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Published in Print: August 7, 2002, as Law Update

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Judge Bars Using Abstinence Funds For Religious-Themed Programs

A recent federal court ruling from Louisiana could hold some important implications for the Bush administration's push for including faith-based providers in social-policy programs.

U.S. District Judge G. Thomas Porteous Jr. of New Orleans issued a preliminary injunction July 25 barring the state of Louisiana from distributing abstinence- only sex education funds to groups that have been using them in programs that convey religious messages.

Federal and state money provided under the Louisiana initiative, known as the Governor's Program on Abstinence, "are being used to convey religious messages and advance religion" in violation of the First Amendment's prohibition against a government establishment of religion, the judge said.

Judge Porteous cited several examples of private providers in Louisiana that were using the abstinence aid for religious-themed programs. The Roman Catholic Diocese of Lafayette, La., for instance, received $46,000 in program funds over two years to operate a "chastity" program called "God's Gift of Life," according to court documents.

A theater group called "Just Say 'Whoa'" used $29,500 in program money this past school year to put on skits about abstinence before junior and senior high schools throughout the state. One skit involved a character named Bible Guy, who said, "As Christians, our bodies belong to the Lord, not to us."

The Southwest Louisiana Area Health Education Center used $750 in funds from the governor's program to purchase Bibles with the names of program participants engraved on them. And the Rapides Station Community Ministries, which received $20,000 in program aid in the most recent year, told the state in a monthly reporting form that December 1999 "was an excellent month for our program" because it was able to use the story of the virgin birth of Jesus "to make it apparent that God's desire [was for] sexual purity as a way of life."

Congress established the abstinence-only program as part of the 1996 welfare-reform law. President Bush has asked lawmakers to renew the program, which has been budgeted at $50 million a year, and increase other federal abstinence grants from $40 million in the current fiscal year to $73 million next year.

The Louisiana program was challenged in a lawsuit filed earlier this year by the state chapter of the American Civil Liberties Union.

"The judge believed that some organizations were so pervasively sectarian that they cannot get the funds under any circumstances," said Jaya Ramji, a staff lawyer with the ACLU's Reproductive Freedom Project. "We're hoping this decision serves as a wake-up call to other programs."

Judge Porteous said the Louisiana program was motivated by a legitimate secular purpose—to reduce teenage pregnancy and stem the spread of sexually transmitted diseases. But by funding organizations that are "pervasively sectarian," the judge said, that part of the program advances religion in violation of the First Amendment.

A state official testified before the judge that Louisiana was no longer providing grants to religious organizations under the program. But the judge said he felt the need to "install legal safeguards" to prevent future violations, so he issued the preliminary injunction.

Gov. Mike Foster of Louisiana, a Republican who was named as the defendant in the suit, said in a statement that "we will immediately take steps to assure that the program is in compliance with the law."

But he added: "It's a sad day when such a worthwhile program is attacked by the very people who are supposed to protect the interests of the citizens of Louisiana."


Another Voucher Boost?

Voucher advocates are pointing to a recent federal appeals court decision regarding a Washington state scholarship program as providing support for their next round of legal battles in the states.

While the U.S. Supreme Court ruled in June that including religious schools in a voucher program does not violate the U.S. Constitution, voucher opponents are expected to turn to state constitutions to prevent the spread of such programs. ("The Voucher Decision: Charting the New Landscape of School Choice," July 10, 2002).

Many state constitutions have strong language prohibiting government aid to religious schools. Those provisions are often called Blaine Amendments, after U.S. Rep. James G. Blaine, who unsuccessfully sought to add similar language to the U.S. Constitution in the 1870s.

But a July 18 ruling by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, is being hailed by voucher supporters as a sign that state constitutional barriers can be overcome.

A panel of the court ruled 2-1 in favor of a college student who wanted to use a state-financed Promise Scholarship to study theology at Northwest College, a Christian institution in Kirkland, Wash.

The state's Higher Education Coordinating Board denied the student, Joshua Davey, the $1,500 scholarship, saying state payment for religious instruction was barred by the state constitution's ban on appropriations for any "religious worship, exercise, or instruction."

But the majority on the 9th Circuit court held that Mr. Davey had a free-exercise-of-religion right under the federal Constitution to use his scholarship as he wished.

"The Promise Scholarship is a secular program that rewards superior achievement by high school students who meet objective criteria," said U.S. Circuit Judge Pamela A. Rymer's majority opinion. "It is awarded to students; no state money goes directly to any sectarian school."

While the state has a strong interest in its constitutional provisions against funding for religion, its policy infringes Mr. Davey's right to free exercise of his religion, the majority said.

Voucher proponents said the court's reasoning could apply to voucher programs including religious schools that might also face challenges under state constitutional language.

Clint Bolick, a vice president of the Institute for Justice, called the ruling "a terrific, well-reasoned precedent, and if it were adopted by the U.S. Supreme Court, it would likely remove the Blaine Amendment obstacle from school choice programs nationwide."

Anarchy Club

A West Virginia high school student who was suspended after she tried to start an "anarchy club" last fall has won a jury verdict that school authorities were wrong to bar creation of the club.

The student, Katie Sierra, won $1 in damages—all she had sought—from the Kanawha County Circuit Court jury on July 12. But the jury also found that the 29,000-student Kanawha County district had been right to suspend Ms. Sierra for three days last October because her actions had disrupted school. Besides trying to start the anarchy club, Ms. Sierra wore T-shirts critical of the U.S. military action in Afghanistan.

Ms. Sierra, 15, told reporters that she was happy with the verdict, and that she would return to Sissonville High School in the fall and form the club.

—Mark Walsh

Vol. 21, Issue 43, Page 13

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