Kendrick v. Bowen

• Citation: 657 F. Supp. 1547
• Decision Date: 15 May 1987
• Docket Number: Civ. A. No. 83-3175.
• Parties: Chan KENDRICK, Reverend Robert E. Vaughn, Reverend Lawrence W. Buxton, Dr. Emmett W. Cocke, Jr., Shirley Pedler, Reverend Homer A. Goddard, Joyce Armstrong, John Roberts and the American Jewish Congress, Plaintiffs, v. Dr. Otis R. BOWEN, Jr., Secretary of the Department of Health and Human Services, Defendant, and Sammie J. Bradley, Katherine K. Warner and United Families of America, Defendant-Intervenors.
• Court: United States District Courts. United States District Court (Columbia)

657 F. Supp. 1547

Chan KENDRICK, Reverend Robert E. Vaughn, Reverend Lawrence W. Buxton, Dr. Emmett W. Cocke, Jr., Shirley Pedler, Reverend Homer A. Goddard, Joyce Armstrong, John Roberts and the American Jewish Congress, Plaintiffs,
v.
Dr. Otis R. BOWEN, Jr., Secretary of the Department of Health and Human Services, Defendant,
and
Sammie J. Bradley, Katherine K. Warner and United Families of America, Defendant-Intervenors.

Civ. A. No. 83-3175.

United States District Court, District of Columbia.

April 15, 1987.

As Modified May 15, 1987.

657 F. Supp. 1548

COPYRIGHT MATERIAL OMITTED

657 F. Supp. 1549

COPYRIGHT MATERIAL OMITTED

657 F. Supp. 1550

Janet Benshoof, Nan D. Hunter, Lynn M. Paltrow, Suzanne M. Lynn and Verna C. Sanchez, American Civil Liberties Union, New York City, and Bruce J. Ennis, Washington, D.C., for plaintiffs

Theodore C. Hirt, Thomas Millet, Charles Sorenson and Jeffrey Paulson, Dept. of Justice, Richard K. Willard, Acting Asst. Atty. Gen., Joseph E. diGenova, U.S. Atty., Brook Hedge, Branch Director, Lewis K. Wise, Asst. Branch Director, Dept. of Health and Human Services, Joel Mangel, Deputy Asst. Gen. Counsel for Public Health, Carol Conrad, Sr.Atty. and Susan K. Ruby, Public Health Service, Washington, D.C., for defendant.

Edward R. Grant, Chicago, Ill., and Paul Arneson, Washington, D.C., for defendant-intervenors.

Wilfred R. Caron, Gen. Counsel, and Mark E. Chopko, Asst. Gen. Counsel, Washington, D.C., for amicus curiae U.S. Catholic Conference.

Patricia Hennessey, New York City and David B. Hopkins, Washington, D.C., for the amici curiae United Church of Christ Board of Homeland Ministries, Catholics for a Free Choice, Unitarian Universalist Ass'n, Union of American Hebrew Congregations and American Ethical Union.

Mari Anne T. Hamilton, Silver Spring, Md., Edward R. Grant, Maura K. Quinlan and Thomas Balch, Americans United for Life Legal Defense Fund, Chicago, Ill., for amicus curiae Americans United for Life.

 TABLE OF CONTENTS
                 Page
                 I. INTRODUCTION 1551
                II. BACKGROUND 1552
                III. BECAUSE THE MATERIAL FACTS ARE NOT IN DISPUTE, SUMMARY JUDGMENT
                 IS APPROPRIATE IN THIS CASE. 1553
                IV. THE FEDERAL TAXPAYER PLAINTIFFS HAVE STANDING TO BRING THIS ACTION
                 BECAUSE THEY RAISE AN ESTABLISHMENT CLAUSE CHALLENGE TO THE
                

657 F. Supp. 1551
                 AFLA, WHICH WAS ENACTED PURSUANT TO THE TAXING AND SPENDING
                 CLAUSE. 1554
                 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. 1556
                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. 1557
                 A. The AFLA Has a Valid Secular Purpose of Combating Teenage Pregnancy and
                 Associated Ills. 1558
                 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. 1560
                 1. The legal standard of primary effect 1560
                 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. 1562
                 3. As applied, the AFLA has the primary effect of advancing religion. 1564
                 C. Because Organizations Funded by the AFLA Have a Religious Character and Purpose
                 and the AFLA Programs Concentrate on Counseling and Education, the Degree of
                 Government Monitoring Necessary to Prevent Grantees From Advancing Religion
                 Would Necessarily Rise to the Level of Excessive Entanglement. 1567
                 D. Because the AFLA Funds Religious Organizations to Provide Services Intrinsically
                 Related to Fundamental Beliefs Upon Which Religions and Politicians Strongly
                 Disagree, the AFLA Is Likely to Incite Political Division. 1569
                VII. CONCLUSION 1569
                

CHARLES R. RICHEY, District Judge.

I. INTRODUCTION

The plaintiffs challenge the constitutionality of the Adolescent Family Life Act ("AFLA"), 42 U.S.C. §§ 300z—300z-10 (1981), on the ground that on its face and as applied the statute violates the Establishment Clause of the First Amendment.¹ The fundamental question in this case is the constitutionality of a statute that allows religious organizations to use government funds for, inter alia, the counseling and teaching of adolescents on matters related to premarital sexual relations and teenage pregnancy. Although the Court finds that the AFLA has a valid secular purpose, it also finds that the AFLA, on its face, has the primary effect of advancing religion and fosters an excessive entanglement between government and religion. Moreover, the undisputed facts show that AFLA grants awarded to religious organizations have the primary effect of advancing religion. Therefore, the Court must hold that the AFLA is unconstitutional both on its face and as applied.² Accordingly,

657 F. Supp. 1552

the Court will grant plaintiffs' motion for summary judgment and will deny defendant's and defendant-intervenors' cross-motions for summary judgment by Order of even date herewith.

The Court is sensitive to the fact that its Opinion discusses particular beliefs and also discusses practices in which particular religious organizations have engaged. The Court intends nothing in this Opinion to reflect adversely on any religion. The Court notes that it is apparent from the party plaintiffs, defendant, and defendant-intervenors in this case that members of the same religious groups do disagree about the validity of the AFLA and hold differing, religiously based, beliefs about the program's goals. The Court also notes that this division obtains among Protestants, Catholics, Jews and others, and wishes to be quite clear that it discusses particular religions only insofar as is absolutely necessary for this Opinion.

No judge enjoys deciding a constitutional challenge to a United States statute. Because federal laws are enacted by Congress and approved by the Chief Executive, courts rightly employ a variety of doctrines in order to avoid overruling our co-equal branches of government. In deference to the considered judgments of the other branches, a court must strive, if possible, to avoid the constitutional issue altogether. See Pennsylvania v. Ritchie, ___ U.S. ___, 107 S.Ct. 989, 1011, 94 L.Ed.2d 40 (1987) (Stevens, J., dissenting). As this case raises only constitutional issues, however, the Court does not have that option.

A second principle of judicial abstention is that a Court must avoid, if possible, finding that a statute does not conform to the requirements of the Constitution. See Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568, 67 S.Ct. 1409, 1419, 91 L.Ed.2d 1666 (1947). Equally fundamental, if compelled to find a statute unconstitutional, a Court's decision should be so circumscribed as to wreak the least havoc on the law. As such, courts ought not leap to declare a statute invalid where they can merely proscribe a practice under that law. See Erznoznik v. Jacksonville, 422 U.S. 205, 215-16, 95 S.Ct. 2268, 2275-76, 45 L.Ed.2d 125 (1975); Rescue Army, 331 U.S. at 569, 67 S.Ct. at 1419. But, after careful study, the Court has concluded that these principles, which the Court wholeheartedly accepts, are somewhat at odds with Establishment Clause case law.

While little else is clear in Establishment Clause case law, it is obvious that the distinction between a challenge to a statute on its face and as applied has not been clearly delineated. The precedents take as their form of analysis a consideration of the possible applications of a particular statute, see, e.g., Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756, 779-83, 93 S.Ct. 2955, 2968-70, 37 L.Ed.2d 948 (1973), then analyze the statute's actual application, see, e.g., id.; Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 479-82, 93 S.Ct. 2814, 2818-20, 37 L.Ed.2d 736 (1973), and finally, even if the application is the only constitutionally offensive element to which the court has pointed, strike down the statute on its face. See, e.g., Wolman v. Walter, 433 U.S. 229, 255, 97 S.Ct. 2593, 2609, 53 L.Ed.2d 714 (1977); Roemer v. Board of Public Works, 426 U.S. 736, 767, 96 S.Ct. 2337, 2354, 49 L.Ed.2d 179 (1976).

This method of analysis, so different from that usually employed when considering constitutional claims, leaves this Court only one alternative if it is to abide by the teachings of the Supreme Court, which trial judges must. Accordingly, even though the Court does not relish the task, it has no alternative but to consider the statute both on its face and as applied. In the end, however, this double duty matters little because the AFLA is unconstitutional both on its face and as applied.

II. BACKGROUND

The AFLA is a Congressional response to the severe and manifold problems resulting from teenage pregnancy and associated problems. See 42 U.S.C. § 300z(a). The

657 F. Supp. 1553

Act was designed to prevent adolescent pregnancy by promoting self-discipline, and to mitigate or eviscerate the severe economic, social and health problems that often result from premarital sexual relations and teenage pregnancy. See 42 U.S.C. § 300z(b).

While the AFLA has three general program categories — care, prevention and research, see 42 U.S.C. §§ 300z-2 & 300z-7, the plaintiffs contest the constitutionality only of the care and prevention services.

"Care services" include pregnancy testing, maternity counseling, adoption and referral services, and primary and preventive health services. See 42 U.S.C. § 300z-1(a)(7).

"Prevention services" are services to discourage adolescent sexual relations, referral services for the...