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High Court Hears Oral Arguments in 'Chastity Act' Suit

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WASHINGTON--The Reagan Administration's top lawyer urged the U.S. Supreme Court last week to overturn a lower court's "novel and very dangerous'' ruling last year that barred the federal government from giving grants to religious groups to counsel pregnant teen-agers.

While acknowledging that some church groups that received aid under the 1981 Adolescent Family Life Act may have improperly proselytized pregnant girls, Solicitor General Charles Fried argued that a federal district judge improperly concluded that such activity was pervasive in the program.

The judge, he said, employing a "quite original and unprecedented'' legal test, declared the law unconstitutional "without making any of the findings of fact required by this Court. ... In our view, the statute is plainly constitutional on its face.''

A lawyer for the group that challenged the law countered that the mere threat that churches would use government aid to impart their beliefs to adolescents was sufficient to support the finding that the federal program violates the First Amendment's ban on state establishment of religion.

"When you put issues such as chastity, abortion, masturbation, and contraception in the hands of church groups, it will be extremely difficult for them to separate their views when they counsel teen-agers,'' said the lawyer, Janet Benshoof. "Yes, Congress can advance the notion that sexual restraint is something good. But it cannot, as one grantee did, advise girls to pretend that their dates are Jesus.''

The cases before the Court, collectively known as Bowen v. Kendrick (Case Nos. 87-253, 87-431, 87-462, and 87-775), involve a controversial law that was passed during the first year of President Reagan's term in office.

The Court's ruling could have a bearing on the outcome of future lawsuits regarding government aid to church-affiliated schools.

The $14-million measure, popularly known as the "Chastity Act,'' authorized the Department of Health and Human Services to support demonstration projects "designed to discourage adolescent pregnancy'' by promoting "self-discipline and other prudent approaches'' to teen-age sexuality.

The law encourages the distribution of grants to church groups, requires prospective grantees to describe how they will involve such groups in their work, and bars aid to organizations that provide abortions or abortion counseling and referrals.

Acting in a suit filed by private citizens, clergy members, and the American Jewish Congress, a federal district judge held last April that the law failed to pass the three-part test set by the Supreme Court for determining the constitutionality of state aid to religion. He reached his decision without holding a trial.

Under the test, which was adopted in the 1971 case Lemon v. Kurtzman, such aid must have a valid secular purpose; its primary effect must be one that neither advances nor inhibits religion; and it must not foster excessive entanglement between church and state.

Although the judge found that the law had a permissible purpose, he held that it unconstitutionally advanced religion because it "explicitly permits religious organizations to be grantees and envisions a direct role for those organizations in the education and counseling'' of teen-agers.

Participation by any religious organization in the program would inevitably advance religion, he said, because teaching "about the harm of premarital sexual relations and the factors supporting a choice of adoption rather than abortion ... are fundamental elements of religious doctrine.''

To presume that church groups "can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic,'' he wrote.

The judge also found that any scheme to ensure that such activity does not take place would require "government monitoring so continuous that it rises to a level of excessive entanglement.''

Premise Disputed

Mr. Fried argued that the judge's premise that religious organizations will invariably inculcate religious doctrine was not based on a full investigation of the facts.

'With a comprehensive wave of his hand, the judge accepted the evidence,'' he said. "The district court absolved itself of the further labors required by this Court. ... There is no reason in the world why religious organizations should be deemed to be pervasively sectarian.''

If the Court decides that the law is unconstitutional on its face, it should not be struck down, he continued. The proper response, Mr. Fried said, would be "to direct the relevant authorities to apply the program in a constitutional way.''

He noted that the Court adopted that posture three years ago in Aguilar v. Felton, in which the Justices held that school districts could not send public-school teachers into private schools to hold Chapter 1 remedial courses. "Now, [Chapter 1] is alive and well, but it is being applied differently,'' he said.

A lawyer representing church groups affected by the lower court's ruling told the Justices that the most important question facing them is "whether otherwise qualified religious organizations can be kept out of the program.''

Other Arguments

The First Amendment requires that grant recipients "be judged on their actions, and not on their beliefs,'' said the lawyer, Michael W. McConnell.

"How they perform their secular functions is the key. ... The point is to be neutral, and not to stack the deck in favor of secular grantees.''

Later in the hearing, Ms. Benshoof, the lawyer for the opponents, argued that such a position "is dead wrong.''

"The language of the First Amendment speaks to laws 'respecting an establishment of religion,''' she said.

"This Court has always looked at the risk of an establishment of religion. ... When you find that religious organizations are doing counseling and that they have mandates on the same issue, that raises the danger of a violation of the establishment clause.''

The Court is expected to announce its decision in the case by late June.

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