OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLANT V.
CHAN KENDRICK, ET AL.

   OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, APPELLANT V.
CHAN KENDRICK, ET AL.

   CHAN KENDRICK, ET AL., CROSS-APPELLANTS V. OTIS R. BOWEN, SECRETARY
OF HEALTH AND HUMAN SERVICES, ET AL.

   No. 87-253, 87-431, 87-462

   In the Supreme Court of the United States

   October Term, 1987

   On Appeal from the United States District Court for the District of
Columbia

   Brief for the Appellant

                       PARTIES TO THE PROCEEDING

   In addition to the parties named in the caption, 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 were plaintiffs in the district court;
and Sammie J. Bradley, Katherine K. Warner, and the United Families of
America were defendants-intervenors in the district court.

            TABLE OF CONTENTS
   Question Presented
   Parties to the Proceeding
   Opinion below
   Jurisdiction
   Constitutional and statutory provisions involved
   Statement
      A. The Adolescent Family Life Act
      B. The present controversy
   Introduction and summary of argument
   Argument:
      The Adolescent Family Life Act does not, either on its
      face or as applied, violate the Establishment Clause
         A. The AFLA has a secular legislative purpose
         B. The primary effect of the AFLA neither
            advances nor inhibits religion
         C. The AFLA does not foster excessive
            entanglement with religion
   Conclusion

                             OPINION BELOW

   The opinion of the district court (J.S. App. 1a-46a) is reported at
657 F. Supp. 1547.  /1/ A subsequent order of the district court (J.A.
App. 52a-55a) is unreported.

                             JURISDICTION

   The interlocutory order of the district court declaring the statute
unconstitutional and enjoining the Secretary from enforcing it "as it
pertains to 'religious organizations'" (J.A. App. 47a-49a) was entered
on April 15, 1987.  A notice of appeal to this Court from that order
(J.S. App. 56a) was filed on May 15, 1987.  On July 7, 1987, the Chief
Justice extended the time within which to docket that appeal to and
including August 13, 1987, and the appeal was docketed on that date as
No. 87-253.  The order of the district court declaring the statute's
references to "religious organizations" to be severable from the
balance of the statute, denying appellant's motion to alter or amend
the judgment under Fed. R. Civ. P. 59(e), and dismissing the case from
the district court's docket, was entered on August 13, 1987 (J.S. App.
52a-55a).  A notice of appeal to this Court from that order (J.S. App.
57a) was filed on August 20, 1987, and the appeal was docketed on
September 14, 1987, as No. 87-431.  A notice of cross-appeal to this
Court from the August 13, 1987 order (87-462 J.S. App. 8a-9a) was
filed on August 25, 1987, and the cross-appeal was docketed on October
19, 1987, as No. 87-462.  On November 9, 1987, the Court noted
probable jurisdiction in Nos. 87-253, 87-431, and 87-462, and
consolidated the cases for argument.  The jurisdiction of this Court
is invoked under 28 U.S.C. 1252.

           CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

   The First Amendment to the United States Constitution provides in
pertinent part:

         Congress shall make no law respecting an establishment of
      religion, or prohibiting the free exercise thereof * * *.

   42 U.S.C. 300z(a)(8)(B) provides in part:

         The Congress finds that (the problems of adolescent
      premarital sexual relations, pregnancy, and parenthood) * * *
      are best approached through a variety of integrated and
      essential services provided to adolescents and their families by
      other family members, religious and charitable organizations,
      voluntary associations, and other groups in the private sector
      as well as services provided by publicly sponsored initiatives.

   42 U.S.C. 300z(a)(10)(C) provides in part:

         The Congress finds that services encouraged by the Federal
      Government should promote the involvement of parents with their
      adolescent children, and should emphasize the provision of
      support by other family members, religious and charitable
      organizations, voluntary associations, and other groups in the
      private sector in order to help adolescents and their families
      deal with complex issues of adolescent premarital sexual
      relations and the consequences of such relations.

   42 U.S.C. 300z-2(a) provides in part:

         Demonstration projects shall use such methods as will
      strengthen the capacity of families to deal with the sexual
      behavior, pregnancy, or parenthood of adolescents and to make
      use of support systems such as other family members, friends,
      religious and charitable organizations, and voluntary
      associations.

   42 U.S.C. 300z-5(a) provides in pertinent part:

         An application for a grant for a demonstration project for
      services under this subchapter shall be in such form and contain
      such information as the Secretary may require, and shall include
      --

                      * * * * *

         (21) a description of how the applicant will, as appropriate
      in the provision of services --

                      * * * * *

         (B) involve religious and charitable organizations, voluntary
      associations, and other groups in the private sector as well as
      services provided by publicly sponsored initiatives * * *.

                          QUESTION PRESENTED

   The Adolescent Family Life Act, 42 U.S.C. (& Supp. III) 300z et
seq., authorizes federal funds to support demonstration projects
designed to discourage adolescent pregnancy and to provide care for
pregnant adolescents.  The question presented is whether the Act
violates the Establishment Clause, either on its face or as applied,
insofar as it requires applicants for funds to describe how they will,
"as appropriate in the provision of services, * * * involve religious
and charitable organizations, voluntary associations, and other groups
in the private sector as well as services provided by publicly
sponsored initiatives" (42 U.S.C. 300z-5(a)(21)(B)).

                               STATEMENT

                   A. The Adolescent Family Life Act

   1. The Adolescent Family Life Act (AFLC), 42 U.S.C. (& Supp. III)
300z et seq., authorizes appropriations for demonstration grants to
public and nonprofit entities for services and research in the area of
premarital adeolescent sexual relations and pregnancy (S. Rep. 97-161,
97th Cong., 1st Sess. 1 (1981)).  When it enacted the AFLA in 1981,
Congress found that pregnancy and childbirth, particularly among young
adolescents, "often result() in severe adverse health, social, and
economic consequences" (42 U.S.C. 300z(a)(5)).  /2/ While prior
legislation had made a "promising start" in addressing the social
costs of adolescent pregnancy, Congress found that there "remain(ed) a
substantial need for coordinated, comprehensive services" (S. Rep.
97-161, supra, at 6).  It therefore sought to "(i)ncrease the
flexibility of the program to provide services that address the twin
problems of adolescent sexual relations and pregnancy" -- problems
that Congress believed to be "multidisciplinary in nature" (id. at
8-9).

   Among the objectives of the AFLA are "to promote self discipline
and other prudent approaches to the problem of adolescent premarital
sexual relations, including adolescent pregnancy";  "to promote
adoption as an alternative for adolescent parents";  and "to establish
innovative, comprehensive, and integrated approaches to the delivery
of care services for pregnant adolescents" (42 U.S.C. (& Supp. III)
300z(b)(1), (2) and (3)).  /3/ To achieve these ends, AFLA funds are
appropriated for projects that offer either "prevention services,"
which seek to discourage adolescent premarital sexual relations (see
42 U.S.C. 300z-1(a)(8)), or "care services," which provide care for
pregnant adolescents and adolescent parents (see 42 U.S.C.
300z-1(a)(7)).  /4/ The statute also delineates certain "necessary
services" that may be offered as part of prevention or care programs,
including, among other things, pregnancy testing and maternity
counseling (42 U.S.C. 300z-1(a)(4)(A));  adoption counseling and
referral services (42 U.S.C. 300z-1(a)(4)(B));  primary and preventive
health services including prenatal and postnatal care (42 U.S.C.
300z-1(a)(4)(C));  nutrition information and counseling (42 U.S.C.
300z-1(a)(4)(D));  educational services relating to family life (42
U.S.C. 300z-1(a)(4)(G));  consumer education and homemaking (42 U.S.C.
300z-1(a)(4)(L));  family planning services (42 U.S.C.
300z-1(a)(4)(P));  and referrals for screening and treatment of
veneral disease (42 U.S.C. 300z-1(a)(4)(E)), pediatric care (42 U.S.C.
300z-1(a)(4)(F)), licensed residential care or maternity home services
(42 U.S.C. 300z-1(a)(4)(I)), or mental or physical health services (42
U.S.C. 300z-1(a)(4)(J)).

   The AFLA contains two principal restrictions on the use of
appropriated funds.  First, pursuant to Section 300z-3(b)(1), funds
may not be used to provide family planning services, unless such
services are not otherwise available in the community.  This reflects
Congress's determination that "money spent on birth control services
under this program would divert resources from the purposes of the
act" (S. Rep. 97-161, supra, at 13).  Second, AFLA grants are limited
"to programs or projects which do not provide abortions or abortion
counseling or referral, or which do not subcontract with or make any
payment to any person who provides abortions or abortion counseling or
referral, except that any such program or project may provide referral
for abortion counseling to a pregnant adolescent if such adolescent
and the parents or guardians of such adolescent request such referral"
(42 U.S.C. 300z-10(a)).  Congress concluded that "legislation, to
foster alternatives to abortion, and to encourage adolescents to bring
their babies to term, serves a critical national interest" (S. Rep.
97-161, supra, at 20).

   2. In enacting the AFLA, Congress found that the complex problems
of adolescent premarital sexual relations, pregnancy, and parenthood
are best approached on several fronts.  "Recognizing the limitations
of Government in dealing with a problem that has complex moral and
social dimensions" (S. Rep. 97-161, supra, at 15), Congress
accordingly sought to draw, wherever possible, on the accumulated
resources and experience of existing institutions.

   For example, in approving applications for grants, the Secretary is
to give priority to applicants who "will utilize to the maximum extent
feasible existing available programs and facilities such as
neighborhood and primary health care centers" (42 U.S.C.
300z-4(a)(4)), and who "have involved the community to be served,
including public and private agencies, adolescents, and families, in
the planning and implementation of the demonstration project" (42
U.S.C. 300z-4(a)(7)).  In applying for funds, prospective grantees
must describe "existing pregnancy prevention services and programs of
care" and state how the services they intend to furnish will be
coordinated and integrated with other related programs and services
(42 U.S.C. 300z-5(a)(3) and (5)(A)).  And applicants must also
describe how they will identify and refer adolescents needing services
other than those provided directly by the applicant (42 U.S.C.
300z-5(a)(6)).  /5/

   Consistent with this objective of establishing "better
coordination, integration, and linkages" among existing community
programs (42 U.S.C. 300z(b)(3)), the AFLA requires project applicants
to describe how they will, "as appropriate in the provision of
services(,) * * * involve religious and charitable organizations,
voluntary associations, and other groups in the private sector as well
as services provided by publicly sponsored initiatives" (42 U.S.C.
300z-5(a)(21)).  Congress determined that such broadbased community
involvement would "help guarantee" the program's ultimate success (S.
Rep. 97-161, supra, at 15), and it believed that "nonprofit religious
organizations have a role to play in the provision of services to
adolescents" (id. at 16).  Congress also emphasized that "(r)eligious
affiliation is not a criterion for selection as a grantee" (ibid.),
but concluded that "promoting the involvement of religious
organizations in the solution to these problems is neither
inappropriate or illegal" (ibid.).  /6/

   3. Since passage of the AFLA in 1981, the Secretary has received
1,088 applications for grants and has awarded 141 grants.  In the
current grant cycle alone, the Secretary has received more than 400
applications and has made 37 new federal grant awards.  The government
presently funds 82 projects at an overall cost of approximately $10
million, and in issuing its grants it routinely informs funded
projects that they may not use the funds to inculcate religion (see,
e.g., J.A. 757, 759, 761).

   AFLA grantees cover a broad spectrum.  There have been grants, for
example, to state and county health departments, such as the Hawaii
Department of Health, the Guam Department of Public Health and Social
Services, and the Lyon County Health Department in Emporia, Kansas;
colleges and universities, such as the School of Public Health at the
University of South Carolina, the University of Utah, Emory
University, and Gallaudet College;  school districts, such as Tucson
United School District No. 1 in Tucson, Arizona, and Mt. Vernon Public
Schools in Mt. Vernon, New York;  hospitals, such as Family Hospital
in Milwaukee, Memorial General Hospital Association of Elkins, West
Virginia, and St. Mary's Hospital in Kansas City;  community health
associations, such as the SeMo Association of Public Health
Administrators in Missouri;  privately-operated health care centers,
such as the Charles Henderson Center in Troy, Alabama;  and community
and charitable organizations, such as Father Flanagan's Boys Home in
Omaha, Hull House of Chicago, Covenant House of New York City,
Catholic Family Services of Amarillo and YWCA's in Salem, Oregon and
St. Petersburg, Florida.

   The programs funded by the AFLA over its history reflect the
integration of community services that Congress sought to achieve.
/7/ Tucson Unified School District No. 1, for example, served as the
anchor agency for the Pima Associated Services for Adolescent Family
Education project (PASAFE).  The agencies involved in the PASAFE
program made available hundreds of filmstrips, books, pamphlets,
booklets and other materials for teens, parents, and others on topics
such as self-respect, stress, alcohol and teenagers, parents as sex
educators, marriage, decisionmaking, biology, menstruation, human
reproduction, family violence, prenatal care, child care,
single-parent families, parenting, childbirth, choosing doctors, child
development, nutrition, and baby foods.  J.A. 487, 714-717.  The
School District also operated the Teenager Parent Program, an
alternative school for pregnant and parenting youth (J.A. 486,
714-716).  In addition, it contracted with a number of metropolitan
based organizations, several of which are religiously affiliated, to
provide a comprehensive program of health, social, and educational
services to teens.  Among the organizations were three health
agencies:  Pascua Yaqui Tribe Health Department, St. Elizabeth of
Hungary Clinic, and El Rio Santa Cruz Health Center;  and three family
social service agencies:  Catholic Social Service, Jewish Family
Service and Arizona Children's Home.  Ibid.

   The Camden County Adolescent Family Life Program of Camden County,
New Jersey, served a wide range of different communities, ranging from
the city of Camden -- which has been rated by the Brookings Institute
as the ninth most distressed city in the nation -- to very affluent
communities.  See Pregnancy-Related Health Services:  Hearings Before
the Subcomm. on Health and the Environment of the Comm. on Energy and
Commerce, 99th Cong., 1st Sess. 126 (1985) (statement of Ruth W.
Salmon).  Camden County provided both prevention and care services.
It furnished information directly to adolescents through a variety of
approaches, including workshops;  it provided consultation to schools
in the development of their curricula relating to family life;  it
trained school teachers on family life education;  and it conducted a
workshop for parents entitled "Communicating With Your Child About
Sexuality." Id. at 127, 133-134.  During fiscal year 1984, these
prevention programs served 2790 youths, 409 parents, and 688 educators
(id. at 134).  Camden County's clinical programs attempted to prevent
repeat pregnancies among already pregnant teenagers and to provide
prenatal services that ensure the health of both mother and child (id.
at 127).  There was special focus on youth who bear a higher risk of
adolescent pregnancy, such as youth who have been incarcerated and the
siblings of already pregnant teens (ibid.).  During fiscal year 1984,
Camden County served 812 pregnant teens, 44 nonpregnant teens, 623
teen mothers, 290 infants of teen mothers, 425 male partners, and 909
extended family members in its care services program (id. at 136).

   Catholic Family Services of Amarillo, Texas (CFS), operated a
combined care and prevention program under AFLA.  Care services
provided by CFS included pregnancy counseling and testing, adoption
services, pre- and postnatal medical care, child care, family planning
information and referral services, consumer education, and educational
and vocational counseling.  Prevention services included presentations
on teen sexuality and decisionmaking for adolescents and their
families, courses for parents on educating their children about sex,
and counseling for sexually active adolescents and their families.
J.A. 446, 447, 710-712.  CFS had service agreements with state, county
and municipal health agencies;  county probation departments;  Texas
Tech University;  Amarillo Public System;  and Planned Parenthood
(J.A. 447-448, 694-695).  As part of its community outreach program,
CFS made presentations on teenager sexuality and services available
under the AFLA program at public and parochial schools, hospitals,
churches, civic groups, colleges, public libraries, county courthouses
and television and radio stations (J.A. 448-449, 694).

                       B. The Present Controvery

   1. Appellees, a group of taxpayers, clergymen, and the American
Jewish Congress, brought this action to enjoin the enforcement of the
care and prevention services provisions of the AFLA, claiming that the
Act violates the Religion Clauses of the First Amendment.  On April
15, 1987, the district court granted summary judgment in appellees'
favor (J.S. App. 1a-49a), declaring the Act unconstitutional, on its
face and as applied, "insofar as religious organizations are involved
in carrying out the programs and purposes of the Act" (id. at 48a).

   The court first considered the nature of facial and as-applied
challenges under the Establishment Clause and observed that the
distinction between them "has not been clearly delineated" in this
Court's decisions (J.S. App. 4a).  It concluded that a statute must be
struck down on its face even if a particular application of the
statute "is the only constitutionally offensive element to which the
court has pointed" (ibid.).  Proceeding to apply the three-part test
of Lemon v. Kurtzman, 403 U.S. 602 (1971), the court found that the
AFLA has a valid secular purpose (J.S. App. 17a-22a), but that it has
the primary effect of advancing religion, and that it promotes
excessive entanglement.  /8/

   With regard to the primary effect test, the court stated that
"(w)here the connection between a statute and religion is apparent
from the face of the statute," one need only inquire whether the
effect of the statute in advancing religion is "direct and immediate"
rather than "remote or incidential" (J.S. App. 23a-24a).  Only "where
the connection to religion is not apparent on the face of the statute
or from the nature of the government act itself," must a court
consider whether the beneficiary of that action is pervasively
sectarian (id. at 24a).  The court stated that where the effect on
religion is not direct and immediate, and the affected entity is not
pervasively sectarian, a court must further inquire whether the
statute nonetheless funds a specific religious activity (ibid.).

   Applying this test -- which the court acknowledged was "put more
nearly than the many decisions which form its base" (J.S. App. 25a) --
the court first held that the statute, on its face, has a primary
effect of advancing religion (id. at 27a-32a).  It examined the text
and legislative history of the AFLA (id. at 27a-28a) and found that
the statute "explicitly permits religious organizations to be grantees
and envisions a direct role for those organizations in the education
and counseling components of AFLA grants" (id. at 28a).  Applying the
analysis it had devised, the court therefore inquired whether the
statute "directly and immediately" advances religion, and it concluded
that it does.  The court reasoned that AFLA programs involve "teaching
by grant recipients and subcontractors * * * about the harm of
premarital sexual relations and the factors supporting a choice of
adoption rather than abortion, and these matters are fundamental
elements of religious doctrine" (ibid. (emphasis in original)).
Moreover, the court observed, "the AFLA contains no restrictions
whatsoever against the teaching of religion qua religion" (id. at
29a).  /9/ The court concluded that by subsidizing a fundamentally
religious mission and thereby creating a "crucial symbolic link"
between government and religion, the AFLA on its face has a primary
effect of advancing religion (id. at 30a-32a).

   The district court next held (J.S. App. 32a-38a) that the statute,
as applied, has a primary effect of advancing religion because grants
in practice have been made to "religious organizations." Declining to
"engage in an exhaustive recitation of the record" (J.S. App. 33a),
the court discussed several instances of what it found to be
objectionable use of grant funds (id. at 33a-38a).  /10/ The court
found (id. at 34a-35a) that ten grantees or subgrantees "were
themselves 'religious organizations' in the sense that they have
explicit corporate ties to a particular religious faith and by-laws or
policies that prohibit any deviation from religious doctrine." The
court also noted (id. at 33a) that other grantees, "while not
explicitly affiliated with a religious denomination, are religiously
inspired and dedicated to teaching the dogma that inspired them." And
the court found that several AFLA programs took place at sites adorned
with religious symbols and were administered by members of religious
orders, thereby causing participants in the programs to "believe()
that these federally funded programs were also sponsored by the
religious denomination" (id. at 37a).  The court did not find that any
of the participating organizations were "pervasively sectarian."

   Finally, the district court held (J.S. App. 39a-43a) that the
statute engenders excessive government entanglement with religion.
Without distinguishing among the various types of "religious
organizations" involved here, including universities, hospitals,
maternity homes, and YWCAs, the court surmised that "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" (id. at 40a).  And it found that the AFLA's
funding of one-on-one counseling of impressionable adolescents
substantially aggravates this problem (id. at 42a-43a).  /11/

   The district court therefore declared the AFLA unconstitutional and
enjoined its enforcement insofar "as it pertains to 'religious
organizations'" (J.S. App. 48a).  On May 22, 1987, the district court
issued an order staying the effect of its judgment until September 30,
1987, insofar as it pertains to current grantees (id. at 50a-51a).  On
August 10, 1987, the Chief Justice issued an order (No. A-99) granting
a stay pending appeal.

   2. On August 13, 1987, the date on which the Secretary docketed his
appeal (No. 87-253) from the district court's interlocutory order, the
district court entered a final judgment in the case (J.S. App.
52a-55a).  /12/ In that judgment, the district court held that the
AFLA's references to "religious organizations" are severable from the
balance of the statute.  Examining the language and legislative
history of the statute, the district court concluded (id. at 54a) that
"Congress would have enacted the AFLA without its reference to
'religious organizations,'" and that "the AFLA is fully and
constitutionally operative as law in a manner consistent with the
intent of Congress absent its references to 'religious
organizations.'"

   In the August 13, 1987 judgment, the court also denied the
Secretary's Rule 59(e) motion to clarify which grantees were
"religious organizations" within the meaning of the court's injunction
(J.S. App. 54a-55a).  It stated (id. at 54a) that it was "puzzled" by
the Secretary's request that it "define the term 'religious
organization,'" and it found (id. at 55a) that "the language of the
(April 15, 1987) Order is clear" on that point.  The court also stated
(ibid.) that "(t)here is * * * ample precedent in numerous statutes
and federal regulations defining the term 'religious organizations.'"

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   Congress enacted the AFLA to address the "severe adverse health,
social, and economic consequences" associated with adolescent
pregnancy (42 U.S.C. 300z(a)(5)).  It recognized, however, that the
problem was "multidisciplinary in nature" (S. Rep. 97-161, supra, at
9), with "complex moral and social dimensions" (id. at 15), and it
therefore sought to draw support from a wide array of community
groups, including "religious and charitable organizations, voluntary
associations, and other groups in the private sector as well as
services provided by publicly sponsored initiatives" (42 U.S.C.
300z-5(a)(21)).  By explicitly permitting religious groups, among
others, to assist in providing AFLA services, Congress recognized that
nonprofit religious organizations can play an important role in
delivering care and prevention services to adolescents (see S. Rep.
97-161, supra, at 16).

   In so doing, Congress broke no new ground.  For nearly a century,
governments and religious groups have cooperated in providing social
services to the community.  /13/ "(R)eligion has been closely
identified with our history and government," this Court observed in
Abington School Dist. v. Schempp, 374 U.S. 203, 212 (1963), and it is
therefore "inevitable that the secular interests of Government and the
religious interests of various sects and their adherents will
frequently intersect * * * and combine." Wallace v. Jaffree, 472 U.S.
38, 69-70 (1985) (O'Connor, J., concurring).  And because religion
shares with government a common concern with social welfare, the
government has never been barred from "acknowledging religion or from
taking religion into account in making law and policy" (ibid.).
Together, governments and religiously affiliated groups have tended to
the needs of the sick, /14/ the orphaned, /15/ delinquent adolescents,
/16/ and the poor.  /17/ And in recent years, religious organizations
have participated in a variety of programs funded by state and federal
governments -- programs that, according to one commentator, have
included such varied (and secular) enterprises as "hospitals, soup
kitchens, drug abuse programs, orphanages, emergency shelters, nursing
homes, family planning services, higher education, housing, job
training, economic development, refugee resettlement, Head Start,
tutoring, mental health programs, arts and humanities projects, school
lunches, and foreign disaster relief." McConnell, Political and
Religious Disestablishment, 1986 B.Y.U.L. Rev. 405, 421.  /18/

   Two factors, among others, may account for this historical
partnership.  The first is the intrinsic connection between religious
doctrine and social service.  For many religious persons, the call of
faith is also a call to service.  Religious persons have for that
reason traditionally been drawn to social action on behalf of the
needy.  B. Coughlin, Church and State in Social Welfare 21, 28-35,
38-43 (1965);  Pickrell & Horwich, "Religion as an Engine of Civil
Policy":  A Comment on the First Amendment Limitations on the
Church-State Partnership in the Social Welfare Field, 44 Law &
Contemp. Probs. 111, 112 (1981).  Second, and as a result, religious
organizations have over time developed an extensive infrastructure for
delivering social services to the community.  See Pickrell & Horwich,
supra, 44 Law & Contemp. Probs. at 112;  A. Reichley, Religion in
American Public Life 219-220 (1985).  Well-established charitable arms
of religious groups provide food, clothing and shelter to the needy,
and like other charitable organizations have done so in partnership
with government for many years.

   The district court, however, found that partnership to be
unconstitutional in the context of the AFLA care and prevention
programs.  Without stopping to inquire whether particular religiously
affiliated organizations were "pervasively sectarian" -- so that "a
substantial portion of their functions are subsumed in the religious
mission," Hunt v. McNair, 413 U.S. 734, 743 (1973) -- the court found
the AFLA objectionable because it had a "direct and immediate" effect
of advancing religion.  Among its other objectives, the statute funds
teaching and counseling on issues that, for some, are matters of
religious faith, and the court found it "simply unrealistic" "(t)o
presume that AFLA counselors from religious organizations can put
their beliefs aside when counseling an adolescent on matters that are
part of religious doctrine" (J.S. App. 30a).

   But it is the district court, and not Congress, that has applied an
unwarranted "presumption." The court presumed, at bottom, that no
religious person can deliver the AFLA care and prevention services
without inculcating religious doctrine.  The court thereby applied to
all "religious organizations" principles that have been developed
uniquely for "pervasively sectarian" institutions such as parochial
schools.  The district court thereby misapplied the three-part test
articulated in Lemon v. Kurtzman, 403 U.S. 602 612-613 (1971), and
reached a result inconsistent with the Court's Establishment Clause
jurisprudence and two centuries of history.

   A. The AFLA has a clearly secular purpose, as the district court
correctly found (J.S. App. 19a).  The text and legislative history
confirm that Congress sought to address "the problem caused by teenage
pregnancy and premarital sexual relations" (ibid.).  That plainly
secular purpose, moreover, is not pretextual simply because a prior
statute, supplanted by the AFLA, did not explicitly advert to the role
of religious organizations in the delivery of services.

   B. The primary effect of the statute, on its face and as applied,
neither advances nor inhibits religion.  This Court has explained that
such an impermissible effect may be found either where government aid
flows to a "pervasively sectarian" institution, or where it assists a
"specifically religious activity in an otherwise substantially secular
setting" (Hunt v. McNair, 413 U.S. 724, 743 (1973)).  Because it
applied a quite different "direct and immediate" test, the district
court made no such findings in this case.

   The court's failure to consider the central distinction in this
Court's cases between "pervasively sectarian" institutions (which
often are disabled from participating in government programs) and
other religiously affiliated institutions (which ordinarily may
participate on an equal footing) impairs both the facial and
as-applied analysis of the statute.  The court's facial analysis of
the statute fails because it effectively presumes that all "religious
organizations" are alike and that none can be expected to deliver the
AFLA services in a lawful, secular manner.  The court's as-applied
analysis is similarly flawed, since it never comes to grips with the
significant variations in nature and purpose among the individual AFLA
grantees.  Finally, the court also made no inquiry as to whether the
AFLA provides funds to specifically religious activity within an
otherwise secular setting.  On this record, however, no such findings
could have been made.

   C. The AFLA does not require excessive entanglement with religion.
This Court has never applied the entanglement doctrine outside the
special setting of pervasively sectarian institutions.  Two reasons
account for that result:  first, outside the context of a pervasively
sectarian grantee, monitoring by the government to ensure compliance
with the terms of a grant is simple monitoring, the kind of oversight
that occurs every day in the context of a great many government grant
programs;  and second, there is little or no basis for presuming that
religiously affiliated organizations that are not pervasively
sectarian will provide otherwise secular services in a forbidden,
non-secular manner.  In once more failing to distinguish between
"pervasively sectarian" and other "religious organizations," the
district court misapplied the entanglement doctrine.

                               ARGUMENT

 THE ADOLESCENT FAMILY LIFE ACT DOES NOT, EITHER ON ITS FACE OR AS
APPLIED, VIOLATE THE ESTABLISHMENT CLAUSE

   The Court has generally applied the three-part test set forth in
Lemon v. Kurtzman, 403 U.S. 602, 612-613 (1971) (citations omitted),
in evaluating Establishment Clause challenges to governmental action:
"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.'" Accord Corporation of the
Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v.
Amos, No. 86-179 (June 24, 1987), slip op. 7-11;  Grand Rapids Sch.
Dist. v. Ball, 473 U.S. 373, 382-383 (1985).  /19/ The AFLA satisfies
each of these requirements.

             A. The AFLA Has a Secular Legislative Purpose

   "The Court has invalidated legislation or governmental action on
the ground that a secular purpose was lacking, but only when it has
concluded there was no question that the statute or activity was
motivated wholly by religious considerations." Lynch v. Donnelly, 465
U.S. 668, 680 (1984) (emphasis added).  Indeed, "(e)ven where the
benefits to religion were substantial," the Court has found "a secular
purpose and no conflict with the Establishment Clause" (ibid.).
Accord Wallace v. Jaffree, 472 U.S. 38, 56 (1985).  Moreover, in
discerning the purpose for governmental action, the Court "is normally
deferential to a (legislature's) articulation of a secular purpose"
(Edwards v. Aguillard, No. 85-1513 (June 19, 1987), slip op. 7), and
is "reluctan(t) to attribute unconstitutional motives to (Congress),
particularly when a plausible secular purpose for the * * * program
may be discerned from the face of the statute." Mueller v. Allen, 463
U.S. 388, 394-395 (1983).  /20/ The district court applied those
principles and correctly concluded (J.S. App. 19a) that AFLA has the
clearly secular purpose of addressing "the problem caused by teenage
pregnancy and premarital sexual relations."

   The stated purposes of the AFLA (42 U.S.C. (& Supp. III) 300z(b))
are "to promote self discipline and other prudent approaches to the
problem of adolescent premarital sexual relations, including
adolescent pregnancy";  "to promote adoption as an alternative for
adolescent parents";  "to establish innovative * * * approaches to the
delivery of care services for pregnant adolescents";  to encourage
research on "the societal causes and consequence of adolescent
premarital sexual relations, contraceptive use, pregnancy, and child
rearing";  "to support evaluative research" that may help "alleviate *
* * any negative consequences of adolescent premarital sexual
relations and adolescent childbearing";  and "to encourage * * * the
dissemination of results" from the funded programs.

   To be sure, the AFLA permits religious organizations to participate
in funded programs, but only among a wide range of community groups
whose combined efforts would "help guarantee the ultimate success of
the() program by ensuring the early involvement of State, local and
private entities in the funding and support of the() program" (S. Rep.
97-161, supra, at 15).  By recognizing that "nonprofit religious
organizations have a role to play in the provision of services to
adolescents" (id. at 16), Congress promoted, rather than undermined,
the unquestionably secular purposes of the Act.

   Appellees contended below, however, that the stated purposes of the
statute are pretextual.  In their view, the fact that Congress
substituted the AFLA for the Health Services and Centers Amendments of
1978, Pub. L. No. 95-626, Tit. VI, 92 Stat. 3595, and added, inter
alia, an explicit reference in the statute to religious organizations,
demonstrates that the Act lacks a secular purpose.  The district court
correctly rejected that claim (J.S. App. 20a-22a).

   First, by permitting religious organizations to participate in the
delivery of services, Congress did not "abandon() neutrality and act()
with the intent of promoting a particular point of view in religious
matters." Corporation of the Presiding Bishop of the Church of Jesus
Christ of Latter-day Saints v. Amos, No. 86-179 (June 24, 1987), slip
op. 7.  Quite the contrary, it sought to ensure that funded projects
take account of an important social reality:  that "religious
organizations can play a vital role in furthering secular values"
(J.S. App. 21a-22a).  Congress included religious organizations simply
as one participant among "a wide array of educational, health, and
supportive services" (42 U.S.C. 300z(a)(9)) whose combined efforts
were required to deliver secular services to adolescents in need.
/21/

   Furthermore, as the court noted (J.S. App. 21a), "Title VI was
amended not only to add religious organizations to the list of
entities that may participate in AFLA programs, but also to add
families, charitable organizations, voluntary associations and other
groups." It was amended in other ways as well, including the addition
of a program of research grants.  See 42 U.S.C. 300z-7.  It cannot be
said, therefore, that the law was changed solely to ensure the
participation of religious organizations in funded programs.  /22/

 B. The Primary Effect of The AFLA Neither Advances Nor Inhibits
Religion

   In Hunt v. McNair, 413 U.S. 734, 743 (1973), the Court articulated
the standard for assessing "primary effect" under the Establishment
Clause:

         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.

   Accord, e.g., Roemer v. Maryland Pub. Works Bd., 426 U.S. 736, 752,
755 (1976) (plurality opinion).  See also Grand Rapids Sch. Dist. v.
Ball, 473 U.S. at 388 (found impermissible effect, citing "pervasively
sectarian environment of a religious school");  Meek v. Pittenger, 421
U.S. at 371 (found impermissible effect where "education is an
integral part of the dominant sectarian mission" and "atmosphere
dedicated to the advancement of religious belief is constantly
maintained").  The district court, however, did not apply that
standard and therefore did not inquire either as to the pervasively
sectarian nature of the AFLA grantees or as to the funding of
specifically religious activities.  Instead, the court proposed a
novel standard (J.S. App. 25a):  "If the connection between religion
and the challenged government statute or practice is clear from the
face of the statute, the Court must determine whether that statute has
the 'direct and immediate' effect of advancing religion." Examining
the text and legislative history of the statute, the court found that
there was a "clear connection between religious organizations and the
federally funded AFLA programs" and it therefore applied the "'direct
and immediate' effect analysis" (id. at 28a).  That test was met in
this case, the court concluded, because the statute authorizes funding
to teach and counsel on matters closely related to religious beliefs,
and the court was unwilling to presume that counselors in that
situation "can put their beliefs aside" (id. at 30a).

   It is the district court, however, and not Congress, that has
indulged an unwarranted presumption -- that any "religious
organization," regardless of its nature or purposes, will be driven by
religious beliefs to violate the terms of its AFLA grant by
inculcating religion.  The Court's cases make clear that absent an
initial determination that a particular recipient of assistance is "so
permeated by religion that the secular side cannot be segregated from
the sectarian" (Roemer, 426 U.S. at 759) religiously affiliated
organizations may participate fully in governmental programs.  Only by
presuming otherwise could the district court strike down the statute
on its face.  And that presumption impaired the court's as-applied
analysis as well, since it distracted the court from undertaking the
intensive examination of the sectarian nature of the individual
grantees that is required by this Court's cases.  Finally, the effect
of the court's approach, as demonstrated by its decision in this case,
is to draw a line of separation that excludes from major areas of
national life all organizations and undertakings that maintain any
religious affiliation or allegiance.

   1. a. This Court's cases involving government funding programs make
clear that the heart of any Establishment Clause analysis is whether
the assisted organizations are pervasively sectarian in nature.  The
critical importance of that inquiry is best reflected in the crisp
distinction drawn by this Court between primary and secondary
parochial schools, whose mission often disables them from receiving
governmental assistance, and other religiously-affiliated
organizations, which are ordinarily free to participate in government
programs on an equal footing.  The Court has observed that in
parochial schools, education and counseling are "integral part(s) of
the dominant sectarian mission * * * in which an atmosphere dedicated
to the advancement of religious belief is constantly maintained." Meek
v. Pittenger, 421 U.S. 349, 371 (1975).  The Court has emphasized that
in a parochial school setting "(r)eligious authority necessarily
pervades the school system," and that it is the "substantial religious
character of * * * church-related schools" (Lemon v. Kurtzman, 403
U.S. at 616-617), that requires the Court to be "particularly
vigilant" (Edwards v. Aguillard, No. 85-1513 (June 19, 1987), slip op.
4).  The "danger that a teacher under religious control and discipline
poses to the separation of the religious from the purely secular" is a
"conflict of functions (that) inheres in the situation" (Lemon v.
Kurtzman, 403 U.S. at 617).  Put another way, "where the teacher works
within and for a sectarian institution, an unacceptable risk of
fostering of religious is an inevitable byproduct." Wolman v. Walter,
433 U.S. 229, 254 (1977).  See also Grand Rapids Sch. Dist. v. Ball,
473 U.S. 373, 384-385, 391-392 (1985);  NLRB v. Catholic Bishop, 440
U.S. 490, 501-504 (1979).  /23/

   But there are a great many "religious organizations" -- such as the
hospitals and maternity homes providing care to pregnant teenagers
here -- that are fully capable of discharging their services without
permitting "ideological content * * * (to) creep in()" (Grand Rapids
Sch. Dist., 473 U.S. at 389).  "(T)he proposition that the
Establishment Clause prohibits any program which in some manner aids
an institution with a religious affiliation has consistently been
rejected" (Hunt v. McNair, 413 U.S. at 742).  Indeed, the Court has
upheld government aid to such religiously affiliated institutions as
colleges and hospitals, where the aid might indirectly advance the
religious mission, but where the institution itself was not
"pervasively sectarian" in nature.

   The leading cases have involved religiously affiliated colleges,
where the Court has upheld government aid that was used for other than
"specifically religious activity." See Roemer v. Maryland Pub. Works
Bd., 426 U.S. 736, 740-741, 759 (1976) (noncategorical grants to
private colleges for other than "sectarian purposes");  Hunt v.
McNair, 413 U.S. 734, 739 (1973) (state statute authorizing issuance
of revenue bonds for construction of private college or university
facilities "not to be used for sectarian instruction or as a place of
religious worship, or in connection with any part of the program of a
school or department of divinity");  Tilton v. Richardson, 403 U.S.
672, 675 (1971) (federal construction grants for private college or
university facilities not "to be used for sectarian instruction or as
a place of worship * * * or to be used primarily in connection with
any part of the program of a school or department of divinity").  In
these cases, the Court was not troubled, as the district court was
here, by the fact that the institutions were religiously affiliated,
or that there were various indicia of that affiliation present in the
day-to-day operations of the schools.  Rather, the Court made clear
that if, when viewed in its entirety, an institution is not "so
permeated with religion that the secular side can not be separated
from the sectarian" (Roemer, 426 U.S. at 759), then governmental aid
does not become inpermissible due simply to church affiliation or
control (Hunt, 413 U.S. at 743;  Tilton, 403 U.S. at 686);  the
inclusion in the curriculum of matters of religious doctrine (Tilton,
403 U.S. at 680), or even compulsory courses on such subjects,
(Roemer, 426 U.S. at 756);  the employment by the university of
clerics as teachers or in other positions (Roemer, 426 U.S. at 755);
or the presence of prayer or religious practice as an integral part of
university life (id. at 755-756).  Provided that the assistance is not
itself being used to advance an explicitly sectarian aspect of the
institution's activities, it is clear under these cases that no
impermissible effect of aiding religion arises where the institutions
assisted are not pervasively sectarian.  Roemer, 426 U.S. at 759;
Hunt, 413 U.S. at 744;  Tilton, 403 U.S. at 680-681.

   The Court made much the same point in Bradfield v. Roberts, 175
U.S. 291 (1899), in upholding a grant of $30,000 to a hospital to be
used for the construction of buildings.  The hospital, which was
operated by a sisterhood of the Roman Catholic Church, had previously
been incorporated by an act of Congress, giving the hospital the power
to provide "for the care of such sick and invalid persons as may place
themselves under the treatment and care of the said corporation." Act
of Apr. 8, 1864, ch. 50, Section 2, 13 Stat. 44.  The Court held that
although the hospital was "conducted under the auspices of the Roman
Catholic Church," which "exercise(d) great and perhaps controlling
influence over the management of the hospital," the hospital's charter
was limited to the purpose of operating a hospital (175 U.S. at 298).
See Roemer v. Maryland Pub. Works Bd., 426 U.S. at 746.  Because the
charter ensured that the hospital's mission was not fundamentally
religious, the Court refused to inquire into "the individual beliefs
upon religious matters of the various incorporators" (175 U.S. at
298).  Even though "the influence of any particular church may be
powerful over the members of a non-sectarian and secular corporation,"
the Court stated, such influence was "surely not sufficient to convert
such a corporation into a religious or sectarian body" (ibid.).

   b. The district court thus made a critical error in failing to
begin its inquiry "with a consideration of the nature of the
institutions in which the programs operate" (Grand Rapids Sch. Dist.
v. Ball, 473 U.S. at 384), and in proceeding instead as though all
"religious organizations" -- whether pervasively sectarian or not --
are the same.  That failure infects its analysis of both the facial
and as-applied challenges to the statute.

   Preliminary, we note that the district court recognized no clear
analytical distinction between facial and as-applied challenges under
the Establishment Clause (J.S. App. 4a).  It concluded (ibid.
(emphasis in the original)) that even if a "possible application ()"
of the statute is "the only constitutionally offensive element to
which the court has pointed," a court is nevertheless obligated to
"strike down the statute on its face."

   That method of examining a statute on its face, which the district
court acknowledged (J.S. App. 4a) to be "different from that usually
employed when considering constitutional claims," cannot be squared
with this Court's explanation in United States v. Salerno, No. 86-87
(May 26, 1987), slip op. 5, that in mounting a facial challenge to a
legislative Act, "the challenger must establish that no set of
circumstances exists under which the Act would be valid." Cf. City
Council v. Taxpayers for Vincent, 466 U.S. 789, 800 & n.19 (1984);
New York v. Ferber, 458 U.S. 747, 773 (1982);  Hoffman Estates v.
Flipside, Hoffman Estates, 455 U.S. 489, 494 & n.5 (1982).  Applying
the appropriate standard, the AFLA is plainly constitutional on its
face.  Since the AFLA does not, on its face, require or suggest that
the religious organizations participating in AFLA programs must be
pervasively sectarian, one cannot simply assume that the Secretary
will exercise his discretion to involve such groups in the program or
that funds will be expended in an impermissibly religious manner.
Without such an unwarranted assumption, the district court lacked any
legitimate basis to find the statute invalid on its face.

   The district court's "as applied" examination of the actual
grantees fares no better, for here again the court neglected to
determine whether individual grantees are pervasively sectarian.  /24/
The court began, instead, with the mistaken premise that all religious
organizations are essentially the same.  It casually asserted that
"(t)he character and purpose of 'religious organizations' is
self-evident.  The definition of 'religious organizations' so clearly
means organizations with a religious character and purpose that 'one
would necessarily need to consult a lawyer to effectively misconstrue
it.'" J.S. App. 40a (citation omitted).  /25/ With that all-embracing
premise, the court apparently barred participation in the AFLA of all
organizations with any religious identification or association,
however remote.  Compare Hunt v. McNair, 413 U.S. at 746-747 n.8
("formal denominational control over a liberal arts college does not
render all aid to the institution a violation of the Establishment
Clause").

   This cursory as-applied approach ignores the wide diversity in
American religious life.  See Note, Developments in the Law --
Religion and the State, 100 Harv. L. Rev. 1606, 1613 (1987).
Religious organizations vary in structure, purpose, degree of
affiliation, and commitment to a theological regime.  They range in
nature and mission from churches and parochial schools, whose
functions include the propagation of religious doctrine, to social
welfare organizations, which provide aid to the needy in a secular
setting, without regard to religious orientation, and which are
operated by professional staffs bound by ethical standards that
preclude religious inculcation.

   Largely for that reason, this Court has held that in order "(t)o
answer the question whether an institution is so 'pervasively
sectarian' that it may receive no direct state aid of any kind, it is
necessary to paint a general picture of the institution, composed of
many elements" (Roemer, 426 U.S. at 758).  The Court has steadfastly
refused to "strike down an Act of Congress on the basis of a
hypothetical 'profile'" of the "'typical sectarian' institution"
(Tilton v. Richardson, 403 U.S. at 682).  Instead, the Court has
insisted that account be taken of a wide range of characteristics,
including formal affiliation (Roemer, 426 U.S. at 755), institutional
antonomy (ibid.; Tilton, 403 U.S. at 680), curriculum (Roemer, 426
U.S. at 756), hiring policies (Roemer, 426 U.S. at 757;  Hunt, 413
U.S. at 743-744), source of program participants (Roemer, 426 U.S. at
757-758;  Hunt, 413 U.S. at 743-744), and symbolic representations
(Tilton, 403 U.S. at 680).  Because the as-applied inquiry is
intensively factual, the Court has explained that "(i)ndividual
projects can be properly evaluated if and when challenges arise with
respect to particular recipients and some evidence is then presented
to show that the institution does in fact possess these (pervasively
sectarian) characteristics" (ibid.).  The district court's concept of
a "religious organization," which requires no "more than a formalistic
church relationship" (Hunt v. McNair, 413 U.S. at 746-747 n.8), cannot
be sustained.  /26/

   Moreover, in the several instances in which the court at least
inquired into the sectarian nature of a particular grantee, it made
obvious legal and factual errors.  /27/ It faulted St. Ann's Infant
and Maternity Home, for example, because its affiliation with the
Catholic Archdiocese prohibits it from "counsel(ing) or refer(ring)
patients for abortions" (J.S. App. 34a).  The court likewise found
Family of the Americas Foundation an inappropriate grantee, because it
was "inspired" by a religious doctrine opposing abortion (id. at 35a).
 But the statute itself imposes the same restriction on the funded
programs (see 42 U.S.C. 300z-3(b)(1), 300z-10(a)), and it is hard to
see why grantees that obey the restrictions on abortion services have
impermissibly promoted religion, merely because the grantees are
agreeable to the restrictions by virtue of their religious beliefs.
/28/

   The court also noted that in certain cases AFLA grantees had
conducted programs "on sites adorned with religious symbols" (J.S.
App. 36a).  But while some grantees did hold occasional community
outreach programs at local churches and parochial schools, the same
grantees also held meetings at public schools and in other secular
settings (J.A. 455, 456, 485, 576).  Taken as a whole, these
particular programs did not have the primary effect of advancing
religion, simply because they involved some outreach sessions that
were conducted in local religious facilities.  /29/ The Court's
decisions make clear that not all association between publicly
sponsored activities and religious symbolism or references must be
avoided.  E.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (creche);
Marsh v. Chambers, 463 U.S. 783 (1983) (opening prayer in state
legislature);  Cf. Tilton, 403 U.S. at 681.  Rather, such symbolism
is, at most, a factor for a court to consider in evaluating the
pervasively sectarian nature of the institution involved.  See Lemon
v. Kurtzman, 403 U.S. at 615-616.

   2. Even in the absence of a finding of assistance to a pervasively
sectarian organization, a court must strike down a program of
governmental aid where it is channeled to "a specifically religious
activity in an otherwise substantially secular setting" (Hunt v.
McNair, 413 U.S. at 743).  The district court made no such inquiry in
this case, however, having already invalidated the statute under its
novel "direct and immediate" test.  No such finding could have been
made in any event.  By its terms, the statute provides support for
demonstration projects that provide care or prevention services (42
U.S.C. 300z-3(a)(1)).  The projects involve such facially neutral
services as "pregnancy testing" (42 U.S.C. 300z-1(a)(4)(A)), "adoption
counseling and referral services" (42 U.S.C. 300z-1(a)(4)(B)),
"prenatal and postnatal care" (42 U.S.C. 300z-1(a)(4)(C)), and
referrals to pediatric, mental health, residential care, or maternity
home services (42 U.S.C. 300z-1(a)(4)(F), (I) and (J)).  The Secretary
has also taken pains to ensure that AFLA funds are used only for the
secular objects mandated by the statute, and includes in the grant
awards a careful proscription against engaging in religious activity
(see J.A. 757, 759, 761).  And, where appropriate, the Secretary has
acted to eliminate departures from the secular terms of the grant by
individual grantees (see p. 41, infra).

   The district court noted (J.S. App. 27a-28a) that several of the
services funded under the AFLA involve "education" or "counseling" of
adolescents.  This Court's cases, however, do not permit the
presumption -- implicitly indulged by the district court -- that all
religiously affiliated organizations are incapable of carrying out
such functions in a lawful, secular manner.  In Roemer v. Maryland
Pub. Works Bd., 426 U.S. 736 (1976), for example, a plurality of the
Court upheld noncategorical grants to colleges, among them religiously
affiliated colleges, under a statute that simply stipulated that none
of the funds could be used for sectarian purposes (id. at 755-758).
In light of the statutory proscription, the Court was unwilling to
assume (as the district court did in the present case) that the
recipients would use the funds to promote "'specifically religious
activity'" (id. at 759 (quoting Hunt v. McNair, 413 U.S. at 743)).
The Court emphasized in Roemer that it "must assume that the colleges
* * * will exercise their delegated control over use of the funds in
compliance with the statutory, and therefore the constitutional,
mandate" (426 U.S. at 760).  And in marked contrast to the approach
taken by the court below, the Court cautioned (id. at 761) that "(i)t
has not been the Court's practice, in considering facial challenges to
statutes of this kind, to strike them down in anticipation that
particular applications may result in unconstitutional use of funds."
Accord Tilton v. Richardson, 403 U.S. at 682.  /30/

   The district court also noted (J.S. App. 28a) that the AFLA
supports education programs that touch on "matters (that) are
fundamental elements of religious doctrine." But issues of public
importance are frequently the subject of both secular and theological
concern, and the Establishment Clause is not violated simply because a
matter "happens to coincide or harmonize with the tenets of some or
all reigious." McGowan v. Maryland, 366 U.S. 420, 442 (1961).  Accord
Lynch v. Donnelly, 465 U.S. at 682;  id. at 715-716 (Brennan, J.,
dissenting);  Marsh v. Chambers, 463 U.S. 783, 792 (1983);  Harris v.
McRae, 448 U.S. 297, 319 (1980).

   The district court professed particular concern (J.S. App. 29a-30a)
about the abortion restrictions imposed by the statute, noting (id. at
30a) that "(i)t is a fundamental tenet of many religions" that
abortion is wrong, and surmising that it is "simply unrealistic" to
presume that AFLA counselors "can put their beliefs aside when
counseling an adolescent" (ibid.).  We agree that abortion is a
central concern of many religious faiths.  It is equally true,
however, that abortion can be discussed in purely secular terms.  /31/
The question, in our view, is not whether abortion (or any other
matter involved in AFLA services) is capable of being discussed in
religious terms.  Indeed, it is difficult to conceive of any issue
addressed by government or society at large that is not susceptible to
religous instruction.  /32/ The issue is, instead, whether a
particular participation in a governmental program must be presumed to
be unable to convey that subject in lawful, secular terms.  Outside
the context of a pervasively sectarian institution, there is no
authority in this Court's cases for presuming that religously
affiliated organizations will deliver otherwise secular services in a
manner that makes them specifically religious.

   3. Instead of inquiring whether AFLA funds have been used to endow
"pervasively sectarian" institutions or to support "specifically
religious activities," the district court applied a test of its own
making.  It stated that whenever "the connection between religion and
the challenged government statute or practice is clear from the face
of the statute," the court need only determine whether that statute
has the "direct and immediate" effect of advancing religion (J.S. App.
25a).

   This approach is entirely unprecedented.  None of the cases relied
on by the district court announce any such departure from the Hunt
standard.  /33/ And while this Court has referred to the "direct and
immediate" effect of a governmental action, it has used those terms to
describe the inquire that must be made after a court determines that
the assistance in question has gone to a pervasively sectarian
organization.  In particular, the Court has held that even a
pervasively sectarian institution may receive governmental assistance
where that aid is only "incidental" and not "direct" or "substantial."
See, e.g., Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373, 394 & n.12
(1985);  Meek v. Pittenger, 421 U.S. 349, 371 n.21 (1975);  Committee
for Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S. 756, 771,
775 (1973).  The district court simply omitted the initial step in the
analysis, by invalidating direct or immediate aid to "religious
organizations," without first considering whether any of them were
pervasively sectarian.  /34/

   The district court's approach in this case implements a form of
"religious gerrymander()" (Walz v. Tax Comm'n, 397 U.S. 664, 696
(1970) (Opinion of Harlan, J.)), under which religious organizations
are singled out for exclusion from participation in various national
programs, without regard to their particular beliefs or the nature of
their affiliation.  The district court's reasoning would prohibit
Congress from recognizing and accommodating the reality that religious
organizations constitute a major portion of the private sector
entities engaged in providing social services to those in need.  To
ensure the success of its programs, and in fairness to those whose
religious beliefs motivate them to participate in social services,
Congress must be allowed to cast its net widely, and not to exclude a
vast and uniquely effective segment of the nation's charitable and
social network.  The court's broad rule exhibits a systematic
"hostility" to religion (Lynch v. Donnelly, 465 U.S. at 673), since it
bars religious organizations of all kinds from participating in the
AFLA programs -- regardless of whether they are grantees,
sub-grantees, or non-funded participants;  regardless of whether they
perform a counseling function or not;  regardless of whether they
offer care or prevention services;  regardless of the premises on
which their work is done;  regardless of whether their role consists
of nothing more than referring troubled teenagers to funded programs
elsewhere;  and regardless of how faithfully they have previously
discharged the secular purposes of the statute.  That hostility
offends the First Amendment, for just as the government may not
endorse or exhibit a preference for a particular religion, or for
religion in general (Lynch, 465 U.S. at 690 (O'Connor, J.,
concurring)), neither may it diminish one's "standing in the political
community" on account of religious belief (id. at 687).  See Abington
Sch. Dist. v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg, J.,
concurring);  Zorach v. Clauson, 343 U.S. 306, 314 (1952);  Illinois
ex rel. McCollum v. Board of Educ., 333 U.S. 203, 211-212 (1948).
Moreover, a policy that invites the participation of private
organizations generally, but advises that religious organizations
"need not apply," would raise serious equal protection issues.  See
Widmar v. Vincent, 454 U.S. 263, 274-275 (1981);  Roemer v. Maryland
Pub. Works Bd., 426 U.S. at 746 n.13.

   4. We do not contend that there were no departures from proper
constitutional principles in individual AFLA programs.  The district
court correctly found (J.S. App. 36a-37a) that Catholic Charities of
Arlington held AFLA classes in religious settings and that its
inclusion of religious discussions at the conclusion of otherwise
secular AFLA programs raises serious concerns.  In another case, a
grantee (SUMA) proposed to "include() "spiritual counseling' in its
AFLA program" (id. at 36a), while another grantee (St. Margaret's) did
at one point use curricula that "included explicitly religious
materials" (ibid.).

   Such departures are not representative of the many different
programs funded under the AFLA, including those in which religious
organizations participated.  And these departures do not justify a
holding that the AFLA is unconstitutional when applied to the larger
number of programs that were in full compliance with the law.  Still
less do they warrant a finding that the Act is invalid on its face.
"A possibility always exists, of course, that the legitimate
objectives of any law or legislative program may be subverted by
conscious design or lax enforcement.  But judicial concern about these
possibilities cannot, standing alone, warrant striking down a statute
as unconstitutional." Tilton v. Richardson, 403 U.S. at 679.  In
Tilton the Court found it sufficient that the statute directed that
funds be used for secular purposes only;  and while in Tilton, as
here, departures had apparently taken place, the Court was satisfied
that "the record show(ed) that some church-related institutions ha(d)
been required to disgorge benefits for failure to obey" the
restrictions on the grant (id. at 680).

   Finally, where there were departures from proper constitutional
practice, they were met by firm action by the Secretary.  The
Secretary terminated the Arlington program, advised SUMA that its
counseling program was "not legally permissible" and should be revised
accordingly, and notified St. Margaret's that it must eliminate
religious material from its program because "teach(ing) or promot(ing)
the views of a particular religion is impermissible under the First
Amendment" (see J.A. 517-519, 675-676, 742-743).

   C. The AFLA Does Not Foster Excessive Entanglement With Religion

   In Lemon v. Kurtzman, 403 U.S. at 615, this Court observed that
"(i)n 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." In subsequent cases, the Court has made
clear that the first factor -- the nature of the institution -- is
critical to the inquiry.  Indeed, to our knowledge, the Court has
never found excessive entanglement where the recipient of governmental
funds was not a church or a parochial school.  Because the district
court here steadfastly refused to focus on the nature of the specific
institutions involved, or to recognize any distinctions among the
types of "religious organizations" that may participate in AFLA
programs, it misapplied the entanglement doctrine.

   1. This Court first applied the entanglement doctrine in Lemon v.
Kurtzman, 403 U.S. 602 (1971), striking down Rhode Island and
Pennsylvania programs that reimbursed parochial schools for the cost
of teacher salaries and related educational expenses.  The Court noted
at length (id. at 615-616, 620) the features of the respective schools
that posed a "grave potential for excessive entanglement" (id. at
615).  The Rhode Island schools were "located close to parish
churches";  contained "identifying religious symbols";  maintained
"religiously oriented extracurricular activities";  drew two-thirds of
their teachers from various religious orders;  and, in general,
"constituted 'an integral part of the religous mission of the Catholic
Church'" (id. at 615-616).  The Pennsylvania schools were likewise
"controlled by religious organizations, ha(d) the purpose of
propagating and promoting a particular religious faith, and
conduct(ed) their operations to fulfill that purpose" (id. at 620).
Moreover, the aid in question involved teachers, and the Court
observed that while "a textbook's content is ascertainable, * * * a
teacher's handling of a subject is not" (id. at 617).  As the Court
put it (id. at 618), "(w)e need not and do not assume that teachers in
parochial schools will be guilty of bad faith or any conscious design
to evade the limitations imposed by the * * * First Amendment.  We
simply recognize that a dedicated religious person, teaching in a
school affiliated with his faith or her faith and operated to
inculcate its tenets, will inevitably experience great difficulty in
remaining religiouly neutral." The central concern was thus the
pervasively sectarian environment.

   Aguilar v. Felton, 473 U.S. 402 (1985), the Court's most recent
application of the entanglement doctrine, confirms that only in
pervasively sectarian settings is the entanglement dilemma presented.
In Aguilar the Court held unconstitutional a New York City program
under which Title I educational services were provided on the premises
of local parochial schools to meet the needs of educationally deprived
children in such areas as remedial reading and mathematics, English as
a second language, and guidance counseling.  The Court noted two
"critical elements" of entanglement that were present in the case.
First, "the aid is provided in a pervasively sectarian environment."
Second, "because assistance is provided in the form of teachers,
ongoing inspection is required to ensure the absence of a religious
message." Id. at 412.  As a result, the Court concluded (id. at 413):
"This pervasive monitoring by public authorities in the sectarian
schools infringes precisely those Establishment Clause values at the
root of the prohibition of excessive entanglement * * *.  In short,
the religious school, which has as a primary purpose the advancement
and preservation of a particular religion, must endure the ongoing
presence of state personnel whose primary purpose is to monitor
teachers and students in an attempt to guard against the infiltration
of religious thought."

   The Court went on in Aguilar to note precisely why this state of
affairs is unacceptable (473 U.S. at 414):  "The numerous judgments
that must be made by agents of the city concern matters that may be *
* * of deep religious significance to the controlling denominations.
* * * At the same time, 'the picture of state inspectors prowling the
halls of parochial schools and auditing classroom instruction surely
raises more than an imagined spector of governmental "secularization
of a creed."' Lemon v. Kurtzman 403 U.S. at 650 (opinion of Brennan,
J.)."

   Where institutions are not pervasively sectarian, on the other
hand, the entanglement concerns articulated by the Court are
unwarranted.  The Court has routinely rejected entanglement claims in
such cases.  See, e.g., Roemer v. Maryland Pub. Works Bd., 426 U.S.
736 (1976);  Hunt v. McNair, 413 U.S. 734 (1973);  Tilton v.
Richardson, 403 U.S. 672 (1971).  See also Wolman v. Walter, 433 U.S.
229, 246-248 (1977).  Two factors may explain those different results.

   First, where the grantee is not pervasively sectarian, it cannot be
said that surveillance by the government (to ensure compliance with
the terms of the grant) is an "intrusion * * * into the precinct()" of
the Church (Lemon, 403 U.S. at 614).  /35/ Where no pervasively
sectarian grantee is involved, the government's monitoring of the
grantee is just that -- monitoring -- precisely the sort of
supervision that the government exercises in its many other grant
programs.  See Roemer v. Maryland Pub. Works Bd., 426 U.S. at 764.

   Second, where the recipient of government funds is not pervasively
sectarian, there is also a sharply reduced basis for presuming that
the grantee will violate the terms of the grant by inculcating
religious doctrine.  A plurality of this Court made that point in
Roemer v. Maryland Pub. Works Bd., supra.  It observed that the
institutions in question, while religiously affiliated, were not
pervasively sectarian and concluded that that factor was "important
for purposes of the entanglement test because it means that secular
activities, for the most part, can be taken at face value.  There is
no danger, or at least only a substantially reduced danger, that an
ostensibly secular activity * * * will be infused with religious
content or significance.  The need for close surveillance of
purportedly secular activities is correspondingly reduced" (426 U.S.
at 762).  Accord Tilton v. Richardson, 403 U.S. at 687.  /36/

   2. In deciding the entanglement question in this case, the district
court did not consider whether the AFLA grantees (or any one of them,
for that matter) are pervasively sectarian.  It was enough for the
court that "religious organizations" -- broadly defined to include
affiliated institutions of all stripes -- were participants in the
programs and that education and counseling activities were involved.
But this Court has always begun its inquiry by examining the nature of
the particular entities involved in the program, and it has never
found a grant program impermissibly entangling where a grantee,
although religiously affiliated, was not pervasively religious.  The
district court's failure to make any finding about the sectarian
nature of the many types of "religious organizations" involved in the
AFLA programs requires that its judgment be reversed.  /37/

                              CONCLUSION

   The judgment of the district court should be reversed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   RICHARD K. WILLARD

      Assistant Attorney General

   DONALD B. AYER

      Deputy Solicitor General

   ROBERT J. CYNKAR

      Deputy Assistant Attorney General

   LAWRENCE S. ROBBINS

      Assistant to the Solicitor General

   MICHAEL JAY SINGER

   JAY S. BYBEE

      Attorneys

   JANUARY 1988

   /1/ Unless otherwise indicated, citations to "J.S. App." refer to
the Appendix to the Jurisdictional Statement in No. 87-431.

   /2/ In particular, Congress identified such risks as "a higher
percentage of pregnancy and childbirth complications;  a higher
incidence of law birth weight;  a higher frequency of developmental
disabilities;  higher infant mortality and morbidity;  a decreased
likelihood of completing schooling;  a greater likelihood that an
adolescent marriage will end in divorce;  and higher risk of
unemployment and welfare dependency" (42 U.S.C. 300z(a)(5)).

   /3/ In addition, the Secretary is required to give priority to
applicants who "serve an area where there is a high incidence of
adolescent pregnancy(,)" and who "serve an area with a high proportion
of low-income families and where the availability of programs of care
for pregnant adolescents and adolescent parents is low" (42 U.S.C.
300z-4(a)(1) and (2)).

   /4/ The AFLA also authorized funds to support research projects
concerning the societal causes and consequences of adolescent
premarital sexual relations and pregnancy (see 42 U.S.C. 300z-7,
300z-(b)(4), (5) and (6)).  The present lawsuit does not challenge
that portion of the statute (see J.S. App. 5a).

   /5/ The Secretary is also to give priority to applicants who "can
demonstrate a community commitment to the program by making available
to the demonstration project non-Federal funds, personnel, and
facilities" (42 U.S.C. 300z-4(a)(6)).

   /6/ Congress noted that under Title VI of the Health Services and
Centers Amendments of 1978, Pub. L. No. 95-626, 92 Stat. 3595, the
predecessor to AFLA, the Secretary had awarded grants to several
religiously-affiliated organizations.  S. Rep. 97-161, supra, at 16.

   /7/ Because AFLA projects may be funded for no more than a
five-year period (42 U.S.C. 300z-4(c)(1)), all but one of the projects
as to which evidence was submitted (including the projects listed here
and those cited by the district court) are no longer funded.  We
mention these projects as typical of those that have been or are
currently being funded under the Act.

   /8/ As a preliminary matter, the court rejected appellant's
argument that appellees lack standing to challenge the
constitutionality of the statute as applied (J.S. App. 8a-12a).  See
n. 24, infra.  The court also rejected appllees' argument that the
statute should be reviewed under the strict scrutiny standard set
forth in Larson v. Valente, 456 U.S. 228 (1982) (J.S. App. 13a-15a),
rather than under the three-part test of Lemon v. Kurtzman, 403 U.S.
602 (1971).

   Thereafter, in finding a valid secular purpose, the court found
that "the AFLA was motivated by Congress' concern that tennage
pregnancy and premarital sexual relations are very damaging to society
and, particularly, to adolescents" (J.S. App. 17a-18a (footnote
omitted)).  Moreover, the court observed (id. at 20a (emphasis in
original)) that the mere fact that this secular purpose "coincide(s)
or conflict(s) with religious tenets does not transform (it) into (a)
sectarian purpose() motivated wholly by religious considerations."
"Religious organizations," the court concluded (id. at 21a-22a), "can
play a vital role in furthering secular values."

   /9/ The court acknowledged that the Secretary's "'Notice of Grant
Award' specifies that grants may not be used to 'teach or promote
religion,'" but it held that this was "merely an unpublished
administrative warning that was written at agency discretion and can
be revoked by agency fiat." The court stated that it was "also aware
that defendant claims that HHS officials verbally advised grantees
that they may not use AFLA funds to teach religion." It concluded,
however, that "(e)ven if true, the fact that HHS warnings may undo
some of the statute's damage does not solve the problem with the
statute itself, and it is with the statute alone that a facial inquiry
is concerned." J.S. App. 29a n.13.

   /10/ For example, the district court identified (J.S. App. 37a) one
grantee that had "attempted to evade restrictions (on) * * * religious
teaching, by establishing programs in which an AFLA-funded staffer's
presentations would be immediately followed, in the same room and in
the staffer's presence, by a program presented by a member of a
religious order and dedicated to presentation of religious views on
the subject covered by the AFLA staffer."

   /11/ The district court also found (J.S. App. 44a) that the statute
would "tend to incite political division along religious lines"
because AFLA programs involve "sensitive issues upon which religious'
fundamental beliefs differ." Moreover, the court believed that such
division would be "recurring and intensified" (ibid.) because
appropriations under the Act are made annually.  The court
acknowledged, however, that political divisiveness has never been the
only ground for holding a statute unconstitutional (id. at 43a), and
stated that "the political division caused by the AFLA may not be
sufficient to invalidate it" (id. at 44a).

   /12/ Although the district court did not enter its final judgment
"on a separate document" (Fed. R. Civ. P. 58), the August 13, 1987,
order was evidently intended as the district court's final judgment
since it "ordered that this case is dismissed from the docket of this
Court" (J.S. App. 55a).

   /13/ See Pickrell & Horwich, "Religion as an Engine of Civil
Policy":  A Comment on the First Amendment Limitations on the
Church-State Partnership in the Social Welfare Field, 44 Law &
Contemp. Probs. 111, 112-114 (1981);  B. Coughlin, Church and State in
Social Welfare 15-43 (1965);  A. Reichley, Religion in American Public
Life 168-339 (1985).

   /14/ Bradfield v. Roberts, 175 U.S. 291 (1899);  Washington Health
Care Facilities Auth. v. Spellman, 96 Wash. 2d 68, 633 P.2d 866
(1981);  Abernathy v. City of Irvine, 355 S.W. 2d 159 (Ky. 1961, cert.
denied, 371 U.S. 831 (1962);  Craig v. Mercy Hosp. -- Street Memorial,
209 Miss. 427, 45 So.2d 809 (1950);  Kentucky Bldg. Comm'n v. Effron,
310 Ky. 355, 220 S.W.2d 836 (1949).

   /15/ Sargent v. Board of Educ. of Rochester, 177 N.Y. 317, 69 N.E.
722 (1904);  Murrow Indian Orphans Home v. Childers, 197 Okla. 249,
171 P.2d 600 (1946).

   /16/ Schade v. Allegheny County Inst. Dist., 386 Pa. 507, 126 A.2d
911 (1956);  Dunn v. Chicago Indus. School of Girls, 280 Ill. 613, 117
N.E. 735 (1917).

   /17/ Community Council v. Jordan, 102 Ariz. 448, 432 P.2d 460
(1967).

   /18/ See, e.g., 42 U.S.C. (Supp. IV) 622, as amended by Pub. L. No.
96-272, Section 103(a), 94 Stat. 516 (Title IV-B of Child Welfare
Services);  42 U.S.C. (1976 ed.) 630-644 (Work Incentive Program), (as
implemented according to 45 C.F.R. 224.30(c)(1) (1980));  42 U.S.C.
(1976 ed.) 1397a (Title XX Day Care Services under Social Security
Act);  42 U.S.C. (1976 ed.) 2931-3932 (Head Start);  Disaster Relief
Act of 1974, Pub. L. No. 93-288, Section 312, 88 Stat. 150;  Juvenile
Delinquency Prevention and Control Act of 1968, Pub. L. No. 90-445,
Section 102, 82 Stat. 463;  Social Security Amendments of 1967, Pub.
L. No. 90-248, Section 301, 81 Stat. 821 (amending Title V of the
Social Security Act, Maternal and Child Health and Crippled Children's
Services);  Housing Act of 1961, Pub. L. No. 87-70, Section 101, 75
Stat. 149 (amending National Housing Act Section 221(d)(3), 12 U.S.C.
1715l(d)(3));  Housing Act of 1959, Pub. L. No. 86-372, Section 202,
73 Stat. 667;  See also Bill to Provide for Judicial Review of the
Constitutionality of Grants or Loans Under Certain Acts:  Hearings on
S.2097 Before the Subcomm. on Constitutional Rights of the Senate
Judiciary Comm., 89th Cong., 2d Sess. 699-716 (1968) (summary of
federal programs under which religious organizations may receive
assistance).

   /19/ At the same time, the Court has stated that these criteria
"must not be viewed as setting the precise limits to the necessary
constitutional inquiry, but serve only as guidelines with which to
identify instances in which the objectives of the Establishment Clause
have been impaired." Meek v. Pittenger, 421 U.S. 349, 359 (1975).
Accord Lynch v. Donnelly, 465 U.S. 668, 678-679 (1984);  Mueller v.
Allen, 463 U.S. 388, 394 (1983).

   /20/ See, e.g., Committee for Pub. Educ. and Religious Liberty v.
Regan, 444 U.S. 646, 654 (1980);  Meek v. Pittenger, 421 U.S. 349, 363
(1975);  Committee for Pub. Educ. v. Nyquist, 413 U.S. 756, 773
(1973);  Sloan v. Lemon, 413 U.S. 825, 829-830 (1973);  Hunt v.
McNair, 413 U.S. 734, 741-742 (1973);  Levitt v. Committee for Pub.
Educ., 413 U.S. 472, 479 n.7 (1973);  Tilton v. Richardson, 403 U.S.
672, 678-679 (1971);  Lemon v. Kurtzman, 403 U.S. at 613;  Board of
Educ. v. Allen, 392 U.S. 236, 243 (1968).

   /21/ The district court was also correct in rejecting (J.S. App.
19a-20a n.11) the claim that the articulated purposes of the statute
are pretextual because Congress could have achieved its ends without
including religious organizations.  That claim is mistaken in fact,
since Congress explicitly determined that religious groups are
peculiarly able to play an important role in the delivery of secular
services to the community.  See S. Rep. 97-161, supra, at 16.  But the
claim is also legally irrelevant.  The question is not whether the
government's "objectives could have been achieved without including
(religious organizations)";  rather, "(t)he question is whether
(including them) * * * violates the Establishment Clause" (Lynch v.
Donnelly, 465 U.S. at 681 n.7).

   /22/ The present case is in that sense distinguishable from Wallace
v. Jaffree, 472 U.S. 38 (1985), where a state statute authorizing a
period of silence in public schools for "meditation or voluntary
prayer" was found to lack a secular purpose, in part because it had
replaced an earlier statute that already authorized as period of
silence simply for "meditation." The Court noted (id. at 59) that in
authorizing "voluntary prayer" in addition to "meditation," the later
statute could only have been "enacted to convey a message of State
endorsement and promotion of prayer," in violation of the
Establishment Clause.

   /23/ The Court's vigilance in connection with aid to primary and
secondary schools is additionally justified by the fact that the
government has made primary education compulsory, making children
whose parents select religious schools nearly a captive audience for
as many hours as they are required to attend.

   /24/ We believe that the district court erred when it held (J.S.
App. 8a-12a) that appellees have standing as federal taxpayers to
challenge the statute as applied.  Under this Court's decision in
Valley Forge Christian College v. Americans United For Separation of
Church & State, Inc., 454 U.S. 464 (1982), appellees' as-applied
challenge fails because it is not "'made to an exercise by Congress of
its power under Art. I, Section 8, to spend for the general welfare'"
(454 U.S. at 479, quoting Flast v. Cohen, 392 U.S. 83, 103 (1968)),
but rather is made to decisions by the Secretary about how to spend
appropriated funds.  Just as the plaintiffs in Valley Forge lacked
standing to challenge "a decision by HEW to transfer a parcel of
federal property" (454 U.S. at 479 (footnote omitted)), so, too, do
appellees lack standing to challenge the individual spending decisions
made by the Secretary in implementing the AFLA.

   /25/ At the oral argument on the government's Rule 59(e) motion
seeking clarification of the meaning of "religious organizations" for
purposes of the injunction, the district court insisted that it was
"not going to get * * * in th(e) game" of "defin(ing) what constitutes
a religion or religious organization" (8/11/87 Tr. 35-B).  The court
invited counsel to "go do the research" on what "religious
organizations" means for purposes of the order, noting that "(t)here
are a multitude of statutes and regulations that define what that
constitutes" (id. at 36, 41).

   /26/ Unfortunately, the present record does not now permit such an
individualized analysis, because all but one of the
religiously-affiliated groups analyzed by the district court are no
longer receiving federal funds.

   /27/ Although appellees submitted evidence with respect to 23 AFLA
grantees, and the Secretary offered evidence with respect to 60
grantees, the district court, stating that it would "not engage in an
exhaustive recitation of the record" (J.S. App. 33a), focused on no
more than a handful of the funded programs (see id. at 33a-38a).

   /28/ The court's treatment of St. Margaret's Hospital is flawed for
the same reason, for it is not at all clear why a facility that is
"committed to acting 'in harmony with the teaching of the Catholic
Church'" (J.S. App. 33a) will advance religion in a manner not
contemplated by the purely secular restrictions dictated by the
statute.

   /29/ In granting summary judgment in appellees' favor, the district
court essentially overlooked our submissions of material facts,
finding that we had failed to follow the procedural formalities of
Fed. Dist. Ct. Local R. 108(h).  That rule requires the moving party
to file a statement of material facts with its memorandum of points
and authorities.  The opposing party may then file an opposition,
setting forth facts as to which there is a genuine dispute.  Both
sides in this case moved for summary judgment and both submitted
multi-volume statements of material facts, memoranda in support, and
oppositions.  We are unable to discern a meaningful difference between
the two sides' papers, and thus we cannot fathom the district court's
apparent unwillingness to consider the facts that we submitted.

   We also believe that while ordinarily the court's quite arbitrary
reliance on perceived technical pleading irregularities would not
raise an issue for this Court's consideration, where, as here, the
constitutionality of an Act of Congress is at issue, these supposed
irregularities should not preclude this Court's consideration and
undermine its mandatory appellate jurisdiction.

   /30/ The fact that the statute itself "contains no restriction
whatsoever against the teaching of religion qua religion" (J.S. App.
29a) does not change the analysis.  First, the statute does not
contemplate, let alone authorize religous inculcation.  Its failure to
go further and explicitly forbid conduct that would have presented a
clear Establishment Clause violation at the time the statutes were
enacted does not make a constitutional difference.  See Bradfield v.
Roberts, 175 U.S. 291 (1899).

   In any event, as the district court acknowledged (J.S. App. 29a
n.13), the Secretary's "Notice of Grant Award" instructs grantees that
they may not use the appropriated funds to inculcate religion (see,
e.g., J.A. 757, 759, 761).  The Secretary has also taken steps to
eliminate abuses, including terminating one of the grants (see J.A.
742-743).  This Court has approved administrative action as one means
of policing governmental programs under the Establishment Clause (see,
e.g., Tilton, 403 U.S. at 675, 680;  Hunt v. McNair, 413 U.S. at
739-740).

   /31/ Compare J. Thomson, A Defense of Abortion, in 1 Phil. & Pub.
Aff. 47 (1971);  M. Tooley, In Defense of Abortion and Infanticide,
reprinted in The Problem of Abortion 120 (J. Feinberg 2d ed. 1984);
Greenwalt, Religiously Based Premises and Laws Restrictive of Liberty,
1986 B.Y.U.L. Rev. 245, 265-266, with Harris v. McRae, 448 U.S. at 319
(the Hyde Amendment restriction on abortion funding "is as much a
reflection of 'traditionalist' values towards abortion, as it is an
embodiment of the views of any particular religion");  J. English,
Abortion and the Concept of a Person, reprinted in The Problem of
Abortion, supra, at 151;  J. Noonan, An Almost Absolute Value in
History, reprinted in The Problem of Abortion, supra, at 9;  S. Bok,
Ethical Problems of Abortion, reprinted in The Problem of Abortion,
supra, at 188.

   /32/ Arguments rooted in religious belief have been advanced in
connection with such varied issues as nuclear deterrence (see, e.g.,
J. Cameron, Is Nuclear Deterrence Moral?, in 34 N.Y. Rev. of Books
38-43 (Nov. 5, 1987));  foreign affairs (see J. Benestad & F. Butler,
Quest for Justice:  A Compendium of the United States Catholic Bishops
on the Political and Social Order, 1966-1980 (1981) (cited in A.
Reichley, Religion in American Public Life 290 (1985));  and domestic
policy (see ibid.).

   /33/ The court relied on four cases (J.S. App. 24a), but none of
them is remotely on point.  Estate of Thornton v. Caldor, Inc., 472
U.S. 703 (1985), Lynch v. Donnelly, 465 U.S. 668 (1984), and Larkin v.
Grendel's Den, Inc., 459 U.S. 116 (1982), did not involve government
grants (direct or indirect) to religious institutions, and thus the
Court in those cases had no occasion to consider the Hunt standard for
assessing primary effect.  The remaining case, Committee for Pub.
Educ. and Religious Liberty v. Nyquist, 413 U.S. 756 (1973), did
involve government financial assistance to religious institutions, and
struck it down on the ground (id. at 779-780) that its "effect,
inevitably, is to subsidize and advance the religious mission of
sectarian schools." The Nyquist case, like the three others cited by
the district court, did not even advert to a "direct and immediate"
test, let alone employ such a test as an alternative to considering
the sectarian nature of the assisted institutions.

   /34/ Moreover, the district court's approach -- which begins by
asking whether a statute explicitly refers to "religious
organizations" -- does not answer the relevant question under the
effects test:  whether "the government itself has advanced religion
through its own activities and influence" (Amos, slip op. 8 (emphasis
omitted)).  That requires a much more probing inquiry of the nature
and conduct of particular organizations, and cannot plausibly turn on
the simple fact that the text of the statute mentions religious
organizations.  While a decision by a legislature to include religious
organizations in the text of a statute may, in highly unusual
circumstances, suggest that it lacked a secular purpose in passing the
legislation (cf. Wallace v. Jaffree, 472 U.S. at 58-59), for the
reasons stated by the district court (J.S. App. 17a-22a), no such
inference may be drawn in this case.  See pp. 23-25, supra.

   /35/ As the Court put the matter in NLRB v. Catholic Bishop, 440
U.S. 490, 501 (1979), "(t)he key role played by teachers in * * * a
(church-operated) school system has been the predicate for our
conclusions that governmental aid channeled through teachers creates
an impermissible risk of excessive governmental entanglement in the
affairs of the church-operated schools."

   /36/ The Court in Hunt v. McNair, 413 U.S. 734 (1973), suggested
(id. at 747-749) that, apart from the sectarian nature of the
grantees, there might be a separate entanglement problem if the
government "bec(a)me deeply involved in the day-to-day financial and
policy decisions" of a religiously affiliated grantee.  We know of no
case, however, in which the Court has upheld an entanglement claim in
the absence of a finding that the recipient of government funds was a
pervasively sectarian institution.  And the decision in Aguilar
confirms (473 U.S. at 412) that the presence of a pervasively
sectarian setting is one of the two "critical elements" of a finding
of excessive entanglement.  Accord Roemer v. Maryland Pub. Works Bd.,
426 U.S. at 764-765.

   /37/ Even if there might be entanglement problems in cases of some
religious organizations that are not pervasively sectarian, plainly
the degree of religous affiliation is highly relevant to the
entanglement inquiry.  See, e.g., Aguilar, 473 U.S. at 412.  By
failing to make any judgment at all on the issue, the district court
simply did not come to grips with the entanglement doctrine as this
Court has articulated it.