatic, funding. If public aid supports an FBO generally, grantees may find it difficult to satisfy the constitutional obligation to segregate that support from the institution's religious activities, unless they are willing to follow the path taken by NMI in this case. Because NMI did take that path, however, this court was able to avoid resolving the more complicated question of whether NMI, or a similarly situated grantee, would have been required to do so.
Notes:
[1]Christianson v. Leavitt, Order denying Preliminary Injunction and Dismissing Action (W.D. Wash., March 20, 2007) (subsequent citations to page numbers in this Order).
[2] Available online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=52
[3] We suggest a range of possible answers to this question in our prior analysis of the Christianson litigation, available online at: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=52.
[4] 521 U.S. 203 (1997).
[5] 530 U.S. 793 (2000).
[6] Order, 9.
[7] Lemon v. Kurtzman, 403 U.S. 602 (1971); Levitt v. Committee for Public Education & Religious Liberty, 413 U.S. 472 (1973); Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S. 756 (1973); Meek v. Pittenger, 421 U.S. 349 (1975); Aguilar v. Felton, 473 U.S. 402 (1985).
[8] Mitchell, 530 U.S. 793, 826-29 (plurality opinion).
[9] In Agostini, the Supreme Court specifically stated that its precedents should bind lower courts unless and until the precedents have been overruled by the Supreme Court. Lower courts are not free to disregard such precedents on the expectation that the Supreme Court will overrule the precedents in the future. 521 U.S. 203, 237 (1997).
[10] Agostini, 521 U.S. 203, 222-27; Mitchell, 530 U.S. 793, 857-860 (O'Connor, J., concurring in the judgment).
[11] Order, p.12.
[12] Order, p.11.
[13] Order, p.14.
[14] Order, p.11.
[15] 45 CFR 87.1(c).
[16] Legal Analysis of Final Rules and Notices of Proposed Rulemaking Concerning the Faith-Based Initiative, available online at http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=18.
[17] Mitchell, 530 U.S. 793, 857-58 (O'Connor, J., concurring in the judgment).
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