The opinion of the court was delivered by: RICHEY
The plaintiffs challenge the constitutionality of the Adolescent Family Life Act ("AFLA"), 42 U.S.C. §§ 300z - 300z-10 (1981), on the ground that on its face and as applied the statute violates the Establishment Clause of the First Amendment.
The fundamental question in this case is the constitutionality of a statute that allows religious organizations to use government funds for, inter alia, the counseling and teaching of adolescents on matters related to premarital sexual relations and teenage pregnancy. Although the Court finds that the AFLA has a valid secular purpose, it also finds that the AFLA, on its face, has the primary effect of advancing religion and fosters an excessive entanglement between government and religion. Moreover, the undisputed facts show that AFLA grants awarded to religious organizations have the primary effect of advancing religion. Therefore, the Court must hold that the AFLA is unconstitutional both on its face and as applied.
Accordingly, the Court will grant plaintiffs' motion for summary judgment and will deny defendant's and defendant-intervenors' cross-motions for summary judgment by Order of even date herewith.
The Court is sensitive to the fact that its Opinion discusses particular beliefs and also discusses practices in which particular religious organizations have engaged. The Court intends nothing in this Opinion to reflect adversely on any religion. The Court notes that it is apparent from the party plaintiffs, defendant, and defendant-intervenors in this case that members of the same religious groups do disagree about the validity of the AFLA and hold differing, religiously based, beliefs about the program's goals. The Court also notes that this division obtains among Protestants, Catholics, Jews and others, and wishes to be quite clear that it discusses particular religions only insofar as is absolutely necessary for this Opinion.
No judge enjoys deciding a constitutional challenge to a United States statute. Because federal laws are enacted by Congress and approved by the Chief Executive, courts rightly employ a variety of doctrines in order to avoid overruling our co-equal branches of government. In deference to the considered judgments of the other branches, a court must strive, if possible, to avoid the constitutional issue altogether. See Pennsylvania v. Ritchie, 480 U.S. 39, 107 S. Ct. 989, 1011, 94 L. Ed. 2d 40 (1987) (Stevens, J., dissenting). As this case raises only constitutional issues, however, the Court does not have that option.
A second principle of judicial abstention is that a Court must avoid, if possible, finding that a statute does not conform to the requirements of the Constitution. See Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568, 91 L. Ed. 1666, 67 S. Ct. 1409 (1947). Equally fundamental, if compelled to find a statute unconstitutional, a Court's decision should be so circumscribed as to wreak the least havoc on the law. As such, courts ought not leap to declare a statute invalid where they can merely proscribe a practice under that law. See Erznoznik v. Jacksonville, 422 U.S. 205, 215-16, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975); Rescue Army, 331 U.S. at 569. But, after careful study, the Court has concluded that these principles, which the Court wholeheartedly accepts, are somewhat at odds with Establishment Clause case law.
While little else is clear in Establishment Clause case law, it is obvious that the distinction between a challenge to a statute on its face and as applied has not been clearly delineated. The precedents take as their form of analysis a consideration of the possible applications of a particular statute, see, e.g., Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 779-83, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973), then analyze the statute's actual application, see, e.g., id.; Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 479-82, 37 L. Ed. 2d 736, 93 S. Ct. 2814 (1973), and finally, even if the application is the only constitutionally offensive element to which the court has pointed, strike down the statute on its face. See, e.g., Wolman v. Walter, 433 U.S. 229, 255, 53 L. Ed. 2d 714, 97 S. Ct. 2593 (1977); Roemer v. Board of Public Works, 426 U.S. 736, 767, 49 L. Ed. 2d 179, 96 S. Ct. 2337 (1976).
This method of analysis, so different from that usually employed when considering constitutional claims, leaves this Court only one alternative if it is to abide by the teachings of the Supreme Court, which trial judges must. Accordingly, even though the Court does not relish the task, it has no alternative but to consider the statute both on its face and as applied. In the end, however, this double duty matters little because the AFLA is unconstitutional both on its face and as applied.
While the AFLA has three general program categories -- care, prevention and research, see 42 U.S.C. §§ 300z-2 & 300z-7, the plaintiffs contest the constitutionality only of the care and prevention services.
"Care services" include pregnancy testing, maternity counseling, adoption and referral services, and primary and preventive health services. See 42 U.S.C. § 300z-1(a)(7).
"Prevention services" are services to discourage adolescent sexual relations, referral services for the treatment of venereal disease, counseling and family planning services. See 42 U.S.C. § 300z-1(a)(8).
With the exception of pregnancy testing, child care and transportation services, all of the care and prevention services involve some form of referral, teaching or counseling services. See 42 U.S.C. 300z-1(a)(4). Seven of the seventeen listed services explicitly involve education and counseling, and two involve activities intimately related to counseling -- outreach and planning services. See id. All of these programs are targeted to help pregnant adolescents, particularly children of high school age. See 42 U.S.C. §§ 300z(b)(3) & 300z-1(a)(9).
Although the Court must consider the AFLA as a whole, two sections are particularly relevant to the Court's decision. First, the AFLA requires applicants to describe how they
will, as appropriate in the provision of services . . . involve . . . religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives. . . .
42 U.S.C. § 300z-5(a)(21) (emphasis added). Secondly, the AFLA limits funding
to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion.
42 U.S.C. § 300z-10(a).
The plaintiffs contend that these two sections, when read together, not only permit religious organizations to use government funds to provide counseling-type services, but restrict AFLA funding of religious organizations to those that oppose abortion. See Amended Complaint paras. 2-4 (filed Dec. 29, 1983). Moreover, the plaintiffs assert that religious organizations have received AFLA funds, either directly as grant recipients or indirectly through their affiliation with secular grantees, to provide such services. For these reasons, the plaintiffs claim that the AFLA, both on its face and as applied, violates the Establishment Clause of the First Amendment.
The defendants argue that the Establishment Clause does not absolutely prohibit religious organizations from receiving government funding. The defendants contend that the AFLA permits religious organizations to provide services that are secular in purpose, and that the provision of these services does not have the primary effect of advancing religion and does not foster an excessive entanglement between government and religion.
III. BECAUSE THE MATERIAL FACTS ARE NOT IN DISPUTE, SUMMARY JUDGMENT IS APPROPRIATE IN THIS CASE.
Pending before the Court are three cross motions for summary judgment and a motion for judgment on the pleadings. It is evident from the extent of the record in this case and from the motions themselves that the parties have had more than ample opportunity to submit all material pertinent to a motion for summary judgment. Therefore, the Court will treat the motion for a judgment on the pleadings under Rule 12(c) as a motion for summary judgment pursuant to Rule 56. See Fed. R. Civ. P. 12(c); Public Citizen v. Lockheed Aircraft Corporation, 184 U.S. App. D.C. 133, 565 F.2d 708, 711 n.5 (D.C. Cir. 1977). After carefully and exhaustively considering the motions, the statements of material fact not in dispute, the allegations of disputed facts, the golconda of documents submitted to the Court, and the case law, the Court finds that the material facts are not in dispute and that summary judgment is appropriate. See Fed. R. Civ. P. 56(c); Celotex Corporation v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202 (1986).
IV. THE FEDERAL TAXPAYER PLAINTIFFS HAVE STANDING TO BRING THIS ACTION BECAUSE THEY RAISE AN ESTABLISHMENT CLAUSE CHALLENGE TO THE AFLA, WHICH WAS ENACTED PURSUANT TO THE TAXING AND SPENDING CLAUSE.
Article III of the Constitution demands that plaintiffs who bring a lawsuit have standing to pursue the claims that they raise. See, e.g., Flast v. Cohen, 392 U.S. 83, 94-99, 20 L. Ed. 2d 947, 88 S. Ct. 1942 (1968). The defendants and defendant-intervenors do not contest plaintiffs' standing to challenge the constitutionality of the AFLA on its face. They argue instead that the plaintiffs do not have standing to challenge the Act as applied and, therefore, this Court may not even consider the actual AFLA grantees and programs. The Court disagrees. Because the federal taxpayer plaintiffs raise an Establishment Clause challenge to an enactment pursuant to the taxing and spending clause, they satisfy the test for taxpayer standing set forth in Flast, 392 U.S. at 102-03.
Accordingly, they have standing to challenge the AFLA both on its face and as applied.
In Flast, the Supreme Court held that federal taxpayers have standing to challenge the constitutionality of 1) an exercise of congressional power under the taxing and spending clause
if 2) the basis for the challenge is that the statute violates the Establishment Clause. See id. at 102-03. Because the AFLA was enacted pursuant to the taxing and spending clause, see Plaintiffs' Statement of Material Facts ("Plaintiffs' Facts") para. 1, and the plaintiffs allege that the AFLA violates the Establishment Clause, see Amended Complaint paras. 1, 49 & 50, the only question with regard to plaintiffs' standing to challenge the AFLA as applied is whether they contest an "exercise of congressional power."
This is what the defendant and defendant-intervenors deny. They argue that because the AFLA is administered by the Department of Health and Human Services ("HHS"), the plaintiffs' challenge to the AFLA as applied contests executive, rather than congressional, action. Careful consideration of the facts in the Flast case shows why defendants are in error.
The scheme upheld in Flast is precisely analogous to the AFLA. Just as in the statute at issue in Flast, in the AFLA Congress delegated to HHS the task of disbursing the appropriated funds in a manner consistent with the standards and restrictions established by the AFLA. See 42 U.S.C. § 300z-2; Plaintiffs' Facts para. 2. By disbursing funds appropriated for the AFLA, HHS merely executes congressional power pursuant to the standards set by Congress, just as its predecessor agency did under the law upheld in Flast. Accordingly, Flast, never having been overruled, dictates a finding that the federal taxpayer plaintiffs here have challenged an exercise of congressional power despite HHS's role in disbursing the appropriated funds.
Notwithstanding the similarities between this case and Flast, the defendant and defendant-intervenors claim that this case is controlled by the Supreme Court's more recent decision in Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982). The Valley Forge case involved the Federal Property and Administrative Services Act of 1949 ("Property Act"), which pursuant to the property clause
gave HEW the power to sell the federal government's surplus real property. See id. at 466-67. Under the Property Act, HEW had broad discretion to grant public benefit allowances, which effectively decreased the price of the property. See id. at 467. The plaintiffs in the Valley Forge case challenged HEW's decision to transfer a parcel of federal property to Valley Forge Christian College and to offset the entire price of the property with a 100% public benefit allowance. See id. at 468.
There is an essential difference between the executive action at issue in Flast and that at issue in Valley Forge. Unlike HEW's actions in Flast -- and unlike HHS's actions with respect to the AFLA -- HEW was not carrying out an exercise of congressional power when it gave Valley Forge Christian College a free parcel of property. See id. at 479 & n.15. Instead, pursuant to its broad statutory discretion, the executive agency itself decided whether and how much to offset the price of surplus federal property with a public benefit allowance. See id. at 468. Unlike the plaintiffs in Flast, the Valley Forge plaintiffs could not point to a close, logical connection between their standing as taxpayers and HEW's action. Moreover, the action at issue in Valley Forge was not related to the taxing and spending clause but proceeded under the Property Clause of the Constitution. Consequently, the Supreme Court found that these plaintiffs did not have standing to sue. See id. at 479-80 & n.17.
V. BECAUSE THE AFLA DOES NOT MAKE EXPLICIT AND DELIBERATE DISTINCTIONS AMONG RELIGIONS, THE COURT MUST USE THE TRIPARTITE TEST SET FORTH IN LEMON V. KURTZMAN TO EVALUATE THE STATUTE.
Having found that the plaintiffs have standing, the Court must now consider whether the AFLA comports with the Establishment Clause. Until recently, it seemed evident that a Court would use the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971), when called upon to determine whether a statute comports with the Establishment Clause. In Larson v. Valente, 456 U.S. 228, 72 L. Ed. 2d 33, 102 S. Ct. 1673 (1982), however, the Supreme Court held that a statute that explicitly and deliberately discriminates among religious denominations is suspect and must be reviewed with "strict scutiny." See id. at 246-47. The plaintiffs here argue that the AFLA must be reviewed under a strict scrutiny standard because it contains a denominational preference to the extent that it restricts funding to those religious organizations that oppose abortion. The Court cannot agree.
The Minnesota statute at issue in Larson explicitly exempted from certain state requirements any religious organization that received more than 50% of its contributions from its own members. See id. at 231-32. Because this "fifty percent rule" made "explicit and deliberate distinctions" between well-established churches and "new churches" that largely depend on public solicitation, the Court tested the rule under a standard of strict scrutiny. Id. at 246-47 & n.23.
Larson's strict scrutiny analysis, however, applies only in limited circumstances. This is clear from the Court's discussion in Larson of the case of Gillette v. United States, 401 U.S. 437, 28 L. Ed. 2d 168, 91 S. Ct. 828 (1971). Gillette involved an Establishment Clause challenge to the Military Selective Service Act ("MSSA") of 1967, which afforded conscientious objector status to any person who, "by reason of religious training and belief. . . was conscientiously opposed to participation in war in any form." Id. at 441 (emphasis added). Thus, Quakers could object because they opposed all wars, whereas Catholics could not because they opposed only unjust wars. The Catholic plaintiff challenging the MSSA argued that strict scrutiny should apply because differences in religious beliefs only permitted members of select religions to benefit from the conscientious objector status. In Larson, the Supreme Court noted that, apart from the difference in religious beliefs concerning war, the Gillette statute did "not discriminate on the basis of religious affiliation;" the conscientious objector status was available on an equal basis to members of all religions. Larson, 456 U.S. at 246 n.23. As such, the Larson, court found that the MSSA did not "explicitly and deliberately" discriminate against Catholics and, therefore, the tripartite Lemon test -- not the strict scrutiny analysis -- remained the proper method for analyzing the MSSA. See id. The Lemon test is the equally proper analytic tool in the case at bar.
If anything, the AFLA makes even fewer distinctions among religions than did the statute at issue in Gillette. By prohibiting a grant recipient from advocating abortion in an AFLA program or project, the AFLA does not condition a "benefit" on a particular religious belief but merely restricts a program or project from using federal tax dollars to advocate a particular course of action. See 42 U.S.C. § 300z-10. Although the prohibition against advocating abortion, like opposition to war in any form, may coincide or conflict with religious precepts, that fact does not require the Court to analyze the AFLA pursuant to a strict scrutiny analysis. See Larson, 456 U.S. at 246 n.23; Gillette, 401 U.S. at 441; see also, Bob Jones University v. United States, 461 U.S. 574, 604, 76 L. Ed. 2d 157, 103 S. Ct. 2017 n.30 (1983) (regulation does no violate the Establishment Clause merely because it coincides or harmonizes with the tenets of some or all religions); Harris v. McRae, 448 U.S. 297, 319-20, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980) (same); McGowan v. Maryland, 366 U.S. 420, 442, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961) (same); Crowley v. Smithsonian Institution, 205 U.S. App. D.C. 30, 636 F.2d 738, 742-43 (D.C. Cir. 1980) (same). As such, because the AFLA does ...