BOWEN v. KENDRICK 487 U.S. 589 (1988)

In this case the Court sustained the facial constitutionality of Congress's 1981 Adolescent Family Life Act against a claim that it violated the establishment clause of the first amendment. The statute authorized federal funds for services, publicly or privately administered, that related to adolescent sexuality and pregnancy. A federal district court found that the statute, on its face and as administered, advanced religion by subsidizing and allowing sectarian organizations to preach their message to adolescents; the statute also unduly entangled the government with religion, by requiring official monitoring to ensure that religiously affiliated grantees did not promote their religious missions. The Court, by a 5–4 vote, reversed and remanded the case for a determination whether it was unconstitutionally applied.

Chief Justice william h. rehnquist, for the majority, observed that the statute neither required grantees to be religiously affiliated nor suggested that religious institutions were specially qualified to provide the services subsidized by the government. Congress merely assumed that religious organizations as well as nonreligious ones could influence adolescent behavior. Congress impartially made the monies available to achieve secular objectives, regardless whether the funds went to sectarian or secular institutions. This was not a case in which the federal subsidies flowed primarily to pervasively sectarian institutions; moreover, the services provided to adolescents, such as pregnancy testing or child care, were not religious in nature. The majority also held that the government monitoring required by the statute did not necessarily entangle it excessively with sectarianism. Conceding, however, that the act could be administered in such a way as to violate the establishment clause, the Court returned the case to the district court for a factual finding on that issue.

The four dissenters, speaking through Justice harry a. blackmun, may have been influenced by the fact that the statute banned grants to institutions that advocated abortion. Blackmun, as devoid of doubts as was Rehnquist, confidently deplored a decision that breached the lemon test by providing federal monies to religious organizations, thereby enabling them to promote their religious missions in ways that were pervasively sectarian and, contradictorily, requiring intrusive oversight by the government to prevent that objective. The majority, Blackmun reasoned, distorted the Court's precedents and engaged in doctrinal missteps to reach their conclusion, by treating the case as if it merely subsidized a neutral function such as dispensing food or shelter instead of pedagogical services that impermissibly fostered religious beliefs.

Leonard W. Levy
(1992)