76 Op. Att'y Gen. 233 (1987)

76 Op. Att'y Gen. 233, 233 (1987)
Adolescent Pregnancy Prevention Services Board; Establishment Clause, United States Constitution; Constitutionality of the administration of grant monies by the Adolescent Pregnancy Prevention Services Board pursuant to section 46.93, Stats., discussed. OAG 53-87

September 8, 1987

76 Op. Att'y Gen. 233, 233 (1987)
Hannah Rosenthal, Chairperson
  Adolescent Pregnancy Prevention Services Board

76 Op. Att'y Gen. 233, 233 (1987)
  You indicate that the Adolescent Pregnancy Prevention Services Board awards grant monies from a sum certain account pursuant to section 46.93(2), Stats., and that in 1986, the first year in which grants were issued, $803,900 in grant monies was issued to thirteen of twenty-six applicants. Approximately five of these applicants had religious ties, and two of them were successful in obtaining grants in excess of $80,000 each. One of these organizations conducts its activities in a parochial school because it needs classroom and related space, and no rental charge is made by the parochial school for that space. The other organization with religious ties also apparently has conducted a number of its funded activities in parochial schools. In addition, several board-funded organizations that do not have religious ties have contacted church or church youth groups and have conducted programs for those groups in churches. Individuals conducting such programs have been paid with board funds, but no governmental funds have been paid to the churches themselves. Based upon my examination of the grant applications filed by the two organizations with religious ties for the period prior to this fiscal year, my understanding is that the majority of the activities conducted by each grantee involve counseling, teaching and instruction of adolescents on matters related to premarital sex and premarital pregnancy. You also indicate that more organizations with religious ties have applied for grant monies for the 1987-88 fiscal year, but that only one organization with religious ties ranks sufficiently high to receive such funding.

76 Op. Att'y Gen. 233, 233-234 (1987)
  Because program activities have been conducted in sectarian facilities, you state that, based upon 75 Op. Att'y Gen. 251 (1986), the board has or intends to place certain restrictions on the award of grant monies, and that the board is concerned that such grant monies be awarded and used in a constitutional fashion. You then, in effect, ask three questions concerning the award and handling of funds administered by the board. For the sake of simplicity, I will address your questions out of order. The first question I will address is as follows:

76 Op. Att'y Gen. 233, 234 (1987)
May any of the following entities receive funding from the... Board either as a grantee or under a subcontract with a grantee:

76 Op. Att'y Gen. 233, 234 (1987)
a. Churches, synagogues, or other religious organizations?

76 Op. Att'y Gen. 233, 234 (1987)
b. Religious service organizations, i.e. Catholic Social Services, Jewish Social Services, Lutheran Social Services?

76 Op. Att'y Gen. 233, 234 (1987)
c. Parochial schools?

76 Op. Att'y Gen. 233, 234 (1987)
d. Religious youth organizations, i.e. Young Life, B'nai B'rith Youth Organization, church youth groups?

76 Op. Att'y Gen. 233, 234 (1987)
  I am of the opinion that neither direct nor indirect funding may be given to any pervasively sectarian organization or to any other organization that engages in a specifically religious activity in connection with the provision of referral, teaching and counseling concerning matters related to premarital sex and premarital pregnancy.

76 Op. Att'y Gen. 233, 234 (1987)
  As amended by section 863br of 1987 Wisconsin Act 27, which has been partially vetoed by the Governor, section 46.93 provides in part as follows:¯*

76 Op. Att'y Gen. 233, 234 (1987)
  Adolescent pregnancy prevention programs and pregnancy services. (1) LEGISLATIVE FINDINGS. The legislature finds that the 1,100,000 annual unintended or unwanted adolescent pregnancies in the United States, as estimated by the federal national center for health statistics, is a tragic and undesirable consequence of complex societal problems. The legislature recognizes that there is a lack of adequate health care, education, counseling and vocational training for adolescents which may provide positive options to adolescents in the area of pregnancy and parenting. To reduce the incidence, and adverse consequences, of adolescent pregnancy, the legislature finds that adolescent pregnancy prevention programs and pregnancy services are essential to encourage and implement community programs which address the complex societal problems facing adolescents and provide positive options to adolescent pregnancy.

76 Op. Att'y Gen. 233, 234 (1987)
  ....

76 Op. Att'y Gen. 233, 234-235 (1987)
  (2)   PURPOSE; ALLOCATION. From the appropriation under s. 20.434(1)(b), the board shall review and either approve for award or disapprove grant applications from applying organizations to provide for adolescent pregnancy prevention programs or pregnancy services that include health care, education, counseling and vocational training. Types of services and programs that are eligible for grants include all of the following:

76 Op. Att'y Gen. 233, 235 (1987)
  (a)   Adolescent health clinics located in schools.

76 Op. Att'y Gen. 233, 235 (1987)
  (b)   A statewide communications media campaign to discourage adolescent sexual activity and encourage the assumption of responsibility by adolescents, including male adolescent responsibility, for their sexual activity and for parenting.

76 Op. Att'y Gen. 233, 235 (1987)
  (c)   Adoption counseling for adolescents.

76 Op. Att'y Gen. 233, 235 (1987)
  (d)   Residential facilities for pregnant adolescents.

76 Op. Att'y Gen. 233, 235 (1987)
  (e)   Adult role model programs for adolescents.

76 Op. Att'y Gen. 233, 235 (1987)
  ....

76 Op. Att'y Gen. 233, 235 (1987)
  (3m)   LIMITATIONS ON GRANT AWARD AND USE. The board in awarding grants under sub. (3) may not disapprove an application from an applying organization solely because the applying organization has a religious affiliation. The following activities are prohibited under any grant award under sub. (3):

76 Op. Att'y Gen. 233, 235 (1987)
  (a)   The singing of hymns or reading of prayers.

76 Op. Att'y Gen. 233, 235 (1987)
  (b)   The existence of religious symbols in the physical surroundings within which activities under the grant are conducted.

76 Op. Att'y Gen. 233, 235 (1987)
  (b)   The existence of restrictions, based on religion or absence of religion, on persons applying for or receiving services under the grant.

76 Op. Att'y Gen. 233, 235 (1987)
  (c)   The supplying or promotion of written material that has a religious context.

76 Op. Att'y Gen. 233, 235 (1987)
  (c)   Any other activity having a religious purpose.

76 Op. Att'y Gen. 233, 235 (1987)
  ....

76 Op. Att'y Gen. 233, 235 (1987)
  (4)   PROHIBITED USES OF FUNDS. Funds received by an organization under a grant awarded under this section may not be used for any of the following:

76 Op. Att'y Gen. 233, 235 (1987)
  (a)   Purchasing or dispensing contraceptives in adolescent health clinics located in schools.

76 Op. Att'y Gen. 233, 235 (1987)
  (b)   Providing abortions.

76 Op. Att'y Gen. 233, 236 (1987)
  (c)   Advertising abortion services in a statewide communications media campaign.

76 Op. Att'y Gen. 233, 236 (1987)
The provisions added by the Legislature in the budget bill are underscored, while the provisions vetoed by the Governor are lined out.

76 Op. Att'y Gen. 233, 236 (1987)
  In construing this statute, I am guided by the fundamental principle that "[a]ll statutes are presumed constitutional and will be held to be so unless proven otherwise beyond a reasonable doubt...." State ex rel. Ft. How. Paper v. Lake Dist. Bd., 82 Wis. 2d 491, 505, 263 N.W.2d 178 (1978). If possible, I must also "avoid construing a statute in such a way as would render that statute unconstitutional." United States Fire Ins. Co. v. E.D. Wesley Co., 105 Wis. 2d 305, 319, 313 N.W.2d 833 (1982). These principles and their importance are described in detail in Treiber v. Knoll, 135 Wis. 2d 58, 64-65, 398 N.W.2d 756 (1987), quoting State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46, 205 N.W.2d 784 (1973) and State ex rel. Carnation Milk Products Co. v. Emery, 178 Wis. 147, 160, 189 N.W. 564 (1922). Also see State ex rel. Unnamed Petitioners v. Connors, 136 Wis. 2d 118, 120-21 n.2, 401 N.W.2d 782 (1987).

76 Op. Att'y Gen. 233, 236 (1987)
  The first amendment to the United States Constitution provides in part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...." This provision applies to the states through the fourteenth amendment. See Cantwell v. State of Connecticut, 310 U.S. 296 (1940). A similar prohibition is contained in article I, section 18 of the Wisconsin Constitution which provides as follows: "[N]or shall any money be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries." Both constitutional provisions serve the same dual purpose of prohibiting the "establishment" of religion. State ex rel. Wis. Health Fac. Auth. v. Lindner, 91 Wis. 2d 145, 163, 280 N.W.2d 773 (1979).

76 Op. Att'y Gen. 233, 236-237 (1987)
  Governmental funding to religious organizations is constitutionally permissible only if the statutory funding scheme passes muster under each part of a three-part test: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion... finally, the statute must not foster 'an excessive government entanglement with religion' [citations omitted]." Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). The Wisconsin Supreme Court has adopted this three-part test for the purposes of state constitutional analysis. State ex rel. Warren v. Nusbaum, 64 Wis. 2d 314, 219 N.W.2d 577 (1974). Although it has never been held to be dispositive, Lynch v. Donnelly, 465 U.S. 668, 689 (1984) (O'Connor, J., concurring), a fourth factor which must be considered is the degree of political divisiveness fostered by the statutory scheme. See Committee for Public Ed. & Religious Lib. v. Nyquist, 413 U.S. 756, 794-98 (1973); Lindner, 91 Wis. 2d at 162.

76 Op. Att'y Gen. 233, 237 (1987)
  The statutory funding scheme originally adopted by a unanimous Legislature consists of a competition for grant monies, with the proviso that the funds cannot be used to provide abortions, to advertise abortion services statewide or to purchase or dispense contraceptives in health clinics in schools. The stated purpose of this statutory scheme is detailed in depth in 1985 Wisconsin Act 56, sec. 2:

76 Op. Att'y Gen. 233, 237 (1987)
  Legislative findings. (1) The legislature finds that the high number of unintended or unwanted pregnancies and the resultant high number of abortions is a tragic and undesirable consequence of complex societal problems. Strong efforts must be made to ensure that unintended pregnancies do not become unwanted pregnancies. Strong efforts also must be made to reduce the number of unintended pregnancies and to promote programs that enhance the use of options other than abortion. The legislature finds that a multifaceted approach to reducing abortions is necessary and desirable and must involve not only private and public institutions and agencies but, more important, families. Health care providers, public and private schools, social service agencies, community and volunteer groups and members of the clergy must work with families and develop programs to promote constructive life values and responsible behavior, with emphasis on educating and counseling adolescents.

76 Op. Att'y Gen. 233, 237 (1987)
  (2)   The legislature finds that programs must be made available to assist adolescents in acquiring decision-making skills, enhancing their self-esteem, learning responsible behavior and realizing their full potential. The legislature believes that prevention of unintended pregnancies among adolescents will increase the possibility that adolescents will obtain necessary living skills prior to having children.

76 Op. Att'y Gen. 233, 238 (1987)
  (3)   The legislature believes that adolescents should be encouraged to take responsibility for the consequences of their actions. It is clear that among adolescents the burden of unwanted pregnancies presently is borne by the adolescent mothers and that ways must be found for adolescent fathers, as well as the parents of adolescents, to share in this responsibility. During pregnancy and after pregnancy, adolescent parents should be informed on how to keep themselves and their babies healthy and should be given the skills needed to achieve economic self-sufficiency. The legislature further finds that there is a need for increased awareness, especially among adolescents, of the availability of adoption as a potential alternative to abortion.

76 Op. Att'y Gen. 233, 238 (1987)
  (4)   The legislature finds that while this act carries a state financial commitment, that commitment will be repaid many times in economic, social and human terms.¯1

76 Op. Att'y Gen. 233, 238-239 (1987)
  As was the case in Kendrick, 657 F. Supp. at 1557-58, the Legislature's statement of purpose makes specific reference to solving the problems created by the "1,100,000 annual unintended or unwanted adolescent pregnancies in the United States...." Sec. 46.93, Stats. Given this statement, I have no hesitation in concluding that section 46.93 has a valid, laudable secular legislative purpose of curbing the societal problems caused by unwanted teenage pregnancies.

76 Op. Att'y Gen. 233, 239 (1987)
  I next must examine whether section 46.93 has a primary effect which advances religion. A statute may have more than one primary effect. Nyquist, 413 U.S. at 783 n.39. If one such primary effect is the advancement of religion, then the statute is constitutionally infirm. Id. "Aid may normally be thought of as having the primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting." Nusbaum, 64 Wis. 2d at 325. See Hunt v. McNair, 413 U.S. 734, 743 (1973). The intentional or inadvertent inculcation of religious beliefs is absolutely prohibited. Grand Rapids School Dist. v. Ball, 473 U.S. 373, 105 S. Ct. 3216, 3223-24 (1985). In addition, governmental funds cannot be used to subsidize "the primary religious mission" of an institution. Ball, 105 S. Ct. at 3226. And where adolescents are involved, the perception that the powers of government have been enlisted to support a religious denomination must be avoided. Ball, 105 S. Ct. at 3223-24. If possible, a limiting construction of the statute must be employed in order to avoid any of these results. Cf. Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

76 Op. Att'y Gen. 233, 239 (1987)
  Applying the presumption of constitutionality, and given my obligation to construe the statute so as to avoid an unconstitutional result, I cannot say beyond a reasonable doubt that no such limiting construction is possible. First, the overall purpose of section 46.93 is religiously neutral and unquestionably legitimately secular. An establishment clause issue arises only on a limited number of occasions when the board is asked to approve grants to applicants possessing specific characteristics. Second, the statutory amendments recently enacted by the Legislature in the budget bill now specifically prohibit prayer reading or singing as well as the distribution or promotion of written religious material. Third, the Governor's veto message at 93-94 makes it clear that his purpose was solely to veto language more restrictive than constitutionally required:

76 Op. Att'y Gen. 233, 239-240 (1987)
While several of the prohibited activities contained in this section are necessary to ensure that the grant program comports with the Establishment Clause of the First Amendment, I have vetoed those sections or parts of sections that are potentially more restrictive than Establishment Clause jurisprudence would suggest.

76 Op. Att'y Gen. 233, 240 (1987)
In order to pass muster under the Establishment Clause, an aid program must: (a) have a secular purpose, (b) have a primary effect that neither advances nor inhibits religion, and (c) avoid excessive entanglement between government and religion. When determining whether an assistance program passes this test, it is valuable to determine whether the institutions receiving assistance have independently secular functions that the State may assist without directly aiding religious activities.

76 Op. Att'y Gen. 233, 240 (1987)
Accordingly, I have vetoed those provisions which have the potential to exclude those institutions which, although affiliated with a religious institution, may serve independently secular functions of valuable benefit to their communities and the state. I believe subsections (b) and (e), and a portion of subsection (a), sweep too broadly in this regard.

76 Op. Att'y Gen. 233, 240 (1987)
  Thus, the phrase "of hymns" in section 46.93(3m)(a) was apparently vetoed so that the singing of secular songs which are also hymns would not be prohibited. Compare Marsh v. Chambers, 463 U.S. 783, 792-93 (1983). Similarly, the language relating to the presence of religious symbols was apparently vetoed because the mere presence or existence of religious symbols somewhere in a structure where funded activities occur does not necessarily create a symbolic link between church and state. Finally, an individual instructor may have a religious purpose or motive in providing referral, teaching or counseling in matters related to premarital sex and premarital pregnancy, but such a purpose does not automatically render the funding of those activities constitutionally infirm.¯2

76 Op. Att'y Gen. 233, 240-241 (1987)
  Since it is limited to situations involving religiously affiliated institutions that "serve independently secular functions of valuable benefit to their communities and the state[,]" the Governor's veto message presupposes that pervasively sectarian organizations are constitutionally ineligible for funding and that any religious activities engaged in by secular organizations also may not constitutionally be funded. This construction may properly be considered as a part of the legislative history of the statute. See 76 Op. Att'y Gen. 173 (1987); State ex rel. Kleczka v. Conta, 82 Wis. 2d 679, 708-09, 264 N.W.2d 539 (1978). Under the United States Supreme Court's holding in Hunt, 413 U.S. at 743, and the Wisconsin Supreme Court's holding in Nusbaum, 64 Wis. 2d at 325, it is my opinion that the narrowing construction employed by the Governor in his veto message is constitutionally required. Given this narrowing construction of the statute, it is my opinion that section 46.93 does not have a primary effect of advancing religion.

76 Op. Att'y Gen. 233, 241 (1987)
  I next must examine whether the statute fosters an excessive governmental entanglement with religion. In doing so, I cannot ignore the possibility that someone might argue that the narrowing construction of section 46.93 which I have adopted with respect to the funding of pervasively sectarian organizations could be avoided if the board were to monitor the activities of those organizations. In determining whether excessive entanglement would exist, the factors to be considered are "the character and purposes of the institutions that are benefited, the nature of the aid that the State provides, and the resulting relationship between the government and the religious authority." Lemon, 403 U.S. at 615. Given the kinds of activities which are funded by the board, such monitoring would result in an impermissible entanglement between government and those kinds of religious organizations:

76 Op. Att'y Gen. 233, 241 (1987)
A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that... the First Amendment... [is] respected. Unlike a book, a teacher cannot be inspected once so as to determine the extent and intent of his or her personal beliefs and subjective acceptance of the limitations imposed by the First Amendment. These prophylactic contacts will involve excessive and enduring entanglement between state and church.

76 Op. Att'y Gen. 233, 241 (1987)
Lemon, 403 U.S. at 619.

76 Op. Att'y Gen. 233, 241-242 (1987)
  It is worth noting that the current Chief Justice of the United States Supreme Court, in criticizing the Court's prior decisions in this area, has stated that the Court routinely "takes advantage of the 'Catch-22' paradox of its own creation... whereby aid must be supervised to ensure no entanglement but the supervision itself is held to cause an entanglement." Aguilar v. Felton, 473 U.S. 402, 105 S. Ct. 3232, 3243 (1985) (Rehnquist, J., dissenting). Lindner also indicates that it is more likely that constitutional problems can be avoided if day-to-day supervision of pervasively sectarian organizations can be minimized or eliminated. But that ordinarily can be done only with respect to content-neutral activities where the use of funding "can be ascertained in advance and cannot be diverted to sectarian uses." Wolman v. Walter, 433 U.S. 229, 251 n.17 (1977). Since pregnancy referral, teaching and counseling activities are not necessarily content neutral I conclude that excessive governmental entanglement would result if grants were given to pervasively sectarian organizations to perform such services.

76 Op. Att'y Gen. 233, 242 (1987)
  The same constitutional problems do not obtain with respect to the monitoring of secular organizations so as to ensure that they do not conduct religious activities in connection with the provision of pregnancy referral, teaching or counseling services pursuant to a grant from the board. Nevertheless, in State ex rel. Warren v. Nusbaum, 55 Wis. 2d 316, 332, 198 N.W.2d 650 (1972), the court held that, even though the Marquette Dental School performed an entirely secular function

76 Op. Att'y Gen. 233, 242 (1987)
it would appear advisable that the statute require and the contract provide that... students, [not]... be required to take religious instruction or courses of a religious nature as a prerequisite to their undertaking or completing their education.... Even th[is] peripheral matter... ought to be brought into line with the completely secular policies established and maintained for the admission and graduation of... students in order to make clear the entirely secular nature of all aspects of the... operation.

76 Op. Att'y Gen. 233, 242 (1987)
(Emphasis and bracketed material supplied). Such a contractual type of grant restriction would also help minimize the need to monitor secular organizations.

76 Op. Att'y Gen. 233, 242-243 (1987)
  The determination as to whether a particular applicant is eligible for funding "is to be made with regard to the entire context in which the institution operates." Lindner, 91 Wis. 2d at 158. In making such determinations with respect to organizations with religious ties, the board is required to engage in a two-step analysis. First, it must determine whether the applicant is ineligible because it is pervasively sectarian. If the applicant is not pervasively sectarian, the board then must determine whether the applicant will be conducting a specifically religious activity in connection with the provision of referral, teaching and counseling pursuant to a grant made by the board.

76 Op. Att'y Gen. 233, 243 (1987)
  A pervasively sectarian organization is one in which "a substantial portion of its functions are subsumed in the religious mission...." Nusbaum, 64 Wis. 2d at 325. Elementary and secondary parochial schools have been held to be pervasively religious in character. See Meek, 421 U.S. at 366; Lemon, 403 U.S. at 615. It follows, almost by definition, that a church or synagogue is pervasively sectarian. Although no church-affiliated colleges appear to be grant applicants, the case law relating to them is instructive. It is noteworthy that some of these colleges are pervasively sectarian while others are not. In general, such colleges that make no attempt to indoctrinate students through teaching or required attendance at religious services have a predominantly secular function of providing higher education. Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 762 (1976); Tilton v. Richardson, 403 U.S. 672, 685-89 (1971). But many factors have been considered in making such determinations, including the stated purpose of the college; the degree of religious control over the governing board; the extent of ownership, financial assistance, and affiliation by or with the sponsoring church; the place of religion in the college's program; the occupation and other activities of alumni; and the work and image of the college in the community. See Horace Mann League v. Board of Public Works, 242 Md. 645, 220 A.2d 51, 65, cert. den., 385 U.S. 97 (1966).

76 Op. Att'y Gen. 233, 243-244 (1987)
  With respect to social service organizations, religious youth groups or other applicants that have organizational ties to a particular religious faith, you may wish to develop a detailed questionnaire examining some of these factors, and may also wish to require the submission of incorporation papers, bylaws, resolutions or relevant policy statements. In Bradfield v. Roberts, 175 U.S. 291 (1899) the Supreme Court held that it was permissible to give aid to a corporation which was owned and operated entirely by members of a religious order because the organization was limited by its corporate charter to the secular purpose of operating a charitable hospital open to persons of all religious beliefs.¯3 The submission made by the organization must ordinarily be accepted at face value, but the board can require as much detailed information as it sees fit in determining whether a substantial portion of the applicant's functions are subsumed in the religious mission. See Holy Trinity Community School v. Kahl, 82 Wis. 2d 139, 149-50, 262 N.W.2d 210 (1978). Such a finding and determination should be made as to each applicant with religious ties.

76 Op. Att'y Gen. 233, 244 (1987)
  Once the board is satisfied that the applicant is not a pervasively sectarian organization, it then must determine whether the applicant will be conducting a specifically religious activity in connection with the provision of referral, teaching and counseling pursuant to a grant made by the board. In this regard, some of the same information used to determine whether the applicant is pervasively sectarian may be useful. In addition, information should be sought as to whether the applicant will confine itself to the presentation of psychiatric, humanitarian, sociological, health or other nonreligious reasons in connection with such items as the advisability of premarital sexual activities and abortion. An unequivocal statement should also be obtained as to whether adolescents will or will not be instructed according to doctrine adhered to by the religious organization with which the grant applicant is affiliated. If the applicant represents that no such religious activities will be conducted, the grant should incorporate that restriction and should provide that violation of that restriction constitutes grounds for termination of the grant and recovery of funds previously paid. This two-step process should avoid any possibility of unconstitutional administrative entanglement after grants are issued.

76 Op. Att'y Gen. 233, 244-245 (1987)
  With respect to the fourth factor I must consider, a greater risk of political divisiveness exists where the statutorily prescribed funding mechanism permits organizations with religious ties to compete annually for grants. Meek v. Pittenger, 421 U.S. 349, 372 (1975). The problem is that continuing annual appropriations generate increasing demands as costs and population grow. Nyquist, 413 U.S. at 797-98. The danger perceived by the courts in such a funding mechanism is that religious groups with the power to employ political machinery in furtherance of their own interests are likely to receive a disproportionate share of such grants. Cf. Engel v. Vitale, 370 U.S. 421, 426-27, 429 (1962); Everson v. Board of Education of Ewing Tp., 330 U.S. 1, 15 (1947). Although this factor is not dispositive, special care must be taken to avoid constitutional violations when such a funding mechanism is selected. See Lemon, 403 U.S. at 622-24.