February 9th, 2009

little blue dog

pesky constitution

A friend on Facebook linked me to this article, which has been republished quite a bit over the past few days:

People of faith may be target of 'stimulus' package

The article focuses the language in the bill relating to prohibiting use of funds for religious facilities in higher ed institutions. The article doesn't mention it specifically or link it, but the language at issue is from Sec. 9302 of the Stimulus Act (officially titled the "American Recovery and Reinvestment Act of 2009").

Title IX, Subtitle C, Sec. 9302, part (d)(3)(C), to be exact, which says:

No funds awarded under this section may be used for ... modernization, renovation, or repair of facilities ... (i) used for sectarian instruction, religious worship, or a school or department of divinity; or (ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission.

(Link.1)

In the article, Jay Sekulow (chief counsel of the American Center for Law & Justice) asserts that the act is unconstitutional because it includes this language. Sekulow goes on to say that the language effectively bars on-campus worship, and another attorney, Mat Staver, expresses the concern that "public schools will have to expel after-school Bible clubs" in order to receive the funding.

Both are, well, dead wrong.

The Establishment Clause of the First Amendment is traditionally interpreted as preventing the government from supporting a religious idea with no identifiable secular purpose. Justice Souter summed it up once as "government should not prefer one religion to another, or religion to irreligion." So, in other words, the disputed language might be in there because it could be unconstitutional not to have it in there. So yes, there are restrictions on what the federal funding under this Act can be used for. There have been similar restrictions for quite a while, however; this doesn't appear to be anything new.

In addition to the constitutionality of the restrictions, their scope also appears to be misconstrued by Sekulow and Staver. 

The text of the act indicates that funds can't be used to renovate religious "facilities" at a higher ed institution.  However, the act uses the word "facilities" to refer to buildings or rooms or other parts of an educational institution, not the entire institution itself.  If the bill passed with this language, a college wouldn't be able to use the federal funds to renovate its chapel, for example, or maybe rooms where Bible study is taught, but renovation of other facilities is fair game (well, most other facilities; there are a couple other restrictions in the act that don't touch on religion; more on this in a minute).  A few higher ed institutions might be completely ineligible for funding, such as seminaries or some bible colleges -- but institutions like these have long been ineligible for similar federal funding for much the same reason.  No public schools will have to expel bible study clubs, or bar worship.

To pick nits, though, Establishment Clause caselaw seems to permit the government to give funding to religious institutions (or for religious institutions to receive and use it) if there is a substantial secular interest in doing so. There's no line that can be drawn as to what constitutes "substantial," however, but there are certainly ways of wording legislation that allows for it. In the excerpted text above, for example, the phrase "used for sectarian instruction, religious worship" could be amended to "primarily used for sectarian instruction or religious worship." A slight change like this would leave open the possibility that, for example, those classrooms used for bible study may be renovated using federal funds available under this act if they are used, say over half the time, for non-religious instruction.

The spin of the article is pretty subjective, as well. The "targets people of faith" focus seems a little alarmist or misleading, considering that the language also prohibits use of funds to renovate sports facilities used for events to which an admission is charged (part (d)(3)(B)), the maintenance of facilities (part (d)(3)(A)), or construction of new facilities (part (d)(3)(D)). The article might just as well say that the act also targets athletes, sports fans, janitors, repairmen, and the construction industry.

Bottom line: the contested language does not make religious institutions ineligible to receive the funding, it only places some limitations on what can be done with the funding while respecting the Establishment Clause of the First Amendment.

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1. Might get a timeout error; in which case head here, select "H.R.1.EH," and find the "SEC. 9302" link.