Bowen v. Kendrick, 487 U.S. 589 (1988)

A related point on which I do agree with the majority is worth acknowledging explicitly. In his appeal to this Court, the Secretary of Health and Human Services vigorously criticized the District Court’s analysis of the AFLA on its face, asserting that it “cannot.be squared with-this Court’s explanation in United States v. Salerno, [481 U. S. 739, 745 (1987),] that in mounting a facial challenge to a legislative Act, ‘the challenger must establish that no set of circumstances exists under which the Act would.be valid.’” Brief for Federal Appellant 30. The Court, however, rejects the application of such rigid analysis in Establishment Clause cases, explaining: “As in previous cases involving facial challenges on Establishment Clause grounds, ... we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971).” Ante, at 602. Indeed, the Secretary’s proposed test is wholly incongruous with analysis of an Establishment Clause challenge under Lemon, which requires our examination of the purpose of the legislative enactment, as well as its primary effect' or potential for fostering excessive entanglement. Although I may differ with the majority in the application of the Lemon- analysis to the AFLA, I join it in rejecting the Secretary’s approach which would render review under the Establishment Clause a nullity. Even in a statute like the AFLA, with its solicitude for, and specific averment to, the participation of religious organizations, one eould hypothesize some “set of circumstances . . . under which the Act would be valid,” as, for example, might be the case if no religious organization ever actually applied for or participated under an AFLA grant. The Establishment Clause cannot be eviscerated by such artifice.

Of course, the manner in which the challenge is characterized does not limit the relief available. Where justified by the nature of the controversy and the evidence in the record, a federal district court may invoke broad equitable powers to pi-event continued unconstitutional activity. See Hutto v. Finney, 437 U. S. 678, 687, and n. 9 (1978); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971) (“[B]readth and flexibility are inherent in equitable remedies”). In Milliken v. Bradley, 433 U. S. 267 (1977), the Court reiterated that in exercising its broad equitable powers, a district court should focus on the “nature and scope of the constitutional violation,” and ensure that decrees be “remedial in nature.” Id., at 280 (emphasis omitted). On remand, therefore, as instructed by the majority, the District Court must undertake the delicate task of fashioning relief appropriate to the scope of any particular violation it discovers.

The majority finds support for its “observation^]” in the statistics for the AFLA program in fiscal 1986. See date, at 610, n. 12. Because there are some organizations that were funded in 1982, but not in 1986, and vice versa, I find' the cumulative funding figures for FY 1982-1986 more helpful. Looking at those figures, and the same group of recipients identified by the majority, I find that of approximately $53.5 million in AFLA funding, over $10 million went to the 13 organizations specifically cited in the District Court’s opinion for constitutional violations. App. 748-756. The District Court, of course, did not “engage in an exhaustive recitation of the record,’’ but made references only to “representative portions.” 657 F. Supp. 1547, 1564 (DC 1987). Another 13 organizations characterized as “religiously affiliated” in a tabulation prepared by the Department of Health and Human Services in connection with this litigation, received an additional $6 million during this period. Looking at the figures from a different perspective, a third of the approximately 100,000 “clients served” by all AFLA grantees during the 1985-1986 period received their services from the “cited” grantees, and nearly 11,000 more from the other “religiously affiliated” institutions. App. 748-756. At a minimum, these figures already demonstrate substantial constitutionally suspect funding through the AFLA, rendering the majority’s expectations unrealistic and *630unwarranted. And, because of the Government’s failure to require grantees to report on subgrant and subcontract arrangements, id., at 745, we only can speculate as to what additional public funds subsidized the religious missions of groups that the secular grantees brought in to fulfill their statutory obligation to involve religious organizations in the provision of services. See § 300z-5(a)(21)(B).

The Court leaves for the District Court on remand the “consideration of the evidence presented by appellees insofar as it sheds light on the manner in which the statute is presently being administered,” ante, at 621, conceding, as it must, that the factual record could paint a troubling picture about the true efféct of the AFLA as a whole. See Witters v. Washington Dept. of Services for the Blind, 474 U. S. 481, 488 (1986) (finding significant that “nothing in the record indicates that, if petitioner succeeds, any significant portion of the aid expended under the . . . program as a whole will end up flowing to religious education”); Aguilar v. Felton, 473 U. S. 402, 412, n. 8 (1985) (“ ‘If any significant number of the . . . schools create the risks described in Meek, Meek applies’”), quoting Felton v. Secretary, United States Dept. of Education, 739 F. 2d 48, 70 (CA2 1984); Widmar v. Vincent, 454 U. S. 263, 275 (1981) (noting absence of empirical evidence that religious groups would dominate university’s, open forum). I fully agree with the majority’s determination that appellees have standing as taxpayers to challenge the operation- of the AFLA, ante, at 618-620, and note that appellees may yet prevail on remand.

In rejecting the claim that the AFLA leads to excessive government entanglement with religion, the. Court declines “to assume that the reli*632gious organizations which may receive grants are ‘pervasively sectarian’ in the same sense as the Court has held parochial schools to be.” Ante, at 616. With respect to the claim that the AFLA is unconstitutional at least as applied, if not on its face, the Court — apparently unsatisfied with findings the District Court already made to that very effect — instructs that on remand, appellees may show that “AFLA aid is flowing to grantees that can be considered ‘pervasively sectarian’ religious institutions, such as we have held parochial schools to be.” Ante, at 621.

The District Court observed that 9 of 17 “necessary services,” see § 300z-l(a)(4), expressly involved some sort of education, counseling, or an intimately related service. 657 F. Supp., at 1562.

Thus, for example, until discovery began in this lawsuit, St. Ann’s, a home for unmarried pregnant teenagers, operated by the Order of the Daughters of Charity and owned by the Archdiocese of Washington, D.C., purchased books containing Catholic doctrine on chastity, masturbation, homosexuality, and abortion, using AFLA funds, and distributed them to participants. See App. 336, 354-359, 362. Catholic Family Services of Amarillo, Tex., used a curriculum outline guide for AFLA-funded parent workshops with explicit theological references, as well as religious “reference” materials, including the film “Everyday Miracle,” described as “depicting the miracle of the process of human reproduction as a gift from God.” Record 155, Plaintiffs’ Appendix, Vol. IV, p. 119. The District Court concluded: “The record demonstrates that some grantees have included explicitly religious materials, or a curriculum that indicates an intent to teach theological and secular views on- sexual conduct, in their HHS-approved grant proposals. . . . One such application, which was funded for one year, included a program designed, inter alia, ‘to communicate the Catholic diocese, Mormon (Church of Jesus Christ of Latter Day Saints) and Young Buddhist Association’s approaches to sex education.’” 657 F. Supp., at 1565-1566.

In addition to funding activity of a wholly different character, the AFLA differs from the statutes reviewed in those cases in its expressed solicitude for the participation of religious organizations. In Tilton v. Richardson, 403 U. S. 672, 675 (1971), the statute “authorized] federal grants and loans to ‘institutions of higher education’ for the construction of a wide variety of ‘academic facilities’in Hunt v. McNair, 413 U. S. 734, 736 (1973), South Carolina had established a state agency “the purpose of which [was] ‘to assist institutions for higher education in the construction, financing and refinancing of projects’. . . primarily through the issuance of revenue bonds”; in Roemer v. Maryland Public Works Board, 426 U. S. 736, 740 (1976) (plurality opinion), the State provided funding to “‘any [qualified] private institution of higher learning within the State of Maryland.’ ” The AFLA, in contrast, expressly requires applicants for grants to describe how they “will, as appropriate in the provision of services . . . (B) involve religious . . . organizations.” § 300z-5(a)(21 j(B), and the legislative history conclusively shows that Congress intended religious organizations to participate as grantees and as participants under grants awarded to other organizations. See S. Rep. No. 97-161, pp. 15-16 (1981).

The District Court’s conclusion, which I find compelling, is that the AFLA requires teaching and counseling “on matters inseparable from religious dogma.” 657 F. Supp., at 1565. This conclusion is borne out by statements of AFLA administrators and participants. For example, the Lyon County, Kan., Health Department’s grant proposal acknowledges that “[s]uch sensitive and intimate material cannot be presented without touching on . . . religious beliefs.” Record 155, Plaintiffs' Appendix, Vol. IV, p. 221. Patrick J. Sheeran, the Director of the Division of Program Development and Monitoring in the Office of Adolescent Pregnancy Programs explained; “Broadly speaking, I find it hard to find any kind of educational or value type of program that doesn’t have some kind of basic religious or ethical foundation, and while a sex education class may be completely separate from a religious class, it might relate back to it in terms of principles that are embedded philosophically or theologically or religiously in another discipline.” App. 122. Mr. Sheeran’s views were echoed by Dr. Paul Simmons, a Baptist clergyman and professor of Christian Ethics: “The very purpose of religion is to transmit certain values, and those values associated with sex, marriage, chastity and abortion involve religious values and theological or doctrinal issues. In encouraging premarital chastity, it would be extremely difficult for a religiously affiliated group not to impart its own religious values and doctrinal perspectives when teaching a subject that has always been central to its religious teachings.” Id., at 597. In any event, regardless of the efforts AFLA teachers and counselors may have undertaken in attempting to separate their religious convictions from the advice they actually dispensed to participating teenagers, the Dis*640trict Court found that “the overwhelming number of comments shows that program participants believed that these federally funded programs were also sponsored by the religious denomination.” 657 F. Supp., at 1566.

Religion plays an important role to many in our society. By enlisting its aid in combating certain social ills, while imposing the restrictions required by the First Amendment on the use of public funds to promote religion, we risk secularizing and demeaning the sacred enterprise. Whereas there is undoubtedly a role for churches of all denominations in helping prevent the problems often associated with early sexual activity and unplanned pregnancies, any attempt to confine that role within the strictures of a government-sponsored secular program can only taint the religious mission with a “corrosive secularism.” Grand Rapids School District v. Ball, 473 U. S. 373, 385 (1985). The First Amendment protects not only the State from being captured by the Church, but also protects the Church from being corrupted by the State and adopted for its purposes. A government program that provides funds for religious organizations to carry out secular tasks inevitably risks promoting “the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it.” Roemer v. Maryland Public Works Board, 426 U. S., at 775 (Stevens, J., dissenting); see also Lynch v. Donnelly, 465 U. S. 668, 726-727 (1984) (Blackmun, J., dissenting).

In arguing that providing “social welfare services” is categorically different from educating schoolchildren for Establishment Clause purposes, appellants relied heavily on Bradfield v. Roberts, 175 U. S. 291 (1899), a case in which the Court upheld the appropriation of money for the construction of two buildings to be part of a religiously affiliated hospital. Unlike the AFLA, however, which seeks “to promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations,” § 300z(b)(l), the Act of Congress by which the hospital at issue in Bradfield had been incorporated expressed that “ ‘the specific and limited object of its creation’ is the opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the corporation.” 175 U. S., at 299-300.

Employees of some grantees must follow the directives set forth in a booklet entitled “The Ethical and Religious Directives for Catholic Health Facilities,” approved by the Committee on Doctrine of the National Conference of Catholic Bishops. App. 526, 540-544. Solely because of religious dictates, some AFLA grantees teach and refer teenagers for only “natural family planning," which “has never been used successfully with teenagers,” id., at 535, and may not refer couples to programs that offer artificial methods of birth control, because those programs conflict with the teachings of the Roman Catholic Church. Id., at 407, 628. One nurse midwife working at an AFLA program was even reprimanded for contravening the hospital’s religious views on sex vdien she answered “yes” to a teenager who asked, as a medical matter, whether she could have sex during pregnancy. Id., at 552.

This vacuum is particularly noticeable when we consider the pains to which Congress went to specify other restrictions on the use of AFLA funds. For example, the AFLA expressly provides: “Grants or payments may be made only to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion.” §300z-10. The AFLA also sets certain conditions on funding for family planning, services, § 300z — 3(b)(1), and requires of applicants some 18 separate “assur-*644anees” covering everything from confidentiality of patient records, § 300z-5(a)(ll), to a commitment that the applicant will “make every reasonable effort... to secure from eligible persons payment for services in accordance with [structured fee] schedules,” § 300z-5(a)(16)(B). Yet nowhere in the statute is there a single restriction on the use of federal funds to promote or advance religion. See ante, at 614-615.

Appellees have challenged that presumption here, calling into question the manner in which grantees were selected and supervised. Mr. Shee-ran, the Director of the Division of Program Development and Monitoring in the Office of Adolescent Pregnancy Programs, testified that he was surprised at the lack of experience, yet high proportion of religious affiliation, among those selected to read and evaluate grant applications. App. 98. Some of the reader’s comments strongly suggest they considered religious indoctrination indispensable to achieve the AFLA’s stated purpose, see, e. g., id., at 509; Record 155, Plaintiffs’ Appendix Vol. I, pp. 354-355, and that evidence of no involvement by religiousorganizations was a factor in rejecting applications, see, e. g., Record 155, Plaintiffs’ Appendix, Vol. I-A, pp. 505D, 505E, 505G; Record 155, Plaintiffs’ Appendix, Vol. I, pp. 340, 346. Despite the clear religious mission of many applicants, pre-award investigations or admonitions against the use of AFLA funds to promote religion were minimal. Mr. Sheeran was instructed to call Catholic grantees already selected for funding, and obtain assurances that the grant money would not be used for “teaching of morals, dogmas, [or] religious principles.” App. 107. The calls lasted two or three minutes, and involved no detailed discussion of the use of church and parochial school facilities, or religious literature. Id.,* at 112-113. The District Court found that the problems that should have been noted at the application stage remained uncured in implementation: “Nor do the facts suggest that the programs in operation cured the First Amendment problems evident from these approved grant applications. At least one grantee actually included ‘spiritual counseling’ in its AFLA program. Other AFLA programs used curricula with explicitly religious *645materials. In addition, a very large number of AFLA programs took place on sites adorned with religious symbols .... “Similarly, the record reveals that some grantees attempted to evade restrictions they perceived on AFLA-funded religious teaching by establishing programs in which an AFLA-funded staffer’s presentations would be immediately followed, in the same room and in the staffer’s presence, by a program presented by a member of a religious order and dedicated co presentation of religious views on the subject covered by the AFLA staffer” (citations omitted). 657 F. Supp., at 1566.

Indeed, the AFLA stands out among similar grant programs, precisely because of the absence of such restrictions. Cf., e. g., 20 U. S. C. § 27 (support for vocational education); 20 U. S. C. § 241-l(a)(4) (federal disaster relief for local education agencies); 20 U. S. C. § 1021(c) (assistance to college and research libraries); 20 U. S. C. § 1070e(c)(l)(B) (1982 ed., Supp. IV) (assistance to institutions of higher education); 20 U. S. C. § 1134e(g) (1982 ed., Supp. IV) (fellowships for graduate and professional study); 20 U. S. C. § 1210 (1982 ed. and Supp. IV) (grants to adult education programs); 42 U. S. C. § 2753(b)(1)(C) (college work-study grants); 42 U. S. C. § 5001(a)(2) (grants to retired senior-citizen volunteer service programs).

Justice Kennedy, joined by Justice Scalia, would further constrain the District Court’s consideration of the evidence as to how grantees spent their money, regardless of whether the grantee could be labeled “pervasively sectarian,” see ante, at 624-625, asserting that “[t]he question in an as-applied challenge is not whether the entity is of a religious character.” This statement comes without citation to authority and is contrary to the clear import of our cases. As ill-defined as the concept behind the “pervasively sectarian” label may be, this Court consistently has held, and reaffirms today, that “ ‘[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.’ ” Ante, at 610, quoting Hunt v. McNair, 413 U. S., at 743. See also Roemer v. Maryland Public Works Board, 426 U. S., at 758 (“[T]he question [is] whether an institution is so ‘pervasively sectarian’ that it may receive no direct state aid of any kind”). Indeed, to suggest that because a challenge is labeled “as-applied,” the character of the institution receiving the aid loses its relevance is to misunderstand the very nature of the concept of a “pervasively sectarian” institution, which is based in part on the conclusion that the secular and sectarian activities of an institution are “inextricably intertwined,” see ante, at 620, n. 16. Not surprisingly, the Court flatly rejects Justice Kennedy’s suggestion, observing that “it will be open to appellees on remand to show that AFLA aid is flowing to grantees that can be considered ‘pervasively sectarian’ religious institutions.” Ante, at 621. '

A related point on which I do agree with the majority is worth acknowledging explicitly. In his appeal to this Court, the Secretary of Health and Human Services vigorously criticized the District Court’s analysis of the AFLA on its face, asserting that it “cannot.be squared with-this Court’s explanation in United States v. Salerno, [481 U. S. 739, 745 (1987),] that in mounting a facial challenge to a legislative Act, ‘the challenger must establish that no set of circumstances exists under which the Act would.be valid.’” Brief for Federal Appellant 30. The Court, however, rejects the application of such rigid analysis in Establishment Clause cases, explaining: “As in previous cases involving facial challenges on Establishment Clause grounds, ... we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971).” Ante, at 602. Indeed, the Secretary’s proposed test is wholly incongruous with analysis of an Establishment Clause challenge under Lemon, which requires our examination of the purpose of the legislative enactment, as well as its primary effect' or potential for fostering excessive entanglement. Although I may differ with the majority in the application of the Lemon- analysis to the AFLA, I join it in rejecting the Secretary’s approach which would render review under the Establishment Clause a nullity. Even in a statute like the AFLA, with its solicitude for, and specific averment to, the participation of religious organizations, one eould hypothesize some “set of circumstances . . . under which the Act would be valid,” as, for example, might be the case if no religious organization ever actually applied for or participated under an AFLA grant. The Establishment Clause cannot be eviscerated by such artifice.

Of course, the manner in which the challenge is characterized does not limit the relief available. Where justified by the nature of the controversy and the evidence in the record, a federal district court may invoke broad equitable powers to pi-event continued unconstitutional activity. See Hutto v. Finney, 437 U. S. 678, 687, and n. 9 (1978); Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15 (1971) (“[B]readth and flexibility are inherent in equitable remedies”). In Milliken v. Bradley, 433 U. S. 267 (1977), the Court reiterated that in exercising its broad equitable powers, a district court should focus on the “nature and scope of the constitutional violation,” and ensure that decrees be “remedial in nature.” Id., at 280 (emphasis omitted). On remand, therefore, as instructed by the majority, the District Court must undertake the delicate task of fashioning relief appropriate to the scope of any particular violation it discovers.

The majority finds support for its “observation^]” in the statistics for the AFLA program in fiscal 1986. See date, at 610, n. 12. Because there are some organizations that were funded in 1982, but not in 1986, and vice versa, I find' the cumulative funding figures for FY 1982-1986 more helpful. Looking at those figures, and the same group of recipients identified by the majority, I find that of approximately $53.5 million in AFLA funding, over $10 million went to the 13 organizations specifically cited in the District Court’s opinion for constitutional violations. App. 748-756. The District Court, of course, did not “engage in an exhaustive recitation of the record,’’ but made references only to “representative portions.” 657 F. Supp. 1547, 1564 (DC 1987). Another 13 organizations characterized as “religiously affiliated” in a tabulation prepared by the Department of Health and Human Services in connection with this litigation, received an additional $6 million during this period. Looking at the figures from a different perspective, a third of the approximately 100,000 “clients served” by all AFLA grantees during the 1985-1986 period received their services from the “cited” grantees, and nearly 11,000 more from the other “religiously affiliated” institutions. App. 748-756. At a minimum, these figures already demonstrate substantial constitutionally suspect funding through the AFLA, rendering the majority’s expectations unrealistic and *630unwarranted. And, because of the Government’s failure to require grantees to report on subgrant and subcontract arrangements, id., at 745, we only can speculate as to what additional public funds subsidized the religious missions of groups that the secular grantees brought in to fulfill their statutory obligation to involve religious organizations in the provision of services. See § 300z-5(a)(21)(B).

The Court leaves for the District Court on remand the “consideration of the evidence presented by appellees insofar as it sheds light on the manner in which the statute is presently being administered,” ante, at 621, conceding, as it must, that the factual record could paint a troubling picture about the true efféct of the AFLA as a whole. See Witters v. Washington Dept. of Services for the Blind, 474 U. S. 481, 488 (1986) (finding significant that “nothing in the record indicates that, if petitioner succeeds, any significant portion of the aid expended under the . . . program as a whole will end up flowing to religious education”); Aguilar v. Felton, 473 U. S. 402, 412, n. 8 (1985) (“ ‘If any significant number of the . . . schools create the risks described in Meek, Meek applies’”), quoting Felton v. Secretary, United States Dept. of Education, 739 F. 2d 48, 70 (CA2 1984); Widmar v. Vincent, 454 U. S. 263, 275 (1981) (noting absence of empirical evidence that religious groups would dominate university’s, open forum). I fully agree with the majority’s determination that appellees have standing as taxpayers to challenge the operation- of the AFLA, ante, at 618-620, and note that appellees may yet prevail on remand.

In rejecting the claim that the AFLA leads to excessive government entanglement with religion, the. Court declines “to assume that the reli*632gious organizations which may receive grants are ‘pervasively sectarian’ in the same sense as the Court has held parochial schools to be.” Ante, at 616. With respect to the claim that the AFLA is unconstitutional at least as applied, if not on its face, the Court — apparently unsatisfied with findings the District Court already made to that very effect — instructs that on remand, appellees may show that “AFLA aid is flowing to grantees that can be considered ‘pervasively sectarian’ religious institutions, such as we have held parochial schools to be.” Ante, at 621.

The District Court observed that 9 of 17 “necessary services,” see § 300z-l(a)(4), expressly involved some sort of education, counseling, or an intimately related service. 657 F. Supp., at 1562.

Thus, for example, until discovery began in this lawsuit, St. Ann’s, a home for unmarried pregnant teenagers, operated by the Order of the Daughters of Charity and owned by the Archdiocese of Washington, D.C., purchased books containing Catholic doctrine on chastity, masturbation, homosexuality, and abortion, using AFLA funds, and distributed them to participants. See App. 336, 354-359, 362. Catholic Family Services of Amarillo, Tex., used a curriculum outline guide for AFLA-funded parent workshops with explicit theological references, as well as religious “reference” materials, including the film “Everyday Miracle,” described as “depicting the miracle of the process of human reproduction as a gift from God.” Record 155, Plaintiffs’ Appendix, Vol. IV, p. 119. The District Court concluded: “The record demonstrates that some grantees have included explicitly religious materials, or a curriculum that indicates an intent to teach theological and secular views on- sexual conduct, in their HHS-approved grant proposals. . . . One such application, which was funded for one year, included a program designed, inter alia, ‘to communicate the Catholic diocese, Mormon (Church of Jesus Christ of Latter Day Saints) and Young Buddhist Association’s approaches to sex education.’” 657 F. Supp., at 1565-1566.

In addition to funding activity of a wholly different character, the AFLA differs from the statutes reviewed in those cases in its expressed solicitude for the participation of religious organizations. In Tilton v. Richardson, 403 U. S. 672, 675 (1971), the statute “authorized] federal grants and loans to ‘institutions of higher education’ for the construction of a wide variety of ‘academic facilities’in Hunt v. McNair, 413 U. S. 734, 736 (1973), South Carolina had established a state agency “the purpose of which [was] ‘to assist institutions for higher education in the construction, financing and refinancing of projects’. . . primarily through the issuance of revenue bonds”; in Roemer v. Maryland Public Works Board, 426 U. S. 736, 740 (1976) (plurality opinion), the State provided funding to “‘any [qualified] private institution of higher learning within the State of Maryland.’ ” The AFLA, in contrast, expressly requires applicants for grants to describe how they “will, as appropriate in the provision of services . . . (B) involve religious . . . organizations.” § 300z-5(a)(21 j(B), and the legislative history conclusively shows that Congress intended religious organizations to participate as grantees and as participants under grants awarded to other organizations. See S. Rep. No. 97-161, pp. 15-16 (1981).

The District Court’s conclusion, which I find compelling, is that the AFLA requires teaching and counseling “on matters inseparable from religious dogma.” 657 F. Supp., at 1565. This conclusion is borne out by statements of AFLA administrators and participants. For example, the Lyon County, Kan., Health Department’s grant proposal acknowledges that “[s]uch sensitive and intimate material cannot be presented without touching on . . . religious beliefs.” Record 155, Plaintiffs' Appendix, Vol. IV, p. 221. Patrick J. Sheeran, the Director of the Division of Program Development and Monitoring in the Office of Adolescent Pregnancy Programs explained; “Broadly speaking, I find it hard to find any kind of educational or value type of program that doesn’t have some kind of basic religious or ethical foundation, and while a sex education class may be completely separate from a religious class, it might relate back to it in terms of principles that are embedded philosophically or theologically or religiously in another discipline.” App. 122. Mr. Sheeran’s views were echoed by Dr. Paul Simmons, a Baptist clergyman and professor of Christian Ethics: “The very purpose of religion is to transmit certain values, and those values associated with sex, marriage, chastity and abortion involve religious values and theological or doctrinal issues. In encouraging premarital chastity, it would be extremely difficult for a religiously affiliated group not to impart its own religious values and doctrinal perspectives when teaching a subject that has always been central to its religious teachings.” Id., at 597. In any event, regardless of the efforts AFLA teachers and counselors may have undertaken in attempting to separate their religious convictions from the advice they actually dispensed to participating teenagers, the Dis*640trict Court found that “the overwhelming number of comments shows that program participants believed that these federally funded programs were also sponsored by the religious denomination.” 657 F. Supp., at 1566.

Religion plays an important role to many in our society. By enlisting its aid in combating certain social ills, while imposing the restrictions required by the First Amendment on the use of public funds to promote religion, we risk secularizing and demeaning the sacred enterprise. Whereas there is undoubtedly a role for churches of all denominations in helping prevent the problems often associated with early sexual activity and unplanned pregnancies, any attempt to confine that role within the strictures of a government-sponsored secular program can only taint the religious mission with a “corrosive secularism.” Grand Rapids School District v. Ball, 473 U. S. 373, 385 (1985). The First Amendment protects not only the State from being captured by the Church, but also protects the Church from being corrupted by the State and adopted for its purposes. A government program that provides funds for religious organizations to carry out secular tasks inevitably risks promoting “the pernicious tendency of a state subsidy to tempt religious schools to compromise their religious mission without wholly abandoning it.” Roemer v. Maryland Public Works Board, 426 U. S., at 775 (Stevens, J., dissenting); see also Lynch v. Donnelly, 465 U. S. 668, 726-727 (1984) (Blackmun, J., dissenting).

In arguing that providing “social welfare services” is categorically different from educating schoolchildren for Establishment Clause purposes, appellants relied heavily on Bradfield v. Roberts, 175 U. S. 291 (1899), a case in which the Court upheld the appropriation of money for the construction of two buildings to be part of a religiously affiliated hospital. Unlike the AFLA, however, which seeks “to promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations,” § 300z(b)(l), the Act of Congress by which the hospital at issue in Bradfield had been incorporated expressed that “ ‘the specific and limited object of its creation’ is the opening and keeping a hospital in the city of Washington for the care of such sick and invalid persons as may place themselves under the treatment and care of the corporation.” 175 U. S., at 299-300.

Employees of some grantees must follow the directives set forth in a booklet entitled “The Ethical and Religious Directives for Catholic Health Facilities,” approved by the Committee on Doctrine of the National Conference of Catholic Bishops. App. 526, 540-544. Solely because of religious dictates, some AFLA grantees teach and refer teenagers for only “natural family planning," which “has never been used successfully with teenagers,” id., at 535, and may not refer couples to programs that offer artificial methods of birth control, because those programs conflict with the teachings of the Roman Catholic Church. Id., at 407, 628. One nurse midwife working at an AFLA program was even reprimanded for contravening the hospital’s religious views on sex vdien she answered “yes” to a teenager who asked, as a medical matter, whether she could have sex during pregnancy. Id., at 552.

This vacuum is particularly noticeable when we consider the pains to which Congress went to specify other restrictions on the use of AFLA funds. For example, the AFLA expressly provides: “Grants or payments may be made only to programs or projects which do not provide abortions or abortion counseling or referral, or which do not subcontract with or make any payment to any person who provides abortions or abortion counseling or referral, except that any such program or project may provide referral for abortion counseling to a pregnant adolescent if such adolescent and the parents or guardians of such adolescent request such referral; and grants may be made only to projects or programs which do not advocate, promote, or encourage abortion.” §300z-10. The AFLA also sets certain conditions on funding for family planning, services, § 300z — 3(b)(1), and requires of applicants some 18 separate “assur-*644anees” covering everything from confidentiality of patient records, § 300z-5(a)(ll), to a commitment that the applicant will “make every reasonable effort... to secure from eligible persons payment for services in accordance with [structured fee] schedules,” § 300z-5(a)(16)(B). Yet nowhere in the statute is there a single restriction on the use of federal funds to promote or advance religion. See ante, at 614-615.

Appellees have challenged that presumption here, calling into question the manner in which grantees were selected and supervised. Mr. Shee-ran, the Director of the Division of Program Development and Monitoring in the Office of Adolescent Pregnancy Programs, testified that he was surprised at the lack of experience, yet high proportion of religious affiliation, among those selected to read and evaluate grant applications. App. 98. Some of the reader’s comments strongly suggest they considered religious indoctrination indispensable to achieve the AFLA’s stated purpose, see, e. g., id., at 509; Record 155, Plaintiffs’ Appendix Vol. I, pp. 354-355, and that evidence of no involvement by religiousorganizations was a factor in rejecting applications, see, e. g., Record 155, Plaintiffs’ Appendix, Vol. I-A, pp. 505D, 505E, 505G; Record 155, Plaintiffs’ Appendix, Vol. I, pp. 340, 346. Despite the clear religious mission of many applicants, pre-award investigations or admonitions against the use of AFLA funds to promote religion were minimal. Mr. Sheeran was instructed to call Catholic grantees already selected for funding, and obtain assurances that the grant money would not be used for “teaching of morals, dogmas, [or] religious principles.” App. 107. The calls lasted two or three minutes, and involved no detailed discussion of the use of church and parochial school facilities, or religious literature. Id.,* at 112-113. The District Court found that the problems that should have been noted at the application stage remained uncured in implementation: “Nor do the facts suggest that the programs in operation cured the First Amendment problems evident from these approved grant applications. At least one grantee actually included ‘spiritual counseling’ in its AFLA program. Other AFLA programs used curricula with explicitly religious *645materials. In addition, a very large number of AFLA programs took place on sites adorned with religious symbols .... “Similarly, the record reveals that some grantees attempted to evade restrictions they perceived on AFLA-funded religious teaching by establishing programs in which an AFLA-funded staffer’s presentations would be immediately followed, in the same room and in the staffer’s presence, by a program presented by a member of a religious order and dedicated co presentation of religious views on the subject covered by the AFLA staffer” (citations omitted). 657 F. Supp., at 1566.

Indeed, the AFLA stands out among similar grant programs, precisely because of the absence of such restrictions. Cf., e. g., 20 U. S. C. § 27 (support for vocational education); 20 U. S. C. § 241-l(a)(4) (federal disaster relief for local education agencies); 20 U. S. C. § 1021(c) (assistance to college and research libraries); 20 U. S. C. § 1070e(c)(l)(B) (1982 ed., Supp. IV) (assistance to institutions of higher education); 20 U. S. C. § 1134e(g) (1982 ed., Supp. IV) (fellowships for graduate and professional study); 20 U. S. C. § 1210 (1982 ed. and Supp. IV) (grants to adult education programs); 42 U. S. C. § 2753(b)(1)(C) (college work-study grants); 42 U. S. C. § 5001(a)(2) (grants to retired senior-citizen volunteer service programs).

Justice Kennedy, joined by Justice Scalia, would further constrain the District Court’s consideration of the evidence as to how grantees spent their money, regardless of whether the grantee could be labeled “pervasively sectarian,” see ante, at 624-625, asserting that “[t]he question in an as-applied challenge is not whether the entity is of a religious character.” This statement comes without citation to authority and is contrary to the clear import of our cases. As ill-defined as the concept behind the “pervasively sectarian” label may be, this Court consistently has held, and reaffirms today, that “ ‘[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission.’ ” Ante, at 610, quoting Hunt v. McNair, 413 U. S., at 743. See also Roemer v. Maryland Public Works Board, 426 U. S., at 758 (“[T]he question [is] whether an institution is so ‘pervasively sectarian’ that it may receive no direct state aid of any kind”). Indeed, to suggest that because a challenge is labeled “as-applied,” the character of the institution receiving the aid loses its relevance is to misunderstand the very nature of the concept of a “pervasively sectarian” institution, which is based in part on the conclusion that the secular and sectarian activities of an institution are “inextricably intertwined,” see ante, at 620, n. 16. Not surprisingly, the Court flatly rejects Justice Kennedy’s suggestion, observing that “it will be open to appellees on remand to show that AFLA aid is flowing to grantees that can be considered ‘pervasively sectarian’ religious institutions.” Ante, at 621. '

Appellees argued in the District Court, and here as cross-appellants, that the portions of the statute inviting the participation of religious organizations were not severable, and thus that the entire statute must be held unconstitutional. I take no position on this issue.

Together wnth No. 87-431, Bowen, Secretary of Health and Human Services v. Kendrick et al.. No. 87-462, Kendrick et al. v. Bowen, Secretary of Health and Human Services, et al., and No. 87-775, United Families of America v. Kendrick et al., also on appeal from the same court.

Briefs of amici curiae urging reversal were filed for the Attorney General of Arizona et al. by Gary B. Born and James S. Campbell; for the Catholic League for Religious and Civil Rights et al. by Steven Frederick McDowell; for the Institute for Youth Advocacy by Gregory A. Loken; for the National Jewish Commission on. Law and Public Affairs by Nathan Lewin and Dennis Rapps; for the National Right to Life Committee, Inc., by James Bopp, Jr.; for the Rutherford Institute et al. by John W. Whitehead, David E. Moms, Alfred J. Lindh, Ira W. Still III, William B. Hollberg, Randall A. Pentiuk, Thomas W. Strahan, William Bonner, John F. Southivorth, Jr., and W. Charles Bundren; and for the United States Catholic Conference by Mark E. Chopko and Philip H. Hams. Briefs of amici curiae urging affirmance were filed for the American Public Health Association et al. by John H. Hall, Nadine Taub, and Judith Levin; for the Baptist Joint Committee on Public Affairs et al. by Oliver S. Thomas; for the Committee for Public Education and Religious Liberty by Leo Pfeffer; for the Council on Religious Freedom by Lee Boothby, -Robert W. Nixon, and Rolland Truman; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell, David H. Remes, and Herman Schwartz; and for the NOW Legal Defense and Education Fund et al. by Sarah E. Bums and Marsha Levick. Briefs of amici curiae were filed for the Anti-Defamation League of B’nai B’rith et al. by Ruti G. Teitel, Justin J. Finger, Jeffrey P. Sinen-sky, Meyer Eisenberg, and Steven M. Freeman; for -Catholic Charities, *593U. S. A., et al. by Patrick Francis Geary; and for the Unitarian Univer-salist Association et al. by Patricia Hennessey.