Act of 1965 ("Education Act"). See 392 U.S. at 85-88. The Education Act delegated to the Department of Health, Education and Welfare ("HEW," now HHS) the task of disbursing the funds appropriated under the Education Act in a manner consistent with the standards and restrictions established by the Act. See id. at 86-88. The Court held that, notwithstanding HEW's role in disbursing the appropriated funds, the funds were disbursed in accordance with congressional standards and therefore plaintiffs challenged an exercise of congressional power. See id. at 87. Accordingly, the Court also held that the logical nexus between plaintiffs' status as taxpayers and their challenge to an appropriation under the taxing and spending clause was sufficient to give plaintiffs standing. See id. at 102-03.
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.
Thus Valley Forge does not prevent the federal taxpayer plaintiffs in the instant case from having standing to sue. There is a sufficiently close nexus between the individual plaintiffs' standing as federal taxpayers and their challenge to the AFLA. In contrast to Valley Forge but as in Flast, the federal taxpayer plaintiffs here maintain that an exercise of congressional power under the taxing and spending clause violates the Establishment Clause. Again, unlike Valley Forge, but as in Flast, the nexus between the plaintiffs' status as federal taxpayers and Congress' appropriation of AFLA funds under the taxing and spending clause is not significantly weakened by HHS's disbursement of those funds. Therefore, the federal taxpayer plaintiffs have standing to challenge the AFLA both on its face and as applied.
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 not discriminate on the basis of religious affiliation or belief, the strict scutiny test applied in Larson is not the proper standard by which to construe the AFLA;
rather, the AFLA must be tested under the three-part test set forth in Lemon v. Kurtzman.
VI. ALTHOUGH THE AFLA HAS A VALID SECULAR PURPOSE, IT IS UNCONSTITUTIONAL ON ITS FACE BECAUSE IT HAS THE PRIMARY EFFECT OF ADVANCING RELIGION AND FOSTERS AN EXCESSIVE ENTANGLEMENT BETWEEN GOVERNMENT AND RELIGION, AND IT IS UNCONSTITUTIONAL AS APPLIED BECAUSE IT HAS THE PRIMARY EFFECT OF ADVANCING RELIGION.
The appropriate test for determining whether the AFLA violates the Establishment Clause is set forth in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971). To withstand scrutiny under the Lemon test the AFLA 1) must have a valid secular purpose, 2) must not have the primary effect of advancing or inhibiting religion, and 3) must not foster excessive entanglement between government and religion. See id. at 612-13. If the AFLA fails any one of these three parts of the Lemon test, then the Court must declare the statute unconstitutional.
In addition, political divisiveness, while never the only ground for holding a statute unconstitutional, is a fourth factor often considered by courts. A statute that causes political division along religious lines is more likely to offend the Establishment Clause than one that does not. See Meek v. Pittenger, 421 U.S. 349, 365 n.15, 372, 44 L. Ed. 2d 217, 95 S. Ct. 1753 (1975); Lemon, 403 U.S. at 622-25; Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 794-98, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973); Tilton v. Richardson, 403 U.S. 672, 688-89, 29 L. Ed. 2d 790, 91 S. Ct. 2091 (1971); Walz v. Tax Commission, 397 U.S. 664, 698-700, 25 L. Ed. 2d 697, 90 S. Ct. 1409 (1970) (Harlan, J., concurring); Board of Education v. Allen, 392 U.S. 236, 249, 20 L. Ed. 2d 1060, 88 S. Ct. 1923 (1968) (Harlan, J., concurring); see also Lynch v. Donnelly, 465 U.S. 668, 689, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (O'Connor, J., concurring) (political divisiveness is not an independent test of constitutionality). Therefore, the Court will assess whether the AFLA may, or has, caused political division along religious lines, even though this factor has never been held to be dispositive.
The Court will now consider each of these four factors in turn.
A. The AFLA Has a Valid Secular Purpose of Combating Teenage Pregnancy and Associated Ills.9
Courts invalidate legislation or governmental action on the ground that it lacks a valid secular purpose only when the statute or activity involved is motivated wholly by religious considerations. See Lynch, 465 U.S. at 680; Stone v. Graham, 449 U.S. 39, 41, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam); Epperson v. Arkansas, 393 U.S. 97, 107-09, 21 L. Ed. 2d 228, 89 S. Ct. 266 (1968); Abington School District v. Schempp, 374 U.S. 203, 223-24, 10 L. Ed. 2d 844, 83 S. Ct. 1560 (1963); Engel v. Vitale, 370 U.S. 421, 424-25, 8 L. Ed. 2d 601, 82 S. Ct. 1261 (1962). Even when the benefits to religion are substantial, and motivation to advance or benefit religion is apparent, courts have found no conflict with the Establishment Clause as long as they can discern some intended and valid secular purpose. See Lynch, 465 U.S. at 680. Contrary to the plaintiffs' claim that the asserted purpose of the statute is pretextual, the Court finds that the AFLA has a valid secular purpose and its purpose therefore does not offend the Establishment Clause.
As mentioned on pages 8-9, above, the AFLA was motivated by Congress' concern that teenage pregnancy and premarital sexual relations are very damaging to society and, particularly, to adolescents.
The AFLA funds care, prevention and research projects intended to alleviate the causes and consequences of these problems. See 42 U.S.C. §§ 300z(b). Specifically, the AFLA encourages parents and family members to provide guidance and support to adolescents by promoting prudent approaches, such as self-discipline, to the problem of premarital sexual relations. Id. It promotes adoption, establishes innovative, comprehensive and integrated care services for pregnant adolescents, and supports research and demonstration projects concerning the causes and consequences of adolescent premarital sexual relations, contraceptive use, pregnancy and child rearing. See id. The statute also funds research on alleviating the negative consequences of adolescent premarital sexual relations and pregnancy, and it provides funds for disseminating the results and findings of these programs. See 42 U.S.C. § 300z(b)(4) - (b)(6).
The Court can only conclude from the indisputable language of the AFLA that the statute's purpose was to solve the problems caused by teenage pregnancy and premarital sexual relations. This is a valid secular purpose.
This conclusion is buttressed by the uncontroverted fact that a significant amount of AFLA grants have been awarded to non-sectarian grantees to provide care and counseling services to adolescents. That these secular purposes coincide or conflict with religious tenets does not transform them into sectarian purposes motivated wholly by religious considerations. Cf. Bob Jones University v. United States, 461 U.S. 574, 604 n.30, 103 S. Ct. 2017, 76 L. Ed. 2d 157 (1983); Harris v. McRae, 448 U.S. 297, 319-20, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980); McGowan v. Maryland, 366 U.S. at 440, 442 (1961); Crowley v. Smithsonian Institution, 205 U.S. App. D.C. 30, 636 F.2d 738, 742-43 (D.C. Cir. 1980). The Court must therefore find that the AFLA, both on its face and as applied, was not motivated wholly by religious considerations but has a valid secular purpose.
The plaintiffs admit that the AFLA incorporates some secular values, see Plaintiffs' Motion for Summary Judgment at 33 n.57, but they argue that the real purpose of the AFLA can properly be determined only in light of the AFLA's predecessor statute -- Title VI of the Public Health Services Act. The plaintiffs contend that a comparison of the AFLA and Title VI demonstrates that the AFLA was motivated wholly by religious considerations. The critical fact, argue the plaintiffs, is that Title VI was specifically amended to involve religious organizations. Title VI required applicants to describe how they will involve public and private agencies, see Title VI § 605(a)(7), whereas the AFLA explicitly requires applicants to describe how they
will . . . involve families, . . . 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).
Even admitting this difference between Title VI and the AFLA, the Court cannot find that the AFLA was motivated wholly by religious considerations. First, Title VI was amended not only to add religious organizations to the list of entities that may participate in AFLA programs, but also to add families, charitable organizations, voluntary associations and other groups. See 42 U.S.C. § 300z-5(a)(21)(B). Religious organizations are only one of five types of entities that may be involved in an AFLA program. Secondly, at most, only the language permitting the involvement of religious organizations was motivated by religious considerations. This, however, does not mean that the entire AFLA was motivated wholly by religious considerations, as it would have to be in order to find that the AFLA has no valid secular purpose. Other reasons, such as the need for greater resources, more programs, and earlier intervention also motivated Congress to amend Title VI. See S. Rep. No. 97-161, 97th Cong. 1st Sess. 7-9 (1981). Finally, and most important, religious organizations can play a vital role in furthering secular values, a fact that even plaintiffs admit.
Accordingly, notwithstanding that Title VI was amended to permit religious organizations to be involved in AFLA programs, the Court finds that the AFLA was not motivated wholly by religious considerations but has a valid secular purpose. This does not save the AFLA, however, as it fails the other elements of the nexus text. See subsections B & C, infra pp. 26-26.
B. On Its Face and As Applied, the AFLA Has the Primary Effect of Advancing Religion Because of Its Use of Religious Organizations for Education and Counseling of Teenagers on Matters Relating to Religious Doctrine.
1. The legal standard of primary effect
As noted above, a particular statute is not immunized from further scrutiny merely because it has a valid secular purpose. See, e.g., Grand Rapids School District v. Ball, 473 U.S. 373, 105 S. Ct. 3216, 3223, 87 L. Ed. 2d 267 (1985). A Court must then proceed to consider whether that statute comports with the remaining elements of the guidelines synthesized in Lemon v. Kurtzman, namely, whether it has a primary effect of advancing religion and whether it fosters excessive entanglement between government and religion. See, e.g., id.
The second prong of the Lemon test requires this Court to determine whether the AFLA's "primary effect [is] one that neither advances nor inhibits religion." 403 U.S. at 612. The Court finds that the AFLA both on its face and as applied has the primary effect of advancing religion and, therefore, violates the Establishment Clause. Because the same legal principles apply both to a facial and an "as applied" inquiry, the Court will begin by setting forth the applicable law.
First, the test does not require a Court to determine which effects of the AFLA are "primary" and which less so. While comparisons are inherent in the primary effect inquiry, these need not, and should not, rise to the level of "metaphysical judgments" about the paramountcy of a statute's alleged religious effect. See Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 783 n.39, 37 L. Ed. 2d 948, 93 S. Ct. 2955 (1973). As the Supreme Court has made clear,
a law found to have a 'primary' effect [of] promot[ing] some legitimate end under the State's police power is [not] immune from further examination to ascertain whether it also has the direct and immediate effect of advancing religion.
Id. (emphasis added).
Subsequent decisions have illuminated the role that consideration of "direct and immediate effect" must play in the "primary effect" inquiry. Where the connection between a statute and religion is apparent from the face of the statute, and the benefit conferred upon religion is not an historical fact but a recent innovation, the Supreme Court instructs us to examine whether the statute has a "direct and immediate" effect, or a "remote and incidental" effect, of advancing or inhibiting religion. See, e.g., Estate of Thornton v. Caldor, Inc., 472 U.S. 703, 710, 86 L. Ed. 2d 557, 105 S. Ct. 2914 (1985) (state law requiring employers to give employees' Sabbath off "goes well beyond having an 'incidental or remote' effect of advancing religion"); Lynch v. Donnelly, 465 U.S. 668, 683, 79 L. Ed. 2d 604, 104 S. Ct. 1355 (1984) (endorsement of religion effected by creche "indirect, remote, and incidental"); Larkin v. Grendel's Den, Inc., 459 U.S. 116, 125-26, 74 L. Ed. 2d 297, 103 S. Ct. 505 (1982) (statute had direct effect of advancing religion by giving churches "veto" over location of bar within 100 yards of church); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 783-85 (use of state tax dollars for maintenance and repair of non-public school buildings had direct and immediate effect of advancing religion). Thus, if the AFLA is such a statute, and it "directly and immediately," as opposed to "remotely and incidentally," advances religion, this Court must find that it is unconstitutional.
In contrast, where the connection to religion is not apparent on the face of the statute or from the nature of the government act itself, a court must consider whether the intended or actual beneficiary of government favor is "an institution in which religion is so pervasive that a substantial portion of its functions are [sic] subsumed in the religious mission." Hunt v. McNair, 413 U.S. 734, 743, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973). If not, a court must go on to consider whether the statute "funds a religious activity in an otherwise substantially secular setting." Id. Thus, if the entities benefitting from AFLA funds are either "pervasively sectarian," or if the funds are not entirely segregated from religious activity, the government plan impermissibly advances religion and is unconstitutional. See, e.g., id. (revenue bonds issued by state for religiously affiliated college constitutional because college not pervasively sectarian and state-supplied money entirely segregable from religious activity).
In sum, if the connection between religion and the challenged government statute or practice is clear from the face of the statute, the Court must determine whether that statute has the "direct and immediate" effect of advancing religion. Where the connection is less obvious, the Court must consider whether the government has benefitted or burdened a pervasively sectarian institution or has funded religious activity.
To be sure, this analysis is put more neatly than the many decisions that form its base. See supra pp. slip op. 26-27. Particularly important for this Court's analysis of the AFLA, those decisions often mention other "sub-criteria" that pertain to both of these broad analytic constructs. First, the AFLA may not allow participants in a government-funded program to "intentionally or inadvertently inculcat[e] particular religious tenets or beliefs." Grand Rapids School District v. Ball, 105 S. Ct. at 3223; see also Stone v. Graham, 449 U.S. 39, 41-43, 66 L. Ed. 2d 199, 101 S. Ct. 192 (1980) (per curiam); Meek v. Pittenger, 421 U.S. 349, 370-71, 44 L. Ed. 2d 217, 95 S. Ct. 1753 (1975); Lemon, 403 U.S. at 619. Such government-sponsored indoctrination is "absolutely prohibited" by the Establishment Clause. Grand Rapids, 105 S. Ct. at 3224; see also, Wolman v. Walter, 433 U.S. 229, 250, 53 L. Ed. 2d 714, 97 S. Ct. 2593 (1977); Board of Education v. Allen, 392 U.S. 236, 245, 20 L. Ed. 2d 1060, 88 S. Ct. 1923 (1968).
Nor may AFLA programs, which involve "impressionable youngsters," such as adolescents, "provide a crucial symbolic link between government and religion, thereby enlisting, at least in the eyes of [those] youngsters, the powers of government to the support of the religious denomination" that provides educational services. Grand Rapids, 105 S. Ct. at 3223-34; see also Wolman v. Walter, 433 U.S. 229, 53 L. Ed. 2d 714, 97 S. Ct. 2593 (1977). This symbolic link is impermissible even absent attempts to inculcate religious belief. Government funding of educational services, and the resulting identification of government with religion, violates a core purpose of the Establishment Clause if it conveys a message of government endorsement of religion in general or of a particular religion that benefits from government largesse. Grand Rapids, 105 S. Ct. at 3226; see also, Lynch v. Donnelly, 465 U.S. at 692 (O'Connor, J., concurring).
Finally, and perhaps most obviously, AFLA money cannot impermissibly subsidize "the primary religious mission" of the institutions that receive public funds. Grand Rapids, 105 S. Ct. at 3226; see also, Committee for Public Education and Religious Liberty v. Regan, 444 U.S. 646, 657, 63 L. Ed. 2d 94, 100 S. Ct. 840 (1980); Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. at 472; Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. at 774-81. While indirect aid of a religious mission is not per se impermissible, where the aid amounts to a subsidy of the religious organization, and that subsidy cannot be segregated from religious activity, the courts have declared the subsidy unconstitutional without hesitation. Grand Rapids, 105 S. Ct. at 3225 (state-funded "remedial" and "enrichment" programs for students in sectarian schools and on "state-leased" classrooms in sectarian schools not segregated from religious activity); see also Wolman v. Walter, 433 U.S. at 248-51 (state funding of unsupervised field trips and instructional material and equipment for sectarian schools not segregated from religious activity); Meek v. Pittenger, 421 U.S. at 366 (state funding of instructional material for sectarian schools not segregated from religious activity).
These several related principles are the guideposts for this Court to use in considering whether the AFLA has the primary effect of advancing or inhibiting religion. It is to the AFLA itself that the Court must now turn.
2. On its face, the AFLA has the primary effect of advancing religion because it funds teaching and counseling of adolescents by religious organizations on matters related to religious doctrine.
The Adolescent Family Life Act is based in part on a finding of Congress that the problems of adolescent premarital sexual relations and pregnancy "are best approached through a variety of integrated and essential services provided to adolescents and their families by . . . religious . . . organizations." 42 U.S.C. § 300z(a)(8)(B). Accordingly, applicants for grants under that program must describe how they
will, as appropriate in the provision of services . . . (B) involve religious . . . organizations."
42 U.S.C. § 300z-5(a)(21)(B) (emphasis added). The "services" that these organizations must provide are the "necessary services" defined by the Act. See id. at § 300z-1(a)(4). Seven of the seventeen listed services explicitly involve "education" or "counseling." Id. at §§ 300z-1(a)(4)(A), (B), (D), (G), (H), (L) & (M). Two others involve activities intimately related to education and counseling, "outreach services to families of adolescents to discourage sexual relations among unemancipated minors" and "family planning services." Id. at § 300z-1(a)(4)(O) & (P).
Certain conclusions are immediately obvious from a reading of these provisions. First, the statute does not state that "religious organizations" shall receive AFLA grants; indeed, it is conceivable that a grantee could convince a religious organization to participate without remuneration. To interpret the religious organization's involvement in such a light is, however, to ignore both Congressional intent and the import of the statute as a whole.
The legislative history of these provisions shows without doubt that Congress intended religious organizations to participate in these programs as grantees and as paid or unpaid participants in grants awarded to other organizations. See S. Rep. 161, 97th Cong., 1st Sess., 15-16 (1981). Even more important, the statute, taken as a whole, explicitly permits religious organizations to be grantees and envisions a direct role for those organizations in the education and counseling components of AFLA grants. See especially 42 U.S.C. § 300z-5(21)(B). Thus, the Court can only conclude that this clear connection between religious organizations and the federally funded AFLA programs dictates use of the "direct and immediate" effect analysis.
Second, the statute's "direct and immediate" effect of advancing religion is easy to see from the statute's emphasis on "education" and "counseling." Put plain, these functions amount to teaching by grant recipients and subcontractors, including religious organizations, about the harm of premarital sexual relations and the factors supporting a choice of adoption rather than abortion, and these matters are fundamental elements of religious doctrine. Moreover, the AFLA contains no restriction whatsoever against the teaching of religion qua religion or any attempt to use the education and counseling process to "intentionally or inadvertently" inculcate religious belief.
This may best be shown by a related, and at least equally important, section of the AFLA. That provision reads in full:
Grants or payments may be made only 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.
Id. at § 300z-10.
It is a fundamental tenet of many religions that premarital sex and abortion are wrong, even sinful. See United States v. Dykema, 666 F.2d 1096, 1104 (7th Cir. 1981), cert. denied, 456 U.S. 983, 72 L. Ed. 2d 861, 102 S. Ct. 2257 (1982) (judicial notice taken of religious beliefs); United States v. Kahane, 396 F. Supp. 687, 692 (E.D.N.Y.), aff'd and modified on other grounds, 527 F.2d 492 (2d Cir. 1985) (same); see also Memorandum in Support of Plaintiff's Motion for Summary Judgment, at 22. The AFLA does not prohibit these religions from receiving AFLA grants. Thus, by contemplating the provision of aid to organizations affiliated with these religions -- aid for the purpose of encouraging abstinence and adoption -- the AFLA contemplates subsidizing a fundamental religious mission of those organizations.
To presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic. See, e.g., Grand Rapids, 105 S. Ct. at 3225. Even if it were possible, government would tread impermissibly on religious liberty merely by suggesting that religious organizations instruct on doctrinal matters without any conscious or unconscious reference to that doctrine. Moreover, the statutory scheme is fraught with the possibility that religious beliefs might infuse instruction and never be detected by the impressionable and unlearned adolescent to whom the instruction is directed. This possibility alone amounts to an impermissible advancement of religion. Grand Rapids, 105 S. Ct. at 3225. And the danger here is far greater than in Grand Rapids, which involved classroom education, as the AFLA contemplates one-on-one counseling, a situation in which there are few discernable constraints. The possibility that religious organizations will exert pressure on "matters sacred to conscience" is inherent in this counseling, and it renders the program invalid. See McCollum v. Board of Education, 333 U.S. 203, 227, 92 L. Ed. 649, 68 S. Ct. 461 (1948) (Frankfurter, J., concurring); see also Engel v. Vitale, 370 U.S. 421, 431, 8 L. Ed. 2d 601, 82 S. Ct. 1261 (1962).
Similarly, the involvement of religious organizations in counseling and education on premarital sex, abstinence, and the preferability of adoption to abortion creates a "crucial symbolic link" between government and religion when the counseling is funded by the public fisc. This symbolic link is quite strong where the education is directed at adolescents, especially pregnant adolescents who may be in a delicate and more than ordinarily receptive state of mind. And it is particularly strong where, as here, the subjects taught are, in the hands of a "religious organization," inescapably infused with religious beliefs. See, e.g., Grand Rapids, 105 S. Ct. at 3226; McCollum v. Board of Education, 333 U.S. at 227; Felton v. Secretary of Education, 739 F.2d 48, 67-68 (2d Cir. 1984), aff'd. sub nom., Aguilar v. Felton, 473 U.S. 402, 87 L. Ed. 2d 290, 105 S. Ct. 3232 (1985).
In short, the AFLA on its face has the primary effect of advancing religion. This alone would force the Court to declare the law constitutionally infirm. But, as noted above, because Establishment Clause case law has not always neatly demarcated a facial challenge from a challenge to a law as applied, this Court will consider whether the AFLA, as applied, has the primary effect of advancing or inhibiting religion.
3. As applied, the AFLA has the primary effect of advancing religion.
The undisputed record before the Court transforms the inherent conflicts between the AFLA and the Constitution into reality.
These facts reveal that AFLA grantees and subgrantees have included several organizations with institutional ties to religious denominations and corporate requirements that the organizations abide by and not contradict religious doctrines. In addition, other recipients of AFLA funds, while not explicitly affiliated with a religious denomination, are religiously inspired and dedicated to teaching the dogma that inspired them. While the Court will not engage in an exhaustive recitation of the record, references to representative portions of the record reveal the extent to which the AFLA has in fact "directly and immediately" advanced religion, funded "pervasively sectarian" institutions, or permitted the use of federal tax dollars for education and counseling that amounts to the teaching of religion.
Consider first St. Margaret's Hospital, a self-described "Christian institution" committed to acting "in harmony with the teaching of the Catholic Church." Plaintiffs' Facts, Volume 3, St. Margaret's, para. 7. At least one AFLA-funded employee of St. Margaret's was told that she must follow the directives set forth in "Ethical and Religious Directives of Catholic Facilities." Id. at paras. 7, 10. Similarly, subgrantees of St. Ann's Infant and Maternity Home, which are affiliated with the Catholic Archdiocese of Washington, may not counsel or refer patients for abortions; nor do they encourage any method of birth control not permitted by Catholic doctrine. Id. at Volume 1, St. Ann's, paras. 11, 33. Significantly, these subgrantees are solely responsible for the family planning component of St. Ann's AFLA program, so the church-directed restrictions on counseling are highly pertinent. Id. at para. 24. Moreover, the projects are directed by members of religious orders, which base their curriculum on materials with explicitly religious content.
Id. at paras. 76-77.
Similarly, among the "purposes" listed in the Articles of Incorporation of Lutheran Family Services is:
To promote the extension of the kingdom of God through compassionate Christian love and to aid the Lutheran Churches in Iowa to fulfill their responsibilities of compassion and love. . . . To promote the general welfare of children, families and individuals within the realistic resources of the corporation, . . . and the teachings of the Lutheran Church.