Ric. M. &3/3: __ -.,: 4 ‘~<. '»_ V ‘ ‘ ‘>42 "vie -‘IJk’i'\ 3 ._ V J 2' ‘ ,5‘ , . _ 3.: .~.'»;. .4‘: ; v,.j.: '5 ‘-. 1:? * R ‘ ’ :2 :2: 55:; : :4 #5 I .- Ea“ . I ‘ z ’ - ' ‘ _ ~'. 7&1-' .2. “-..L K ”'£-...__.:«‘ .s2....e*. MK 4- 5 _ _/ “.2 . . __ "~:‘ ' __,x»" .;a....- ’J " "I i L: . 8 7T 4 4 4 A __ .— ,‘,~;-‘_: ‘~o(.\_ ‘v V ‘a ‘ I 8 I /J 35 ’ ‘A; : 1 ,_ 4 2-av "* * < . I fr?” i V 'V ‘ 3, ‘L5 I v 7: 2! «$3 ‘ =-:-- :2; , .; 2-9“ /L ‘t;%‘v,- F‘ 91 ..,;_ 1 3.4. 3"! ‘~_. 3;?‘ 'z -= _‘L_._.-‘ 4»-_.;._ , ..-a. . «n 7’ “Ex 2 i 7"? "£7 1 _ —,, f_- .1" ‘sq :. ’ ‘ ‘i\ H A-,. . 1, .v '3 E 33 __ .. - .' J I‘ *‘_ .5... -. i -r t * ' 1 4, ~ «I-".ra‘~' 7 7.'“"~.1‘V"s>‘.'.'}-." * : . . *;- I. " ‘—,4 ‘K K: iv ' ‘ «w -4 >5 -* CRS REPORT FOR CONGRESS Governmetg Pubfications nit AUG 1 7 1994 W h - » . as mgton ‘Una/erstty :_mra,,-es 3*» Lows. Mo. 63130 CONSTITUTIONAL ANALYSIS OF PROPOSED REGULATIONS ISSUED BY THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT REGARDING THE PARTICIPATION OF RELIGIOUS ORGANIZATIONS IN THE "EMERGENCY SHELTER GRANTS PROGRAM" I ulu 0 +9.’-; ‘iii 3».'zT.‘!I~Z:a_“ '?.17.&:.(l""¥-:=54:-iE3L\?*]si££.Sfi_'.-1':-uxL'i'51~;7§Z:; 593,3];-.1-'1 .- .. . .17 "7 ' '"' “ ' David M. Ackefman Legislative Attorney American Law Division April 28, 1987A umbla mlm mu "wlsiflflIUIilfiiI‘IT°""mlfili 01 0-1 03940t"17 mum”: The Congressional Research Service works exclusively for the Congress, conducting research, analyzing legislation, and providing information at the request of committees, Mem- bers, and their staffs. The Service makes -such research available, without parti- san bias, in many forms including studies, reports, compila- tions, digests, and background briefings. Upon request, CRS assists committees in analyzing legislative proposals and issues, and in assessing the possible effects of these proposals and their alternatives. The Services senior specialists and subject analysts are also available for personal consultations in their respective fields of expertise. ABSTRACT Under regulations proposed by the Department of Housing and Urban Development for the "Emergency Shelter Grants Program, religious organizations could receive grants to provide social services to the homeless and to run the shelters. But "primarily religious entities" could not use grants to convert their own buildings into shelters. This report analyzes whether these regulations accurately reflect the requirements of the establishment of religion clause of the First Amendment. CRS-Vi not violated by the provision of public aid to nonprofit secular entities created by pervasively religious organizations, at least so long as they are operated according to the "law of their being." It also appears clear that the establishment clause permits direct aid to be provided for specified purposes to religious organizations that are not pervasively sectarian. But with respect to this category of religious beneficiary DHUD's regulations may be insufficient in two respects: First, pertinent Supreme Court decisions appear to require that buildings renovated or rehabilitated with public funds be used for secular purposes so long as they have "substantial value," but the regulations would permit such buildings to be used for religious purposes after three or ten years. Second, public aid to this category of organizations must ibe limited to secular use. Because not all of the activities that can be subsidized are limited by their nature to secular purposes, an administrative limitation appears constitutionally necessary; but no such limitation appears in DHUD's proposed regulations or commentary. Finally, the establishment clause, as the proposed regulations provide, appears to bar grants to pervasively sectarian organizations for use in renovating or rehabilitating buildings they own for use as shelters for the homeless. But the proposed regulations appear to permit grants to such organizations for the other specified purposes, so long as they are carried out "free from religious influences." This may not be constitutionally sufficient. Because of the difficulty of separating the secular activities of such organizations from their religious ones, such direct grants may have a primary effect of advancing religion. Moreover, the governmental monitoring of the organizations‘ use of the public monies seems likely to excessively entangle church and State. The judicial precedents that lead to these conclusions are not precisely on point, as they generally have involved grants to pervasively sectarian schools for educational services to children on the premises of the schools themselves. It can be argued, for instance, that the standards developed in those cases should not apply to grants to pervasively religious organizations because the latter involve charitable services to adults off the premises of the sectarian organization. But nothing the Court has said suggests that the standards of those cases are not fully applicable to other kinds of aid to sectarian organizations. Given the purposes of the establishment clause and the general standards the Court has articulated, grants to pervasively religious organizations for the provision of social services to the homeless and administration of shelters appear constitutionally dubious. CRS—v EXECUTIVE SUMMARY On December 16, 1986, the Department of Housing and Urban Development (DHUD) issued proposed regulations for the "Emergency Shelter Grants Program." The program is intended to provide grants to State and local governments and to nonprofit organizations for several activities relating to the provision of emergency shelter for the homeless. The proposed regulations would permit religious organizations, along with other tax-exempt nonprofit organizations, to receive grants for these purposes. But they would bar "primarily religious organizations or entities" from using the grants "to renovate, rehabilitate, or convert buildings" they own for shelter purposes. According to the Department's commentary, this would bar churches and other "pervasively sectarian" organizations from using grants for this purpose. But religious organizations that are not pervasively sectarian would not be subject to this prohibition. Moreover, the Department's commentary states that pervasively religious organizations could still receive grants to provide assorted social services to the homeless and to administer the shelters, and they could set up independent nonprofit entities for secular purposes to receive and use grants for the full range of eligible activities. The constitutional question concerns whether these standards for grants to religious organizations reflect the requirements of the establishment of religion clause of the First Amendment. That clause provides that "Congress shall make no law respecting an establishment of religion...," and has been construed by the Supreme Court to impose substantial limitations on direct public aid to religious organizations. To pass muster under that clause the Court requires that a governmental action serve a secular legislative purpose, have a primary effect that neither advances nor inhibits religion, and not lead to excessive government entanglement with religion. The secular purpose test has rarely proven to be a substantial obstacle to public aid programs benefiting religious institutions. But both the primary effect and the entanglement tests have posed serious and often insurmountable barriers. Under the primary effect test the central question is whether the public aid in question is limited to secular use. Direct aid to religious institutions not restricted to secular use the Court has consistently found to have a primary effect of advancing religion and thus to be unconstitutional. Even if public aid is limited to secular use, it may still be invalidated under the primary effect test if it flows to a pervasively sectarian institution and is so substantial as to amount to a general subsidy of the institution as a whole, or if it serves to create a "symbolic union" of church and State. Moreover, even if an aid program passes muster under the primary effect test, it may still founder on the excessive entanglement test. This test has often proven fatal to direct aid programs because the Court has found the official monitoring necessary to assure that public aid is used only for secular purposes to give rise to excessive entanglement of government with religion. Applying these standards to the DHUD proposal, it is clear that the program creates no problem under the secular purpose aspect of the Court's tripartite test. Beyond that, however, the constitutional adequacy of the DHUD regulations depends on the nature of the religiously associated entity that is benefited. It appears clear, for instance, that the establishment clause is Constitutional Analysis of Proposed Regulations Issued by the Department of Housing and Urban Development Regarding the Participation of Religious Organizations in the "Emergency Shelter Grants Program" Introduction On December 16, 1986, the Department of Housing and Urban Development (DHUD) issued proposed regulations for the "Emergency Shelter Grants Program."1 The program is intended to provide grants to State and local governments and to nonprofit organizations for several activities relating to the provision of emergency shelter for the homeless: (l) the renovation, rehabilitation, or conversion of buildings for use as emergency shelters; (2) the provision of various social services to the homeless, such as food, education, job counseling, and health services; and (3) the payment of such overhead costs of running the shelters as maintenance, insurance, utilities, and furnishings.2 The proposed regulations would permit religious organizations, along with other tax-exempt nonprofit organizations, to receive grants for these purposes. But they would bar "primarily religious organizations or entities" from using the grants "to renovate, rehabilitate, or convert buildings" they own for shelter purposes.3 The accompanying commentary by the Department makes clear that this would bar both churches and other religious organizations found to be "pervasively sectarian" from using grants for such a purpose. Determinations 151 Fed. Reg. 45278 (1986)(to be codified at 24 CFR Part 575). 238., at 45282 (24 CFR Part 575.21). 338,, at 45283 (24 CFR Part 57S.21(b)(2)). CRS-2 as to whether religious organizations other than churches are "pervasively sectarian" and thus within the prohibition, the Department stated, will generally turn on the extent to which religion is infused in the organization's functions, as reflected in its charter, by-laws, publications or other evidence related to its stated purposes, organization, control, membership and operations, including the nature of, and eligibility for participation in, the activities, services and benefits it provides. Religious organizations that are not pervasively sectarian, in other words, would not be subject to the restriction. Moreover, the Department's commentary suggests that the restriction would not entirely exclude pervasively sectarian organizations from participating in the shelter program. The commentary states, for instance, that the prohibition would not apply to buildings owned by independent nonprofit entities established by pervasively sectarian organizations for secular purposes. The commentary further states that pervasively sectarian organizations could still receive grants directly to provide the other designated services to the homeless "so long as such activities are carried out in a manner free from religious influences pursuant to conditions prescribed in the assistance agreement."5 The constitutional question concerns whether the prohibition in the proposed regulations and the standards set forth in the Department's accompanying commentary accurately reflect the requirements of the establishment of religion clause of the First Amendment. This report sets. ‘rig, at 45281. 5£g:, at 45281. It might be noted that the Department's commentary describes such eligible activities to be those specified in §575.2l(a)(1) and (2). But subsection (a)(1) concerns the "renovation, major rehabilitation, or conversion of buildings," an activity which is said elsewhere by the commentary to be barred to pervasively sectarian organizations. The proper reference, it seems clear, is to subsections (a)(2) and (3)--the provision of social services to the homeless and the administration of the shelters. CRS-3 forth the standards applicable to direct public aid to sectarian organizations under the First Amendment, and then applies those standards to the provisions in question. Constitutional Standards Governing the Provision of Public Aid to Sectarian Institutions The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." Whether the provision of public aid to religious institutions contravenes the establishment clause has proven to be one of the most difficult and frequently litigated issues to come before the Supreme Court, and not all issues can be said to have been resolved. Most of the cases have involved public aid to sectarian schools, but fairly clear standards that are generally applicable have been articulated by the Court. To guide its consideration of most establishment clause issues the Supreme Court has devised a tripartite test: First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion...; finally, the statute must not foster "an excessive government entanglement with religion." EEm2E_v. Kurtzman, 403 U.S. 602, 612-13 (1971). The Court has emphasized that these tests are "no more than helpful signposts"6 and several Justices have challenged their utility.7 But nonetheless, to pass constitutional muster the Court requires that a legislative enactment meet each of these tests. The secular purpose test has rarely proven to be a substantial obstacle to public aid programs benefiting religious institutions. But both the primary 6Hunt v. McNair, 413 U.S. 734, 741 (1973). 7See, e.g., Wallace v. Jaffree, 472 U.S. 28 (1985)(Rehnquist, J., dissenting). CRS-4 effect and the excessive entanglement tests have posed serious and often insurmountable barriers. "...(E)ven...a praiseworthy, secular purpose cannot validate government aid...when the aid has the effect of promoting a single religion or religion generally or when the aid unduly entangles the government in matters religious."3 Under the primary effect test the central question is whether the public aid in question is limited to secular use. "Although Establishment Clause jurisprudence is characterized by few absolutes, the Court has said, " the Clause does absolutely prohibit government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith."9 "The State must confine itself to secular objectives, and neither advance nor impede religious activity."10 Or again, "(i)n the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid."11 This requirement does not mean that all public aid to sectarian organizations, even pervasively religious ones, necessarily violates the primary effect test. In several instances the Court has found particular aid programs not to have a primary effect of advancing religion, because the benefit to the religious institution was merely incidental to the program's 3Grand Rapids School District v. Ball, 473 U.S. (1985). 9Grand Rapids School District v. Ball, supra, at . 10Roemer v. Maryland Board of Public Works, 426 U.S. 736, 747 (1976). 11Committee for Public Education v. Nyquist, 413 U.S. 756, 780 (1973). CRS-5 primary effect12 or was the result of intervening private choices,13 or because the aid was effectively limited to secular use by its nature14 or by legislative or administrative restrictions.15 But direct aid to religious institutions not restricted to secular use the Court has consistently found to have a primary effect of advancing religion and thus to be unconstitutional.16 As the Court stated the test in one case: Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting. Even if a program is effectively limited to secular use, it may still be 12See, e.g., Everson v. Board of Education, 330 U.S. 1 (1947), in which the Court upheld as constitutional a program providing free bus transportation to sectarian school students, notwithstanding the benefit to the church schools attended. 13see, e.g., Mueller v. Allen, 463 U.S. 388 (1982) in which the Court upheld an educational expense deduction on a state income tax in part because the benefit to the schools attended became available "only as a result of numerous, private choices of individual parents of school-age children." 14See, e.g., Board of Education v. Allen, 392 U.S. 236 (l968)(loan of secular textbooks to private school students upheld); Wolman v. Walter, 433 U.S. 230 (l977)(provision of diagnostic health services on the premises of sectarian schools upheld); Committee for Public Education v. Regan, 444 U.S. 646 (provision of State-prepared tests and reimbursement of sectarian schools for costs of administering and grading tests and reporting results to State upheld). 15See, e.g., Roemer v. Maryland Board of Public Works, supra (State higher education grants prohibited from being used for "sectarian purposes" upheld). 16See, e.g., Committee for Public Education v. Nyquist, supra (maintenance and repair grants to nonpublic schools found to "subsidize directly the religious activities of sectarian elementary and secondary schools); Meek v. Pittenger, 421 U.S. 349 (l97S)(loan of non-textbook instructional materials and equipment to nonpublic schools found to "inescapably result in the direct and substantial advancement of religious activity"); Wolman v. Walter, supra (provision of field trip transportation to nonpublic school students found to be an "impermissible direct aid to sectarian education"). 17Hunt v. McNair, 413 u.s. 734, 743 (1973). CRS—6 invalidated under the primary effect test if it flows to a pervasively sectarian institution and is substantial in amount. Although the Court has rejected the argument that aid to a pervasively sectarian institution's secular functions is unconstitutional simply because it may free the institution's other funds for religious use, it has held that if such aid is "massive" or "substantial" it "necessarily results in aid to the sectarian...enterprise as a whole" and thus is unconstitutional.18 A final concern under the primary effect test is whether the governmental assistance creates a "symbolic union" of church and State: Government promotes religion as effectively when it fosters a close identification of its powers and responsibilities with those of any--or all--religious denominations as when it attempts to inculcate specific religious doctrines. If this identification conveys a message of government endorsement or disapproval of religion, a core purpose of the Establishment Clause is violated. Grand Rapids School District v. Ball, supra, at . Under this rationale the Court has struck down the delegation of a zoning power to churches19 as well as the public subsidy of instructional services on the premises of sectarian schools.2O Even if an aid program passes muster under the primary effect test, it must still survive analysis under the excessive entanglement test. "The objective" of this aspect of the tripartite test, the Court has said, "is to prevent, as far as possible, the intrusion of either into the precincts of the other."21 This test has at times been applied by the Court to preserve a 18Meek v. Pittenger, supra, at 366; Wolman v. Walter, 433 U.S. 229, 250 (1977); Grand Rapids School District v. Ball, supra, at . . 19Larkin v. Grendel's Den, 459 U.S. 116 (1984). 2OGrand Rapids School District v. Ball, supra. 21Lemon V. Kurtzman, supra, at 614. CRS-7 special benefit for religious organizations on the grounds it served to insulate them from involvement with government to a greater degree than the contrary policy.22 But more commonly this test has proven fatal to direct aid programs because the Court has found the official monitoring necessary to assure that a given aid program is used only for secular purposes to give rise to an excessive entanglement between church and State. Thus, in Egm22_v. Kurtzman, supra, the Court held unconstitutional programs which subsidized teachers of secular subjects in sectarian schools. Even though the programs specified what courses could be subsidized and barred the teaching of religion, the Court found that (a) comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected....These prophylactic contacts will involve excessive and enduring entanglement between state and church. 403 u.s. at 519.23 The Court also perceived a danger of excessive entanglement in the programs’ provisions for auditing the schools‘ expenditures to determine how much was attributable to secular education and how much to religious activity: This kind of state inspection and evaluation of the religious content of a religious organization is fraught with the sort of entanglement that the Constitution forbids. It is a relationship pregnant with dangers of excessive government direction of church schools and hence of churches. 403 U.S. at 620. 22wa1z v. Tax Commission of New York, 397 U.S. 664 (l970)(upholding as constitutional the property tax exemption afforded churches and other nonprofit organizations by the State of New York). 23See also Meek v. Pittenger, supra (provision of auxiliary services by public school personnel on the premises of sectarian elementary and secondary schools found to lead to excessive entanglement); Wolman v. Walter, supra (supervision of nonpublic teachers involved in publicly subsidized field trips found to involve excessive entanglement); Aguilar v. Felton, 473 U.S. (monitoring of activities of public school Chapter 1 personnel engaged-in- remedial educational activities on the premises of nonpublic schools found to result in excessive entanglement of church and state). CRS—8 In other words, even if a program benefiting religious institutions is able to pass muster under the primary effect test because it is limited to secular use, it may still fall afoul of the entanglement test because of the policing necessary to assure compliance with the secular use restriction.24 Moreover, the necessity that the government closely monitor how its aid is used in a religious institution does not depend on evidence of actual abuse by the recipient institution, at least in the education context. Rather, the requirement arises from the mere "potential for impermissible fostering of religion...."25 The Court has made clear that under the entanglement test government cannot simply rely on "the good faith and professionalism" of religious beneficiaries "to ensure that a strictly nonideological posture is maintained."25 "The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion."27 It should be noted that under both the primary effect and the entanglement tests a critical consideration is whether the religious institutions benefited are pervasively religious or only nominally so. Clearly, the central requirement of the primary effect test--that public aid be limited to secular use--is easier to meet in institutions whose activities are not permeated with religion. Thus, in Bradfield v. Roberts, 175 U.S. 291 (1899), the Court upheld 24The entanglement test as articulated by the Court also has a political aspect to it, as the Court has observed that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect." Lemon v. Kurtzman, supra, at 622. But the Court has not as yet made that possibility an independent ground for invalidating an aid program, terming it instead to be a "warning signal" of possible establishment clause violation. £93, at 625. ~ 25Lemon v. Kurtzman, supra, at 619. 26Meek v. Pittenger, supra, at 369. 27Lemon v. Kurtzman, supra, at 619. CRS-9 as constitutional a construction grant and payments for providing health care to the poor to a hospital conducted under the general auspices of an order of the Roman Catholic Church. The hospital was chartered as a secular corporation, the Court noted, and there were no allegations that it discriminated along religious lines in providing its services or that it was being operated in a sectarian manner: That the influence of any particular church may be powerful over the members of a non-sectarian and secular corporation, incorporated for a certain defined purpose and with clearly stated powers, is surely not sufficient to convert such a corporation into a religious or sectarian body. That fact does not alter the legal character of the corporation.... Ed}, at 298. Similarly, in Tilton v. Richardson, 403 U.S. 672 (1971) and Hunt v. McNair, sgprag the Court upheld as constitutional federal construction grants and the issuance of state revenue bonds for construction purposes at several church- affiliated colleges in part because none of the colleges involved was "pervasively sectarian" and thus their secular educational functions were separable from their religious ones. Again, in Roemer v. Maryland Board of Public Works, supra, the Court upheld general purpose state grants to several church—related colleges as constitutional because the institutions were not "pervasively sectarian" and thus the grants‘ limitation to nonsectarian use could in fact be observed. In contrast, the Court has repeatedly found church- affiliated elementary and secondary schools to be religion-pervasive, i;s;3 to have a "dominant religious mission,"28 be "an integral part of the religious mission" of their sponsoring churches,29 have a "substantially religious 28Aguilar v. Felton, supra, at . 29Lemon v. Kurtzman, supra, at 616. CRS-10 character,"30 or "provide an integrated secular and religious education."31 Consequently, the Court has found it difficult to separate the schools’ secular educational functions from their religious ones in order "to ensure that State financial aid supports only the former."32 Similarly, the dangers that public aid to the secular activities of a religious institution might amount, because of the substantial amount involved, to a general subsidy of the institution or might create a symbolic union between church and state seem to arise, according to the Court's decisions, primarily with respect to pervasively sectarian institutions. Thus, in §£aEd_ Rapids School District v. Ball, supra, the Court's concerns that public provision of remedial teachers in sectarian schools would place the imprimatur of State approval on the school's religion and would permit the state to gradually take over "ever larger segments of the religious school curriculum" arose because of the pervasive sectarianism of most of the participating schools.33 The same is true with respect to the excessive entanglement test. The Court has stated that in order to determine whether the government entanglement with religion is excessive, we must examine the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority. Lemon v. Kurtzman, supra, at 615. Where the institutions benefited have not been pervasively sectarian, the Court has concluded that there is only a minimal risk that the aid provided might be 30Committee for Public Education v. Nyquist, supra, at 768. 31Meek v. Pittenger, supra, at 366. 32Committee for Public Education v. Nyquist, supra, at 783. 33See also Meek v. Pittenger, supra. CRS-11 used for religious purposes and thus that there is a reduced need for close administrative supervision and monitoring of how the aid is used. In contrast, where the beneficiaries have been pervasively sectarian, the Court has perceived the risk that public aid might be used to foster religion to be substantial and thus the need for close monitoring of how the aid is used to be great. The unvarying consequence of that perception has been a finding of excessive entanglement. In sum, then, the Supreme Court has construed the establishment clause to impose substantial limitations on the provision of direct public aid to religious institutions. To pass muster under that clause such aid must be limited to secular use, must not be so massive as to amount to a general subsidy of the enterprise, must not create a symbolic union between church and State, and must not lead to excessive entanglement between church and state. These requirements do not bar all public aid to religious institutions and, indeed, may be of only limited consequence with respect to institutions that are only nominally religious or that are legally and operationally secular even though created by religious entities. fiut they substantially limit the extent to which public aid may be made available to institutions that are pervasively religious. Analysis of DHUD's Requirements At the outset it is clear that the "Emergency Shelter Grants Program" creates no problem under the secular purpose aspect of the Court's tripartite test. Providing shelter and related social services to society's homeless is an avowedly secular activity, regardless of whether it happens to coincide with the desires and purposes of religious organizations or not.34 Under the 34McGowan v. Maryland, 366 U.S. 420 (1961). CRS-12 primary effect and entanglement prongs of the test, however, a more particularized inquiry is necessary. DHUD's proposed regulations and accompanying comments appear to create three categories of entities with religious associations for purposes of grants under the program. First, they would permit independent nonprofit entities established for secular purposes to receive grants and to use them for the full range of eligible activities, including the rehabilitation and conversion of buildings they own, even if the entities are the creations of pervasively sectarian organizations. Second, they would permit religious organizations that are not pervasively sectarian to receive grants and to use them for the full range of eligible activities. Third, they would permit religious organizations that are pervasively sectarian to receive grants and to use them to provide social services to the homeless and to operate the shelters but not to rehabilitate or convert buildings they own into shelters for the homeless. The following comments discuss each of these categories separately. (1) Independent nonprofit entities created by pervasively religious organizations: DHUD's comments regarding this category are decidedly sketchy but the category appears to replicate requirements that DHUD has imposed in the § 202 loan program regarding housing for the elderly.35 More to the point, the category appears to be an attempt to replicate the kind of religiously associated entity found constitutionally eligible for direct public aid in Bradfield v. Roberts, supra. As noted above (see p. 8), that case concerned the constitutionality of a construction grant and payments for the care of the poor to a hospital created and operated by an order of the Roman Catholic Church. Notwithstanding that the hospital was conducted under the auspices of 35see 24 C.F.R. § 885.5 (1982). CRS-13 the Church and that it was staffed by members of the order, the Court unanimously held the grant and payments to be constitutional. The hospital was chartered, the Court said, as a secular corporation for secular purposes and "must...be managed pursuant to the law of its being.’ That it was created and operated under the "patronage" of a church and was "managed by people who hold to the doctrines of the Roman Catholic Church," the Court said, was "wholly immaterial" to the constitutional question. Such factors, it said, were "not sufficient" to convert the hospital into "a religious or sectarian body," absent proof that it was in fact operated in a religious manner. As a consequence, it held, the grant and payments did not violate the establishment clause. Bradfield has not been overturned or otherwise vitiated by subsequent Supreme Court decisions and thus appears to validate this aspect of DHUD's regulations and comments. In other words, grants to independent nonprofit entities created for secular purposes, even if established and operated under the auspices of a pervasively religious organization, do not raise serious establishment clause questions, at least so long as they are "managed pursuant to the law of (their) being." (2) Religious organizations that are not pervasively sectarian: Under the standards set forth in the preceding section, it appears clear that direct public aid to this category of religious organizations does raise establishment clause questions but is nonetheless permissible under specified conditions. Because these organizations are not pervasively sectarian, their secular functions are presumptively separable from their religious functions for purposes of meeting the requirements of the primary effect test. Moreover, because they are not pervasively sectarian, there is assumed to be less CRS-14 likelihood that they will engage in the fostering of religion and as a consequence a reduced need for the kind of intrusive official monitoring of their use of public aid that may excessively entangle church and State. Nonetheless, direct public grants to such institutions must still, under the primary effect test, be limited to secular use only, and in this regard DHUD's regulations may be deficient in two respects. In Tilton v. Richardson, supra, for instance, the Court upheld as constitutional a program of federal grants to institutions of higher education for the construction of a wide variety of academic buildings but excluding "any facility used or to be used for sectarian instruction or as a place for religious worship, or...any facility which...is used or to be used primarily in connection with any part of the program of a school or department of divinity." The program required that that limitation be observed by grantees for twenty years. As noted, upon challenge to the constitutionality of grants made to several church-related colleges, the Court held the Act and the grants to be constitutional. But it held the 20-year limitation on religious use to be constitutionally insufficient. The requirement, the Court said, "cannot, compatibly with the Religion Clauses, expire while the building has substantial value." Otherwise, it said, the building could at the end of 20 years be used for religious purposes and "the original federal grant will in part have the effect of advancing religion."36 Under DHUD's proposed regulations for the homeless shelters program, religious organizations that are not pervasively sectarian may use the grants to renovate, rehabilitate, or otherwise convert buildings they own into shelters for the homeless. The regulations require that renovated buildings be 36Tilton v. Richardson, supra, at 683. CRS-15 used as shelters, however, only for three years, and rehabilitated buildings only for ten years.37 After that time, presumably, the buildings could be used by the religious organizations for religious purposes. Under Tilton that would mean "the original...grant (would) in part have the effect of advancing religion." {he establishment clause appears to require, in other words, that buildings renovated or converted with public monies be used for secular purposes so long as they have substantial value. DHUD's proposed regulation, thus, appears inadequate. Secondly, DHUD's regulations would permit religious organizations that are not pervasively sectarian to use public grants to provide the homeless a variety of social services, such as services concerned with employment, substance abuse, education, food, permanent housing, and medical and mental health treatment. The regulations are not specific as to the content of these services but suggest only that they be "services essential for achieving independent living."33 Under the primary effect test, however, such services must be limited by their nature or by legislative or administrative restriction to secular services. Government cannot, consistent with the establishment clause, sponsor religious indoctrination. Some of the services may be exclusively secular by their nature--food and housing, for instance. But others, such as education, counseling for substance abuse, and mental health services, clearly are not so limited by their nature, nor under DHUD's proposal are they so limited by regulation. Under the establishment clause some i limitation in that regard appears necessary. 3751 Fed. Reg. 45285 (Dec. 17, l986)(to be codified at 24 CFR Part 575.53(a)). 38mg, (to be codified at 24 CFR Part 575.57(a)). CRS-16 (3) Pervasively sectarian organizations: Under DHUD's proposed regulations pervasively sectarian organizations (the regulations use the term "primarily religious" organizations as an equivalent term) could receive direct grants but could not use them to renovate, rehabilitate, or convert buildings they own into shelters for the homeless. They could use the grants, however, to provide social services to the homeless and to operate shelters "so long as such activities are carried out in a manner free from religious influences." The judicial precedents are not exact, but the available authority seems to suggest that the restriction as to buildings is required by the establishment clause and that direct grants for the other purposes may be constitutionally dubious, notwithstanding the limitation. As noted above, the Court has upheld as constitutional construction assistance to religious organizations not pervasively sectarian. §EE_Tilton v. Richardson, supra; Hunt v. McNair, supra. The predicate for those decisions, however, has been that the organizations were not pervasively religious. Because of that fact, the Court found the organizations‘ secular functions separable from their religious ones for purposes of the construction assistance and the monitoring of the institutions‘ use of the assistance not to be excessively intrusive on their religious activities. Even in that context, however, the Court construed the establishment clause to require that the restriction against religious use of the assisted buildings apply so long as, the buildings had substantial value. The nature of pervasively sectarian organizations, however, is that their religious functions and their secular functions, if any, are not easily separable but are "inextricably intertwined."39 Such organizations have been deemed by the Court to be 39Lemon v. Kurtzman, supra, at 657 (opinion of Brennan, J.). CRS—17 "religion-pervasive."40 Because of that, direct grants to such institutions for the purpose of renovating or rehabilitating buildings they own, even for use as shelters for the homeless, do not appear constitutionally permissible. In Committee for Public Education v. Nyquist, supra, for instance, the Court considered the constitutionality of State grants to sectarian schools for purposes of maintenance and repair. The stated purpose of the grants was "to ensure the health, welfare, and safety of enrolled pupils." But the Court held the grant program to have a primary effect of advancing religion. It noted that the program failed "to restrict payments to those expenditures related to the upkeep of facilities used exclusively for secular purposes" and then commented "nor do we think it possible within the context of these religion- oriented institutions to impose such restrictions." Citing Tilton's invalidation of the 20-year restriction against religious use, the Court concluded: If tax-raised funds may not be granted to institutions of higher learning where the possibility exists that those funds will be used to construct a facility utilized for sectarian activities 20 years hence, a fortiori they may not be distributed to elementary and secondary sectarian schools for the maintenance and repair of facilities without any limitations on their use. If the State may not erect buildings in which religious activities are to take place, it may not maintain such buildings or renovate them when they fall into disrepair. Grants to pervasively religious organizations for renovation or rehabilitation purposes appears subject to the same constitutional objection. Analysis of the constitutionality of grants to such organizations for purposes of providing social services to the homeless and/or to operate the shelters is more problematic. Most of the available case law concerns grants for various educational purposes on the premises of the pervasively sectarian 40Meek v. Pittenger, supra, at 366. CRS-18 institutions themselves and the effect of the religious atmosphere of those premises.41 The available case law also concerns grants for services to youth.42 Here, the grants could be made to such organizations for use away from their own premises and involve services primarily to adults. Whether those factors might be sufficient to lead to a different constitutional conclusion is uncertain. But the existing case law suggests that the grants may pose both primary effect and excessive entanglement problems. In the recent decision Kendrick v. E23323 Civil Action No. 83-3175 (D.D.C., April 15, 1987), for instance. a federal district court held unconstitutional the provisions of the Adolescent Family Life Act which permitted religious organizations to receive grants for purposes of education and counseling of adolescents. The court found AFLA constitutionally deficient because it contained "no restriction whatsoever against the teaching of religion gua_religion" and because it created a "crucial symbolic link between government and religion." Slip op., at 32, 35. The court also held that "because these organizations have a religious character and purpose, the risk that AFLA funds will be used to transmit religious doctrine can be overcome only by government monitoring so continuous that it rises to the level of excessive entanglement." Slip op., at 43-44. 41Compare, e.g., Meek v. Pittenger, supra (provision of auxiliary services to nonpublic schoolchildren by public school teachers "in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained" held to necessitate "continuing surveillance" by the State to guard against "the potential for impermissible fostering of religion" and thus to be unconstitutional) with Wolman v. Walter, supra (provision of remedial and guidance services to nonpublic schoolchildren at sites away from sectarian schools held to pose no danger of religious instruction and thus to be constitutional). 42.].:_d-_ CRS-19 Both of these infirmities may attend grants to pervasively religious organizations for the provision of social services and the administration of shelters for the homeless. First, the grants may fall afoul of the secular use requirement of the primary effect test. That is, they may subsidize religious activities as well as secular ones. The Department's commentary states that the grants are to be carried out in a manner "free from religious influences," but that requirement is not repeated in the regulations. As a consequence, its legal effect appears dubious. tThus, the grants may directly fund religious activity in violation of the primary effect test. Second, even if the Department's statement is assumed to limit effectively the use of the grants to secular purposes, the grants may create a forbidden symbolic union between church and State. That is, government subsidy of the activities of a manifestly religious organization, even at a neutral site, may give the appearance to those served of a joint venture between government and religion and of government endorsement of the beliefs and practices of that religious organization. This, too, would violate the primary effect test. Third, if the grants become substantial, they could be deemed to be a forbidden subsidy of the religious enterprise as a whole, again in violation of the primary effect test. And finally, and perhaps most seriously, the grants may lead to an excessive entanglement between government and the religious grantees. That is, pervasively religious organizations pose are deemed to pose a high risk of engaging in religious proselyting, and for that reason government must engage in a close monitoring of their use of public grants. Government inspectors likely would have to engage in on-site monitoring of how the pervasively religious organizations carried out their tasks to be sure that public funds were not used for religious indoctrination. Government auditors would have to CRS-20 examine the books of the religious organization to determine what expenses were legitimate and what were not. The very act of engaging in such prophylactic surveillance, in other words, would excessively entangle church and State, in violation of the "objective" of the establishment clause "to prevent, as far as possible, the intrusion of either (Church or State) into the precincts of the other." Thus, DHUD's guidelines regarding grants to pervasively religious organizations for services and administration may be too permissive. Again, it deserves emphasis that the judicial precedents underlying this conclusion are not precisely on point, as most have involved grants to pervasively sectarian schools for educational and related services to children on the premises of the schools themselves rather than grants to other kinds of pervasively religious organizations for charitable services to adults on religiously neutral premises. But it also deserves emphasis that there is nothing in those precedents that suggests their reasoning is to be limited to, the educational setting. The standards they set appear generally applicable. As the Court has stated, the establishment clause was designed to prevent the "sponsorship, financial support, and active involvement of the sovereign in religious activity."43 That purpose is as applicable to public grants to religious institutions for charitable services as to any other kind of assistance. Conclusion In sum, then, DHUD's proposed regulations and accompanying commentary regarding grants to religious organizations under the Emergency Shelter Grants Program appear in some respects to be consistent with the requirements of the establishment clause and in others to be constitutionally insufficient. The 43Walz v. Tax Commission of New York, supra, at 668. CRS-21 establishment clause clearly appears, for instance, to permit public aid of the kind contemplated to be made available to nonprofit secular entities, even when ’such entities are established and operated by pervasively religious organizations, at least so long as they are managed according to the "law of their being." The establishment clause further appears to permit public grants for the various purposes of the homeless shelters program to be made directly to religious organizations that are not pervasively sectarian. Such grants must be limited to secular use, however, and in that regard DHUD's regulations appear deficient in two respects. First, the establishment clause appears to require that buildings renovated or rehabilitated with public funds be used for secular purposes so long as they have substantial value. Thus, the regulations‘ requirement that such buildings be used as shelters for the homeless for only three or ten years appears insufficient. Second, the regulations impose no requirement that religious organizations not use the grants for religious purposes. Given that some of the services that can be provided with the grants are not by their nature limited to secular purposes, such a limitation appears constitutionally necessary. Finally, the establishment clause appears to bar grants to pervasively sectarian organizations for use in renovating or rehabilitating buildings they own for use as shelters for the homeless. Whether the clause also bars grants to such organizations for the provision of social services to the homeless and for the costs of administering shelters is less certain. But given the purposes of the establishment clause and the general standards the Court has articulated in the school aid cases, such grants appear constitutionally u ious. \\N__% ; t.,'\\