b'Application of the Religious Freedom Restoration Act\nto the Award of a Grant Pursuant to the Juvenile\nJustice and Delinquency Prevention Act\nThe Religious Freedom Restoration Act is reasonably construed to require the Office of Justice\nPrograms to exempt World Vision\xe2\x80\x94a religious organization that has been awarded a grant under the\nJuvenile Justice and Delinquency Prevention Act\xe2\x80\x94from the religious nondiscrimination provision in\n42 U.S.C. \xc2\xa7 3789d(c)(1).\n\nJune 29, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF JUSTICE PROGRAMS\nWorld Vision, Inc., is a religious organization that has been awarded a $1.5\nmillion grant by the Office of Justice Programs (\xe2\x80\x9cOJP\xe2\x80\x9d) pursuant to the Juvenile\nJustice and Delinquency Prevention Act of 1974 (\xe2\x80\x9cJJDPA\xe2\x80\x9d), Pub. L. No. 93-415,\n88 Stat. 1109 (codified as amended at 42 U.S.C. \xc2\xa7\xc2\xa7 5601\xe2\x80\x935792a (2000 & Supp. III\n2003)). As a condition of receiving grants pursuant to the JJDPA, recipients must\nrefrain from discriminating on the basis of religion in \xe2\x80\x9cemployment in connection\nwith any programs or activity\xe2\x80\x9d funded by the grant. 42 U.S.C. \xc2\xa7 3789d(c)(1)\n(2000). You have asked whether the Religious Freedom Restoration Act\n(\xe2\x80\x9cRFRA\xe2\x80\x9d)\xe2\x80\x94which prohibits the government from \xe2\x80\x9csubstantially burden[ing]\xe2\x80\x9d\nreligious exercise unless that burden \xe2\x80\x9cis the least restrictive means of furthering [a]\ncompelling governmental interest,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb-1(b) (2000)\xe2\x80\x94requires\nOJP to exempt World Vision from the religious nondiscrimination provision. We\nconclude that RFRA is reasonably construed to require that such an accommodation be made for World Vision, and that OJP would be within its legal discretion,\nunder the JJDPA and under RFRA, to exempt World Vision from the religious\nnondiscrimination requirement of section 3789d(c)(1). 1\nI.\nA.\nWorld Vision is \xe2\x80\x9ca Christian relief and development organization founded in\n1950.\xe2\x80\x9d Letter for Marie E. Burke, Office of Justice Programs, from Brian K.\nVasey, Associate General Counsel, World Vision, Inc., Re: World Vision Earmark\nAward at 2 (Sept. 8, 2005) (\xe2\x80\x9cSept. 8 Letter\xe2\x80\x9d). Its stated mission is \xe2\x80\x9cto love and\nserve those in need as a demonstration of [its] faith, and the example of Christ.\xe2\x80\x9d\nId. at 2\xe2\x80\x933. By its own account, World Vision is \xe2\x80\x9ca thoroughly religious organization.\xe2\x80\x9d Letter for Charles Moses and Marie Burke, Office of Justice Programs, from\n1\n\nThis opinion memorializes advice that we provided to you orally in May 2006.\n\n162\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nBrian K. Vasey, Associate General Counsel, World Vision, Inc., Re: World Vision\nCongressional Earmark Award at 2 (Sept. 23, 2005) (\xe2\x80\x9cSept. 23 Letter\xe2\x80\x9d).\nWorld Vision operates projects both domestically and abroad. Domestically, it\nhas focused on \xe2\x80\x9cat-risk youth\xe2\x80\x9d through its \xe2\x80\x9cVision Youth Program.\xe2\x80\x9d Sept. 8 Letter\nat 3. This program serves \xe2\x80\x9cat-risk youth\xe2\x80\x9d in various communities by meeting their\n\xe2\x80\x9cbasic needs,\xe2\x80\x9d pairing them with mentors, and providing job training and academic\ntutoring. Id.; Congressional Earmark Submission to Office of Justice Programs\nfrom World Vision, Inc. (\xe2\x80\x9cGrant Application\xe2\x80\x9d), att. 2, Program Narrative at 6\xe2\x80\x9310\n(May 26, 2005). The program serves beneficiaries regardless of their religious\naffiliation. Sept. 8 Letter at 3. It \xe2\x80\x9cdo[es] not proselytize, and no government funds\nare ever used for religious activities.\xe2\x80\x9d Id.\nSince its founding, World Vision has made it a policy to hire only \xe2\x80\x9cChristian\nstaff to assist with the mission of the organization.\xe2\x80\x9d Id. at 2. World Vision states\nthat it has done so in order to \xe2\x80\x9cmaintain [its] identity and strength, which [are] at\nthe core of [its] success,\xe2\x80\x9d id. at 3, and because it \xe2\x80\x9ccan only remain true to [its]\nvision if [it] ha[s] the freedom to select like-minded staff, which includes staffing\non a religious basis,\xe2\x80\x9d Sept. 23 Letter at 1. World Vision states that the work of the\nVision Youth program is \xe2\x80\x9cvery staff intensive.\xe2\x80\x9d Id. at 2. Its staff\xe2\x80\x94all of whom\n\xe2\x80\x9cshare a faith, passion and commitment to [World Vision\xe2\x80\x99s] mission\xe2\x80\x9d\xe2\x80\x94works\nclosely with local volunteers and churches to meet the needs of at-risk youth. Id. 2\nB.\nIn the Consolidated Appropriations Act, 2005, Congress appropriated\n$102,177,000 to the Department of Justice \xe2\x80\x9cfor demonstration projects, as\nauthorized by sections 261 and 262 of [the JJDPA].\xe2\x80\x9d Pub. L. No. 108-447, 118\nStat. 2809, 2866 (2004) (\xe2\x80\x9c2005 Appropriations Act\xe2\x80\x9d). Sections 261 and 262 of the\nJJDPA permit the Department to make grants to organizations that are working\ntoward \xe2\x80\x9cthe prevention, control, or reduction of juvenile delinquency.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7\xc2\xa7 5665\xe2\x80\x935666 (Supp. III 2003). The conference report accompanying the 2005\nAppropriations Act states that \xe2\x80\x9cOJP is expected to review the following proposals,\n[and] provide grants if warranted.\xe2\x80\x9d H.R. Rep. No. 108-792, at 769 (2004).\nIncluded among the listed proposals was \xe2\x80\x9c$1,500,000 for World Vision for at-risk\nyouth programs.\xe2\x80\x9d Id. at 771.\nOJP thereafter solicited and received a grant application from World Vision,\nwhich requested $1,479,965 to continue funding the Vision Youth Program\n\n2\n\nWe have had no contact with World Vision representatives and are not in a position to assess the\nsincerity of its professions about its religious belief and motivations or the accuracy of its factual\nrepresentations about the organization and the two programs at issue. We therefore accept, for purposes\nof this memorandum, the accuracy of such representations in its letters and grant submission, in the\nunderstanding that review of such representations is ordinarily undertaken during the grant-making\nprocess.\n\n163\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n(\xe2\x80\x9cVision Youth: Transforming the Lives of At-Risk Youth\xe2\x80\x9d) and to initiate a new\nproject called the \xe2\x80\x9cWorld Vision Northern Virginia Community Mobilization\nInitiative\xe2\x80\x9d (\xe2\x80\x9cCommunity Mobilization Initiative\xe2\x80\x9d). The Vision Youth Program\nseeks \xe2\x80\x9cto transform the lives of high-risk young people in eight locations across\nthe country\xe2\x80\x9d by facilitating \xe2\x80\x9cone-on-one mentoring, educational enhancement, and\nlife-skills training for at-risk children and youth.\xe2\x80\x9d Grant Application, att. 2,\nProgram Narrative at 1. The grant would fund a portion of the salary and benefits\nof fourteen existing World Vision employees, each of whom would spend part of\nhis or her time managing the Vision Youth Program funded by the grant. Id., att. 1,\nBudget Narrative at 1. Those employees oversee the training of Youth Outreach\nWorkers to implement the Vision Youth Program in local communities. Id.; see\nalso id., att. 2, Program Narrative at 7. The Youth Outreach Workers, in turn,\nrecruit and train volunteers from local faith-based organizations, \xe2\x80\x9cforming a\ncritical mass of supportive adults around these [at-risk] young people.\xe2\x80\x9d Id., att. 2,\nProgram Narrative at 7.\nThe Community Mobilization Initiative would seek to \xe2\x80\x9caddress the escalating\ngang presence and related violence and criminal activities in the Northern Virginia\nmetropolitan region.\xe2\x80\x9d Id. at 13. Like the Vision Youth program, the new initiative\nwould \xe2\x80\x9cprovid[e] mentoring to youth at-risk for gang involvement, build[] relationships with youth currently involved in gang activity, provid[e] training and\nworkshops for families and the communities, and provid[e] alternative activities\nfor youth at-risk for gang involvement.\xe2\x80\x9d Id. at 16. The grant would fund all or part\nof the salary and benefits of eight World Vision employees assigned to the antigang initiative. Id., att. 1, Budget Narrative at 1\xe2\x80\x932. Those employees would work\nwith local law enforcement, schools, and social service agencies \xe2\x80\x9cto identify\nconcentrations of young people who are either in or vulnerable to recruitment by\nlocal gangs.\xe2\x80\x9d Id., att. 2, Program Narrative at 18. In particular, they would initiate\na \xe2\x80\x9cNeighborhood Transformation Project\xe2\x80\x9d and a \xe2\x80\x9cCommunity Outreach Campaign\xe2\x80\x9d to counteract gang formation and gang violence. Id. at 19\xe2\x80\x9320.\nOJP awarded World Vision the full amount of its request. Approximately\n$713,110, or 48% of the grant funds, pays all or a portion of the salary and\nbenefits of World Vision employees on the two projects. Id., att. 1, Budget\nNarrative at 1. The balance covers travel expenses, supplies, consultant fees, and\nother miscellaneous expenses. Id. at 1\xe2\x80\x935. For the relevant fiscal year, the grant\nrepresents approximately 10% of the entire budget for World Vision\xe2\x80\x99s domestic\ncommunity-based programs, and approximately 75% of the public funding the\norganization is receiving for domestic operations. Sept. 23 Letter at 2.\nC.\nThis grant, like all grants under the JJDPA, is subject to 42 U.S.C. \xc2\xa7 3789d(c),\nthe nondiscrimination provision of the Omnibus Crime Control and Safe Streets\nAct of 1968, Pub. L. No. 90-351, 82 Stat. 197 (the \xe2\x80\x9cSafe Streets Act\xe2\x80\x9d). 42 U.S.C.\n\n164\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\n\xc2\xa7 5672(b) (2000) (\xe2\x80\x9cSection[] 3789d(c) . . . shall apply with respect to the administration of and compliance with this chapter\xe2\x80\x9d). That provision states that \xe2\x80\x9c[n]o\nperson in any State shall on the ground of . . . religion . . . be subjected to discrimination under or denied employment in connection with any programs or activity\nfunded in whole or in part with funds made available under this chapter.\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 3789d(c)(1).\nAfter approving the grant, OJP informed World Vision that it was subject to the\nreligious nondiscrimination provision of the Safe Streets Act. Letter for Kimberlee\nLaGree Ross, World Vision, Inc., from Michael L. Alston, Director, Office for\nCivil Rights, Office of Justice Programs at 2 (Aug. 16, 2005). OJP noted that,\n\xe2\x80\x9c[c]onsequently, in many circumstances, it would be impermissible for faith-based\norganizations seeking or receiving funding authorized by these statutes to have\npolicies or practices that condition hiring and other employment-related decisions\non the religion of applicants or employees.\xe2\x80\x9d Id.\nIn response, World Vision \xe2\x80\x9crequested relief under the Religious Freedom and\n[sic] Restoration Act of 1993.\xe2\x80\x9d Sept. 23 Letter at 1. 3\nII.\nCongress enacted the Religious Freedom Restoration Act in 1993, Pub. L. No.\n103-141, 107 Stat. 1488 (codified as amended at 42 U.S.C. \xc2\xa7\xc2\xa7 2000bb to 2000bb-4\n(2000)), to respond to the Supreme Court\xe2\x80\x99s decision in Employment Division v.\nSmith, 494 U.S. 872 (1990), which had \xe2\x80\x9cvirtually eliminated the requirement that\nthe government justify burdens on religious exercise imposed by laws neutral\ntoward religion.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb(a)(4) (2000); see also City of Boerne v.\nFlores, 521 U.S. 507, 512\xe2\x80\x9316 (1997). RFRA sought to re-impose that requirement\nby providing that the \xe2\x80\x9cGovernment shall not substantially burden a person\xe2\x80\x99s\nexercise of religion even if the burden results from a rule of general applicability,\xe2\x80\x9d\n42 U.S.C. \xc2\xa7 2000bb-1(a), unless the government \xe2\x80\x9cdemonstrates that application of\nthe burden to the person\xe2\x80\x94(1) is in furtherance of a compelling governmental\ninterest; and (2) is the least restrictive means of furthering that compelling\ngovernmental interest,\xe2\x80\x9d id. \xc2\xa7 2000bb-1(b). RFRA thus mandates strict scrutiny of\nany federal law that substantially burdens the exercise of religion, even if the\n\n3\nOn November 22, 2005, President Bush signed the Science, State, Justice, Commerce, and Related Agencies Appropriations Act, 2006, which appropriated funds for demonstration projects under the\nJJDPA and included this provision: \xe2\x80\x9c[S]ection 702(a) of Public Law 88-352 shall apply to any grants\nfor World Vision, described in House Report No. 108-792 and the statement of managers accompanying this Act, and awarded by the Attorney General.\xe2\x80\x9d Pub. L. No. 109-108, 119 Stat. 2290, 2303 (\xe2\x80\x9c2006\nAppropriations Act\xe2\x80\x9d). On its face, however, section 702(a) of Public Law 88-352 (codified at 42 U.S.C.\n\xc2\xa7 2000e-1(a) (2000)) exempts religious organizations only from the nondiscrimination provisions of\nTitle VII of the Civil Rights Act of 1964, not from the nondiscrimination provision of the Safe Streets\nAct. The 2006 Appropriations Act thus does not address whether World Vision is exempt from 42\nU.S.C. \xc2\xa7 3789d(c).\n\n165\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nburden is incidental to the application of a religion-neutral rule. Gonzales v. O\nCentro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424, 430\xe2\x80\x9331 (2006)\n(\xe2\x80\x9cO Centro\xe2\x80\x9d). RFRA applies \xe2\x80\x9cto all Federal law, and the implementation of that\nlaw, whether statutory or otherwise, and whether adopted before or after November 16, 1993.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb-3(a) (2000).\nThe White House Office of Faith-Based and Community Initiatives (\xe2\x80\x9cOFBCI\xe2\x80\x9d)\ntakes the position that \xe2\x80\x9can organization\xe2\x80\x99s ability to select employees that share its\ncommon values and sense of purpose . . . is vital to all organizations, not just faithbased groups.\xe2\x80\x9d OFBCI, Protecting the Civil Rights and Religious Liberty of FaithBased Organizations at 3 (\xe2\x80\x9cFaith-Based Organizations\xe2\x80\x9d) (available at http://\ngeorgewbush-whitehouse.archives.gov/government/fbci/religious-hiring-booklet-2005.\npdf, last visited Aug. 12, 2014). Because \xe2\x80\x9c[a] secular group that receives government money\xe2\x80\x9d to administer a federal program \xe2\x80\x9cis currently free to hire based on its\nideology and mission,\xe2\x80\x9d OFBCI has stated that \xe2\x80\x9c[a]llowing religious groups to\nconsider faith in hiring when they receive government funds simply levels the\nplaying field\xe2\x80\x94by making sure that, when it comes to serving impoverished\nAmericans, faith-based groups are as welcome at the government\xe2\x80\x99s table as nonreligious ones.\xe2\x80\x9d Id. OFBCI has accordingly concluded that faith-based groups\ninvolved in administering federal social service programs \xe2\x80\x9cshould retain their\nfundamental civil rights, including their ability . . . to take their faith into account\nwhen they make employment decisions.\xe2\x80\x9d Id.\nAccordingly, the President directed in Executive Order 13279 that:\nConsistent with the Free Exercise Clause and the Free Speech Clause\nof the Constitution, faith-based organizations should be eligible to\ncompete for Federal financial assistance used to support social service programs and to participate fully in the social service programs\nsupported with Federal financial assistance without impairing their\nindependence, autonomy, expression, or religious character. Accordingly, a faith-based organization that applies for or participates in a\nsocial service program supported with Federal financial assistance\nmay retain its independence and may continue to carry out its mission, including the definition, development, practice, and expression\nof its religious beliefs, provided that it does not use direct Federal financial assistance to support any inherently religious activities, such\nas worship, religious instruction, or proselytization.\nId. \xc2\xa7 2(f), 3 C.F.R. 258, 260 (2002 Comp.) (\xe2\x80\x9cOrder\xe2\x80\x9d). That executive order\nillustrates ways in which a faith-based organization may \xe2\x80\x9ccontinue to carry out its\nmission, including the definition . . . and expression of religious beliefs\xe2\x80\x9d while\nparticipating in a federally funded social service program:\n\n166\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nAmong other things, faith-based organizations that receive Federal\nfinancial assistance may use their facilities to provide social services\nsupported with Federal financial assistance, without removing or altering religious art, icons, scriptures, or other symbols from these facilities. In addition, [such] a faith-based organization . . . may retain\nreligious terms in its organization\xe2\x80\x99s name, select its board members\non a religious basis, and include religious references in its organization\xe2\x80\x99s mission statements and other chartering or governing documents.\nId. (emphasis added). 4 The Order directs that agency heads \xe2\x80\x9cimplement new\npolicies for their respective agencies that are consistent with and necessary to\nfurther the fundamental principles and policymaking criteria articulated in section\n2 of this order.\xe2\x80\x9d Id. \xc2\xa7 3(b)(ii). In addition, we understand that the President wishes\nto exempt religious organizations that administer federally funded social services\nfrom religious nondiscrimination requirements imposed on their employment\npractices as a condition of funding, if RFRA is reasonably construed to require\nsuch an accommodation. See Memorandum for Ralph Boyd, Assistant Attorney\nGeneral, Civil Rights Division, et al., from Jay Bybee, Assistant Attorney General,\nOffice of Legal Counsel, Re: Applicability of Religious Freedom Restoration Act\nto Religious Nondiscrimination Requirements Imposed on Grantees Who Administer Federally Funded Services Under the Substance Abuse and Mental Health\nServices Act at 1, 11 (Dec. 2, 2002) (\xe2\x80\x9cSAMHSA Memorandum\xe2\x80\x9d) (discussing\napplication of this intention to SAMHSA grant program); E-mail for John P.\nElwood, Deputy Assistant Attorney General, Office of Legal Counsel, from\nNeomi J. Rao, Associate Counsel to the President (May 10, 2006); cf. Faith-Based\nOrganizations at 9 (\xe2\x80\x9cPresident Bush will strive to ensure that faith-based organizations that receive Federal funds retain their civil right to base employment\ndecisions on their ideals and mission.\xe2\x80\x9d).\nTo implement Executive Order 13279, the Department of Justice adopted regulations that closely track its language. See 28 C.F.R. pt. 38 (2006). The regulations\nprovide that, so long as such groups do not \xe2\x80\x9cuse direct financial assistance from\nthe Department to support any inherently religious activities, such as worship,\nreligious instruction, or proselytization,\xe2\x80\x9d a religious organization that participates\nin the Department-funded programs or services \xe2\x80\x9cwill retain its independence from\nFederal, State, and local governments, and may continue to carry out its mission,\n4\nWe understand the four specific instances listed in section 2(f) of the Order to represent examples\nof ways in which a faith-based group could participate in social service programs while \xe2\x80\x9ccontinu[ing]\nto carry out its mission,\xe2\x80\x9d rather than to describe the limit of permissible accommodations. The relevant\npassage begins by noting a specific accommodation that can be made \xe2\x80\x9c[a]mong other things,\xe2\x80\x9d and the\nnext sentence discusses three other instances of accommodations that can be made \xe2\x80\x9c[i]n addition\xe2\x80\x9d to\nthat. Exec. Order No. 13279, \xc2\xa7 2(f) (emphasis added). Accordingly, we do not understand the Order to\nsuggest that it forecloses other possible accommodations of religiously-motivated hiring practices.\n\n167\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nincluding the definition, practice, and expression of its religious beliefs.\xe2\x80\x9d Id.\n\xc2\xa7 38.1(c). The regulations then repeat each of the specific examples of permissible\nreligious practices listed in section 2(f) of the Order. Id. The regulations note,\nhowever, that \xe2\x80\x9c[s]ome Department programs . . . contain independent statutory\nprovisions requiring that all grantees agree not to discriminate in employment on\nthe basis of religion.\xe2\x80\x9d Id. \xc2\xa7 38.1(f). The regulations therefore recommend that\ngrantees \xe2\x80\x9cconsult with the appropriate Department program office to determine the\nscope of any applicable requirements.\xe2\x80\x9d Id.\nFor the reasons explained below, we conclude that RFRA is reasonably construed to require OJP to exempt World Vision from the Safe Streets Act\xe2\x80\x99s religious\nnondiscrimination provision otherwise applicable to the grant in question, and that,\naccordingly, OJP would be within its legal discretion, under the JJDPA and under\nRFRA, to exempt World Vision from the religious nondiscrimination requirements\nof section 3789d(c)(1). In Part II.A, we explain that the World Vision programs\nfunded by the grant are an \xe2\x80\x9cexercise of religion\xe2\x80\x9d under RFRA. In Part II.B, we\ndetermine that it is reasonable to conclude that requiring World Vision to comply\nwith the nondiscrimination provision as a condition of receiving the grant would\n\xe2\x80\x9csubstantially burden\xe2\x80\x9d its religious exercise. In Part II.C, we determine that\napplying a religious nondiscrimination provision to World Vision would not\nfurther a compelling governmental interest. Finally, in Part III, we discuss the\nconsistency of our conclusions with relevant decisions of the Supreme Court\nconcerning the government\xe2\x80\x99s discretion to fund religious activities.\nA.\nRFRA originally provided that \xe2\x80\x9cthe term \xe2\x80\x98exercise of religion\xe2\x80\x99 means the exercise of religion under the First Amendment to the Constitution.\xe2\x80\x9d Pub. L. No. 103141, \xc2\xa7 5(4), 107 Stat. at 1489. Many courts initially interpreted RFRA to require\nthat the exercise of religion be \xe2\x80\x9ccentral\xe2\x80\x9d to the claimant\xe2\x80\x99s religious faith. See\nAdkins v. Kaspar, 393 F.3d 559, 567 n.34 (5th Cir. 2004) (collecting cases). In\n2000, however, Congress amended RFRA to incorporate the definition of \xe2\x80\x9cexercise of religion\xe2\x80\x9d from the newly enacted Religious Land Use and Institutionalized\nPersons Act (\xe2\x80\x9cRLUIPA\xe2\x80\x9d). Pub. L. No. 106-274, \xc2\xa7 7(a)(3), 114 Stat. 803, 806\n(codified at 42 U.S.C. \xc2\xa7 2000bb-2(4) (2000)) (\xe2\x80\x9cAs used in this chapter . . . the term\n\xe2\x80\x98exercise of religion\xe2\x80\x99 means religious exercise, as defined in section 2000cc-5 of\nthis title.\xe2\x80\x9d). RLUIPA provides that \xe2\x80\x9c[t]he term \xe2\x80\x98religious exercise\xe2\x80\x99 includes any\nexercise of religion, whether or not compelled by, or central to, a system of\nreligious belief.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000cc-5(7)(A) (2000) (emphasis added). Significantly, courts that previously required a showing under RFRA that a burdened\n\n168\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nreligious practice was fundamental or central to the claimant\xe2\x80\x99s faith have repudiated that view since the 2000 amendment. 5\nUnder the \xe2\x80\x9cbroad definition\xe2\x80\x9d in RFRA, Adkins, 393 F.3d at 567, we conclude\nthat World Vision\xe2\x80\x99s work as part of its \xe2\x80\x9cVision Youth\xe2\x80\x9d and \xe2\x80\x9cCommunity Mobilization Initiative\xe2\x80\x9d programs constitutes the \xe2\x80\x9cexercise of religion\xe2\x80\x9d within the\nmeaning of RFRA. The Supreme Court has long recognized that the \xe2\x80\x9cexercise\xe2\x80\x9d of\nreligion protected by the First Amendment \xe2\x80\x9cinvolves not only belief and profession but the performance of (or abstention from) physical acts.\xe2\x80\x9d Smith, 494 U.S. at\n877; accord id. at 893 (O\xe2\x80\x99Connor, J., concurring in the judgment) (\xe2\x80\x9cconduct\nmotivated by sincere religious belief\xe2\x80\x9d is \xe2\x80\x9cat least presumptively protected by the\nFree Exercise Clause\xe2\x80\x9d). The \xe2\x80\x9cexercise\xe2\x80\x9d of religion encompasses activity \xe2\x80\x9cgrounded in religious belief.\xe2\x80\x9d Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983)\n(collecting authorities); see also Wisconsin v. Yoder, 406 U.S. 205, 219\xe2\x80\x9320 (1972)\n(rejecting argument that only belief is protected by Free Exercise Clause). The\nexercise of religion can include charitable work of the sort involved here. Justice\n5\nCompare, e.g., Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 662 (10th Cir.\n2006) (\xe2\x80\x9cUnder the definition of \xe2\x80\x98religious exercise\xe2\x80\x99 . . . , a religious exercise need not be mandatory for\nit to be protected under RFRA.\xe2\x80\x9d), with Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (\xe2\x80\x9cTo\nexceed the \xe2\x80\x98substantial burden\xe2\x80\x99 threshold, government regulation must significantly inhibit or constrain\nconduct or expression that manifests some central tenet of a prisoner\xe2\x80\x99s individual beliefs . . . or must\ndeny a prisoner reasonable opportunities to engage in those activities that are fundamental to a\nprisoner\xe2\x80\x99s religion.\xe2\x80\x9d) (superseded by RFRA as recognized in Grace United Methodist, 451 F.3d at 662\xe2\x80\x93\n63); see also Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)\n(\xe2\x80\x9cRLUIPA\xe2\x80\x99s broader definition of religious exercise, which need not be \xe2\x80\x98compelled by or central to\xe2\x80\x99 a\nparticular religion,\xe2\x80\x9d must be substituted for circuit\xe2\x80\x99s earlier, stricter test); Adkins, 393 F.3d at 567 n.34\n(noting pre-amendment decisions and amendment); id. at 570 (rejecting centrality test, relying on\nRFRA amendment); Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003) (\xe2\x80\x9cdeclin[ing] to adopt a\ndefinition of substantial burden that would require claimants to show that they either have been\nprevented from doing something their religion says they must, or compelled to do something their\nreligion forbids\xe2\x80\x9d); Peterson v. Minidoka County Sch. Dist. No. 131, 118 F.3d 1351, 1357 (9th Cir.\n1997) (\xe2\x80\x9cFrancis of Assisi was exercising his religion when he gave his costly clothes to the poor; if a\ngovernment had tried to prevent the gesture it would have violated his free exercise although he acted\nfrom no binding precept.\xe2\x80\x9d).\nWhile some post-amendment decisions still use language suggesting that religious beliefs must be\ncentral to be covered by RFRA (or RLUIPA), those opinions typically do not address the effect of the\namendment, but rather uncritically quote decisions that predate the amendment. See, e.g., Murphy v.\nMo. Dep\xe2\x80\x99t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (\xe2\x80\x9cTo constitute a substantial burden [under\nRLUIPA], the government policy or actions: must \xe2\x80\x98significantly inhibit or constrain conduct or\nexpression that manifests some central tenet of a [person\xe2\x80\x99s] individual [religious] beliefs; . . . or must\ndeny a [person] reasonable opportunities to engage in those activities that are fundamental to a\n[person\xe2\x80\x99s] religion.\xe2\x80\x99\xe2\x80\x9d) (quoting Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997)). Indeed, in Murphy, the\ncourt of appeals did not have to consider whether centrality of belief was necessary, because it\naccepted, for purposes of summary judgment, the sincerity of the plaintiff inmate\xe2\x80\x99s profession that\nworship with other church members, who could be Caucasian only, was central to his faith. Id. at 981,\n988. The court of appeals remanded for trial on whether the inmate\xe2\x80\x99s beliefs were sincere, on whether\nthe inability to worship communally was a substantial burden on the inmate\xe2\x80\x99s faith, and on whether the\ngovernment had a compelling interest in prison security that justified its refusal to permit the inmate to\nworship with others of the same faith. Id. at 988\xe2\x80\x9389.\n\n169\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nBrennan, in his opinion concurring in the judgment in Corporation of Presiding\nBishop v. Amos, 483 U.S. 327, 340-46 (1987), observed that religious groups\n\xe2\x80\x9coften regard the provision of [community] services as a means of fulfilling\nreligious duty and of providing an example of the way of life [they] seek[] to\nfoster.\xe2\x80\x9d Id. at 344. Justice Brennan opined that persons engaging in nonprofit\nactivities with those purposes were engaged in the \xe2\x80\x9cexercise of religion.\xe2\x80\x9d Id. at\n343\xe2\x80\x9345. As courts have recognized, charitable work of this sort is an aspect of\nreligious practice in many major world religions. See, e.g., W. Presbyterian\nChurch v. Bd. of Zoning Adjustment, 862 F. Supp. 538, 544 (D.D.C. 1994) (\xe2\x80\x9c[T]he\nconcept of acts of charity as an essential part of religious worship is a central tenet\nof all major religions.\xe2\x80\x9d); cf. Jesus Ctr. v. Farmington Hills Zoning Bd. of Appeals,\n544 N.W.2d 698, 704 (Mich. App. 1996) (\xe2\x80\x9c[P]roviding shelter or sanctuary to the\nneedy[] has been part of the Christian religious tradition since the days of the\nRoman Empire.\xe2\x80\x9d).\nWorld Vision\xe2\x80\x99s stated purpose for undertaking these two programs is to \xe2\x80\x9clove\nand serve those in need as a demonstration of [its] faith, and the example of\nChrist.\xe2\x80\x9d Sept. 8 Letter at 2\xe2\x80\x933. That purpose is consistent with the organization\xe2\x80\x99s\ngeneral mission statement, which provides that World Vision is a \xe2\x80\x9cpartnership of\nChristians whose mission is to follow our Lord and Saviour Jesus Christ in\nworking with the poor and oppressed to promote human transformation, seek\njustice and bear witness to the good news of the Kingdom of God.\xe2\x80\x9d World Vision\nInternational, Mission Statement (available at http://www.wvi.org/wvi/about_us/\nwho_we_are.htm, last visited June 22, 2007). * World Vision thus undertakes its\ncharitable work, including the Vision Youth and Community Mobilization\nInitiative programs, as an expression of its religious beliefs. Even under RFRA\xe2\x80\x99s\nprior definition, the few courts that directly addressed whether such charitable\nactivities were an exercise of religion concluded that they were. See, e.g., Stuart\nCircle Parish v. Bd. of Zoning Appeals, 946 F. Supp. 1225, 1237 (E.D. Va. 1996)\n(granting preliminary injunction on RFRA and Free Exercise claim because\n\xe2\x80\x9cplaintiffs have given strong evidence that the Meal Ministry [charitable feeding\nprogram] is motivated by their religious belief and that their participation in the\nMeal Ministry constitutes the free exercise of religion\xe2\x80\x9d); W. Presbyterian, 862 F.\nSupp. at 546 (\xe2\x80\x9cUnquestionably, the Church\xe2\x80\x99s feeding program in every respect is\nreligious activity and a form of worship.\xe2\x80\x9d); Jesus Ctr., 544 N.W.2d at 703\xe2\x80\x9304\n(holding that organization\xe2\x80\x99s provision of shelter to homeless, which \xe2\x80\x9cflows from\nits religious beliefs,\xe2\x80\x9d is an \xe2\x80\x9cexercise of religion\xe2\x80\x9d under RFRA). 6 Under the\n*\nEditor\xe2\x80\x99s Note: The mission statement now can be found at http://www.wvi.org/our-missionstatement (last visited Sept. 18, 2014).\n6\nDuring the debates that preceded the amendment to RFRA\xe2\x80\x99s definition of religious exercise, a\nnumber of members of Congress cited Western Presbyterian and similar cases and said that those cases\nrepresented the kind of activities the members wished to protect through legislation. See, e.g., 145\nCong. Rec. 16,224 (1999) (statement of Rep. Canady) (\xe2\x80\x9cWhile RFRA was on the books, successful\nclaimants included a Washington, D.C. church whose practice of feeding a hot breakfast to homeless\n\n170\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\ncircumstances, we conclude that the two programs operated by World Vision\nconstitute an \xe2\x80\x9cexercise of religion.\xe2\x80\x9d\nOur conclusion that the work conducted under these two programs constitutes\nthe exercise of religion is not affected by the fact that World Vision does not seek\nto proselytize those whom it serves, or the fact that secular organizations perform\nsimilar work. A contrary rule, requiring the \xe2\x80\x9cexercise of religion\xe2\x80\x9d to include a\nuniquely religious element (e.g., consumption of sacrament, liturgical expression,\nevangelization of non-believers) would effectively limit the term to practices\ndeemed central to religious belief or observance. As noted above, Congress\nexplicitly rejected a centrality requirement when it amended RFRA in 2000.\nB.\nWe next address whether requiring World Vision to comply with the Safe\nStreets Act\xe2\x80\x99s religious nondiscrimination provision as a condition of receiving the\nOJP grant would \xe2\x80\x9csubstantially burden\xe2\x80\x9d the exercise of religion by World Vision.\nWe conclude that RFRA is reasonably construed to provide that placing such a\ncondition on receipt of a grant would substantially burden World Vision\xe2\x80\x99s\nreligious exercise.\n1.\nRFRA does not define the term \xe2\x80\x9csubstantial[] burden.\xe2\x80\x9d Because \xe2\x80\x9cRFRA expressly adopted the compelling interest test \xe2\x80\x98as set forth in Sherbert v. Verner, 374\nU.S. 398 (1963)[,] and Wisconsin v. Yoder, 406 U.S. 205 (1972),\xe2\x80\x99\xe2\x80\x9d O Centro, 546\nU.S. at 420 (quoting 42 U.S.C. \xc2\xa7 2000bb(b)(1)), however, it is widely accepted\nthat the Court\xe2\x80\x99s pre-Smith decisions provide guidance in determining the meaning\nof that term. See, e.g., Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 171 (4th\nCir. 1995). Those decisions indicate that directly prohibiting a religious organization from hiring only persons of the same faith could impose a \xe2\x80\x9csubstantial\nburden\xe2\x80\x9d on the exercise of religion by the organization.\nThe Supreme Court\xe2\x80\x99s opinion in Corporation of Presiding Bishop v. Amos is\ninstructive. The Court there rejected an Establishment Clause challenge to a\nprovision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000e-1(a),\nwhich exempted religious organizations from the Title VII prohibition on religious\ndiscrimination and permitted religious organizations to consider religion in hiring\nfor all of their activities. A former employee at a gymnasium operated by the\nChurch of Jesus Christ of Latter-Day Saints had been terminated after he failed to\n\nmen and women reportedly violated zoning laws\xe2\x80\x9d; \xe2\x80\x9c[t]he same sorts of cases would be affected by this\nlegislation.\xe2\x80\x9d); id. at 16,226 (statement of Rep. Hutchinson) (\xe2\x80\x9cIt is necessary to make sure that a small\nchurch is able to continue its ministry to the homeless.\xe2\x80\x9d); id. at 16,241 (statement of Rep. Bachus)\n(\xe2\x80\x9c[W]e will not prohibit a church here in Washington, D.C., to feed the homeless\xe2\x80\x9d).\n\n171\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nprovide a certificate indicating that he was a member of the Church. The Church\ncited the Title VII exemption in responding to his suit for religious discrimination;\nthe employee argued that exempting the religious organization violated the\nEstablishment Clause. The Court explained that the exemption served a valid\nsecular purpose because it \xe2\x80\x9calleviate[d] significant governmental interference with\nthe ability of religious organizations to define and carry out their religious\nmissions.\xe2\x80\x9d Amos, 483 U.S. at 335.\nThe Court did not take issue with the trial court\xe2\x80\x99s determination that running\nthe gymnasium was a \xe2\x80\x9cnonreligious activity,\xe2\x80\x9d id. at 332, but nevertheless upheld\nthe Title VII exemption even as applied to the nonreligious activities of a religious\norganization. Id. at 335\xe2\x80\x9336. The Court reasoned that the line between secular and\nreligious activities \xe2\x80\x9cis hardly a bright one\xe2\x80\x9d and that it would significantly burden a\nreligious group \xe2\x80\x9cto require it, on pain of substantial liability, to predict which of its\nactivities a secular court will consider religious.\xe2\x80\x9d Id. at 336. \xe2\x80\x9cFear of potential\nliability might affect the way an organization carried out what it understood to be\nits religious mission.\xe2\x80\x9d Id. The Court thus deemed it permissible for Congress to\nexempt the activities of religious organizations from the religious nondiscrimination requirements of Title VII. 7\nThis Office previously has concluded that the Court\xe2\x80\x99s opinion in Amos, together with Justice Brennan\xe2\x80\x99s concurring opinion in the case, indicates that prohibiting\nreligious organizations from hiring only coreligionists can \xe2\x80\x9cimpose a significant\nburden on their exercise of religion, even as applied to employees in programs that\nmust, by law, refrain from specifically religious activities.\xe2\x80\x9d Direct Aid to FaithBased Organizations Under the Charitable Choice Provisions of the Community\nSolutions Act of 2001, 25 Op. O.L.C. 129, 132 (2001). We explained further:\nMany religious organizations and associations engage in extensive\nsocial welfare and charitable activities, such as operating soup kitchens and day care centers or providing aid to the poor and the homeless. Even where the content of such activities is secular\xe2\x80\x94in the\nsense that it does not include religious teaching, proselytizing, prayer\nor ritual\xe2\x80\x94the religious organization\xe2\x80\x99s performance of such functions\nis likely to be \xe2\x80\x9cinfused with a religious purpose.\xe2\x80\x9d Amos, 483 U.S. at\n\n7\nWhile we do not resolve the issue, an argument could be made that not permitting a religious\norganization to discriminate on the basis of religion in hiring, while permitting non-religious\norganizations to discriminate on the basis of their particular ideologies in hiring, would violate the Free\nExercise Clause and the Free Speech Clause. See Church of the Lukumi Babalu Aye, Inc. v. City of\nHialeah, 508 U.S. 520, 542 (1993) (city ordinances forbidding \xe2\x80\x9critual\xe2\x80\x9d killing of animals violated Free\nExercise Clause, because they \xe2\x80\x9cwere gerrymandered with care to proscribe religious killings of animals\nbut to exclude almost all secular killings\xe2\x80\x9d); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.\n819, 830\xe2\x80\x9337 (1995) (university\xe2\x80\x99s policy of reimbursing publication expenses incurred by student\norganizations, unless organizations engaged in religious activity, constituted viewpoint discrimination\nin violation of Free Speech Clause).\n\n172\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\n342 (Brennan, J., concurring). And churches and other religious entities \xe2\x80\x9coften regard the provision of such services as a means of fulfilling religious duty and of providing an example of the way of life\na church seeks to foster.\xe2\x80\x9d Id. at 344 (footnote omitted). In other\nwords, the provision of \xe2\x80\x9csecular\xe2\x80\x9d social services and charitable\nworks that do not involve \xe2\x80\x9cexplicitly religious content\xe2\x80\x9d and are not\n\xe2\x80\x9cdesigned to inculcate the views of a particular religious faith,\xe2\x80\x9d\nBowen v. Kendrick, 487 U.S. 589, 621 (1988), nevertheless may well\nbe \xe2\x80\x9creligiously inspired,\xe2\x80\x9d id., and play an important part in the \xe2\x80\x9cfurtherance of an organization\xe2\x80\x99s religious mission.\xe2\x80\x9d Amos, 483 U.S. at\n342 (Brennan, J., concurring).\nId. at 132\xe2\x80\x9333. We thus concluded that \xe2\x80\x9cthe selection of coreligionists in particular\nsocial-service programs will ordinarily advance a religious organization\xe2\x80\x99s religious\nmission, facilitate the religiously motivated calling and conduct of the individuals\nwho are the constituents of that organization, and fortify the organization\xe2\x80\x99s\nreligious tradition.\xe2\x80\x9d Id. at 133. \xe2\x80\x9cWhere an organization makes such a showing, the\ntitle VII prohibition on religious discrimination would impose \xe2\x80\x98significant\ngovernmental interference\xe2\x80\x99 with the ability of that organization \xe2\x80\x98to define and\ncarry out [its] religious mission[],\xe2\x80\x99 Amos, 483 U.S. at 335, even as applied to\nemployees who are engaged in work that is secular in content.\xe2\x80\x9d Id. 8\nAnother agency of the Executive Branch, the Department of Health and Human\nServices (\xe2\x80\x9cHHS\xe2\x80\x9d), also has concluded that imposing a religious nondiscrimination\nrequirement on religious organizations under some circumstances can \xe2\x80\x9csubstantially burden\xe2\x80\x9d the exercise of religion within the meaning of RFRA. The Substance\nAbuse and Mental Health Services Administration (\xe2\x80\x9cSAMHSA\xe2\x80\x9d), in promulgating\nregulations governing the disbursement of federal grants to private entities for\ntreatment of substance abuse, has stated:\n[W]here a religious entity establishes that its exercise of religion\nwould be substantially burdened by the [applicable] religious nondiscrimination provisions . . . , RFRA super[s]edes those statutory\nrequirements, thus exempting the religious entity therefrom, unless\n8\nSee also Memorandum for William P. Marshall, Deputy Counsel to the President, from Randolph\nD. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Application of the Coreligionists\nExemption in Title VII of the Civil Rights Act of 1964 at 29\xe2\x80\x9330 (Oct. 12, 2000) (\xe2\x80\x9cCoreligionists\nExemption\xe2\x80\x9d) (exempting a religious organization from a nondiscrimination provision \xe2\x80\x9cmight be a\npermissible religious accommodation\xe2\x80\x9d where the organization\xe2\x80\x99s \xe2\x80\x9cpreference for coreligionist\nemployees in particular social-service programs . . . advance[s] [the] organization\xe2\x80\x99s religious mission\xe2\x80\x9d).\nCf. NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979) (construing NLRB jurisdiction not to\nextend to teachers in church-operated schools, in part because inquiry into and resolution of unfair\nlabor practice charges \xe2\x80\x9cmay impinge on rights guaranteed by the Religion Clauses\xe2\x80\x9d); EEOC v. Catholic\nUniv. of Am., 83 F.3d 455, 467\xe2\x80\x9370 (D.C. Cir. 1996) (applying nondiscrimination provision in Title VII\nto a religious university\xe2\x80\x99s canon law faculty is a \xe2\x80\x9csubstantial burden\xe2\x80\x9d under RFRA).\n\n173\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nthe Department has a compelling interest in enforcing them. . . .\nMany . . . religious organizations . . . consider religious faith critical\nto all of their employees\xe2\x80\x99 activities, including those that involve\nproviding government-funded social services to the public. For these\ngroups, imposition of a religious nondiscrimination requirement can\nimpose a particularly harsh burden. . . . For groups that deem religious faith an important part of their self-definition, having to make\nemployment decisions without regard to their faith would substantially alter the charter of their organization.\nCharitable Choice Regulations Applicable to States Receiving Substance Abuse\nPrevention and Treatment Block Grants, 68 Fed. Reg. 56,430, 56,435 (Sept. 30,\n2003). SAMHSA therefore will exempt a charitable group from religious nondiscrimination requirements if (as relevant here) the group certifies \xe2\x80\x9cthat it sincerely\nbelieves that employing individuals of a particular religion is important to the\ndefinition and maintenance of their religious identity, autonomy, and/or communal\nreligious exercise\xe2\x80\x9d; \xe2\x80\x9cthat it makes employment decisions on a religious basis in\nanalogous programs\xe2\x80\x9d not supported by the grant; and \xe2\x80\x9cthat providing the services\nin question is expressive of its values or mission.\xe2\x80\x9d 42 C.F.R. \xc2\xa7 54.6(b) (2005).\nBefore the SAMSHA regulations were issued, this Office concluded that it was\n\xe2\x80\x9creasonable to read RFRA to permit the Secretary of HHS to exempt certain\nreligious organizations from prohibitions on religious discrimination in employment, even in the context of a federally funded program.\xe2\x80\x9d SAMHSA Memorandum at 11. 9\n2.\nHere, of course, if the Safe Streets Act\xe2\x80\x99s religious nondiscrimination requirement were enforced with respect to the World Vision grants, the government\nwould not be directly restricting World Vision\xe2\x80\x99s hiring. Rather, it would be\nconditioning the receipt of a nearly $1.5 million grant on World Vision\xe2\x80\x99s willingness to hire people who do not share the organization\xe2\x80\x99s religious convictions. The\nfact that a law \xe2\x80\x9cdoes not compel a violation of conscience,\xe2\x80\x9d however, \xe2\x80\x9cis only the\n9\nThe legislative history of RLUIPA suggests that Congress wished to protect religious preferences\nin hiring. During the debates preceding enactment of RLUIPA, a number of members of Congress\nspoke of the importance of protecting the ability of religious groups to take religion into account in\nhiring. See, e.g., 145 Cong. Rec. 16,224 (1999) (statement of Rep. Canady) (\xe2\x80\x9cWhile RFRA was on the\nbooks, successful claimants included . . . a religious school resisting a requirement that it hire a teacher\nof a different religion\xe2\x80\x9d; \xe2\x80\x9cthe same sorts of cases would be affected by this legislation.\xe2\x80\x9d); id. at 16,218\xe2\x80\x93\n19 (statement of Rep. Blunt) (\xe2\x80\x9cThis is clearly an area that needs protection. It is an area where local\ngovernments constantly in recent years have fought in the face of what we consider to be First\nAmendment rights. . . . In Philadelphia, Pennsylvania, Christian day care centers were threatened with\nclosure if they did not change their hiring practices which barred them from hiring non-Christians . . . .\n[T]hese infringements on religious liberty are significant.\xe2\x80\x9d).\n\n174\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nbeginning, not the end, of our inquiry.\xe2\x80\x9d Thomas v. Review Bd., 450 U.S. 707, 717\n(1981) (quoting Sherbert, 374 U.S. at 403\xe2\x80\x9304) (emphasis in original). The\nSupreme Court \xe2\x80\x9chas repeatedly held that indirect coercion or penalties on the free\nexercise of religion, not just outright prohibition, are subject to scrutiny under the\nFirst Amendment.\xe2\x80\x9d Lyng v. Nw. Indian Cemetery Protective Ass\xe2\x80\x99n, 485 U.S. 439,\n450 (1988). Indeed, the Court made clear, in the line of cases that RFRA explicitly\nadopted, that \xe2\x80\x9c[i]t is too late in the day to doubt that the liberties of religion and\nexpression may be infringed by the denial of or placing of conditions on a benefit\nor privilege.\xe2\x80\x9d Sherbert, 374 U.S. at 404. Where a condition placed on the availability of benefits \xe2\x80\x9cforces [a person] to choose between following the precepts of\nher religion and forfeiting benefits, on the one hand, and abandoning one of the\nprecepts of her religion in order to [qualify for benefits], on the other hand,\xe2\x80\x9d the\ngovernment has \xe2\x80\x9cput[] the same kind of burden upon the free exercise of religion\nas would a fine imposed against appellant for her [exercise of religion].\xe2\x80\x9d Id. Thus,\nin Sherbert, the Supreme Court held that a state government violated the Free\nExercise Clause by conditioning unemployment compensation benefits on an\napplicant\xe2\x80\x99s willingness to be available for work on Saturday, in violation of the\napplicant\xe2\x80\x99s religious beliefs about observing the Sabbath. Id. at 403\xe2\x80\x9310; see also\nFrazee v. Ill. Dep\xe2\x80\x99t of Empl. Sec., 489 U.S. 829, 832\xe2\x80\x9335 (1989) (same); Hobbie v.\nUnemployment Appeals Comm\xe2\x80\x99n, 480 U.S. 136, 141 (1987) (same). And in\nThomas, the Court held that a state government violated the Free Exercise Clause\nby denying unemployment benefits to a Jehovah\xe2\x80\x99s Witness who had quit his job at\na foundry that made tank turrets, because his religious beliefs prevented him from\nparticipating in the production of weapons. 450 U.S. at 709\xe2\x80\x9312, 717\xe2\x80\x9319.\nAlthough Sherbert and its progeny involved conditions placed on individuals\xe2\x80\x99\nexercise of religion, we do not understand that line of cases to apply only to\nindividuals. The Supreme Court has entertained numerous Free Exercise Clause\nchallenges brought by institutions stemming from the denial of benefits or tax\nexemptions. It has never suggested that institutions may not maintain such a claim.\nSee, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 384\xe2\x80\x9392\n(1990) (considering but rejecting religious corporation\xe2\x80\x99s free exercise claim);\nLyng, 485 U.S. at 447\xe2\x80\x9353 (considering but rejecting tribal association\xe2\x80\x99s free\nexercise claim); Bob Jones Univ., 461 U.S. at 602\xe2\x80\x9304 (considering but rejecting\nuniversity\xe2\x80\x99s free exercise claim). To the contrary, it has suggested that the denial\nof tax benefits to religious organizations can constitute a substantial burden. Bob\nJones Univ., 461 U.S. at 603\xe2\x80\x9304 (acknowledging that \xe2\x80\x9c[d]enial of tax benefits will\ninevitably have a substantial impact on the operation of private religious schools,\xe2\x80\x9d\nbut upholding denial of tax advantage because of \xe2\x80\x9ccompelling\xe2\x80\x9d government\ninterest in \xe2\x80\x9ceradicating racial discrimination in education\xe2\x80\x9d).\nEven if Sherbert and its progeny are properly read to apply only to individuals,\nCongress seems to have intended that the Sherbert standard would apply to\n\n175\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ninstitutions as well as to individuals under RFRA. 10 Thus, this Office previously\nhas advised that \xe2\x80\x9cthe loss of [discretionary] grants may constitute a substantial\nburden on religion, provided that the grant would materially affect the grantee\xe2\x80\x99s\nability to provide the type of services in question and providing those services is\npart of the grantee\xe2\x80\x99s mission.\xe2\x80\x9d SAMHSA Memorandum at 7. And the 2003 HHS\nregulations promulgated to govern the SAMHSA program provide that \xe2\x80\x9creligious\norganizations\xe2\x80\x9d are eligible under RFRA for relief from religious nondiscrimination\nrequirements in employment statutes. 68 Fed. Reg. at 56,435; 42 C.F.R. \xc2\xa7 54.6(b).\nThomas is perhaps the leading Supreme Court exposition of the standard for\ndetermining when a condition on public benefits constitutes a substantial burden\non the exercise of religion. It states:\nWhere the state conditions receipt of an important benefit upon conduct mandated by religious belief, or where it denies such a benefit\nbecause of conduct mandated by religious belief, thereby putting\nsubstantial pressure on an adherent to modify his behavior and to\nviolate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.\n450 U.S. at 717\xe2\x80\x9318 (emphases added). 11 Thus, Thomas provides that the conditioning of a benefit can constitute a substantial burden only if the benefit is an\n\xe2\x80\x9cimportant\xe2\x80\x9d one; its availability is conditioned upon performance of conduct\n\xe2\x80\x9cproscribed by a religious faith,\xe2\x80\x9d or refraining from \xe2\x80\x9cconduct mandated by\nreligious belief\xe2\x80\x9d; and the result is to put \xe2\x80\x9csubstantial pressure on an adherent to\nmodify his behavior and violate his beliefs.\xe2\x80\x9d Id. We discuss each of these issues in\nturn.\n10\n\nRFRA provides that the \xe2\x80\x9cGovernment shall not substantially burden a person\xe2\x80\x99s exercise of\nreligion . . . .\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000bb-1(a) (emphasis added). Although RFRA does not define the term\n\xe2\x80\x9cperson,\xe2\x80\x9d Congress has made clear that the term ordinarily includes nonprofit corporations such as\nWorld Vision. See 1 U.S.C. \xc2\xa7 1 (2000) (\xe2\x80\x9cIn determining the meaning of any Act of Congress, unless the\ncontext indicates otherwise . . . the word[] \xe2\x80\x98person\xe2\x80\x99 . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.\xe2\x80\x9d); Wilson v.\nOmaha Indian Tribe, 442 U.S. 653, 666 (1979) (the word \xe2\x80\x9cperson\xe2\x80\x9d in 1 U.S.C. \xc2\xa7 1 is \xe2\x80\x9cnormally\nconstrued\xe2\x80\x9d to include associations and artificial persons). Consistent with that understanding, numerous\ncourts have applied RFRA to claims brought by corporations, see, e.g., Daytona Rescue Mission, Inc. v.\nCity of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995); churches and religious groups, see, e.g., O\nCentro, 546 U.S. 418; W. Presbyterian, 862 F. Supp. 538; and universities, see, e.g., Catholic Univ., 83\nF.3d 455.\n11\nSee also Hobbie, 480 U.S. at 141; United States v. Lee, 455 U.S. 252, 257 (1982) (concluding\nthat obligation to pay social security taxes substantially burdened exercise of religion by Amish);\nYoder, 406 U.S. at 218 (concluding that misdemeanor statute compelling school attendance substantially burdened exercise of religion by Amish); cf. Lyng, 485 U.S. at 450 (suggesting that \xe2\x80\x9cindirect\ncoercion or penalties\xe2\x80\x9d with \xe2\x80\x9ctendency to coerce individuals into acting contrary to their religious\nbeliefs\xe2\x80\x9d may constitute substantial burden on exercise of religion). See generally Religious Objections\nto the Postal Service Oath of Office, 29 Op. O.L.C. 37, 50\xe2\x80\x9351 (2005) (discussing Thomas standard).\n\n176\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\na.\nThe precise scope of the term \xe2\x80\x9cimportant benefit\xe2\x80\x9d is not clear. Thomas suggests\nthat the benefit should be important enough to put \xe2\x80\x9csubstantial pressure\xe2\x80\x9d on the\nrecipient to change its behavior so as not to lose the benefit. From that suggestion\nwe deduce that \xe2\x80\x9cimportance\xe2\x80\x9d should be assessed not in the abstract but rather\nfunctionally, by considering the substantiality of the pressure that placing conditions on receipt of a benefit would exert on a particular party \xe2\x80\x9cto modify his\nbehavior and to violate his beliefs.\xe2\x80\x9d Thomas, 450 U.S. at 718; see also Guam v.\nGuerrero, 290 F.3d 1210, 1222 (9th Cir. 2004) (RFRA) (applying Thomas test);\nJolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (same); cf. Lyng, 485 U.S. at\n451 (explaining that to trigger strict scrutiny under pre-Smith interpretation of Free\nExercise Clause, governmental burden must have \xe2\x80\x9ctendency to coerce individuals\ninto acting contrary to their religious beliefs\xe2\x80\x9d).\nThe term \xe2\x80\x9csubstantial\xe2\x80\x9d\xe2\x80\x94which is the same modifier used in the statutory \xe2\x80\x9csubstantial burden\xe2\x80\x9d test itself\xe2\x80\x94indicates that the pressure must be \xe2\x80\x9cmaterial\xe2\x80\x9d or\n\xe2\x80\x9cconsiderable in amount, value, or worth.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International\nDictionary 2280 (2002). At the same time, the pressure need not be overwhelming.\nId. (\xe2\x80\x9cbeing that specified to a large degree or in the main\xe2\x80\x9d); 17 Oxford English\nDictionary 67 (2d ed. 1989) (\xe2\x80\x9cOf ample or considerable amount, quantity, or\ndimensions. More recently also in a somewhat weakened sense, esp. \xe2\x80\x98fairly\nlarge.\xe2\x80\x99\xe2\x80\x9d). Consistent with that meaning, the courts have interpreted the standard to\nrequire more than de minimis pressure\xe2\x80\x94usually \xe2\x80\x9csignificant pressure\xe2\x80\x9d to modify\nreligious behavior, and \xe2\x80\x9cmore than an inconvenience on religious exercise.\xe2\x80\x9d\nMidrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004)\n(RLUIPA); Adkins, 393 F.3d at 570 (RLUIPA) (\xe2\x80\x9ca government action or regulation creates a \xe2\x80\x98substantial burden\xe2\x80\x99 on a religious exercise if it truly pressures the\nadherent to significantly modify his religious behavior and significantly violate his\nreligious beliefs\xe2\x80\x9d; \xe2\x80\x9cthe effect of a government action or regulation is significant\nwhen it either (1) influences the adherent to act in a way that violates his religious\nbeliefs, or (2) forces the adherent to choose between, on the one hand, enjoying\nsome generally available, non-trivial benefit, and, on the other hand, following his\nreligious beliefs\xe2\x80\x9d); San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,\n1034 (9th Cir. 2004) (RLUIPA) (\xe2\x80\x9c[A] \xe2\x80\x98substantial burden\xe2\x80\x99 on \xe2\x80\x98religious exercise\xe2\x80\x99\nmust impose a significantly great restriction or onus upon such exercise.\xe2\x80\x9d);\nGuerrero, 290 F.3d at 1222 (RFRA) (\xe2\x80\x9cA substantial burden must be more than an\n\xe2\x80\x98inconvenience.\xe2\x80\x99\xe2\x80\x9d) (quoting Worldwide Church of God v. Phila. Church of God,\nInc., 227 F.3d 1110, 1121 (9th Cir. 2000); cf. Toyota Motor Mfg., Ky., Inc. v.\nWilliams, 534 U.S. 184, 197 (2002) (\xe2\x80\x9cThe word \xe2\x80\x98substantial\xe2\x80\x99 [in the Americans\nwith Disabilities Act] thus clearly precludes impairments that interfere in only a\nminor way . . . .\xe2\x80\x9d); Levitan v. Ashcroft, 281 F.3d 1313, 1320\xe2\x80\x9321 (D.C. Cir. 2002)\n(\xe2\x80\x9csubstantial burden\xe2\x80\x9d test involves \xe2\x80\x9csubstantial, as opposed to inconsequential\nburden[s] on the litigant\xe2\x80\x99s religious practice\xe2\x80\x9d); see also H.R. Rep. No. 106-219, at\n\n177\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n13 (1999) (Congress \xe2\x80\x9cintended to ensure that strict scrutiny is not triggered by\ntrivial, technical, or de minim[i]s burdens on religious exercise\xe2\x80\x9d). 12\nWe are not aware of any judicial decisions applying RFRA to discretionary\ngrants of the sort at issue here, but the standard enunciated in Thomas appears to\nbe sufficiently broad to bear an interpretation that would include such grants. The\nbenefit at issue undoubtedly is important to World Vision. For the relevant fiscal\nyear, the nearly $1.5 million grant represents approximately 10% of the entire\nbudget for World Vision\xe2\x80\x99s domestic community-based programs, and approximately 75% of the public funding the organization received domestically. Sept. 23\nLetter at 2. World Vision has stated that if it does not receive the grant, its work on\nthe Vision Youth project will be \xe2\x80\x9cdrastically reduced.\xe2\x80\x9d Sept. 8 Letter at 3. Losing\nthe grant \xe2\x80\x9cwould have an indirect [e]ffect on training at all Vision Youth sites,\xe2\x80\x9d\nand would mean that the \xe2\x80\x9cnational and site Educational consultants . . . and the\npilot project for the sites would no longer be funded.\xe2\x80\x9d Id. \xe2\x80\x9cProgram quality and\ntraining nationally would be in jeopardy.\xe2\x80\x9d Id. Moreover, the second component of\nthe grant, the new anti-gang initiative, \xe2\x80\x9cwould be next to impossible to undertake,\ngiven the need to hire all new staff for this brand new program.\xe2\x80\x9d Id.\nThe denial of a grant to an institution such as World Vision may not be as\nimportant as the denial of unemployment compensation to an individual as in\nSherbert or Thomas. Unemployment compensation may well have been critical for\nthe claimants in Sherbert and Thomas to maintain their household income. But the\nSupreme Court\xe2\x80\x99s pre-Smith case law acknowledged that losing benefits not critical\nto subsistence (such as the tax exemption at issue in Bob Jones) can also impose a\nsubstantial burden. In Sherbert, the Supreme Court acknowledged that \xe2\x80\x9cof the\napproximately 150 or more Seventh-day Adventists in the Spartanburg area, only\nappellant and one other have been unable to find suitable non-Saturday employment.\xe2\x80\x9d 374 U.S. at 399 n.2. Despite the possibility that she would eventually find\nsuitable work, the Court found the denial of unemployment compensation\nimportant enough to the appellant to constitute a substantial burden. Cf. United\nStates v. Lee, 455 U.S. 252, 257 (1982) (payment of social security taxes, which\ncould later be recouped as benefits, was nevertheless substantial burden on\nexercise of religion by Amish, given their belief \xe2\x80\x9cin a religiously based obligation\nto provide for their fellow members the kind of assistance contemplated by the\nsocial security system\xe2\x80\x9d). Indeed, the pre-Smith cases suggest that a substantial\nburden may arise when a person is denied the opportunity to partake of a public\nbenefit on the same terms as others because of his religious activity. See Lyng, 485\nU.S. at 449 (suggesting that \xe2\x80\x9cgovernmental action penaliz[ing] religious activity\nby denying any person an equal share of the rights, benefits, and privileges\nenjoyed by other citizens\xe2\x80\x9d would constitute substantial burden); see also Adkins,\n12\n\nBecause the operative provisions of the two statutes are identical, courts applying RLUIPA and\nRFRA regularly look to decisions involving the other statute for guidance. See, e.g., Cutter v.\nWilkinson, 544 U.S. 709, 723 n.11 (2005); Grace United Methodist, 451 F.3d at 661.\n\n178\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\n393 F.3d at 570 (RLUIPA) (\xe2\x80\x9c[T]he effect of a government action or regulation is\nsignificant when it . . . forces the adherent to choose between, on the one hand,\nenjoying some generally available, non-trivial benefit, and, on the other hand,\nfollowing his religious beliefs.\xe2\x80\x9d). As noted, this Office previously has advised that\n\xe2\x80\x9cthe loss of [discretionary] grants may constitute a substantial burden on religion,\nprovided that the grant would materially affect the grantee\xe2\x80\x99s ability to provide the\ntype of services in question and providing those services is part of the grantee\xe2\x80\x99s\nmission.\xe2\x80\x9d SAMHSA Memorandum at 7. And the regulations that HHS promulgated in 2003 governing the SAMHSA program embody the understanding that the\nloss of such discretionary grants may constitute a substantial burden on religion.\n68 Fed. Reg. at 56,435; 42 C.F.R. \xc2\xa7 54.6(b) (\xe2\x80\x9cTo the extent that 42 U.S.C. 300x57(a)(2) or 42 U.S.C. 290cc-33(a)(2) precludes a program participant from\nemploying individuals of a particular religion to perform work connected with the\ncarrying on of its activities, those provisions do not apply if such program\nparticipant is a religious corporation, association, educational institution, or\nsociety and can demonstrate that its religious exercise would be substantially\nburdened by application of these religious nondiscrimination requirements to its\nemployment practices in the program or activity at issue.\xe2\x80\x9d). That understanding is\nconsistent with the legislative history of RFRA, which indicates that some\nmembers of Congress understood that the statute would apply to the denial of\nfunding as well as conditions on other sorts of benefits. 13\nb.\nThere is language in Thomas suggesting that a condition substantially burdens\nthe exercise of religion only if it requires conduct \xe2\x80\x9cproscribed by a religious faith\xe2\x80\x9d\nor abstention from conduct \xe2\x80\x9cmandated by religious belief.\xe2\x80\x9d 450 U.S. at 717-18.\nBoth under Sherbert and under RFRA before the 2000 amendment, courts\nconsidered whether a practice was absolutely mandated or prohibited by the\nclaimant\xe2\x80\x99s religious faith as a factor in favor of a determination that a condition\nimposed a substantial burden, see, e.g., Thomas, 450 U.S. at 711 (Jehovah\xe2\x80\x99s\nWitness\xe2\x80\x99s beliefs forbade participation in production of armaments); Hobbie, 480\nU.S. at 138 (Seventh Day Adventists\xe2\x80\x99 beliefs forbade work from sundown on\nFriday to sundown on Saturday), and courts also seem to have given weight to\nwhether the practice was strongly encouraged or discouraged by the claimant\xe2\x80\x99s\nreligious faith, see, e.g., In re Young, 82 F.3d 1407 (8th Cir. 1996) (because\ndebtor\xe2\x80\x99s beliefs encouraged tithing, bankruptcy trustee could not treat resulting\n\n13\n\nThe Senate Report, for example, states that \xe2\x80\x9cthe denial of such funding, benefits or exemptions\nmay constitute a violation of the act, as was the case under the free exercise clause in Sherbert v.\nVerner.\xe2\x80\x9d S. Rep. No. 103-111, at 15 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1905.\n\n179\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ntithes as voidable transfers under RFRA) 14; In re Hodge, 220 B.R. 386 (D. Idaho\n1998) (same).\nWe have already observed, however, that Congress amended RFRA in 2000 to\nmake clear that it protected \xe2\x80\x9cany exercise of religion, whether or not compelled by,\nor central to, a system of religious belief.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000cc-5(7)(A) (emphasis\nadded). It would be anomalous for Congress to declare that the \xe2\x80\x9cexercise of\nreligion\xe2\x80\x9d includes practices neither central to nor mandated by religious faith, but\nthen to impose a rule that a burden on such practices could never be \xe2\x80\x9csubstantial\xe2\x80\x9d\nunder RFRA. We therefore conclude that it is not necessary to show that a person\nwas required to violate a fundamental tenet of his religion to make a \xe2\x80\x9csubstantial\nburden\xe2\x80\x9d claim under RFRA. Perhaps because of the requirement that a burden be\n\xe2\x80\x9csubstantial,\xe2\x80\x9d however, many courts apparently continue to require a showing that\nthe practice burdened at least be \xe2\x80\x9cimportant\xe2\x80\x9d to the party\xe2\x80\x99s exercise of religion.\nSee, e.g., Adkins, 393 F.3d at 570 (\xe2\x80\x9c[T]he Supreme Court\xe2\x80\x99s express disapproval of\nany test that would require a court to divine the centrality of a religious belief does\nnot relieve a complaining adherent of the burden of demonstrating the honesty and\naccuracy of his contention that the religious practice at issue is important to the\nfree exercise of his religion.\xe2\x80\x9d) (footnote omitted); Henderson v. Kennedy, 265 F.3d\n1072, 1074 (D.C. Cir. 2001) (\xe2\x80\x9cAlthough the amendments extended the protections\nof RFRA to \xe2\x80\x98any exercise of religion, whether or not compelled by, or central to, a\nsystem of religious belief,\xe2\x80\x99 the amendments did not alter the propriety of inquiring\ninto the importance of a religious practice when assessing whether a substantial\nburden exists.\xe2\x80\x9d) (citation omitted).\nIn this case, World Vision has not claimed that its members are compelled by\nreligious conscience to associate only with people who share their faith, in the sense\nthat they would consider hiring non-Christians to be a sin. But World Vision\nprofesses a consistent history of hiring coreligionists, which lends credence to its\nstated belief, see supra note 2, that the organization \xe2\x80\x9ccan only remain true to [its]\nvision if [it] ha[s] the freedom to select like-minded staff, which includes staffing on\na religious basis.\xe2\x80\x9d Sept. 23 Letter at 1; see also Sept. 8 Letter at 2\xe2\x80\x933 (stating that\nhiring staff members who profess similar Christian beliefs is essential for World\nVision to remain true to its religious \xe2\x80\x9cmission\xe2\x80\x9d and \xe2\x80\x9cidentity\xe2\x80\x9d); World Vision\nInternational, Mission Statement, available at http://www.wvi.org/wvi/about_us/\nwho_we_are.htm (last visited June 22, 2007) (describing organization as a \xe2\x80\x9cpartner-\n\n14\nThe panel decision in Young was vacated by the Supreme Court, Christians v. Crystal Evangelical Free Church, 521 U.S. 1114 (1997), for reconsideration in light of City of Boerne v. Flores, 521\nU.S. 507 (1997), which held that the application of RFRA to state and local laws exceeded Congress\xe2\x80\x99s\nenforcement power under the Fourteenth Amendment. On remand, the Eighth Circuit concluded that\nRFRA remained applicable to the federal bankruptcy code and reinstated the original panel decision\nthat the bankruptcy trustee could not treat the debtors\xe2\x80\x99 tithe as a voidable transfer because of RFRA. In\nre Young, 141 F.3d 854 (8th Cir. 1998).\n\n180\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nship of Christians\xe2\x80\x9d). * Hiring persons who do not share the organization\xe2\x80\x99s religious\nbeliefs would, according to World Vision\xe2\x80\x99s view of the program, dilute the organization\xe2\x80\x99s conception of undertaking these programs to \xe2\x80\x9clove and serve those in need as\na demonstration of [its] faith, and the example of Christ.\xe2\x80\x9d Sept. 8 Letter at 2\xe2\x80\x933. In\naddition, it is apparent that performing service work is an important aspect of World\nVision\xe2\x80\x99s exercise of religion, see supra note 6 and accompanying text, heeding the\nChristian \xe2\x80\x9ccall to share resources with each other\xe2\x80\x9d and the \xe2\x80\x9ccall to servanthood,\xe2\x80\x9d\nWorld Vision International, Core Values (available at http://www.wvi.org/wvi/\nabout_us/who_we_are.htm, last visited June 22, 2007) **; cf. Grant Application, att. 2,\nProgram Narrative at 10 (stating that World Vision is \xe2\x80\x9cdedicated to helping children\nand their communities worldwide reach their full potential\xe2\x80\x9d). Thus, to comply with\nthe condition would require World Vision to retreat from an important religious\nprecept by abandoning the explicitly religious manner in which the organization has\nchosen to define itself.\nc.\nIn light of these principles, we think that it would be reasonable for OJP to\nconclude that requiring World Vision to comply with the Safe Streets Act\xe2\x80\x99s\nnondiscrimination provision as a condition of accepting the approximately $1.5\nmillion grant would \xe2\x80\x9cput[] substantial pressure on . . . [World Vision] to modify\n[its] behavior and to violate [its] beliefs,\xe2\x80\x99\xe2\x80\x9d by compromising its religious identity.\nThomas, 450 U.S. at 718. (Indeed, that reading seems at least as reasonable as\nconstruing RFRA not to require an accommodation under these circumstances.)\nApplication of the provision would practically require World Vision either to\nforgo substantial federal funding altogether or to compromise its religious identity\nby abandoning its long-held view that its religious \xe2\x80\x9cmission\xe2\x80\x9d and \xe2\x80\x9cidentity\xe2\x80\x9d\nrequire it to staff the organization with coreligionists. Sept. 8 Letter at 2\xe2\x80\x933. Of\ncourse, the nondiscrimination provision prohibits World Vision from making\nhiring decisions based on religion only \xe2\x80\x9cin connection with any programs or\nactivity funded in whole or in part with [the grant].\xe2\x80\x9d 42 U.S.C. \xc2\xa7 3789d(c)(1). But\nWorld Vision\xe2\x80\x99s current managers, who were (and presumably will continue to be)\nhired under its current employment policy, will supervise the Vision Youth and\nanti-gang programs, and a portion of their salaries would thus be traceable to\nfederal funds. See Grant Application, att. 1, Consolidated Budget Worksheet at 1\n(stating that existing managers would spend between 8.1% and 80% of their\nannual work hours on these projects). World Vision represents that the programs\nthat are the subject of the grants are \xe2\x80\x9cvery staff intensive and require[] the\n*\nEditor\xe2\x80\x99s Note: The mission statement now can be found at http://www.wvi.org/our-missionstatement (last visited Sept. 18, 2014).\n**\nEditor\xe2\x80\x99s Note: The statement of core values now can be found at http://www.wvi.org/our-corevalues (last visited Sept. 18, 2014).\n\n181\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nprogrammatic expertise, training and oversight\xe2\x80\x9d of existing World Vision employees, Sept. 23 Letter at 2, and that \xe2\x80\x9c[i]t is not possible for us to effectively conduct\nthese activities without such essential human resources.\xe2\x80\x9d Id.\nAs described in Part II.B.2.a, the benefit provided by the JJDPA grant is very\nimportant to the organization. Without it, the Vision Youth program or would have\nto be \xe2\x80\x9cdrastically reduced,\xe2\x80\x9d and it would be \xe2\x80\x9cnext to impossible\xe2\x80\x9d to undertake the\nnew anti-gang initiative. Because the grant is clearly critical to the organization\xe2\x80\x99s\nongoing operations, we conclude, consistent with HHS\xe2\x80\x99s SAMHSA regulations\nand this Office\xe2\x80\x99s previous views on those regulations, that it is reasonable to\nconclude that conditioning the grant on the discontinuation of religion-based\nhiring would place significant pressure on the organization to abandon its religious\ncharacter. We therefore believe it is reasonable to conclude that conditioning the\nWorld Vision grant on compliance with the Safe Streets Act\xe2\x80\x99s religious nondiscrimination provision would constitute a substantial burden on religious exercise\nunder Thomas. See 42 C.F.R. \xc2\xa7 54.6(b) (requiring charitable group that seeks\nexemption under SAMHSA regulations from religious hiring restrictions to\ncertify, among other things, \xe2\x80\x9cthat the grant would materially affect its ability to\nprovide the type of services in question\xe2\x80\x9d); SAMHSA Memorandum at 7 (\xe2\x80\x9c[I]f a\nreligious organization is otherwise best qualified to receive a $100,000 grant, and\nits faith-based hiring practice is the sole reason that it may not receive the grant,\nthe pressure to revise that hiring practice[] to receive aid is quite significant.\xe2\x80\x9d); cf.\nChildren\xe2\x80\x99s Healthcare Is a Legal Duty, Inc. v. Min de Parle, 212 F.3d 1084, 1093\n(8th Cir. 2000) (concluding that requiring people to choose \xe2\x80\x9cbetween adhering to\ntheir religious beliefs and foregoing all government health care benefits, or\nviolating their religious convictions and receiving the medical care provided by\nMedicare and Medicaid,\xe2\x80\x9d created \xe2\x80\x9cespecially acute\xe2\x80\x9d pressure \xe2\x80\x9csimilar to that\ncontemplated by the Sherbert line of cases\xe2\x80\x9d; providing non-medical benefits for\nsuch adherents as an accommodation thus served a valid secular purpose and did\nnot violate the Establishment Clause); Jesus Ctr., 544 N.W.2d at 704\xe2\x80\x9305 (holding\nthat zoning board\xe2\x80\x99s denial of permission to operate shelter in church was substantial burden where, although other locations for operation were available, relocating\nshelter would be costly and would detract from mission of church to combine\nworship and social services).\nSome courts have suggested that placing conditions on the exercise of religion\ncan constitute a \xe2\x80\x9csubstantial burden\xe2\x80\x9d only with respect to widely available\nbenefits\xe2\x80\x94perhaps because a benefit\xe2\x80\x99s wide availability suggests the government\nhas deemed it to be important, or because a widely available benefit is more likely\nto induce reliance and thereby increase the pressure that its conditional availability\ncould place upon a RFRA claimant. Cf. Adkins, 393 F.3d at 570 (RLUIPA)\n(stating that conditioning \xe2\x80\x9csome generally available, non-trivial benefit\xe2\x80\x9d on failing\nto \xe2\x80\x9cfollow[] [one\xe2\x80\x99s] religious beliefs\xe2\x80\x9d would constitute a substantial burden). But\nsee Lyng, 485 U.S. at 449 (suggesting that \xe2\x80\x9cgovernmental action penaliz[ing]\nreligious activity by denying any person an equal share of the rights, benefits, and\n\n182\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nprivileges enjoyed by other citizens\xe2\x80\x9d would constitute substantial burden). We\nneed not determine the relevance of that consideration, because even if a benefit\xe2\x80\x99s\nwide availability is a predicate for finding that conditions on it constitute a\n\xe2\x80\x9csubstantial burden,\xe2\x80\x9d the benefit in this case would satisfy that test. While in\nabsolute terms the JJDPA grant program may not be as \xe2\x80\x9cwidely available\xe2\x80\x9d as the\nunemployment compensation in Sherbert and Thomas, it is still broadly available\nto the universe of potential grantees. As noted above, in the 2005 Appropriations\nAct, Congress appropriated slightly more than $100 million for OJP to disburse for\nanti-juvenile delinquency programs under sections 261 and 262 of the JJDPA.\nSection 261 of the JJDPA makes this funding broadly available to any public or\nprivate entity, individual or corporate, that wishes to administer an anti-juvenile\ndelinquency program:\nThe Administrator may make grants to and contracts with States,\nunits of general local government, Indian tribal governments, public\nand private agencies, organizations, and individuals, or combinations\nthereof, to carry out projects for the development, testing, and\ndemonstration of promising initiatives and programs for the prevention, control, or reduction of juvenile delinquency.\n42 U.S.C. \xc2\xa7 5665(a) (Supp. III 2003). Section 261 further directs OJP to ensure\nthat the grant money is distributed widely to all areas of the country. Id. (\xe2\x80\x9cThe\nAdministrator shall ensure that, to the extent reasonable and practicable, such\ngrants are made to achieve an equitable geographical distribution of such projects\nthroughout the United States.\xe2\x80\x9d). It would not be reasonable to characterize the\nbenefit in this case as too narrow to warrant protection under RFRA.\nMoreover, because the conference report specifically identified World Vision\nand said that \xe2\x80\x9cOJP [wa]s expected to review\xe2\x80\x9d the organization\xe2\x80\x99s proposal and\n\xe2\x80\x9cprovide [a] grant[] if warranted,\xe2\x80\x9d H.R. Rep. No. 108-792, at 769, it appears that\nWorld Vision was more likely than another potential grantee, not specifically\nidentified in the conference report, to receive a grant. Under the circumstances, the\nbenefit that World Vision risks losing is arguably more analogous to a general\nentitlement than to a discretionary grant whose availability is limited and speculative. We therefore conclude that, under the circumstances, the benefit is broadly\nenough available that placing conditions on its availability could exert \xe2\x80\x9csubstantial\npressure\xe2\x80\x9d on an organization in the position of World Vision. Other more narrowly\navailable benefits may not exert sufficient pressure on a RFRA claimant to qualify\nas a \xe2\x80\x9csubstantial burden\xe2\x80\x9d on the exercise of religion.\nC.\nIf the application of restrictions on religious hiring constitutes a substantial\nburden on World Vision\xe2\x80\x99s religious exercise, the next step in the analysis is to\n\n183\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ndetermine whether the government has a compelling interest in requiring World\nVision not to discriminate on a religious basis in hiring. 42 U.S.C. \xc2\xa7 2000bb-1(b);\nsee generally O Centro, 546 U.S. at 424\xe2\x80\x9332. The burden to show a compelling\ninterest is on the government, O Centro, 546 U.S. at 428\xe2\x80\x9330, and to meet its\nburden the government must do more than cite its general interest in preventing\nreligious discrimination, id. at 431\xe2\x80\x9333 (general interest in preventing drug abuse\nnot enough to justify denial of exemption from Controlled Substances Act for\nsacramental consumption of hoasca). \xe2\x80\x9cRFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the\nchallenged law \xe2\x80\x98to the person\xe2\x80\x99\xe2\x80\x94the particular claimant whose sincere exercise of\nreligion is being substantially burdened.\xe2\x80\x9d Id. at 430\xe2\x80\x9331 (citing 42 U.S.C.\n\xc2\xa7 2000bb-1(b)). Given that many statutes exempt religious organizations from\nprohibitions on religious discrimination in employment, we conclude that applying\nthe Safe Streets Act\xe2\x80\x99s nondiscrimination provision to World Vision in this instance\nwould not further a compelling governmental interest. Accordingly, we do not\naddress whether the nondiscrimination requirement is the \xe2\x80\x9cleast restrictive means\xe2\x80\x9d\nof furthering such an interest under 42 U.S.C. \xc2\xa7 2000bb-1(b)(2). Compare\nBraunfeld v. Brown, 366 U.S. 599, 607\xe2\x80\x9308 (1961) (plurality opinion) (concluding\nthat Sunday closing law that required merchants to choose between losing sales or\nremaining open on Saturday did not violate Free Exercise Clause because State\nhad compelling interest in mandating single day of rest); id. at 610 (Frankfurter, J.,\nconcurring in the judgment) (incorporating by reference opinion in McGowan v.\nMaryland, 366 U.S. 420, 521 (1961) (\xe2\x80\x9c[T]he burden which Sunday statutes impose\nis an incident of the only feasible means to achievement of their particular goal.\xe2\x80\x9d)).\nThe recognition that religious discrimination in employment is permissible in\nsome circumstances suggests that there are contexts in which the government does\nnot have a compelling interest in enforcing prohibitions on such conduct. See\nO Centro, 546 U.S. at 433 (holding that, in light of Controlled Substance Act\xe2\x80\x99s\nstatutory exception for sacramental use of peyote despite its classification as\ndangerous drug, \xe2\x80\x9cit is difficult to see\xe2\x80\x9d how congressional findings of dangerousness of drug hoasca can support showing of compelling interest and \xe2\x80\x9cpreclude any\nconsideration of a similar exception\xe2\x80\x9d for that drug); Church of the Lukumi Babalu\nAye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993) (\xe2\x80\x9cIt is established in our strict\nscrutiny jurisprudence that \xe2\x80\x98a law cannot be regarded as protecting an interest \xe2\x80\x9cof\nthe highest order\xe2\x80\x9d . . . when it leaves appreciable damage to that supposedly vital\ninterest unprohibited . . . .\xe2\x80\x99\xe2\x80\x9d) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 541\xe2\x80\x9342\n(1989) (Scalia, J., concurring in part and concurring in the judgment) (ellipsis in\noriginal)); Fla. Star, 491 U.S. at 540 (\xe2\x80\x9c[T]he facial underinclusiveness of [the\nstatute] raises serious doubts about whether Florida is, in fact, serving, with this\nstatute, the significant interests which appellee invokes in support of affirmance.\xe2\x80\x9d).\nCongress has created numerous exceptions to prohibitions on religious discrimination in employment. Religious entities are already exempt from the religious\nnondiscrimination requirements of the Civil Rights Act of 1964, 42 U.S.C.\n\n184\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\n\xc2\xa7 2000e-1(a) (2000). That exemption \xe2\x80\x9creflects Congress\xe2\x80\x99s judgment that employment decisions are an important component of religious organizations\xe2\x80\x99 autonomy,\nand that the government has a much stronger interest in applying a religious\nnondiscrimination requirement to secular organizations than to religious organizations[,] many of whose existence depends upon their ability to define themselves\non a religious basis.\xe2\x80\x9d 68 Fed. Reg. at 56,435. Indeed, Congress included in the\nScience, State, Justice, Commerce, and Related Agencies Appropriations Act,\n2006, a provision explicitly affirming that World Vision is exempt from the\nnondiscrimination requirements of the Civil Rights Act of 1964, see supra note 3,\nsuggesting that Congress has concluded that there is no compelling governmental\ninterest in preventing World Vision\xe2\x80\x94an overtly religious organization\xe2\x80\x94from\nconsidering religion in hiring. 15\nCongress\xe2\x80\x99s interest in forbidding religious discrimination in employment is\narguably stronger in the context of federally funded programs, because Congress\nmay have an interest in ensuring that federal funds do not promote religious\ndiscrimination. But even so, many such programs do not impose a religious\nnondiscrimination requirement upon the employment practices of grantees. Title\nVI of the Civil Rights Act of 1964 does not prohibit recipients of federal financial\nassistance from engaging in discrimination on the basis of religion, 42 U.S.C.\n\xc2\xa7 2000d (2000) (\xe2\x80\x9cNo person in the United States shall, on the ground of race,\ncolor, or national origin, be excluded from participation in, be denied the benefits\nof, or be subjected to discrimination under any program or activity receiving\nFederal financial assistance.\xe2\x80\x9d), although some individual programs contain nondiscrimination requirements. 16 The nondiscrimination provisions that apply to\nblock grants administered under the Substance Abuse and Mental Health Services\nprogram, 42 U.S.C. \xc2\xa7 290cc-33(a)(2) (2000) (\xe2\x80\x9cNo person shall on the ground\nof . . . religion be excluded from participation in, be denied the benefits of, or be\nsubjected to discrimination under, any program or activity funded in whole or in\n\n15\nIndeed, an argument can be made that, because much religious discrimination resembles ideological or belief-based discrimination, and much of it involves the wish to associate with others of the\nsame belief with no implication of disparaging persons of other beliefs, \xe2\x80\x9cit is inappropriate to\ngeneralize that all religious discrimination is invidious.\xe2\x80\x9d SAMHSA Memorandum at 10 n.8. See\ngenerally Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 870 (2d Cir. 1996) (rejecting\nargument that \xe2\x80\x9call forms of discrimination on the basis of religion are invidious in all contexts\xe2\x80\x9d); Paul\nTaylor, The Costs of Denying Religious Organizations the Right to Staff on a Religious Basis When\nThey Join Federal Social Service Efforts, 12 Geo. Mason U. Civ. Rts. L.J. 159, 181 (2002) (\xe2\x80\x9cFaith is an\nidea. Unlike racism or other forms of \xe2\x80\x98invidious discrimination,\xe2\x80\x99 faith is not tied to the color of one\xe2\x80\x99s\nskin, to genetic makeup, or to one\xe2\x80\x99s ethnic ancestry. It is a unique blend of emotion and intellect that\ncan be shared by anyone. When a religious group seeks to staff its church outreach program on a\nreligious basis, it is not engaging in the sort of invidious discrimination that is viewed as immoral and\nthus rightly forbidden by law.\xe2\x80\x9d).\n16\nSubsequent amendments to Title VI indicate \xe2\x80\x9cthat Congress was aware that religious organizations had been grantees under Title VI and that it did not disapprove of that practice.\xe2\x80\x9d Bowen v.\nKendrick, 487 U.S. 589, 604 n.9 (1988).\n\n185\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\npart with funds made available under section 290cc-21 of this title.\xe2\x80\x9d); id. \xc2\xa7 300x57(a)(2) (\xe2\x80\x9cNo person shall . . . on the ground of religion[] be excluded from\nparticipation in, be denied the benefits of, or be subjected to discrimination under,\nany program or activity funded in whole or in part with funds made available\nunder section 300x or 300x-21 of this title.\xe2\x80\x9d), do not apply to discretionary grants\nadministered directly by the Secretary\xe2\x80\x94leaving religious organizations that\nreceive such grants free to consider faith in hiring. SAMHSA Memorandum at 2\nn.1. Moreover, many statutes include \xe2\x80\x9ccharitable choice\xe2\x80\x9d provisions, which\nprovide that religious groups that receive federal funds retain the level of autonomy over internal governance matters that they possessed before receiving funding.\nSee, e.g., 42 U.S.C. \xc2\xa7 290kk-1(b) (2000) (\xe2\x80\x9cThe purpose of this section is to allow\nreligious organizations to be program participants on the same basis as any other\nnonprofit private provider without impairing the religious character of such\norganizations, and without diminishing the religious freedom of program beneficiaries.\xe2\x80\x9d); id. \xc2\xa7 290kk-1(d)(1) (\xe2\x80\x9cExcept as provided in this section, any religious\norganization that is a program participant shall retain its independence from\nFederal, State, and local government, including such organization\xe2\x80\x99s control over\nthe definition, development, practice, and expression of its religious beliefs.\xe2\x80\x9d); id.\n\xc2\xa7 300x-65(a)(2) (\xe2\x80\x9cThe purposes of this section are . . . to allow the organizations to\naccept the funds to provide the services to the individuals without impairing the\nreligious character of the organizations or the religious freedom of the individuals.\xe2\x80\x9d); id. \xc2\xa7 300x-65(c)(1) (\xe2\x80\x9cA religious organization that provides services under\nany substance abuse program under this subchapter or subchapter III-A of this\nchapter shall retain its independence from Federal, State, and local governments,\nincluding such organization\xe2\x80\x99s control over the definition, development, practice,\nand expression of its religious beliefs.\xe2\x80\x9d); id. \xc2\xa7 604a(f) (\xe2\x80\x9cA religious organization\xe2\x80\x99s\nexemption provided under section 2000e-1 of this title regarding employment\npractices shall not be affected by its participation in, or receipt of funds from,\nprograms described in subsection (a)(2) of this section.\xe2\x80\x9d); id. \xc2\xa7 9920(b)(3) (\xe2\x80\x9cA\nreligious organization\xe2\x80\x99s exemption provided under section 2000e-1 of this title\nregarding employment practices shall not be affected by its participation in, or\nreceipt of funds from, programs described in subsection (a).\xe2\x80\x9d).\nIn sum, \xe2\x80\x9cCongress\xe2\x80\x99s application of religious nondiscrimination requirements in\nthe employment context is quite selective, which makes it difficult to regard the\ngovernment as having a compelling interest in imposing such a requirement in this\nparticular context.\xe2\x80\x9d 68 Fed. Reg. at 56,435. Moreover, there is nothing about the\ngrants at issue here that suggests any unusually strong governmental interest in\nreligious nondiscrimination in employment with respect to those receiving these\ngrants. Indeed, the opposite is the case: Congress specified by law that an exemption from one such prohibition, contained in title VII of the Civil Rights Act of\n1964, was to be applied to this very grant. Because \xe2\x80\x9c\xe2\x80\x98[c]ontext matters\xe2\x80\x99 in\napplying the compelling interest test,\xe2\x80\x9d O Centro, 546 U.S. at 431 (quoting Grutter\nv. Bollinger, 539 U.S. 306, 327 (2003)), and because \xe2\x80\x9cstrict scrutiny does take\n\n186\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\n\xe2\x80\x98relevant differences\xe2\x80\x99 into account\xe2\x80\x94indeed, that is its fundamental purpose,\xe2\x80\x9d id. at\n432 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228 (1995)\n(emphasis in original)), our conclusion is limited to the issuance of this grant to\nWorld Vision. In reaching that conclusion, we emphasize that World Vision would\nsatisfy the requirements of other relevant statutory exemptions from prohibitions\non religious discrimination, see, e.g., 42 U.S.C. \xc2\xa7 300x-65; id. \xc2\xa7 2000e-1(a),\nreflecting a congressional judgment that religious discrimination in hiring under\nsuch circumstances may be permissible.\nIn addition, the exemption that World Vision is seeking is not one directed at\nallowing it to exclude people from a particular religion from employment. Rather,\nit is directed at allowing it to hire only coreligionists. There is nothing to suggest\nthat its wish for such an exemption is driven by animus towards people of different\nreligions, rather than by a desire to remain an organization of coreligionists and to\nexpand an activity that it already engages in with coreligionists and that is\nconsistent with the kind of charitable activities that religious organizations\ntraditionally have engaged in with coreligionists in this country. Moreover, World\nVision\xe2\x80\x99s representations that it can remain true to its religious mission only if it is\nable to limit employment to coreligionists is borne out by its apparently consistent\nhiring practice since its founding, and we are aware of no information to indicate\nthat its hiring practices reflect invidious discrimination. We need not resolve\nwhether the government would have a compelling interest in enforcing the Safe\nStreets Act\xe2\x80\x99s nondiscrimination provision with respect to a differently situated\ngrant applicant\xe2\x80\x94perhaps one without such a history to authenticate its claim that\nhomogeneity of belief is essential to its mission, or whose hiring practices\nimplicate compelling government interests in eradicating racial or sex discrimination. In such a case, the government might well have a compelling interest in\nrequiring strict adherence with the Safe Streets Act\xe2\x80\x99s nondiscrimination requirements. Cf. Hamilton v. Schriro, 74 F.3d 1545, 1552\xe2\x80\x9353 (8th Cir. 1996) (\xe2\x80\x9cThe\nReligious Freedom Restoration Act . . . establishe[s] one standard for testing\nclaims of Government infringement on religious practices. This single test,\nhowever, should be interpreted with regard to the relevant circumstances in each\ncase.\xe2\x80\x9d) (quoting S. Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N.\n1892, 1898). This, however, is not such a case.\nIII.\nOur conclusion here is consistent with Supreme Court precedents delimiting the\ngovernment\xe2\x80\x99s discretion to fund religious activities.\nA.\nFirst, to the extent the Establishment Clause prohibits government funding of\nevangelization or religious instruction, see Mitchell v. Helms, 530 U.S. 793, 836\xe2\x80\x93\n\n187\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n68 (2000) (O\xe2\x80\x99Connor, J., joined by Breyer, J., concurring in the judgment)\n(concluding that actual use of educational materials and equipment loaned by\ngovernment agency to religious and non-religious schools for religious indoctrination would violate the Establishment Clause), it does not appear that the OJP grant\nhere would implicate that prohibition. World Vision represents that it \xe2\x80\x9cdo[es] not\nproselytize, and no government funds are ever used for religious activities.\xe2\x80\x9d\nSept. 8 Letter at 3. The organization represents that that is true for all of its\nprograms, not only those at issue here.\nWe are mindful that \xe2\x80\x9c[c]ourts occasionally have suggested that whether an\norganization engages in [religious] employment discrimination is a relevant factor\nin determining whether the organization is so \xe2\x80\x98pervasively sectarian\xe2\x80\x99 that it is\nconstitutionally prohibited from receiving funds directly from the government.\xe2\x80\x9d\nCoreligionists Exemption, supra note 8, at 19 & n. 39 (Oct. 12, 2000) (\xe2\x80\x9cCoreligionists Exemption\xe2\x80\x9d) (citing Roemer v. Bd. of Public Works, 426 U.S. 736, 757\n(1976) (plurality opinion); Tilton v. Richardson, 403 U.S. 672, 686\xe2\x80\x9387 (1971)\n(plurality opinion); Columbia Union Coll. v. Clarke, 159 F.3d 151, 166 (4th Cir.\n1998); Minn. Fed\xe2\x80\x99n of Teachers v. Nelson, 740 F. Supp. 694, 720 (D. Minn.\n1990)). \xe2\x80\x9cBut while religious discrimination in employment might be germane to\nthe question whether an organization\xe2\x80\x99s secular and religious activities are separable in a government-funded program, that factor is not legally dispositive.\xe2\x80\x9d\nCoreligionists Exemption at 20 (citing Columbia Union Coll., 159 F.3d at 163)).\nTo the contrary, \xe2\x80\x9cit is possible that a particular organization\xe2\x80\x99s overall purpose and\ncharacter could be \xe2\x80\x98primarily religious\xe2\x80\x99 . . . , but that it could nevertheless assure\nthat its \xe2\x80\x98privately funded religious activities are not offered as part of its [government-funded] program.\xe2\x80\x99\xe2\x80\x9d Id. at 19 (quoting Department of Housing and Urban\nDevelopment Restrictions on Grants to Religious Organizations that Provide\nSecular Social Services, 12 Op. O.L.C. 190, 199 (1988)) (emphases deleted).\nDepartment of Justice regulations provide, with exceptions not relevant here, that\n\xe2\x80\x9c[o]rganizations that receive direct financial assistance from the Department . . .\nmay not engage in inherently religious activities, such as worship, religious\ninstruction, or proselytization, as part of the programs or services funded with\ndirect financial assistance from the Department.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 38.1(b)(1) (2006).\nWorld Vision represents that it will administer the Vision Youth and Community\nMobilization Initiative programs without proselytizing and that \xe2\x80\x9cno government\nfunds are ever used for religious activities.\xe2\x80\x9d Sept. 8 Letter at 3. We see no reason\nto assume that the organization will not comply with the regulation, and the\nSupreme Court\xe2\x80\x99s recent decisions seem to question the notion that \xe2\x80\x9cpervasively\nsectarian\xe2\x80\x9d institutions presumptively will divert government funds to impermissible purposes. See Mitchell, 530 U.S. at 829 (plurality opinion) (\xe2\x80\x9c[N]othing in the\nEstablishment Clause requires the exclusion of pervasively sectarian schools from\notherwise permissible aid programs . . . . This doctrine, born of bigotry, should be\nburied now.\xe2\x80\x9d); id. at 857 (O\xe2\x80\x99Connor, J., joined by Breyer, J., concurring in the\njudgment) (\xe2\x80\x9cTo establish a First Amendment violation, plaintiffs must prove that\n\n188\n\n\x0cApplication of RFRA to the Award of a Grant Pursuant to the JJDPA\n\nthe aid in question actually is, or has been, used for religious purposes.\xe2\x80\x9d); id. at\n858 (\xe2\x80\x9c[A]n absolute bar to the aid in question[,] regardless of the religious\nschool\xe2\x80\x99s ability to separate that aid from its religious mission, constitutes a \xe2\x80\x98flat\nrule, smacking of antiquated notions of \xe2\x80\x9ctaint,\xe2\x80\x9d [that] would indeed exalt form\nover substance.\xe2\x80\x99\xe2\x80\x9d) (quoting Zobrest v. Catalina Foothills School Dist., 509 U.S. 1,\n13 (1993)); Bowen v. Kendrick, 487 U.S. 589, 624\xe2\x80\x9325 (1988) (Kennedy, J.,\nconcurring) (\xe2\x80\x9cThe question in an as-applied challenge is not whether the entity is\nof a religious character, but how it spends its grant.\xe2\x80\x9d).\nB.\nOur conclusion also is consistent with the Supreme Court\xe2\x80\x99s decision in Locke v.\nDavey, 540 U.S. 712 (2004), in which the Court rejected a Free Exercise Clause\nchallenge to a state scholarship program that prohibited recipients from pursuing a\n\xe2\x80\x9cdegree in theology\xe2\x80\x9d while receiving the scholarship. Davey was decided after\nSmith and did not purport to apply the \xe2\x80\x9csubstantial burden\xe2\x80\x9d test embodied in\nSherbert and adopted by RFRA. It concerned a condition attached by a state to the\nuse of public funds, to which RFRA is inapplicable, City of Boerne, 521 U.S. 507,\nand from which the state had chosen not to exempt any recipients on the grounds\nof religious belief. Davey thus did not address the circumstances under which the\nfederal government, which is subject to RFRA, could avoid making an accommodation for religious exercise. Rather, Davey held that the state was permitted to\nimpose such a restriction on the use of public funds, even though the restriction\nwas not religion-neutral, because of the state\xe2\x80\x99s specific interest in, and historical\ntradition of, denying taxpayer support to religious instruction. 540 U.S. at 722\n(\xe2\x80\x9c[W]e can think of few areas in which a State\xe2\x80\x99s antiestablishment interests come\nmore into play.\xe2\x80\x9d); id. at 723 (\xe2\x80\x9c[R]eligious instruction is of a different ilk.\xe2\x80\x9d). That\nconcern is not implicated here, because World Vision does not use public funds to\nengage in religious instruction, much less the training of clergy. Sept. 8 Letter at 3.\nFurthermore, the Court found the burden imposed by the condition in Davey to\nbe de minimis. The scholarship program did \xe2\x80\x9cnot require students to choose\nbetween their religious beliefs and receiving a government benefit,\xe2\x80\x9d 540 U.S. at\n720\xe2\x80\x9321 (citing, among other authorities, Sherbert, 374 U.S. 398), because\nrecipients could \xe2\x80\x9cattend pervasively religious schools,\xe2\x80\x9d could \xe2\x80\x9ctake devotional\ntheology courses\xe2\x80\x9d while there, id. at 724\xe2\x80\x9325, and could \xe2\x80\x9cstill use their scholarship\nto pursue a secular degree at a different institution from where they are studying\ndevotional theology.\xe2\x80\x9d Id. at 721 n.4. Thus, in the Court\xe2\x80\x99s view, the condition\nattached to the scholarship did not require the recipient to modify his religious\nbehavior; rather, he could take the scholarship money and study devotional\ntheology, so long as he did not use the money to pursue a degree in that field. By\ncontrast, as explained above, it does not appear that World Vision\xe2\x80\x99s programs\ncould be revised to conform to the Safe Streets Act\xe2\x80\x99s nondiscrimination provision\n\n189\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nwithout losing their nature as exercises of religion protected by RFRA. The burden\nthat would be imposed here is not de minimis.\nIV.\nWe conclude that RFRA is reasonably construed to require OJP to exempt\nWorld Vision from the Safe Streets Act\xe2\x80\x99s religious nondiscrimination provision in\nawarding World Vision a grant pursuant to the JJDPA. World Vision is an entity\nprotected by RFRA; its programs at issue here are an exercise of religion; OJP\nreasonably may conclude that imposing the nondiscrimination requirement on\nWorld Vision would substantially burden the organization\xe2\x80\x99s religious exercise;\nand, in this case, the burden would not be justified by a compelling governmental\ninterest. We conclude that OJP would be within its legal discretion, under the\nJJDPA and under RFRA, to accommodate World Vision in this manner, consistent\nwith the President\xe2\x80\x99s direction that \xe2\x80\x9ca faith-based organization that applies for or\nparticipates in a social service program supported with Federal financial assistance\nmay retain its independence and may continue to carry out its mission, including\nthe definition, development, practice, and expression of its religious beliefs,\xe2\x80\x9d\nExec. Order No. 13279, \xc2\xa7 2(f), and that religious organizations that administer\nfederally funded social services be exempted from restrictions on religious hiring\nunder RFRA where it is reasonably construed to require that result.\nJOHN P. ELWOOD\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n190\n\n\x0c'