The opinion of the court was delivered by: RICHEY
A diverse group including federal taxpayers, clergy, and the American Jewish Congress brought this suit on the grounds that the Adolescent Family Life Act ("AFLA"), on its face and as applied, violates the Establishment Clause of the First Amendment
by, inter alia, funding religious organizations to counsel adolescents on premarital sexual relations and pregnancy. This Court rendered an opinion finding that the AFLA violated the Establishment Clause both on its face and as applied. Kendrick v. Bowen, 657 F. Supp. 1547 (D.D.C. 1987). In a 5-4 plurality opinion, the Supreme Court reversed this Court's holding that the AFLA was facially unconstitutional, and remanded the case for further consideration and development of the record on whether the AFLA is unconstitutional as applied. Bowen v. Kendrick, 487 U.S. 589, 101 L. Ed. 2d 520, 108 S. Ct. 2562 (1988) (" Kendrick I "). The Supreme Court directed that the as-applied inquiry should focus on (1) whether "AFLA aid is flowing to grantees that can be considered 'pervasively sectarian' religious institutions," and (2) "whether in particular cases AFLA aid has been used to fund 'specifically religious activities in an otherwise substantially secular setting.'" Kendrick I, 487 U.S. at 621 (quoting Hunt v. McNair, 413 U.S. 734, 743, 37 L. Ed. 2d 923, 93 S. Ct. 2868 (1973)).
Now before the Court are cross-motions for summary judgment filed by the plaintiffs and the defendant-intervenor A Woman's Choice, Inc ("AWC"). The ferocity and magnitude of the battle over the critical facts distinguishes this action from other Establishment Clause cases, such as National Coalition for Public Educ. and Religious Liberty v. Harris2 and Felton v. Secretary, United States Dep't of Educ.,
which proceeded on a stipulated record. Because the material facts are disputed by volumes of depositions, countervailing affidavits, declarations, and other evidence, the Court has been in the unenviable position of having to determine whether the factual disputes are material, and if so, whether this case must be set down for trial. See Fed. R. Civ. P. 56(c), (e); Celotex Corp. v. Catrett, 477 U.S. 317, 322-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-87, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). After carefully considering the enormous record before it in light of the summary judgment standard, the Court finds that it has no choice but to conclude that this case can only be resolved by trial. Accordingly, by Order of even date herewith, the Court shall deny the cross-motions for summary judgment by the plaintiffs and AWC.
Congress passed the Adolescent Family Life Act, 42 U.S.C. § 300z et seq. (1982 & Supp. 1991), to respond to the multiple and severe consequences associated with teenage pregnancy and premarital sexual relations.
42 U.S.C. § 300z(a). The goal of the AFLA is to promote adoption and self-discipline, as well as to support comprehensive care services for pregnant adolescents and to encourage research into the societal causes and consequences of teenage pregnancy and sexual activity. § 300z(b). The Secretary of Health and Human Services administers the AFLA program through grants to public or nonprofit private organizations.
The AFLA creates three general program categories: care, prevention and research, §§ 300z-2 & 300z-7. The plaintiffs challenge the care and prevention services. The "care services" include pregnancy testing, maternity counseling, adoption and referral services, and primary and preventative health services. § 300z-1(a)(7). "Prevention services" are designed to "prevent adolescent sexual relations," and include counseling on matters such as pregnancy, sexuality, and family planning. § 300z-1(a)(8). Most of the care and prevention services involve some kind of counseling, teaching or referral services,
and these services are targeted at adolescents. See § 300z(b)(3).
Congress determined that governmental action alone would be insufficient to remedy the problems associated with teenage pregnancy and sexuality:
Such problems are best approached through a variety of integrated and essential services provided to adolescents and their families by other family members, religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives.
§ 300z(a)(8)(B). Accordingly, the AFLA allows the funding of religious organizations to provide counseling, teaching and other services. The AFLA requires that applicants 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 . . .
§ 300z-5(a)(21) (emphasis added). Moreover, the AFLA restricts funding only to programs or projects which do not advocate, promote or encourage abortion. § 300z-10(a).
The plaintiffs argue that by providing government funds to religious organizations for counseling adolescents on matters intimately connected to religious beliefs, the AFLA as applied has the primary effect of advancing religion and fosters an excessive entanglement of government and religion, in violation of the Establishment Clause. The defendant and the defendant-intervenors argue that the Establishment Clause does not prohibit government funding of religious organizations to provide the social services contemplated by the AFLA.
III. THE STANDARD FOR SUMMARY JUDGMENT
Rule 56 of the Federal Rules of Civil Procedure provides in pertinent part:
The [summary] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(c). The movant bears the initial responsibility for informing the court of the basis for summary judgment, and must identify those portions of the pleadings, depositions, answers to interrogatories, admissions, and affidavits which demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The Court must credit the non-movant's evidence and draw all justifiable inferences in its favor. Liberty Lobby, 477 U.S. at 255. However, "the mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Id. at 252. "In ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden." Id. at 254. Finally, "credibility determinations, the weighing of evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment." Id. at 255.
IV. GENUINE ISSUES OF MATERIAL FACT REMAIN AS TO WHETHER THE AFLA, AS APPLIED, HAS THE PRIMARY EFFECT OF ADVANCING RELIGION OR FOSTERS AN EXCESSIVE GOVERNMENT ENTANGLEMENT WITH RELIGION
As already established in this proceeding, to determine whether the AFLA violates the Establishment Clause, the Court must apply the three-part test set forth in Lemon v. Kurtzman, 403 U.S. 602, 29 L. Ed. 2d 745, 91 S. Ct. 2105 (1971).
To be constitutional as applied under the Lemon test, the AFLA must 1) have a valid secular purpose, 2) not have the primary effect of advancing or inhibiting religion, and 3) not foster an excessive government entanglement with religion. See Kendrick I, 487 U.S. at 602. It is settled that the AFLA has a valid secular purpose. Id. at 603-04. The Court must resolve two major questions to determine whether the AFLA has the primary effect of advancing religion: 1) whether AFLA is funding pervasively sectarian organizations and 2) whether AFLA is funding religious activity. Id. at 621. In addition, the Court must consider the parties' factual contentions regarding whether the AFLA promotes and endorses religion, or fosters excessive government entanglement with religion.
B. Plaintiffs' Motion for Summary Judgment
1. Genuine Issues of Material Fact Remain as to Whether AFLA Aid Is Flowing to Grantees that Are ...