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March 2012
Monday, February 9th, 2009 10:45 am
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.


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.


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



Monday, February 9th, 2009 08:39 pm (UTC)

It's always interesting the things that get EC/CR (evangelical christians/christian right) in a bunch.

It does make me curious however to see how it would affect my current college (Corban College). It has quite a large teaching, business, and pyschology presence - however, all of the professors who teach are required to adhere to the college's statement of faith, and all courses have to include a biblical worldview component. I wonder then if that completely eliminates them from being able to secure funds (if they even have in the past which I'm quite of the opinion they probably haven't).

Interesting though!

I wonder what the next bandwagon will be?

Tuesday, February 10th, 2009 06:31 pm (UTC)

It's always interesting the things that get EC/CR (evangelical christians/christian right) in a bunch.

To be honest, I have no idea what religious affiliations (if any), Sekulow and Staver, or the American Center for Law & Justice, have, or what bias the article reflects. I was just addressing the validity of the arguments they presented and the general tenor of the article.

Someone from the ACLJ commented downthread, addressing a similar concern: that the mission statement of some faith-based or religiously originated educational institutions may fit the "subsumed in a religious mission" verbiage of the act. My thoughts are that if an institution is ineligible already to receive federal funding because of the nature of the instruction provided, it's no more or less ineligible under this act.

ReplyThread Parent
Monday, February 9th, 2009 09:21 pm (UTC)

Reading the passage you provided, I thought of "excessive entanglement" from the Lemon test. That seems to me what's implied here: If your otherwise secular school has an after-school Bible class run by some local clergy not otherwise affiliated with the school, that's an ancillary role, not excessive entanglement, and therefore the clause wouldn't apply. If your school is run by the Roman Catholic Church and 80% of your tuition goes to the Pope to do with as he sees fit, well, that's different.

As weak as Lemon is as legal precedent, I think it makes a useful enough slide rule for discussions.

In other words, I agree with you. :)


Tuesday, February 10th, 2009 12:11 pm (UTC)
Substantial Subsumed in Religious Mission

Read the mission statements of Notre Dame, Baylor, the University of San Francisco, Brigham Young University, etc., etc., etc.

Instruction in secular materials is subsumed in the religious mission of each of these universities. Fact is, if you examine the mission statements and histories of religiously affiliated colleges and universities across America, you discover near uniformity of that fact.

The religious mission of universities is tied up in the history of universities, which are, historically, a Christian educational phenomenon. Not that great ideas don't get borrowed, but the reason for patents and copyrights is to credit sources and for universities the uber source is Christianity.

So, whatever arguments you would like to throw at us about the first section of that prohibitory provision, the second provision, which is particularly nettlesome and problematic, was the focus of our opposition to the legislation. And it will undoubtedly be the spark that causes litigation fire.

Oh, by the way, you can sign me,

Jim Henderson, Senior Counsel, The American Center for Law and Justice, Inc.

Tuesday, February 10th, 2009 06:24 pm (UTC)
Re: Substantial Subsumed in Religious Mission

Thanks for the comment, Jim. I thought about addressing that language in my post, but decided not to. However, I think the principles above still apply.

On your prompting, I read the mission statement of Notre Dame (link), and what I don't see is language that the University devotes itself solely to religious instruction, or offering only courses that promote the fundamental beliefs of a particular faith.

Rather, I see wording that expresses the importance of many values (such as service, community, and multidisciplinary education), and an overall directive of achieving "academic freedom that makes open discussion and inquiry possible." The mission statement is quite clear that no creedal affiliation is required or expected, but indicates that a "distinctive goal" is "to provide a forum where, through free inquiry and open discussion, the various lines of Catholic thought may intersect with all the forms of knowledge found in the arts, sciences, professions, and every other area of human scholarship and creativity."

In other words, I don't believe that Notre Dame fits the description of an institution in which "a substantial portion of the functions of the facilities are subsumed in a religious mission."

Perhaps a few of your other examples do, but I conceded in my post that there are doubtless religious institutions that are much more focused in intent and desire only to offer instruction of a religious nature. However, my understanding is that such institutions are, and have been, substantially or even wholly ineligible for quite a bit of federal funding, not just the renovation funds provided in this act. Again, this is nothing new.

Rather, I think Notre Dame falls into the category I described above of institutions that offer some religious instruction and accommodate worship, and that the facilities of the Notre Dame campus that are used primarily for this purpose likely can't be renovated using these funds.

ReplyThread Parent