Bowen v. Kendrick
487 US 589 (Decided June 29, 1988)
Bill Long
In this 5-4 decision, the Court reversed the D.C. District Court and upheld the federal Adolescent Family Life Act ("AFLA") from a facial challenge while remanding it for an "as applied" challenge. The dissenters wrote that this decision marked a significant departure from previous Establishment Clause cases by allowing organizations that not only were pervasively sectarian to obtain federal funds but also to counsel young people on intimate issues of reproductive decisions without any serious federal surveillance to see if they were introducing religious concepts into the counseling.
Facts and Statute
Bothered by the rampant increase in teenage pregnancy and its attendant health, social and economic consequences, Congress passed the AFLA in 1981. The purpose of the AFLA was to provide grants to public or nonprofit private organizations for two kinds of services: "care services" to pregnant adolescents and their parents and "prevention services" for the prevention of adolescent sexual relations. Grants were to be awarded to agencies, including religious and charitable organizations, which would support the goal of developing "strong family values and close family ties." Abortion counseling or referral was not available through the Act. In the first three years of operation of the program, 1088 applicants were awarded 141 grants.
The District Court made a crucial decision by dividing consideration of the Act into a facial and as applied challenge. It held the Act unconstitutional in both instances "insofar as religious oranganizations are involved in carrying out the programs and purposes of the Act." Massive evidence was presented of statutory violations in use of the funds. For example, more than $53 million in AFLA funding went to applicants, and more than $10 million of it, or nearly 20%, went to 13 organizations specifically cited for constitutional violations.
Supreme Court Decision
When the issue came to the Supreme Court, Chief Justice Rehnquist used the District Court's method to help him actually save the statute. That is, he first looked at a facial challenge to the statute, removed from any consideration of the way that the money had been misused, and concluded that the Lemon test, both in its effects and entanglement prongs (the purpose test was easily surmounted) was not violated. Crucial for finding no "effects" violation of the statute on its face was the observation that simply because the philosophy of the Act (counseling abstention from sexual relations for adolescents) comported with the values of some religious individuals and organizations did not make the "primary effect" of the Act religious. There was nothing inherently religious about the provision of counseling services nor of the prohibition of abortion counseling. "The approach is not inherently religious, although it might coincide with the approach taken by certain religions." Just because religious organizations can help to deal with this national problem doesn't mean that the primary effect of the Act is to help the religous organizations.
In addition, nothing on the face of the statute indicated a significant portion of AFLA funds will be awarded to "pervasively sectarian" institutions. His mention of pervasively sectarian institutions, however, did leave him open to the charge, which the dissent does not fully develop, that a pervasively religious institution should not be a recipient of grant money. Such an admission would ultimately require the lower Court to analyze the extend to which every grant-receiving entity is pervasively sectarian.
In addition, the Court held that the third Lemon prong (entanglement) was not violated even though there is "no doubt that the monitoring of AFLA grants is necessary if the Secretary is to ensure that public money is to be spent in....a way that comports with the Establishment Clause." But the Chief Justice quickly dismisses that problem as a "Catch-22" (the very officials that have to check for entanglement create it by so checking) issue and says that "there is no reason to assume that the religious organizations which may receive grants are 'pervasively sectarian' in the same sense as the Court has held parochial schools to be."
Because the record below showed misuse of grants, the case was remanded for consideration of the "as applied" challenge.
The Dissenters Speak
No clearer gulf between the majority and minority on Establishment Clause issues is evident than in this opinion. In vain did the dissenters remark that splitting he case into a facial and as applied challenge allowed the Court to pursue an antiseptic statutory analysis that ignored the factual record, a record that reeked with improper use of federal funds. In vain did they argue that for religious organizations not to give religious counsel on value-laden subjects such as pre-marital sexual relations, abortion, adoption and other reproductive rights issues would be tantamount to their abandonment of their religious mission. In vain did they argue that because of the violations already recorded that extensive and entangling government surveillance of the programs would be necessary.
Conclusion
Just as the Edwards decision (1987), striking down the co-equal teaching of "Creation Science" with "Evolution Science" in Louisiana, presented an issue that will no doubt return to the Court in the future (under the guise of "Intelligent Design"), so the affirmation of AFLA here presaged the appearance of another issue, Charitable Choice, that would be a major building block of the presidency of GW Bush. The close decision of the Court indicates, however, that the issue is far from "settled," even though the supporters of such a philosophy won an important, and perhaps decisive victory before the Court on this day.
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