b'Tribal Restrictions on Sharing of Indigenous Knowledge on\nUses of Biological Resources\nT he Indian Civil Rights A ct, rather than the federal C onstitution, lim its the pow er o f an Indian tribe\nvis-a-vis its m em bers. In interpreting provisions o f the IC R A , it is appropriate to look to precedents\nunder analogous constitutional provisions constraining federal and state action, although particular\nfacts about tn b al structure and traditions may be relevant to the analysis.\nIn som e factual circum stances, a tribal ordinance prohibiting m em bers from sharing, with researchers\no r others outside the tribe, inform ation on possible com m ercial uses o f biological resources w ould\nraise concerns under the free speech provision o f the ICRA . The legality of such an ordinance\nwould depend on a num ber o f factors including how w idely known the inform ation is; w hether\nthose w ho hold the inform ation have a particular relationship o f trust w ith the tribe; the m agnitude\no f the tribal interest underlying the tribe\xe2\x80\x99s effort not to disclose the inform ation; and w hether\nthe inform ation can be viewed as tribal property under an intellectual property regim e that is other\xc2\xad\nwise consistent with applicable law.\n\nOctober 12, 1999\nM e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l\nE n v ir o n m e n t a n d N a t u r a l R e s o u r c e s D iv is io n\n\nThis memorandum responds to the Environment and Natural Resources Divi\xc2\xad\nsion\xe2\x80\x99s request, conveyed orally, for guidance on whether an Indian tribe\xe2\x80\x99s efforts\nto prevent its members from disclosing, to researchers or others outside the tribe,\ninformation on possible commercial uses of biological resources would raise First\nAmendment or other concerns. As discussed below, the request raises several com\xc2\xad\nplex issues that cannot be resolved fully in the abstract. We therefore attempt\nonly to set forth the general framework that might guide the analysis of a tribal\nrestriction on members\xe2\x80\x99 ability to share information with outside researchers. First,\nthe Indian Civil Rights Act (\xe2\x80\x9c ICRA\xe2\x80\x9d ), 25 U.S.C. \xc2\xa7\xc2\xa71301-1341 (1994), rather\nthan the federal Constitution, limits the power of an Indian tribe vis-a-vis its mem\xc2\xad\nbers. Although the ICRA contains a free speech clause similar to that of the First\nAmendment, it is unclear whether a tribal action limiting the speech o f tribal mem\xc2\xad\nbers would be evaluated under the same substantive standards as federal and state\naction. The task of interpreting the ICRA falls primarily to tribal courts. We have\nnot attempted to survey the decisions of the varied tribal court systems to deter\xc2\xad\nmine how tribal courts interpret the ICRA\xe2\x80\x99s substantive guarantees. Second, even\nif conventional free speech principles apply, the legality of tribal action could\ndepend upon factual circumstances likely to vary from tribe to tribe. In particular,\nthe analysis could turn in part on the relationship between the tribe and those\nwho hold the relevant information, whether the information in question should\nbe viewed as tribal property, and the importance of the tribal interest in nondisclo\xc2\xad\nsure. We are not in a position to identify and evaluate the range of possibilities\nin this regard. In some factual circumstances, however, it is possible that a tribe\xe2\x80\x99s\n235\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 23\n\nattempt to guard against disclosure of information by directly prohibiting its mem\xc2\xad\nbers from sharing that information with others would violate the free speech provi\xc2\xad\nsion of the ICRA.\n\nI. Background\nThe request for views presented arises in connection with the United States\xe2\x80\x99\ninvolvement in implementation o f the Convention on Biological Diversity, opened\nfo r signature June 5, 1992, S. Treaty Doc. No. 103\xe2\x80\x9420, 31 I.L.M. 818 (entered\ninto force Dec. 29, 1993). The United States signed the Convention on June 4,\n1993, but the Senate has not ratified it. The United States is involved as an\nobserver in international negotiations concerning the implementation of the\nConvention. Article 8(j) of the Convention addresses indigenous knowledge of\nuses of biological resources. It provides:\nEach Contracting Party shall, as far as possible and as appropriate:\n\nj. Subject to its national legislation, respect, preserve and maintain\nknowledge, innovations and practices of indigenous and local\ncommunities embodying traditional lifestyles relevant for the con\xc2\xad\nservation and sustainable use of biological diversity and promote\ntheir wider application with the approval and involvement of the\nholders of such knowledge, innovations and practices and encour\xc2\xad\nage the equitable sharing o f the benefits arising from the utilization\no f such knowledge, innovations and practices.\nAn interagency working group discussing the United States\xe2\x80\x99 position on\nimplementation of Article 8(j) has raised the question whether federal law imposes\nlimits upon indigenous communities\xe2\x80\x99 own efforts to protect indigenous knowledge\nthrough direct restrictions on members\xe2\x80\x99 ability to reveal such knowledge to outside\nresearchers.1 In turn, you have asked us to provide you with a general background\ndiscussion on the possible impact of the First Amendment on such restrictions.\n\n5W e express no view on whether and to w hat extent our discussion of the narrow question presented to us bears\nupon com pliance with the obligations imposed by Article 8(j) o f the Convention.\n\n236\n\n\x0cTribal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\nII. Discussion\nA.\nAs a general matter, constitutional provisions limiting the actions o f federal and\nstate governments do not constrain Indian tribes exercising inherent powers of\nself-government. See Talton v. Mayes, 163 U.S. 376 (1896). Accordingly, the First\nAmendment ordinarily would not restrict a tribe\xe2\x80\x99s efforts to prohibit its members\nfrom sharing information concerning uses of biological resources with researchers.\nSee Native American Church o f North America v. Navajo Tribal Council, 272\nF.2d 131, 134 (10th Cir. 1959) (First Amendment religion clauses do not constrain\ntribal action); Janis v. Wilson, 385 F. Supp. 1143, 1149 (D.S.D. 1974) (First\nAmendment Free Speech Clause does not constrain tribal action); Dodge v. Nakai,\n298 F. Supp. 17, 23 (D. Ariz. 1968) (same).2 Through title I of the Indian Civil\nRights Act,3 however, Congress has imposed upon tribes restrictions similar to\nseveral of those contained in the Bill of Rights and the Fourteenth Amendment.\nSee 25 U.S.C. \xc2\xa7\xc2\xa7 1301-1303. The Act includes a provision parallel to the Free\nSpeech, Assembly, and Petition Clauses of the First Amendment: \xe2\x80\x98\xe2\x80\x98No Indian tribe\nin exercising powers of self-government shall . . . make or enforce any law . . .\nabridging the freedom of speech, or of the press, or the right of the people peace\xc2\xad\nably to assemble and to petition for a redress of grievances.\xe2\x80\x9d 25 U.S.C. \xc2\xa7 1302(1).\nIn analyzing the application of title I of the ICRA to tribal efforts to guard\nagainst disclosure of indigenous knowledge, we first consider a threshold question:\nwhether, in evaluating tribal action, it is appropriate to look to precedents under\nanalogous constitutional provisions constraining federal and state action. As will\nbecome clear, the text, structure, and legislative history of the ICRA give rise\nto two lines of argument regarding its interpretation. Because the task of inter\xc2\xad\npreting the ICRA falls primarily to tribal courts, it is difficult to predict whether\n2 For purposes of our discussion, we assume that the tnbal conduct would be independent of federal or state\naction. In instances in which tnbal action is closely intertwined with federal or state action, a different analysis\nmight apply For example, particular facts and circumstances might give rise to the conclusion that tnbal action\nis somehow attributable to the federal or state governments See, e g . Burton v. Wilmington Parking Auth., 365\nU.S. 715, 722 (1961) In addition, although the Supreme Court has held that in some circumstances the Constitution\nmay constrain the conduct o f a private entity on privately owned property-in particular, where a company owns\na town and assumes the functions o f a municipal govemment-this principle has been narrowly applied Compare\nMarsh v. Alabama, 326 U.S. 501, 509 (1946) (invalidating state conviction for distribution of religious literature\non sidewalk o f company-owned town1 \xe2\x80\x9c In our view the circumstance that the property rights to the premises where\nthe depnvation o f liberty, here involved, took place, were held by others than the public, is not sufficient to justify\nthe State\xe2\x80\x99s permitting a corporation to govern a community o f citizens so as to restrict their fundamental liberties\nand the enforcement o f such restraint by the application o f a state statute \xe2\x80\x9d ) with Hudgens v N LRB, 424 U S\n507, 518 (1976) (rejecting application o f Marsh to shopping center). We are aware o f no instance in which Marsh\nhas been invoked to support the application o f the Constitution to tribal conduct\n3The Indian Civil Rights Act was initially passed by the Senate on December 7, 1967, as a stand-alone measure\ncontaining six titles S 1843, 90th Cong., 113 Cong Rec. 35,471, 35,473 (1967) (as amended). The bill was ultimately\nenacted as titles II through VII o f a larger civil rights measure, the Civil Rights Act o f 1968, Pub. L 90-284,\n82 Stat. 73, 77. We refer to the title designations in S 1843, as have courts construing the statute See Santa Clara\nPueblo v M artinez, 436 U.S. 49, 51 n.l (1978); Poodry v Tonawanda B and o f Seneca Indians, 85 F.3d 874, 881\nn 9 (2d Cir.), cert, denied, 519 U S 1041 (1996).\n\n237\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 23\n\ntribal action would be analyzed under the standards that apply to federal and state\naction. Nevertheless, we believe that the better view is that conventional First\nAmendment principles, applied with due regard for tribal traditions and customs,\nshould govern the analysis of a tribal restriction on speech.\nAs the Supreme Court stated in Santa Clara Pueblo v. Martinez, the Indian\nCivil Rights Act reflects Congress\xe2\x80\x99s intent to \xe2\x80\x9c strengthen[] the position of indi\xc2\xad\nvidual tribal members vis-a-vis the tribe.\xe2\x80\x9d 436 U.S. at 62. As noted, the text\nof the free speech clause of \xc2\xa7 1302(1) is virtually identical to that of the First\nAmendment, just as other provisions of title I of the ICRA track the language\nof other guarantees contained in the Bill of Rights. It could be argued, then, that\nCongress\xe2\x80\x99s use of language virtually identical to that of corresponding constitu\xc2\xad\ntional provisions reflects a clear intent to hold tribal governments to the sub\xc2\xad\nstantive standards applied to federal and state action. The Senate Report accom\xc2\xad\npanying the ICRA provides some support for this view. S. Rep. No. 90-841, at\n6 (1967) (stating that the limitations of title I \xe2\x80\x9c are the same as those imposed\non the Government of the United States by the U.S. Constitution and on the States\nby judicial interpretation\xe2\x80\x9d ); id. at 10-11 (Title I \xe2\x80\x9c provides that any Indian tribe\nin exercising its powers of local self-government shall, with certain exceptions,\nbe subject to the same limitations and restraints as those which are imposed on\nthe Government of the United States by the Constitution.\xe2\x80\x9d ).\nNevertheless, title I of the ICRA does not impose on tribal governments the\nfull range of constitutional restraints. Rather, the statute incorporates specific\nrights. Among the constitutional provisions omitted in the statute are the guarantee\no f a republican form of government, a prohibition on the establishment of religion,\nand the Second and Third Amendments. In addition, the statute does not require\njury trials in civil cases or the appointment of counsel for indigent defendants\nin criminal cases. The ICRA\xe2\x80\x99s legislative history confirms that, in incorporating\nparticular rights rather than all constitutional restraints, Congress sought to limit\nthe extent of its intrusion upon tribal sovereignty. As the Supreme Court stated\nin Santa Clara Pueblo, Congress sought \xe2\x80\x9c to promote the well-established federal\n\xe2\x80\x98policy of furthering Indian self-government.\xe2\x80\x99 \xe2\x80\x9d 436 U.S. at 62 (quoting Morton\nv. M ancari, 417 U.S. 535, 551 (1974)). Indeed, the first version of what would\nbecome title I of the ICRA, introduced in 1964 and reintroduced without change\nin 1965, would have applied to tribal governments the \xe2\x80\x9c same limitations and\nrestraints as those which are imposed on the Government of the United States\nby the United States Constitution.\xe2\x80\x9d S. 3047, 88th Cong., 110 Cong. Rec. 17,329\n(1964); S. 961, 89th Cong., I l l Cong. Rec. 1799 (1965). Tribes, attorneys special\xc2\xad\nizing in Indian affairs, and the Department of the Interior criticized this proposal\nduring 1965 hearings before the Subcommittee on Constitutional Rights of the\nSenate Committee on the Judiciary. Constitutional Rights o f the American Indian:\nH earings on S. 9 6 1 -9 6 8 and S.J. Res. 4 0 Before the Subcomm. on Constitutional\nRights o f the Senate Comm, on the Judiciary, 89th Cong. 17\xe2\x80\x9418, 36, 84, 90, 130,\n238\n\n\x0cTribal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\n221-27 (1965) ( \xe2\x80\x9c 1965 Hearings\xe2\x80\x9d ); Subcomm. on Constitutional Rights of the\nSenate Comm, on the Judiciary, 89th Cong., Constitutional Rights o f the American\nIndian 9 (Comm. Print 1966) (\xe2\x80\x9c 1966 Report\xe2\x80\x9d ). A revised version of S. 961, intro\xc2\xad\nduced in 1967 as S. 1843, largely followed a proposal offered by the Department\nof the Interior at the 1965 hearings that incorporated, and in some cases modified,\nspecific constitutional rights. 113 Cong. Rec. 13,473 (1967). With some changes\nin wording not relevant here, S. 1843 and several other measures were consoli\xc2\xad\ndated into a single bill, see S. 1843, 90th Cong., \xc2\xa7102, 113 Cong. Rec. 35,471\n(1967) (as amended), and enacted as part of a broader civil rights measure. See\n113 Cong. Rec. 30,711 (1967); 114 Cong. Rec. 5835 (1968).\nBased on the fact that Congress sought to limit its intrusion on tribal sov\xc2\xad\nereignty, some commentators have argued that constitutional precedents should\nnot apply even as to provisions of the ICRA that are worded similarly to constitu\xc2\xad\ntional guarantees. See Note, The Indian Bill o f Rights and the Constitutional Status\no f Tribal Governments , 82 Harv. L. Rev. 1343, 1359 (1969) (\xe2\x80\x9c Indian Bill of\nRights\xe2\x80\x9d ); Donald L. Burnett, Jr., An Historical Analysis o f the 1968 \xe2\x80\x98Indian Civil\nRights\xe2\x80\x99 Act, 9 Harv. J. on Legis. 557, 617 (1972). The fact that Congress deleted\ncertain restrictions on governmental activity, these commentators suggest, signals\nCongress\xe2\x80\x99s effort to avoid imposing requirements that would cause serious disrup\xc2\xad\ntion of tribal life, not Congress\xe2\x80\x99s intent \xe2\x80\x9c to force modifications of tribal ethnic\nand cultural autonomy where necessary for the application of those restrictions\non governmental conduct which remain in the statute.\xe2\x80\x9d Indian Bill of Rights at\n1359.\nFederal case law provides litde additional guidance as to whether those provi\xc2\xad\nsions that Congress chose to include in the ICRA should be interpreted in the\nsame manner as corresponding constitutional provisions. In Santa Clara Pueblo,\nthe sole Supreme Court case directly addressing the structure, purpose, and legisla\xc2\xad\ntive history of the ICRA, the Court held that federal courts lacked jurisdiction\nto entertain a civil cause of action against a tribe or its officials alleging a violation\nof title I of the ICRA. 436 U.S. at 67-68. Accordingly, because the Court disposed\nof the case on jurisdictional grounds, the Court had no opportunity to consider\nthe scope of the Act\xe2\x80\x99s substantive guarantees. The Court\xe2\x80\x99s jurisdictional discussion\nnevertheless reflects the importance of applying the ICRA with sensitivity to tribal\ncustoms and traditions. See id. at 63 (noting that the ICRA as a whole manifests\n\xe2\x80\x9c a congressional purpose to protect tribal sovereignty from undue interference\xe2\x80\x9d );\nid. at 71 (\xe2\x80\x9c Congress may also have considered that resolution of statutory issues\nunder \xc2\xa7 1302, and particularly those issues likely to arise in a civil context, will\nfrequently depend on questions of tribal tradition and custom which tribal forums\nmay be in a better position to evaluate than federal courts.\xe2\x80\x9d ).\nSince the Court\xe2\x80\x99s 1978 ruling, only a handful of federal courts have addressed,\nin the criminal context, the scope of ICRA\xe2\x80\x99s substantive guarantees in relation\n239\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nto similarly worded constitutional provisions.4 Prior to the decision in Santa Clara\nPueblo, a number o f federal courts had exercised jurisdiction over civil claims\narising under ICRA and had interpreted the Act\xe2\x80\x99s substantive guarantees in a\nvariety of ways. We discuss these categories of cases in turn.5\nRecent federal decisions addressing claimed violations of title I of the ICRA\ntypically involve habeas review o f a tribal court conviction or direct or collateral\nreview of a federal conviction that followed certain challenged tribal investigatory\nconduct, such as a search or arrest. In cases involving tribal prosecution or inves\xc2\xad\ntigation o f criminal conduct, most courts have concluded that Congress\xe2\x80\x99s use of\nconstitutional language in title I o f the ICRA reflects an intent to apply to tribal\ngovernments the substantive standards that apply under the Constitution to federal\nand state action. See, e.g., Selam v. Warm Springs Tribal Correctional Facility,\n134 F.3d 948, 952 (9th Cir. 1998) (\xe2\x80\x9c [B]ecause the ICRA [compulsory process]\nclause is identical to the Compulsory Process Clause of the Sixth Amendment,\nthe cases that interpret the Constitution speak directly to Selam\xe2\x80\x99s right of compul\xc2\xad\nsory process under the ICRA.\xe2\x80\x9d ); United States v. Strong, 778 F.2d 1393, 1397\n(9th Cir. 1985) (noting that the limitations imposed by the ICRA search and sei\xc2\xad\nzure provision \xe2\x80\x9c are identical to those imposed by the fourth amendment to the\nfederal constitution\xe2\x80\x9d ); United States v. Lester, 647 F.2d 869, 872 (8th Cir. 1981)\n( \xe2\x80\x9c In light of the legislative history of the Indian Civil Rights Act and its striking\nsimilarity to the language of the Constitution, we consider the [challenge to a\ntribal search] under fourth amendment standards.\xe2\x80\x9d ) (citation omitted); United\nStates v. Clifford, 664 F.2d 1090, 1091 n.3 (8th Cir. 1981) (same); see also Poodry\nv. Tonawanda Band o f Seneca Indians, 85 F.3d at 893 & n.21 (concluding that\nthe ICRA\xe2\x80\x99s habeas remedy is coextensive with other federal statutes providing\nfor collateral relief). But see United States v. Doherty, 126 F.3d 769, 779 (6th\nCir. 1997) (finding denial of right to retained counsel in tribal court proceeding,\nbut declining to suppress confession because to do so would upset the \xe2\x80\x98\xe2\x80\x98careful[ ]\nbalance[]\xe2\x80\x9d between \xe2\x80\x9c the desire to protect the rights of Native Americans [and]\nthe desire to avoid extensive interference with internal tribal affairs\xe2\x80\x9d ), cert,\ndenied, 524 U.S. 917 (1998).\nPre-Santa Clara Pueblo decisions applying the provisions of title I outside of\nthe criminal context (that is, based on the now rejected assumption that the ICRA\nimpliedly provided for a civil cause of action in federal courts against tribal offi\xc2\xad\ncials) reflect less consensus on the scope of the ICRA\xe2\x80\x99s substantive guarantees.\n4 The Tenth Circuit has recognized an exception to the rule announced in Santa Clara Pueblo and has permitted\nfederal court adjudication o f certain civil actions in cases in which no tnbal remedy exists. Dry Creek Lodge, Inc.\nv. Arapahoe & Shoshone Tribes, 623 F.2d 682, 685 (10th C ir 1980), cert, denied, 449 U S 1118 (1981). We\ndo not address cases falling within this exception, which has been rejected by at least tw o other circuits, see Shortbull\nV. Looking Elk, 677 F 2 d 645 (8th Cir.), cert, denied, 459 U.S. 907 (1982), R.J. Williams Co. v. Fort Belknap\nHous Auth., 719 F.2d 979, 981 (9th Cir. 1983), cert, denied, 472 U.S 1016 (1985), and narrowed by the Tenth\nC ircuit itself, see White v Pueblo o f San Juant 728 F.2d 1307, 1311-12 (10th Cir. 1984).\n5 As noted above, we do not attempt to discuss tribal court decisions regarding the scope of the ICRA \xe2\x80\x99s substantive\nguarantees\n\n240\n\n\x0cTribal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\nSome courts recognized that Congress did not intend to apply the full panoply\nof constitutional restrictions to tribes but reasoned that, as to those provisions\nin which Congress adopted wording virtually identical to that of a constitutional\nguarantee, existing constitutional precedents should apply. See Red Fox v. Red\nFox, 564 F.2d 361, 364 (9th Cir. 1977) (\xe2\x80\x9c The Act substantially tracks the precise\nlanguage of the Bill of Rights portion of the Constitution, thereby acting as a\nconduit to transmit federal constitutional protections to those individuals subject\nto tribal jurisdiction. . . . [0]ur court has written that the due process clauses\nof both documents have the same meaning.\xe2\x80\x9d ) (citing Johnson v. Lower Elwha\nTribal Community, 484 F.2d 200, 202-03 n.4 (9th Cir. 1973)). Others concluded\nthat constitutional precedents applicable to federal and state governments did not\napply with full force to tribes, even as to provisions with language closely tracking\nthe Constitution. See, e.g., Wounded H ead v. Tribal Council ofO glala Sioux Tribe,\n507 F.2d 1079, 1082 (8th Cir. 1975) (concluding that the equal protection clause\nof the ICRA should not be construed in the same manner as the Equal Protection\nClause of the Fourteenth Amendment); Groundhog v. Keeler, 442 F.2d 674, 682\n(10th Cir. 1971) (rejecting claim that the passage of the ICRA made the Due\nProcess and Equal Protection Clauses applicable to tribes); Lohnes v. Cloud, 366\nF. Supp. 619, 622 (D.N.D. 1973) (following Groundhog).6 In a third category\nof cases, courts held that federal precedents apply under the ICRA so long as\nthe challenged policy does not reflect a long-standing tribal tradition. See Howlett\nv. Salish & Kootenai Tribes, 529 F.2d 233, 239 (9th Cir. 1976) (applying \xe2\x80\x9c the\nAnglo-Saxon notion of equal protection\xe2\x80\x9d to election and voting procedures based\non those \xe2\x80\x9c found in our culture\xe2\x80\x9d (internal quotation marks omitted)); Means v.\nWilson, 522 F.2d 833, 842 (8th Cir. 1975) (applying traditional constitutional prin\xc2\xad\nciples to practice that \xe2\x80\x9c is not founded [on a] tribal custom or governmental pur\xc2\xad\npose which would justify modification of traditional equal protection concepts\xe2\x80\x9d ),\ncert, denied, 424 U.S. 958 (1976); White Eagle v. One Feather, 478 F.2d at 1314\n(applying traditional equal protection principles to evaluate compliance with\n\xe2\x80\x9c voting procedures precisely paralleling those commonly found in our culture\xe2\x80\x9d ).\n6 Several cases in this category follow Groundhog, which is based on an incomplete analysis of the ICRA\xe2\x80\x99s legisla\xc2\xad\ntive history The Department o f Intenor\xe2\x80\x99s proposed equal protection provision would have guaranteed \xe2\x80\x9c any m ember\nof the tnbe\xe2\x80\x9d within the jurisdiction of the tribal government equal protection under the tnbe\xe2\x80\x99s laws, a standard\nnarrower than that o f the Fourteenth Amendment. 1965 Hearings at 318. A summary report of the Subcommittee\non Constitutional Rights o f the Senate Judiciary Committee recommended adoption o f the Interior substitute and\nstated that the substitute would \xe2\x80\x9c impose upon the Indian governments the same restrictions applicable presently\nto the Federal and State governments with several notable exceptions,\xe2\x80\x9d including, \xe2\x80\x9c in some respects, the equal\nprotection requirement of the 14th amendment.\xe2\x80\x9d 1966 Report at 25. The version of the bill described in the report\nwas amended prior to being voted out o f the full Judiciary Committee to guarantee \xe2\x80\x9c any person\xe2\x80\x9d located within\nthe tn b e \xe2\x80\x99s junsdiction equal protection under the tribe\xe2\x80\x99s laws, S Rep. No. 90-841, at 2, thereby making the scope\nof the clause commensurate with that of the Fourteenth Amendment. Without acknowledging the subsequent amend\xc2\xad\nment by the full committee, the Groundhog court relied on the report\xe2\x80\x99s statement to conclude that \xe2\x80\x9c the equal protec\xc2\xad\ntion clause in \xc2\xa7 1302(8) o f the Indian Bill o f Rights was not as broad as the equal protection clause o f the Fourteenth\nAmendment.\xe2\x80\x9d 442 F.2d at 682. Courts subsequently quoted the Groundhog court\xe2\x80\x99s analysis without independently\nevaluating the legislative history. E.g., Wounded Head, 507 F 2 d at 1082, While Eagle v. One Feather, 478 F.2d\n1311, 1313 (8th Cir. 1973); Lohnes, 366 F Supp at 622.\n\n241\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nAlthough courts have disagreed over the extent to which provisions of the ICRA\nshould be interpreted in the same manner as their constitutional counterparts, we\nbelieve that the better view is that conventional constitutional principles should\ngenerally apply where the language of title I o f the ICRA closely tracks that of\nthe Constitution. To be sure, the discussion in Santa Clara Pueblo suggests that\ntitle I of the ICRA must be interpreted with sensitivity to tribal customs and tradi\xc2\xad\ntions. See supra pp. 238-39; 436 U.S. at 63, 71. Congress sought to limit its\nintrusion on tribal sovereignty by selecting specific rights to include in the ICRA.\nCongress did not, however, simply identify those rights in concept and formulate\nspecific language for the tribal context. Rather, in many cases it imported the\nprecise constitutional language in an effort to impose upon tribes, \xe2\x80\x9c with certain\nexceptions,\xe2\x80\x9d \xe2\x80\x9c the same limitations and restraints as those which are imposed on\nthe Government of the United States by the Constitution.\xe2\x80\x9d S. Rep. No. 90-841,\nat 10-11. Generally speaking, recent federal cases arising in the criminal context\nhave applied to tribal governments the same substantive standards that apply under\nthe Constitution to federal and state action. Although earlier cases reflected less\nconsensus, it appears that a number of cases holding that constitutional standards\ndo not apply can be traced to a case based on an incomplete discussion of the\nICRA\xe2\x80\x99s legislative history. See supra note 6. We attempt below to set forth certain\nprinciples of First Amendment law that might guide the analysis of a tribal ordi\xc2\xad\nnance challenged under \xc2\xa7 1302(1) of the ICRA, and to identify areas in which\ntribal structure and traditions would be relevant to the analysis.\nB.\nA tribal ordinance restricting the dissemination of information concerning\nbiological resources would, in effect, limit the speech of those members of a tribe\nwho wished to share the information with others. How such an ordinance should\nbe evaluated under conventional free speech doctrine would depend in part on\ntwo related considerations that could vary from case to case: first, how best to\ndescribe the relationship between the tribe and holders of the information that\nthe tribe seeks to protect; and second, whether the information in question can\nproperly be viewed as tribal proprietary information. To frame the analysis, we\nfirst assume (1) that it is appropriate to think of the relationship between the tribe\nand its members as roughly analogous to the relationship between a state govern\xc2\xad\nment and its citizens; and (2) that the restriction on the dissemination of informa\xc2\xad\ntion applies to information that is not properly viewed as tribal property under\nfederal or other law. We then discuss how the analysis might change if we relax\nthese assumptions.\n1.\nIf the relationship between a tribe and its members should be thought of\nas analogous to the relationship between a state and its citizens, and a tribe seeks\nto limit the dissemination outside of the tribe of lawfully obtained information\n242\n\n\x0cTnbal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\nthat is not tribal property, it is doubtful that the tribal restriction would survive\nscrutiny under conventional free speech principles. The Supreme Court has held\non several occasions that \xe2\x80\x9c the Government may not generally restrict individuals\nfrom disclosing information that lawfully comes into their hands in the absence\nof a state interest of the highest order.\xe2\x80\x9d United States v. Aguilar, 515 U.S. 593,\n605 (1995) (internal quotation marks omitted); see Florida Star v. B.J.F., 491\nU.S. 524, 533 (1989) (setting aside award of compensatory and punitive damages\nagainst newspaper that published rape victim\xe2\x80\x99s name, in violation of Florida law,\nafter obtaining it from police document); Smith v. Daily Mail P u b l\xe2\x80\x99g Co., 443\nU.S. 97, 103 (1979) (affirming writ of prohibition against prosecution of news\xc2\xad\npaper that published name of youth involved in juvenile proceeding, in violation\nof West Virginia law); Landmark Communications, Inc. v. Virginia, 435 U.S. 829,\n845\xe2\x80\x9446 (1978) (reversing conviction of corporate newspaper publisher that\nrevealed identity of judge under investigation in confidential state proceedings,\nwhere newspaper was not alleged to have obtained the information by illegal\nmeans); Oklahoma P u bl\xe2\x80\x99g Co. v. Oklahoma County Dist. Court, 430 U.S. 308,\n311 (1977) (per curiam) (invalidating state pretrial order enjoining publication of\nthe name of juvenile in connection with a proceeding involving that juvenile and\nattended by reporters); Cox Broad. Corp. v. Cohn, 420 U.S. 469, 471 (1975)\n(invalidating civil damages award entered against television for broadcasting name\nof a rape-murder victim that the station obtained from courthouse records). The\nfact that the information in question might not otherwise be widely available to\nthe public does not appear to change the First Amendment\xe2\x80\x99s limitations on the\ngovernment\xe2\x80\x99s ability to prevent further dissemination. See, e.g., Landmark; see\nalso New York Times Co. v. United States, 403 U.S. 713 (1971) (refusing to\nrestrain third parties\xe2\x80\x99 publication of classified study secured by unauthorized leak\nfrom former government employee).\nFlorida Star and similar cases do leave open the possibility that, in rare\ncircumstances, the First Amendment might not bar sanctions on the publication\nor dissemination of true, lawfully obtained information. We lack the expertise\nregarding tribal affairs, however, to speculate whether such a weighty justification\nmay exist in this context. Cf. Near v. Minnesota, 283 U.S. 697, 716 (1931) (invali\xc2\xad\ndating, as prior restraint, statute permitting suppression of malicious, scandalous,\nor defamatory periodicals; noting that, in exceptional cases, statute restraining\npublication might survive scrutiny, as where publication would reveal\ntroop movements or obstruct recruitment of soldiers during a time of war or incite\nacts of violence (citing Schenck v. United States, 249 U.S. 47, 52 (1919)). We\nmay be unaware of facts regarding indigenous knowledge that could trigger such\nan exception. It may be relevant, for example, whether the tribe seeks to limit\nthe dissemination of information outside of the tribe for compelling religious or\ncultural reasons or instead to profit from future arrangements with researchers\nor manufacturers.\n243\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\n2.\nIf the relationship between the tribe and those who hold knowledge con\xc2\xad\ncerning the use of biological resources should not be thought of as analogous\nto that between a government and its citizens, the analysis reflected in Florida\nStar and similar cases may not apply. The cases discussed above do not involve\nrestrictions on the dissemination o f information by one who, by virtue of a fidu\xc2\xad\nciary or other relationship with the government, is under a duty not to disclose\nparticular information to the public. Case law suggests that the government may\nlawfully limit disclosure of sensitive or confidential information by an individual\nwho assumes a position of trust. In Aguilar, for example, the defendant, a district\ncourt judge, learned o f a confidential wiretap order and disclosed the existence\nof the order to its target after its expiration. In rejecting the defendant\xe2\x80\x99s claim\nthat the statute prohibiting disclosure of wiretap information should, on First\nAmendment grounds, be construed not to cover the judge\xe2\x80\x99s revelation of an\nexpired order, the Court stated: \xe2\x80\x9c Government officials in sensitive confidential\npositions may have special duties of nondisclosure. . . . As to one who volun\xc2\xad\ntarily assumed a duty o f confidentiality, governmental restrictions on disclosure\nare not subject to the same stringent standards that would apply to efforts to\nimpose restrictions on unwilling members of the public.\xe2\x80\x9d 515 U.S. at 606 (cita\xc2\xad\ntions omitted). Similarly, in Snepp v. United States, 444 U.S. 507 (1980) (per\ncuriam), the Court held that a former agent of the Central Intelligence Agency\n( \xe2\x80\x9c C IA \xe2\x80\x9d ) had, by virtue of his employment contract, a fiduciary duty not to dis\xc2\xad\nclose any information regarding the CIA or its activities without the CIA\xe2\x80\x99s prior\npermission. The former agent breached this duty by publishing confidential\n(though unclassified) information without prior approval. The Court rejected the\nview that the C IA \xe2\x80\x99s pre-publication review procedure constituted impermissible\ncensorship of its employees\xe2\x80\x99 speech. See 444 U.S. at 513 n.8. In addition, the\nCourt observed that,\n\neven in the absence of an express agreement . . . the CIA could\nhave acted to protect substantial government interests by imposing\nreasonable restrictions on employee activities that in other contexts\nmight be protected by the First Amendment. The Government has\na compelling interest in protecting both the secrecy of information\nimportant to our national security and the appearance of confiden\xc2\xad\ntiality so essential to the effective operation of our foreign intel\xc2\xad\nligence service.\nId. at 509 n.3 (citations omitted).\nAguilar and Snepp suggest that, in some circumstances, the relationship between\n\nthe government and one who possesses certain information will be a relationship\nof trust, and that the government may, in pursuit of a substantial government\ninterest, reasonably impose upon an individual who enters into that relationship\n244\n\n\x0cTribal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\na duty not to disclose information obtained by virtue of that relationship. Although\nit is not clear that the relationship between a tribe and those who hold information\nconcerning use of biological resources would ordinarily be the sort of relationship\nthat would give rise to a duty of confidentiality, we may be unaware of particular\nfacts, including facts about tribal structure and culture, that would bear upon the\nanalysis. For example, it may be relevant whether information is held solely by\ntribal elders or members of a ruling entity, as opposed to being known more\nwidely throughout the tribe. In addition, we may be unaware of a substantial or\ncompelling tribal interest that would support a requirement of nondisclosure.\n3. We have thus far assumed that information on uses of biological resources\nwould not properly be viewed as tribal intellectual property, and we have identi\xc2\xad\nfied limitations that the ICRA\xe2\x80\x99s free speech clause might impose upon a tribe\xe2\x80\x99s\nability to restrict the dissemination of such information. If the information were\nproperly viewed as tribal property, it is likely that a tribe could lawfully impose\nsome restrictions upon the dissemination of that information. The possibility that\ninformation on uses of biological resources could be treated as tribal property,\nhowever, raises a prior question: whether the recognition of a tribal property\ninterest would itself be consistent with applicable law. We first consider the limita\xc2\xad\ntions that federal law would impose on the creation or recognition of a tribal\nproperty interest in information on uses of biological resources. We then examine\nwhether a tribe could invoke current federal or state intellectual property law to\nestablish a tribal property interest in such information.\na. There are two possibilities for recognition of a property interest in information\non uses of biological resources: first, that federal or state law would create or\nrecognize, on behalf of a tribe, a property interest in information on uses of\nbiological resources; and second, that tribal law would create such an interest.\nA federal or state regime that created or recognized a tribal property interest\nin information on uses of biological resources-as distinct from the tribe\xe2\x80\x99s action\nto enforce its rights under that regime-would be subject to scrutiny under the First\nAmendment (or, in the case of a state, the First and Fourteenth Amendments),\nrather than under the ICRA. While the precise limits that the First Amendment\nimposes upon the ability of the government to provide protection for the intellec\xc2\xad\ntual property of its citizens are somewhat unclear, see generally Diane L. Zimmer\xc2\xad\nman, Information as Speech, Information as Goods: Some Thoughts on M arket\xc2\xad\nplaces and the Bill o f Rights, 33 Wm. & Mary L. Rev. 665 (1992), we can make\nsome general observations.\nFirst, the Supreme Court has permitted the government to recognize a property\ninterest in information and to prevent its dissemination when the information is\nconfidential and has been provided to another on the express condition that it\nnot be further disclosed. For example, the Court has recognized that a state may\nprotect trade secrets by allowing one who discovers a formula or process to pre\xc2\xad\n245\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nvent those privy to the relevant information from disclosing it to others. See\nKewanee O il Co. v. Bicron Corp, 416 U.S. 470, 479, 486 (1974).7\n\nSecond, to the extent that the Supreme Court has permitted the government\nto recognize and protect a property right for exclusive use of a particular process,\nperformance, or formula, it has done so where the party seeking protection can\nestablish that it devoted energy and resources to developing that process, perform\xc2\xad\nance, or formula. Thus, for example, in San Francisco Arts & Athletics, Inc. v.\nUnited States Olym pic Committee, 483 U.S. 522 (1987), the Supreme Court\nrejected a First Amendment challenge to a federal statute granting the United\nStates Olympic Committee the exclusive right to use the word \xe2\x80\x9c Olympic\xe2\x80\x9d in\nconnection with the sale o f any goods and services or the promotion of any exhi\xc2\xad\nbition, performance, or competition. The Court concluded that Congress\xe2\x80\x99s grant\nof an exclusive right to use the word \xe2\x80\x9c Olympic\xe2\x80\x9d was consistent with the recogni\xc2\xad\ntion that, \xe2\x80\x9c when a word acquires value \xe2\x80\x98as the result of organization and the\nexpenditure of labor, skill, and m oney\xe2\x80\x99 by an entity, that entity constitutionally\nmay obtain a limited property right in the word.\xe2\x80\x9d Id. at 532 (quoting International\nNews Serv. v. A ssociated Press, 248 U.S. 215, 239 (1918)). Similarly, in Zacchini\nv. Scripps-H ow ard Broadcasting Co., the Court held that the First Amendment,\napplied to the states through the Fourteenth Amendment, did not prohibit a state\nfrom protecting a performer\xe2\x80\x99s right to the value of his performance by providing\na cause of action for damages against those who broadcast his act without his\nconsent. In rejecting a news organization\xe2\x80\x99s claim that the First and Fourteenth\nAmendments required the state to recognize a privilege to include in its newscasts\nmaterial that would otherwise be protected under state law, the Court emphasized\nthat the performance\nis the product of petitioner\xe2\x80\x99s own talents and energy, the end result\no f much time, effort, and expense. . . . Ohio\xe2\x80\x99s decision to protect\npetitioner\xe2\x80\x99s right of publicity here rests on more than a desire to\ncompensate the performer for the time and effort invested in his\nact; the protection provides an economic incentive for him to make\nthe investment required to produce a performance of interest to the\npublic. This same consideration underlies the patent and copyright\nlaws long enforced by this Court.\n\n7 A lthough no First A mendment claim was presented in Kewanee, the C ourt\xe2\x80\x99s reliance on Kewanee in disposing\no f a First Amendm ent claim in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), suggests that\nthe Court would uphold a trade secret law against a First Amendment challenge. See id. at 578 n . l 3 (noting that,\nin Kew anee, \xe2\x80\x9c [ajlthough recognizing that the trade-secret law resulted in preventing the public from gaining certain\ninform auon, the C ourt emphasized that the law had \xe2\x80\x98a decidedly beneficial effect on society,\xe2\x80\x99 and that without it,\n\xe2\x80\x98organized scientific and technological research could become fragmented, and society, as a whole, would suffer\xe2\x80\x99 \xe2\x80\x9d )\n(quoting Kewanee, 416 U.S. at 485, 486).\n\n246\n\n\x0cTribal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\n433 U.S. at 575-76.8\nAs this discussion suggests, a tribe\xe2\x80\x99s ability to use recognition of an intellectual\nproperty right as a tool for preventing the dissemination of information on uses\nof biological resources may turn on the extent to which the information sought\nto be protected is not generally available and the extent to which the tribe itself\ncan be said to have developed the information in question. A private entity seeking\nintellectual property protection, for example, could demonstrate that it sponsored\nemployee efforts leading to a particular innovation and went to reasonable efforts\nto prevent those privy to the relevant information from disseminating it. It is\nunclear whether a tribe seeking recognition of an intellectual property right in\nknowledge of uses of biological resources could establish that the tribe-rather than\nindividual members of the tribe-was responsible for the development of the\ninformation or process that it seeks to protect, or that the information is not gen\xc2\xad\nerally known. Again, there may be particular facts of which we are unaware that\nwould bear on this analysis. For example, it. may not be accurate to characterize\nthe contribution of a member of a tribe to the development of a particular process\nas an individual rather than tribal contribution.\nWe turn now to whether a tribe itself could establish an intellectual property\nregime to protect information on uses of biological resources and thereby restrict\ndissemination of such information. As in the case of direct tribal limitations on\nspeech, the principal question is whether title I of the ICRA would constrain the\ntribe\xe2\x80\x99s conduct. For purposes of discussion, we assume that tribes retain the power\nto recognize and enforce property rights of those within the tribe\xe2\x80\x99s sovereign reach\nand that tribes can exercise this power to the extent that it does not conflict with\nfederal law in this area. Cf. Kewanee, 416 U.S. at 479 (discussing limits on state\nregulation of intellectual property). If conventional free speech principles apply\nto tribal action in this context, then the analysis of a tribal regime under the ICRA\nwould follow that outlined above with respect to federal or state protection of\nintellectual property. If, however, the tribe sought not to enforce the property\nrights of those within its reach, but instead to vest a property right in itself, its\naction could raise additional concerns under the ICRA. First, insofar as the ICRA\nenvisions the tribe as a sovereign-like entity, it is unlikely that the ICRA\xe2\x80\x99s free\nspeech clause would permit a tribe simply to deem information to be tribal\ninformation so as to prevent its dissemination, just as the First Amendment would\nnot permit the federal government or a state to deem particular information, gen\xc2\xad\nerally known within its jurisdiction, to be confidential government information\nsolely in order to prevent its dissemination. Second, the ICRA also prohibits an\nIndian tribe, \xe2\x80\x9c in exercising powers of self-government,\xe2\x80\x9d from \xe2\x80\x9c tak[ing] any pri\xc2\xad\nvate property for a public use without just compensation.\xe2\x80\x9d 25 U.S.C. \xc2\xa7 1302(5).\n8 For a more detailed discussion o f potential First Amendment limitations on the government\xe2\x80\x99s ability to recognize\nintellectual property nghts in information, see generally Constitutional Concents Raised by the Collections of\nInformation Antipiracy Act, 22 Op O L C 166, 186-190 (1998)\n\n247\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nTo the extent that the development of knowledge concerning uses of biological\nresources is attributable to an investment of resources by individual members of\nthe tribe rather than the tribe itself, and to the extent that it is appropriate to\ncharacterize such contributions as individual contributions, the tribe\xe2\x80\x99s action could\nraise concerns under the ICRA\xe2\x80\x99s takings clause.\nb. Having outlined the restraints that federal law would impose on recognition\nof a property interest in information on uses of biological resources, we briefly\nexamine the possibilities for such protection under existing federal and state\nintellectual property regimes. It does not appear that a tribe could invoke current\nfederal or state intellectual property law to establish a tribal property right that\ncould, in turn, justify a restriction on the dissemination of tribal information. Fed\xc2\xad\neral patent law, for example, permits one who has developed a particular process\nto establish a property right in that process; the patentee, however, must publicly\ndisclose the process in exchange for an exclusive, temporary right to use it. See\nBonito Boats, Inc. v. Thunder C raft Boats, Inc., 489 U.S. 141, 149 (1989).9 State\nlaw protections on trade secrets permit one who has developed a formula or\nprocess to prevent those privy to information concerning the formula or process\n(such as employees) from disclosing it. For knowledge to be considered a trade\nsecret under existing law, it must ordinarily have independent economic value\nby virtue of being kept secret and must be the subject of reasonable efforts to\nmaintain its secrecy. See Restatement (First) of Torts \xc2\xa7 757 cmt. b (1939). Matters\nof public or general knowledge cannot qualify as trade secrets. Id. To the extent\nthat information on uses of biological resources has been shared with those outside\no f a tribe, trade secret protection would likely be unavailable to the tribe. It is\nunclear whether information held within a tribe, but widely known among tribal\nmembers, could qualify as a trade secret, analogous to information held within\na corporation.\n\nConclusion\nAs this discussion suggests, it is difficult to determine in the abstract whether\na tribe could prevent its members from sharing knowledge concerning possible\ncommercial uses of biological resources with persons outside the tribe. The task\no f deciding whether the ICRA limits a tribe\xe2\x80\x99s ability to prevent its members from\ndisseminating information will fall primarily to tribal courts. It is therefore difficult\nto predict whether conventional free speech principles will guide the inquiry; in\nour view, the better reading o f the ICRA is that such principles should apply.\nIf conventional free speech principles do apply, then the legality of a tribal ordi\xc2\xad\nnance restricting the dissemination of information would depend in large part on\n9 In addition, to merit federal patent protection, a process must (among other things) be novel and nonobvious,\nsee 35 U.S.C. \xc2\xa7 103 (Supp. I 1995), and m ust not have been \xe2\x80\x9c known or used by others in this country,\xe2\x80\x9d 35 U.S C.\n\xc2\xa7 102(a) (1994) To the extent that tnbal members and others have, over time, known of or implemented a particular\nprocess, patent protection for the tribe probably would be unavailable\n\n248\n\n\x0cTribal Restrictions on Sharing o f Indigenous Knowledge on Uses o f Biological Resources\n\nwhether, under the ICRA, the relationship between tribes and their members\nshould be thought of as analogous to the relationship between a government and\nits citizens. What is more, the analysis would turn on particular factual cir\xc2\xad\ncumstances likely to vary from tribe to tribe. In particular, the analysis could turn\non who holds the information that the tribe seeks to protect; whether those who\nhold the information have a particular relationship of trust with the tribe; the mag\xc2\xad\nnitude of the tribal interest underlying the tribe\xe2\x80\x99s effort not to disclose the informa\xc2\xad\ntion; and whether the information in question can be viewed as tribal property\nunder an intellectual property regime that is otherwise consistent with applicable\nlaw.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n249\n\n\x0c'


b'Constitutionality of Line-item Veto Proposal\nA bill that purports to give the President a line-item veto by providing that each item of\nappropriation in an appropriation bill be enrolled, although not voted on, as a separate bill\nraises serious constitutional questions under Article I, \xc2\xa7 7, cl. 2 o f the Constitution.\n\nFebruary 1, 1985\nM\n\nem orandum\n\nO p in io n\n\nfor the\n\nA ttorney G\n\neneral\n\nThis Office has reviewed a copy of S. 43, a bill that seeks to provide the\nPresident with effective line-item veto authority by requiring that each item of\nappropriation in any appropriation bill be enrolled as a separate bill. This\nprocedure would permit the President to veto any of these separate bills and,\ntherefore, give him the power effectively to veto individual items of appropria\xc2\xad\ntion. We commented on a similar proposal pending before Congress last fall\nthat was never adopted. At that time, we set forth a number of general objec\xc2\xad\ntions to the proposal as well as several specific comments concerning the\nparticular language of that draft. The new bill has been revised to answer most\nof our technical objections, but it is still subject to the general concerns that we\nnoted previously.\nThe first major concern we noted with respect to this type of proposal is that\nits constitutionality is a matter o f substantial question. Although we have not\nhad the time to develop a detailed constitutional analysis of this issue, we have\nset forth below the basic outlines of the constitutional question and the argu\xc2\xad\nments that might be developed for and against the constitutionality of the\nproposal. The most we can say is that it is a close question, the outcome of\nwhich cannot be predicted with any reasonable degree of certainty.\nThe constitutional issue arises from the traditional construction of the provi\xc2\xad\nsions in the Constitution governing the veto power of the President. Article I,\n\xc2\xa7 7, cl. 2, states in pertinent part:\nEvery Bill which shall have passed the House of Representa\xc2\xad\ntives and the Senate, shall, before it become a Law, be presented\nto the President of the United States; if he approve he shall sign\nit, but if not he shall return it, with his Objections to that House\nin which it shall have originated, who shall enter the Objections\nat large on their Journal and proceed to reconsider it.\n28\n\n\x0cThe veto clause seems to give the President only two options: he may either\nsign the bill or return it with his objections. Thus, on its face, the language of\nthe Constitution does not seem to permit the President to veto individual parts\nof a bill.\nThis conclusion is confirmed by the actual practice of Presidents under the\nveto clause. No President has ever attempted to exercise an item veto. To the\ncontrary, many Presidents have expressly considered the question and con\xc2\xad\ncluded that the President is without item veto power. In 1793, George Wash\xc2\xad\nington stated that he had signed many bills with which his judgment was at\nvariance, but felt compelled to do so because \xe2\x80\x9cfrom the nature of the Constitu\xc2\xad\ntion, I must approve all the parts of a Bill, or reject it in toto.\xe2\x80\x9d 33 Writings of\nGeorge Washington 96 (1940). President Grant, while urging the adoption of a\nconstitutional amendment to authorize an item veto, recognized the absence of\nsuch a power under the Constitution. See 7 J. Richardson, Messages and\nPapers o f the President 242 (1898). William Howard Taft stated simply that\nthe President \xe2\x80\x9chas no power to veto parts of the bill and allow the rest to\nbecome a law. He must accept it or reject it.\xe2\x80\x9d W. Taft, Chief Magistrate 14\n(1916). This Department has consistently taken a similar position with respect\nto the meaning of the veto clause.\nThe bill attempts to avoid this constitutional obstacle to the line-item veto by\nrequiring each item of appropriation contained in a single bill passed by both\nHouses of Congress to be enrolled as a separate bill. The President would then\nbe able to veto any of these individual bills. The argument in favor of the\nconstitutionality of this proposal begins with the proposition that the definition\nof the term \xe2\x80\x9cbill\xe2\x80\x9d is not fixed by the Constitution, but rather is subject to\nlegislative definition by Congress. Congress has the authority, under its own\nrules, to prescribe what may and may not be included in particular types of\nbills. Similarly, Congress should be able to define that which constitutes a\nseparate bill to be enrolled and presented to the President. This argument could\ncertainly be developed further, and may ultimately prove to be persuasive.\nPerhaps the best way to characterize this legislation from a constitutional\nperspective would be to state that Congress would take a single vote on a\npackage of bills constituting the total appropriation.1 The single vote would\nthen simply be a convenient method for the adoption of multiple bills. At\npresent, however, S. 43 does not read this way. Rather, it requires a bill to be\nsplit into several bills after Congress votes, but before presenting the package\nto the President. As explained in the following paragraphs, this differential\ntreatment of a \xe2\x80\x9cbill\xe2\x80\x9d for congressional passage and presentment to the President\nmay be incompatible with the requirements of Article I, \xc2\xa7 7, cl. 2, which treats\n1 As far as we know , the current practice in C ongress is to adopt each bill that is presented to the President\nby a separate vote. A fter a b rie f investigation, we have been unable to discover any general congressional\npractice o f adopting separate bills together by a single vote. W e understand that such a procedure m ay have\ntaken place once, with respect to the adoption by the H ouse o f energy legislation in 1978, but we know of no\nother instances in which different bills were adopted by a single vote In the lim ited tim e available, our\nresearch has failed to disclose any reported case involving the question w hether C ongress may constitution\xc2\xad\nally take a single vote on a package o f several bills and thereafter present the bills separately to the President.\n\n29\n\n\x0ca bill the same with respect to congressional and Presidential action. We would\nrecommend at the very least that the proposal be amended to embody the\nconcept of a single vote on a series of bills.\nEven if the bill is redrafted, however, we believe that there are very persua\xc2\xad\nsive arguments that could be made against the constitutionality of the proposal.\nTo the extent that we have been able to identify any policy underlying the\n\xe2\x80\x9ctake-it-or-leave-it\xe2\x80\x9d principle of the veto clause, it seems to be that under the\nsystem of checks and balances established by the Constitution, the President\nhas the right to approve or reject a piece of legislation, but not to rewrite it or\nchange the bargain struck by Congress in adopting a particular bill. The\nfundamental principle established by the Constitution with respect to the\nadoption of legislation is that in order to enact a statute it is necessary (in the\nabsence of a congressional override) to have the concurrence of the House, the\nSenate, and the President with respect to the statute as a whole. If the President\nwere allowed to veto individual parts of legislation, then the bargain struck by\nCongress in adopting a bill could be altered. Indeed, the bargain might be\naltered so significantly that it would not receive the approval of a majority of\nboth Houses. Thus, the veto clause ensures that the final compromise that is\nstruck with respect to a particular statute is approved by the President and both\nHouses of Congress.\nThe proposed bill could be considered to be inconsistent with this constitu\xc2\xad\ntional principle because it permits the President to alter the bargain reached by\nCongress without the necessity for reapproval by both Houses. Individual\nitems of appropriation would not be voted on separately, but rather would be\nvoted on as a complete package. Therefore, it would be unclear whether each\nitem of appropriation, or any combination thereof, would receive support of a\nmajority of each House outside of the bill in which it was actually contained.\nBecause each House would vote only once on the total package, the only\nmanifestation of agreement expressed by each House would be an agreement\nwith respect to the entire package. If the package is subsequently broken down\ninto separate parts and the President is permitted to eliminate some of those\nparts from the final law, then the statute will not necessarily reflect the consent\nof each House of Congress. Thus, under this theory, the bill simply attempts to\ncircumvent the requirements of the veto clause in a manner that is no more\nconsistent with the policies of the veto clause than would be a direct legislative\neffort to give the President statutory line-item veto authority.\nIt is not a satisfactory answer to this constitutional argument to respond that\nCongress would have voluntarily imposed this limitation on itself and that\nCongress would be aware when it adopted an appropriations bill that the\nPresident would be able to veto individual parts of it. Congress made the same\nargument in the Chadha case with respect to the President\xe2\x80\x99s approval of\nlegislative veto statutes, but the Supreme Court expressly stated that it was not\npermissible to alter by legislation the veto provisions of the Constitution. The\nCourt stated: \xe2\x80\x9cExplicit and unambiguous provisions of the Constitution pre\xc2\xad\nscribe and define the respective functions of the Congress and of the Executive\n30\n\n\x0cin the legislative process.. .. These provisions of Art. I are integral parts of the\nconstitutional design for the separation of powers.\xe2\x80\x9d INS v. Chadha, 462 U.S.\n919, 945\xe2\x80\x9446 (1983). Thus, under this principle, Congress does not have the\nauthority to alter the constitutionally prescribed method for the adoption of\nlegislation, which requires the concurrence of the House, Senate, and President\nbefore a bill becomes law.\nIn addition to our constitutional concern, we have a concern with respect to\nthe definition of the term \xe2\x80\x9citem.\xe2\x80\x9d Both the old and new bills define an item as\n\xe2\x80\x9cany numbered section and any unnumbered paragraph\xe2\x80\x9d of an appropriations\nbill. The failure of the bill to define the term \xe2\x80\x9citem\xe2\x80\x9d other than by reference to\nthe form in which an appropriations bill is organized could prove to be terribly\ncumbersome and might eventually lead to legislative manipulation and drafting\ntechniques designed to subvert the purpose of the item veto legislation. For\nexample, this proposal might well lead to the drafting of statutes without\nparagraphs or section numbers in order to prevent division of the bill into\nseparate enrolled bills. As we previously noted, however foolish this may\nsound, we do not doubt that enterprising legislators would resort to any lawful\ndrafting technique to avoid the Presidential authority created by these statutes.\nIn addition, the Congress could dilute the effectiveness of the item veto power\ngranted by the proposal by combining, in a single section, appropriations the\nPresident is known to favor with those to which he is opposed. As a practical\nmatter, this type of problem will inhere in any legislation that seeks to require\nseparate enrollment of individual appropriations. Nevertheless, we believe that\nan effort should be made to remedy this problem by redrafting the current\nproposal to restrict the definition of the term \xe2\x80\x9citem.\xe2\x80\x9d\nIn conclusion, arguments can be made both for and against the constitution\xc2\xad\nality of S. 43. Given the importance of the line-item veto in the President\xe2\x80\x99s\nprogram, however, we would urge that strong consideration be given to the\nissue whether the benefits of S. 43 outweigh the substantial constitutional\nissues it raises and the uncertainty that would attach to any legislation enacted\nthrough the mechanism it creates. We are particularly strong in this recommen\xc2\xad\ndation given the ease with which the purpose of S. 43 could be subverted on\nany given appropriations measure. It may also be important to consider whether\nthe President might be faulted for not utilizing effectively the power granted by\nthis statute, when in fact its effectiveness was being undercut by Congress\nthrough clever construction of appropriations bills.\nR a lph W . T arr\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n31\n\n\x0c'


b'Direct Aid to Faith-Based Organizations Under the\nCharitable Choice Provisions of the\nCommunity Solutions Act of 2001\nCongress may, consistent with the Establishment Clause, extend the religious exemptions under Title\nVII of the Civil Rights Act of 1964 to faith-based organizations receiving direct payments of federal\nmoney under the charitable choice provisions set forth in section 1994A of H.R. 7, the Community\nSolutions Act of 2001.\nThe fact that a faith-based organization is organized as a tax-exempt, nonprofit entity under section 501(c)(3) of the Internal Revenue Code does not affect the organization\xe2\x80\x99s ability to invoke the\nreligious exemptions under sections 702(a) and 703(e)(2) of the Civil Rights Act of 1964.\n\nJune 25, 2001\n\nMEMORANDUM OPINION FOR THE ASSOCIATE COUNSEL TO THE PRESIDENT\nYou have asked for our opinion whether Congress may, consistent with the\nEstablishment Clause, U.S. Const. amend. I, extend the religious exemptions\nunder Title VII of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7\xc2\xa7 2000e-1, 2000e2(e)(2) (1994), to faith-based organizations (\xe2\x80\x9cFBOs\xe2\x80\x9d) receiving direct payments of\nfederal money under the charitable choice provisions set forth in section 1994A of\nH.R. 7, the Community Solutions Act of 2001 (\xe2\x80\x9cthe Act\xe2\x80\x9d). If so, you have also\nasked whether an FBO organized as a tax-exempt, nonprofit entity under section 501(c)(3) of the Internal Revenue Code is entitled to the Title VII exemption.\nWe conclude, for the reasons set forth more fully below, that an FBO receiving\ndirect federal aid may make employment decisions on the basis of religion without\nrunning afoul of the Establishment Clause, and that an FBO organized under\nsection 501(c)(3) may invoke the Title VII exemption and employ staff on a\nreligious basis.\nI.\nSection 201 of H.R. 7 would create a new 42 U.S.C. \xc2\xa7 1994A. Proposed section\n1994A(e)(2) would provide that \xe2\x80\x9c[t]he exemption of a religious organization\nprovided under section 702 or 703(e)(2) of the Civil Rights Act of 1964 (42 U.S.C.\n\xc2\xa7\xc2\xa7 2000e-1, 2000e-2(e)(2)) regarding employment practices shall not be affected\nby the religious organization\xe2\x80\x99s provision of assistance under, or receipt of funds\nfrom, a program described in subsection (c)(4).\xe2\x80\x9d It is our understanding that this\nprovision is intended not to alter or amend any provision of Title VII of the Civil\nRights Act of 1964, but, instead, simply to specify and to emphasize that, if an\norganization is otherwise entitled to a religious exemption provided in section 702\nor 703 of Title VII, that organization\xe2\x80\x99s receipt of funds pursuant to one of the\ndesignated programs will not affect the organization\xe2\x80\x99s eligibility for the Title VII\n\n129\n\n227-329 VOL_25_PROOF.pdf 139\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nexemption. In this respect, the provision is similar to provisions included in at least\nthree other recent statutes. 1 You have asked us to consider the constitutionality of\nthe Title VII religious exemptions as applied to qualifying nonprofit employers in\ngeneral, and, more specifically, as applied to the employment decisions of\nnonprofit religious organizations that would receive government funding under\none of the specified programs.\nSection 703(a) of Title VII of the Civil Rights Act of 1964, 42 U.S.C.\n\xc2\xa7 2000e-2(a), generally prohibits employers from engaging in employment\ndiscrimination on the basis of an individual\xe2\x80\x99s race, color, religion, sex, or national\norigin. 2 One of several exemptions to Title VII\xe2\x80\x99s prohibitions is found in section 702(a), 42 U.S.C. \xc2\xa7 2000e-1(a), which provides as follows:\nThis subchapter shall not apply to an employer with respect to the\nemployment of aliens outside any State, or to a religious corporation,\nassociation, educational institution, or society with respect to the\nemployment of individuals of a particular religion to perform work\nconnected with the carrying on by such corporation, association,\neducational institution, or society of its activities.\nAs first enacted in 1964, the section 702 exemption for religious discrimination\nextended only to persons employed to perform work \xe2\x80\x9cconnected with the carrying\non by such [religious] corporation, association, or society of its religious activities.\xe2\x80\x9d Pub. L. No. 88-352, \xc2\xa7 702, 78 Stat. 255 (1964) (emphasis added). In 1972,\n\n1\nSee, e.g., 42 U.S.C. \xc2\xa7 604a(f) (Supp. II 1996) (\xe2\x80\x9cA religious organization\xe2\x80\x99s exemption provided\nunder section 2000e-1 of this title regarding employment practices shall not be affected by its\nparticipation in, or receipt of funds from, programs described in subsection (a)(2) of this section.\xe2\x80\x9d); 42\nU.S.C. \xc2\xa7 9920(b)(3) (Supp. IV 1998) (\xe2\x80\x9cA religious organization\xe2\x80\x99s exemption provided under section\n702 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1) regarding employment practices shall not be\naffected by its participation in, or receipt of funds from, programs described in subsection (a).\xe2\x80\x9d); 42\nU.S.C.A. \xc2\xa7 290kk-1(e) (2001) (\xe2\x80\x9cA religious organization\xe2\x80\x99s exemption provided under section 2000e-1\nof this title regarding employment practices shall not be affected by its participation in, or receipt of\nfunds from, a designated program.\xe2\x80\x9d).\n2\nThat section provides:\n\nIt shall be an unlawful employment practice for an employer\xe2\x80\x94\n(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate\nagainst any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual\xe2\x80\x99s race, color, religion, sex, or national\norigin; or\n(2) to limit, segregate, or classify his employees or applicants for employment in any\nway which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual\xe2\x80\x99s race, color, religion, sex, or national origin.\nId. (emphasis added). In addition, section 704 of Title VII, 42 U.S.C. \xc2\xa7 2000e-3, prohibits certain forms\nof retaliation against employees who raise claims or questions concerning alleged Title VII violations.\n\n130\n\n227-329 VOL_25_PROOF.pdf 140\n\n10/22/12 11:10 AM\n\n\x0cDirect Aid to FBOs Under Charitable Choice Provisions\n\nCongress substantially broadened section 702 by deleting the word \xe2\x80\x9creligious,\xe2\x80\x9d\nwhich had modified \xe2\x80\x9cactivities,\xe2\x80\x9d so that the exemption applies to persons\nemployed to perform work \xe2\x80\x9cconnected with the carrying on by such [religious]\ncorporation, association, or society of its activities.\xe2\x80\x9d Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, \xc2\xa7 3, 86 Stat. 103 (1972). 3 Accordingly,\nTitle VII does not prohibit \xe2\x80\x9ca religious corporation, association, educational\ninstitution, or society\xe2\x80\x9d from discriminating in favor of employees \xe2\x80\x9cof a particular\nreligion.\xe2\x80\x9d 4 A similar exemption is found in section 703(e)(2), 42 U.S.C. \xc2\xa7 2000e2(e)(2), which provides that Title VII does not prohibit an educational institution\nfrom hiring employees \xe2\x80\x9cof a particular religion\xe2\x80\x9d if that institution is wholly or\npartly supported \xe2\x80\x9cby a particular religion or by a particular religious corporation,\nassociation, or society.\xe2\x80\x9d 5\nThe section 702(a) and 703(e)(2) exemptions create express rights for certain\nreligious employers, 6 permitting them to avoid Title VII liability for conduct\n(employment discrimination on the basis of an individual\xe2\x80\x99s religion) that all other\nemployers must forego. In Corp. of Presiding Bishop of Church of Jesus Christ of\nLatter-Day Saints v. Amos, the Supreme Court sustained the constitutionality of\nthe religious exemption in section 702(a) as applied to \xe2\x80\x9csecular\xe2\x80\x9d employment\npositions of qualifying nonprofit religious corporations, reasoning that the\nexemption as so applied was \xe2\x80\x9crationally related to the legitimate purpose of\nalleviating significant governmental interference with the ability of religious\norganizations to define and carry out their religious missions.\xe2\x80\x9d 483 U.S. 327, 339\n(1987). The plaintiffs in Amos argued that, as applied to employees who were\n3\nThat amendment also added \xe2\x80\x9creligious . . . educational institutions\xe2\x80\x9d to the list of exempt religious\norganizations in section 702, while deleting a broader, separate \xe2\x80\x9ceducational institution\xe2\x80\x9d exemption that\noriginally had appeared in section 702 as enacted in 1964. See id.\n4\nBy its terms, section 702(a) applies only \xe2\x80\x9cwith respect to the employment of individuals of a\nparticular religion.\xe2\x80\x9d In other words, that exemption \xe2\x80\x9cmerely indicates that [qualifying] institutions may\nchoose to employ members of their own religion without fear of being charged with religious\ndiscrimination.\xe2\x80\x9d Boyd v. Harding Academy of Memphis, 88 F.3d 410, 413 (6th Cir. 1996). Furthermore,\nthe legislative history manifests congressional intent that section 702(a) would not exempt qualifying\norganizations from other forms of discrimination that Title VII proscribes, such as discrimination on\nthe basis of race and sex.\n5\nWhen Congress enacted Title VII, it included this additional exemption because it understood that\nnot all such educational institutions would be able to take advantage of the \xe2\x80\x9creligious corporation,\nassociation or society\xe2\x80\x9d exemption then found in section 702 (or of the additional \xe2\x80\x9ceducational\ninstitution\xe2\x80\x9d exemption that initially was included in section 702). See EEOC v. Townley Eng\xe2\x80\x99g & Mfg.\nCo., 859 F.2d 610, 617 (9th Cir. 1988) (discussing legislative history).\n6\nAn employer is eligible for the section 702(a) exemption if either (1) the employer is a church, or\nan entity owned, controlled or operated by a church, see, e.g., Corp. of Presiding Bishop of Church of\nJesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 330 n.3 (1987), or (2) the employer\xe2\x80\x99s purpose\nand character are \xe2\x80\x9cprimarily religious,\xe2\x80\x9d based on an examination of all significant religious and secular\ncharacteristics of the organization, see, e.g., Hall v. Baptist Mem\xe2\x80\x99l Health Care Corp., 215 F.3d 618,\n624 (6th Cir. 2000); EEOC v. Kamehameha Schs./Bishop Estate, 990 F.2d 458, 460 (9th Cir. 1993);\nTownley Eng\xe2\x80\x99g & Mfg. Co., 859 F.2d at 618.\n\n131\n\n227-329 VOL_25_PROOF.pdf 141\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\ninvolved exclusively in their employer\xe2\x80\x99s secular (rather than religious) activities,\nthe Title VII exemption did not relieve any burden on the employer\xe2\x80\x99s religious\nexercise, and thus could not be viewed as a permissible religious accommodation.\nThe Court did not take issue with plaintiffs\xe2\x80\x99 contention that confining such\nemployment positions to coreligionists would not directly assist the organizations\nin fulfilling their religious missions. The Court explained, however, that Congress\xe2\x80\x99s 1972 extension of the exemption to all of a qualifying employer\xe2\x80\x99s employees did, indeed, alleviate a \xe2\x80\x9csignificant burden\xe2\x80\x9d on religious exercise\xe2\x80\x94in that case,\nthe burden of requiring an organization, \xe2\x80\x9con pain of substantial liability, to predict\nwhich of its activities a secular court will consider religious.\xe2\x80\x9d Id. at 336 (emphasis\nadded). The Court further explained why this burden of \xe2\x80\x9cprediction\xe2\x80\x9d was \xe2\x80\x9csignificant\xe2\x80\x9d: \xe2\x80\x9cThe line [between the organization\xe2\x80\x99s secular and religious activities] is\nhardly a bright one, and an organization might understandably be concerned that a\njudge would not understand its religious tenets and sense of mission. Fear of\npotential liability might affect the way an organization carried out what it understood to be its religious mission.\xe2\x80\x9d Id. (footnote omitted). Moreover, the broader\nexemption alleviated serious entanglement concerns by \xe2\x80\x9cavoid[ing] the kind of\nintrusive inquiry into religious belief\xe2\x80\x9d by the government that would be necessary\nif the exemption were limited to an organization\xe2\x80\x99s \xe2\x80\x9creligious\xe2\x80\x9d activities. Id. at\n339. 7\nThe decision in Amos provides the framework for evaluating whether application of section 702(a) to employees of a government-funded program would be a\npermissible accommodation. We believe that FBOs receiving direct aid can\ndemonstrate that Title VII\xe2\x80\x99s prohibition on religious discrimination would impose\na significant burden on their exercise of religion, even as applied to employees in\nprograms that must, by law, refrain from specifically religious activities.\nMany religious organizations and associations engage in extensive social welfare and charitable activities, such as operating soup kitchens and day care centers\nor providing aid to the poor and the homeless. Even where the content of such\nactivities is secular\xe2\x80\x94in the sense that it does not include religious teaching,\nproselytizing, prayer or ritual\xe2\x80\x94the religious organization\xe2\x80\x99s performance of such\nfunctions is likely to be \xe2\x80\x9cinfused with a religious purpose.\xe2\x80\x9d Amos, 483 U.S. at 342\n(Brennan, J., concurring). And churches and other religious entities \xe2\x80\x9coften regard\nthe provision of such services as a means of fulfilling religious duty and of\nproviding an example of the way of life a church seeks to foster.\xe2\x80\x9d Id. at 344\n(footnote omitted). In other words, the provision of \xe2\x80\x9csecular\xe2\x80\x9d social services and\ncharitable works that do not involve \xe2\x80\x9cexplicitly religious content\xe2\x80\x9d and are not\n\n7\nAlthough there are no appellate decisions directly on point, the reasoning of Amos explains why\nthe section 703(e)(2) exemption, too, is constitutional as applied to qualifying nonprofit educational\ninstitutions that are wholly or partly supported \xe2\x80\x9cby a particular religion or by a particular religious\ncorporation, association, or society.\xe2\x80\x9d\n\n132\n\n227-329 VOL_25_PROOF.pdf 142\n\n10/22/12 11:10 AM\n\n\x0cDirect Aid to FBOs Under Charitable Choice Provisions\n\n\xe2\x80\x9cdesigned to inculcate the views of a particular religious faith,\xe2\x80\x9d Bowen v.\nKendrick, 487 U.S. 589, 621 (1988), nevertheless may well be \xe2\x80\x9creligiously\ninspired,\xe2\x80\x9d id., and play an important part in the \xe2\x80\x9cfurtherance of an organization\xe2\x80\x99s\nreligious mission.\xe2\x80\x9d Amos, 483 U.S. at 342 (Brennan, J., concurring).\nA religious organization may have good reason for preferring that individuals\nsimilarly committed to its religiously motivated mission operate such secular\nprograms, for such collective activity can be \xe2\x80\x9ca means by which a religious\ncommunity defines itself.\xe2\x80\x9d Id. Indeed, such collective activity not only can\nadvance the organization\xe2\x80\x99s own religious objectives, but also can further the\nreligious mission of the individuals who constitute the religious community: \xe2\x80\x9cFor\nmany individuals, religious activity derives meaning in large measure from\nparticipation in a larger religious community. Such a community represents an\nongoing tradition of shared beliefs, an organic entity not reducible to a mere\naggregation of individuals.\xe2\x80\x9d Id. Accordingly, the selection of coreligionists in\nparticular social-service programs will ordinarily advance a religious organization\xe2\x80\x99s religious mission, facilitate the religiously motivated calling and conduct of\nthe individuals who are the constituents of that organization, and fortify the\norganization\xe2\x80\x99s religious tradition. Where an organization makes such a showing,\nthe Title VII prohibition on religious discrimination would impose \xe2\x80\x9csignificant\ngovernmental interference\xe2\x80\x9d with the ability of that organization \xe2\x80\x9cto define and\ncarry out [its] religious mission[],\xe2\x80\x9d Amos, 483 U.S. at 335, even as applied to\nemployees who are engaged in work that is secular in content. Where that is the\ncase, the section 702(a) exemption would be a permissible religious accommodation that \xe2\x80\x9calleviat[es] special burdens,\xe2\x80\x9d Board of Kiryas Joel Vill. Sch. Dist. v.\nGrumet, 512 U.S. 687, 705 (1994).\nIn our opinion, this rationale provides a persuasive basis for the constitutionality of the Title VII exemptions as applied to employees of FBOs in programs that\nare direct recipients of government funding. 8\nII.\nYou have also asked whether an FBO organized as a tax-exempt, nonprofit\nentity under section 501(c)(3) of the Internal Revenue Code is entitled to the Title\nVII exemption. So long as a religious organization otherwise satisfies the requirements of the section 702(a) or the section 703(e)(2) Title VII exemption, the mere\n\n8\nWe note, further, that the same constitutional question is already present whenever direct government funds are used to employ persons subject to the Title VII exemptions. The provision in proposed\nsection 1994A(e)(2) that \xe2\x80\x9c[t]he exemption of a religious organization provided under section 702 or\n703(e)(2) of the Civil Rights Act of 1964 (42 U.S.C. 2000e-1, 2000e-2(e)(2)) regarding employment\npractices shall not be affected by the religious organization\xe2\x80\x99s provision of assistance under, or receipt\nof funds from, a program described in subsection (c)(4)\xe2\x80\x9d does not raise any constitutional questions that\nare not already present when the Title VII exemptions are applied to employees in such a program.\n\n133\n\n227-329 VOL_25_PROOF.pdf 143\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nfact that the entity is a tax-exempt, nonprofit entity under section 501(c)(3) of the\nInternal Revenue Code should not affect the organization\xe2\x80\x99s ability to invoke that\nexemption. See, e.g., Amos, 483 U.S. at 330 n.3 (noting that appellees did not\ncontest that corporations organized under state law to perform various activities on\nbehalf of the unincorporated Church of Jesus Christ of Latter-Day Saints, which\nwere tax-exempt, nonprofit religious entities under section 501(c)(3), were\ncovered religious organizations for purposes of section 702(a)).\nSHELDON BRADSHAW\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n134\n\n227-329 VOL_25_PROOF.pdf 144\n\n10/22/12 11:10 AM\n\n\x0c'