           Constitutionality o f Section 7 (b )(3 )
  o f the Emergency Veterans’ Job Training Act of 1983


The statute’s exclusion o f religious activities from the ambit o f activities for which the
  Veterans’ Administration may fund training does not violate the Free Exercise Clause.

The statute’s inclusion in the program o f institutions that are religiously-affiliated but not
  pervasively sectarian does not violate the Establishment Clause. The inclusion o f perva­
  sively sectarian institutions is also constitutional, so long as the selection o f the institu­
  tion is the result o f the genuinely independent and private ch oice o f the veteran.

The Veterans’ Administration may constitutionally prescribe by regulation criteria to distin­
  guish between religious and nonreligious activities

General considerations that may aid in promulgating regulations to distinguish betw een
  religious and nonreligious activities include, at a minimum, (1) whether the activity is
  also traditionally perform ed in nonreligious organizations and (2) the degree to which
  the activity is informed and affected by the religious tenets o f the organization.

                                                                                         January 23, 1989

                  M   em orandum      O   p in io n   for th e        G   eneral   C   ounsel

                                 V   eterans’         A   d m in is t r a t io n




   This memorandum responds to your request that w e assess the consti­
tutionality o f section 7 (b )(3 ) o f the Emergency Veterans’ Job Training A ct
o f 1983 ( “VJTA”), 29 U.S.C. § 1721 note (Supp. Ill 1985).1 That section
excludes from a proposed program o f job training “employment which
involves political or religious activities.” Specifically, you have asked
whether “Congress, under the Free Exercise Clause o f the Constitution,
as a condition o f authorization o f payments to employers under the VJTA
program, [may] require the VA to determine that the veteran’s em ploy­
ment does not involve religious activities.” Memorandum at 7. Assuming
the answer is yes — that Congress may exclude veterans seeking em ploy­
ment performing religious activities from the program — you request our
view about whether “the VA constitutionally may establish, by regulation,
criteria fo r ascertaining which activities o f an em ployer are religious
activities similar to those enunciated by the low er court in Amos v.
Corporation of Presiding Bishop, 594 E Supp. 791 (D. Utah 1984), rev’d


  1   See Memorandum for Charles J Cooper, Assistant Attorney General, Office o f LegaJ Counsel, from
Donald L Ivers, General Counsel, Veterans’ Administration ( “VA”) (O ct 1, 1987) ( “Memorandum”)


                                                      31
on other grounds, 483 U.S. 327 (1987), and/or those form ally applied in
the C E TA program .” Id. I f not, you wish us to advise you as to which “type
o f criteria would be constitutionally permissible.” Id. at 7-8.2 We conclude
that Congress m ay refuse to pay to train veterans to perform religious
activities without violating the Free Exercise Clause, because the federal
governm ent is under no obligation to subsidize the exercise o f constitu­
tional rights. We then address whether the Establishment Clause pro­
hibits religiously-affiliated institutions and a narrower class o f religious
institutions labelled “pervasively sectarian” by the Supreme Court from
participating in the VJTA program. We conclude that both religiously-
affiliated and pervasively sectarian institutions may participate in the
program and may train veterans fo r nonreligious activities. Finally, w e
conclude that the VA may constitutionally fashion criteria to distinguish
betw een religious and nonreligious activities and w e then set forth gen­
eral considerations that may aid in promulgating regulations to distin­
guish betw een such activities.

           I. The Emergency Veterans’ Job Training Act of 1983

    The VJTA establishes a program “defraying the costs o f necessary
training” o f eligible veterans fo r “stable and permanent positions that
involve significant training.” Section 4(a). Any veteran from the Korean
con flict or the Vietnam era w h o “is unemployed at the time o f applying”
o r w ho has “been unemployed fo r at least 10 o f the 15 w eeks immediate­
ly preceding the date o f [his] application” is eligible fo r participation in
the program. Id. § 5 (a )(1 )(A ) and (B ). An eligible veteran submits an
application to the Adm inistrator supporting his eligibility. I f the
Adm inistrator approves the application, the veteran is given a “certificate
o f that veteran’s eligibility fo r presentation to an em ployer offering a pro­
gram o f jo b training under this Act.” Id. § 5 (b )(3 )(A ). The veteran takes
that certificate to an employer o f his choice whose job training program
has been approved by the Administrator as satisfying certain criteria. The
em ployer can then be reimbursed directly with government funds for
one-half o f the w ages it pays to the veteran up to $10,000. Id. § 8(a)(2).
   Any em ployer program o f jo b training meeting the statutory criteria is
to be approved fo r participation in the program. Those criteria require,
am ong other things, that the em ployer plan to employ the veteran in the


   2 You also asked us to consider the implications o f a determination that the Free Exercise Clause bars
 Congress from excluding religious activities from the program. In that event you sought our advice
w hether the VA could “disregard so much o f section 7 (b )(3 ) o f the VJTA as bars approval o f programs o f
jo b training for em ployment involving religious activities and make direct payments to employers with­
out being in violation o f the prohibitions o f the first amendment to the Constitution regarding establish­
ment o f a religion.” Memorandum at 7 Because w e conclude that Congress m ay constitutionally exclude
training fo r em ploym ent performing religious activities from the program, w e do not address this ques­
tion in precisely this context.

                                                    32
 position fo r which he is being trained; that the wages paid to the veteran
 cannot be less than the wages paid to “other employees participating in a
 comparable program o f job training”; and that employment o f the veter­
 an under the program cannot result in the “displacement o f currently
 employed workers.” Id. § 7 (d )(2 ) and (3 )(A ). Excluded from considera­
tion are programs o f jo b training for “seasonal, intermittent, or temporary
jobs,” for em ployment where commissions are the primary source o f
income, and fo r employment in the Federal Government. Id. § 7(b )(1 ).
Also excluded are those programs training “fo r employment which
involves political or religious activities.” Id. § 7 (b )(3 ).3 The latter restric­
tion, by intentionally excluding “religious activities,” gives rise to your
question whether such “discrimination” violates the Free Exercise Clause
o f the First Amendment.

         II. The Free Exercise Clause of the First Amendment

   We believe that Congress’ decision to exclude religious activities from
those it w ill fund under its job training program fo r veterans does not vio ­
late the Free Exercise Clause fo r tw o related reasons. As a matter o f orig­
inal understanding (an understanding which is reflected in recent
Supreme Court decisions), the Free Exercise Clause is aimed primarily at
prohibitory laws forbidding or preventing the practice o f religion.
Congress’ refusal to fund religious activities does not constitute such a
direct prohibition. M ore generally, it is now well established that the gov­
ernment does not unconstitutionally circumscribe an individual’s exer­
cise o f a constitutional right m erely by refusing to pay fo r that exercise.
While the Supreme Court held in Sherbert v. Vemer, 374 U.S. 398 (1963),
that denying a government benefit to an individual on account o f his exer­
cise o f religion is unconstitutional, it has also made clear that refusing to
fund religious activities does not violate the Free Exercise Clause.
Accordingly, Congress’ decision not to subsidize the training o f veterans
to perform religious activities does not violate the Free Exercise Clause.

         The First Amendment provides:

         Congress shall make no law respecting an establishment o f
         religion, or prohibiting the free exercise thereof; or abridg­
         ing the freedom o f speech, or o f the press; or the right o f
         the people peaceably to assemble, and to petition the
         Government fo r a redress o f grievances.

U.S. Const, amend. I.


 3   Nothing in the legislative history addresses the issue o f why Congress chose to exclude religious
activities from the VJTA program.


                                                33
    First, it should be noted that only laws “prohibiting” the free exercise
o f religion are enjoined, and not those “respecting” or “abridging” it. This
is a som ew hat narrower prescription. “Prohibit” unequivocally means,
and meant at the time o f the founding, “ ft]o forbid; to interdict by author­
ity ... [t]o debar; to hinder.” Samuel Johnson, A Dictionary o f the
English Language (1755). See Noah Webster, American Dictionary of
the English Language (1828). “A bridge” can mean to “contract, to dimin­
ish, to cut short” o r it can mean “ [t]o deprive of; in which sense it is fo l­
lo w ed by the particle from, o r of, preceding the thing taken away.”
Samuel Johnson, A Dictionary of the English Language (1755) (empha­
sis in original). The word “abridging” as used in the First Amendment is
not fo llo w e d by the “particle from or of.” A s the Supreme Court has rec­
ognized, by using the word “prohibiting” in the Free Exercise Clause and
“abridging” elsew here in the First Amendment, the Framers w ere plac­
ing different lim its on Congress’ authority to enact different types o f
laws. See Lyng v. Northwest Indian Cemetery Protective A ss’n, 485 U.S.
439, 451 (1988) ( “The crucial w ord in the constitutional text is ‘prohibit
....’”). This language, when read in historical context, leads to the con­
clusion that in drafting the Free Exercise Clause the Framers w ere
enjoining prim arily prohibitory laws forbidding or preventing the prac­
tice o f religion.
   M oreover, the history of the Free Exercise Clause suggests that it was
meant to er\join prohibitory laws.4 A t the time the Constitution was draft­
ed, as the Court has put it, “Catholics found themselves hounded and pro­
scribed because o f their faith; Quakers w ho follow ed their conscience
w ent to jail; Baptists were peculiarly obnoxious to certain dominant
Protestant sects; men and wom en o f varied faiths w ho happened to be in
a m inority in a particular locality w ere persecuted because they stead­
fastly persisted in worshipping God only as their ow n consciences dic­
tated.” Everson v. Board of Educ., 330 U.S. 1, 10 (1947) (footn ote omit­
ted). The abhorrence o f this sort o f conduct gave rise to the religion


  4 Examples o f prohibitory laws are those mandating attendance at approved services, expelling reli­
gious nonconformists, requiring support fo r the established church, and imprisoning those preaching
unpopular doctrines See Chester James Antieau et a i, Freedom f r o m Federal Establishm ent 16-29
(1964).
  5This conclusion is supported by the origins o f the clause. In explaining the religion clauses, the Court
has often looked to Thom as Jefferson’s Virginia Bill for Religious Liberty as an earlier statement o f the
ideas em bodied within them McGowan v. M aryland, 366 U.S. 420, 437 (1961); Everson, 330 U.S. at 12-
13, Reynolds v. U n ited States, 98 U.S. 145, 163-64 (1878). The Bill for Religious Liberty provided in part
      That no man shall be compelled to frequent or support any religious worship, place, or min­
      istry whatsoever, nor shall be enforced, restrained, molested o r burthened in his body or
        goods, nor shall otherwise suffer on account o f his religious opinions or belief] ]
A c t for Establishing Religious Freedom, ch. XXXIV, 1823 Va. Acts 86 (H ening) (emphasis added) quoted
i n Evei'son, 330 U.S. at 13 Similarly, the principal sponsor o f the First Amendment, James Madison, said
its purpose was to ensure “that Congress should not establish a religion, and enforce the legal observa­
tion o f it by law, nor com pel men to worship God in any manner contrary to their conscience.” 1 Annals
o f Cong 758 (Joseph Gales edM 1789)


                                                    34
clauses o f the First Amendment. Bowen v. Roy, 476 U.S. 693, 703 (1986)
(opinion o f Burger, C.J., joined by Pow ell and Rehnquist, JJ.).5
    Thus, the origins, the history and the language suggest that the First
Amendment er\joins only relatively direct prohibitions o f the free exer­
cise o f religion.6 The Court’s recent decisions reflect this interpretation.
See, e.g., Lyng, 485 U.S. at 451, (quoting Sherbert, 374 U.S. at 412
(Douglas, J., concurring)) ( ‘“ the Free Exercise Clause is written in terms
o f what the government cannot do to the individual, not in terms o f what
the individual can exact from the government’”); Bowen, 476 U.S. at 706
(plurality opinion) ( “ [GJovemment regulation that indirectly and inciden­
tally calls for a choice between securing a governmental benefit and
adherence to religious beliefs is wholly different from governmental
action or legislation that criminalizes religiously inspired activity or
inescapably compels conduct that some find objectionable fo r religious
reasons.”).
    The constitutionality o f Congress’ decision not to subsidize the training
o f veterans to perform religious activities is also apparent from cases that
address generally the validity o f refusing to subsidize constitutional
rights. The Court has made plain that the government does not “penalize”
a decision to exercise a constitutional right simply by refusing to pay for
it. Two cases most clearly elucidate this distinction between a refusal to
subsidize constitutionally-protected activity and an unconstitutional con­
dition. In Maher v. Roe, 432 U.S. 464 (1977), and Harris v. McRae, 448
U.S. 297 (1980), the Court faced challenges to government decisions not
to fund abortions. The Court held that notwithstanding the judicially-
articulated constitutional right to an abortion under Roe v. Wade, 410 U.S.
113 (1973), neither the state nor the federal government had an obligation
to fund abortions — even those that w ere “therapeutic.”
   The Harris Court specifically m et and rejected the argument that
Sherbert made mandatory the funding o f the exercise o f a constitutional


  cThat the government has in place a general program for jo b training for veterans does not change the
nature o f the prohibition from an indirect to a direct one. For example, the Court held in Johnson v
Robison, 415 U S 361 (1974), that denial o f special veterans’ benefits to a conscientious objector was
constitutionally permissible. There, a conscientious objector who had performed alternative civilian ser­
vice challenged the federal funding scheme granting educational benefits only to veterans w ho had
served in active duty. He argued that this denial o f benefits “interferes with his free exercise o f religion
by increasing the price he must pay fo r adherence to his religious beliefs ” Id at 383. The Court rejected
this argument, saying-
      The withholding o f educational benefits involves only an incidental burden upon appellee’s
      free exercise o f religion — if, indeed, any burden exists at all     Appellee and his class w ere
      not included in this class o f beneficiaries, not because o f any legislative design to interfere
      with their free exercise o f religion, but because to do so would not rationally prom ote the
      A ct’s purposes . [T]he Government’s substantial interest in raising and supporting armies,
      Art I, § 8, is o f “a kind and w eight” clearly sufficient to sustain the challenged legislation, for
      the burden upon appellee’s free exercise o f religion — the denial o f the econom ic value o f
      veterans’ educational benefits under the Act — is not nearly o f the same order or magnitude
       as the infringement upon free exercise o f religion suffered by petitioners in Gillette
Id. at 385-86 (citations and footnote om itted)


                                                      35
right. In Sherbert, the Supreme Court held that a statute making ineligible
fo r unemployment benefits an em ployee w ho had been forced to leave
her jo b because o f religious reasons violated the Free Exercise Clause.
Th e H arris Court said:

       The appellees argue that the Hyde Amendment is unconsti­
       tutional because it “penalizes” the exercise o f a wom an’s
       ch oice to terminate a pregnancy by [an] abortion. In Maher,
       the Court found only a “semantic difference” between the
       argument that Connecticut’s refusal to subsidize non-thera-
       peutic abortions “unduly interfere[d]” with the exercise o f
       the constitutional liberty recognized in Wade and the argu­
       m ent that it “penalized” the exercise o f that liberty. 432
       U.S., at 474, n.8. And, regardless o f how the claim was char­
       acterized, the Maher Court rejected the argument that
       Connecticut’s refusal to subsidize protected conduct, with­
       out m ore, impinged on the constitutional freedom o f
       choice. This reasoning is equally applicable in the present
       case. A substantial constitutional question would arise if
       Congress had attempted to withhold all Medicaid benefits
       from an otherwise eligible candidate simply because that
       candidate had exercised her constitutionally protected
       freedom to terminate her pregnancy by abortion. This
       w ould be analogous to Sherbert v. Vemer, 374 U.S. 398,
       w here this Court held that a State may not, consistent with
       the First and Fourteenth Amendments, withhold all unem­
       ploym ent compensation benefits from a claimant who
       w ould otherw ise be eligible fo r such benefits but fo r the
       fact that she is unwilling to w ork one day per w eek on her
       Sabbath. But the Hyde Amendment, unlike the statute at
       issue in Sherbert, does not provide fo r such a broad dis­
       qualification from receipt o f public benefits. Rather, the
       H yde Amendment, like the Connecticut w elfare provision
       at issue in Maher, represents simply a refusal to subsidize
       certain protected conduct. A refusal to fund protected
       activity, w ithout more, cannot be equated with the imposi­
       tion o f a “penalty” on that activity.

Harris, 448 U.S. at 317 n.19 (citations omitted).
   Congress has chosen to create a program to subsidize the training o f
veterans so that they may be em ployed in a variety o f nonreligious, non­
governm ental, nonpolitical jobs. The program neither proscribes a reli­
gious practice nor compels any practice contrary to any religious beliefs.
First, no veteran is compelled to do that which he might choose not to do
on religious grounds. Nor is Congress punishing those choosing to exer­

                                    36
cise their rights. It is simply refusing to subsidize the exercise o f those
rights. N o veteran is made ineligible fo r all veterans’ benefits by virtue o f
his constitutionally-protected determination to seek employment involv­
ing a religious activity. Like the Hyde amendment and the Connecticut
w elfare provision in Maher, and unlike the statute in Sherbert, the VJTA
represents no m ore than a refusal to fund a protected activity.7
   In short, although the Constitution “affords protection against unwar­
ranted governm ent interference” with certain freedoms, “it does not con­
fer an entitlement to such funds as may be necessary to realize all the
advantages o f that freedom. To hold otherwise w ould mark a drastic
change in our understanding o f the Constitution.” Harris, 448 U.S. at 317-
18. To paraphrase Justice Stewart in Harris, it cannot be that because
government may not prohibit individuals from engaging in certain reli­
gious activities, government therefore has an affirmative constitutional
obligation to ensure that all persons have the financial resources to fulfill
their religious obligations or to perform religious tasks. Id.

     III. Participation o f Religiously-Affiliated and “Pervasively
             Sectarian Institutions” in the VJTA Program

   Having concluded that the VJTA does not violate the Free Exercise
Clause, w e now turn to the question o f which institutions may participate
in the VJTA program. We first address whether religiously-affiliated insti­
tutions in general may participate in the VJTA program so long as the
funds are provided for training veterans to perform non-religious activi­
ties. We then address whether a narrower class o f religious institutions
labelled “pervasively sectarian” by the Supreme Court may participate
under the same conditions. We conclude that two recent Supreme Court
cases interpreting the Establishment Clause, Bowen v. Kendrick, 487 U.S.
589 (1988) and Witters v. Washington Dep’t of Servs. fo r the Blind, 474
U.S. 481 (1986), make clear that religiously-affiliated employers may par­
ticipate in the VJTA program and may train veterans for nonreligious
activities. While the question is closer, w e believe that, under the analysis
set forth in Witters pervasively sectarian employers may participate
under the same conditions.




  7 Nor does the VJTA place an “obstaclef]” in the path o f the veteran seeking employment performing a
religious activity. Maher, 432 U S. at 474. The veteran who seeks such employment “suffers no disadvan­
tage as a consequence” o f Congress’ decision to subsidize the training o f other veterans at other activi­
ties. Id. Congress may not have eased other difficulties in obtaining employment performing a religious
activity, such as the veteran's lack o f qualifications or the market conditions, but these difficulties w ere
“neither created nor in any way affected” by the VJTA Id Eligible veterans are free to choose to enroll
in the program or not. Th ey are free to choose, within certain limitations, the type o f activity for which
they wish to be trained. Nothing prevents them from pursuing their chosen profession, whether it is in
government, performing a political activity, or training for the ministry.


                                                     37
A. Training Veterans fo r Nonreligious Activities by Religiously-
   affiliated Institutions

   In Kendrick, 487 U.S. 589 (1988), decided last term, the Court upheld a
federally funded program providing fo r the involvement o f religious insti­
tutions in counseling adolescents about premarital sex. The Court noted
that it had “never held that religious institutions are disabled by the First
Am endm ent from participating in publicly sponsored social w elfare pro­
grams.” Id. at 609. Only if a statute provides for “direct government aid to
religiously-affiliated institutions [with] ... the primary effect o f advancing
religion” is it unconstitutional. Id. Also, in Witters, 474 U.S. 481 (1989),
the Court upheld a vocational rehabilitation program aiding the blind
even though governm ent aid w as used to subsidize a student at a private
Christian college w h o was studying to becom e a pastor, missionary or
youth director. That the money ended up in the coffers o f the religious
institution mattered not at all, said the Court, where the “aid ... ultimate­
ly flo w [in g ] to religious institutions does so only as a result o f the gen­
uinely independent and private choices o f aid recipients.” Id. at 487.
   Applying the three-part test o f Lemon v. Kurtzman, 403 U.S. 602
(1971), in light o f these two cases makes clear that religiously-affiliated
institutions may participate in this program to train eligible veterans to
w ork in nonreligious activities. First, under the Lemon standard, courts
may invalidate a statute only i f it is “motivated w holly by an impermissi­
b le purpose,” Kendrick, 487 U.S. at 602. That is certainly not the case
here; the program has a clear secular purpose: the elimination or reduc­
tion o f unem ploym ent among veterans. Id.
   N o r is the primary effect o f including religiously-affiliated institutions
in the program to advance religion: only training fo r nonreligious activi­
ties is included in the program. Moreover, as in Witters, that the aid ulti­
m ately benefits the religious institution is due primarily to the choice the
eligible veteran makes to take his certificate to a religiously-affiliated
employer. That the funds are paid directly to an em ployer at the veteran’s
behest and do not pass through the veteran’s hands does not change the
character o f the program.8 Th e program is ‘“ made available generally
w ithout regard to the sectarian-nonsectarian, or public-nonpublic nature
o f the institution benefited,’ and is in no way skewed towards religion.”
Witters, 474 U.S. at 487-88 (quoting Committee fo r Pub. Educ. &
Religious Liberty v. Nyquist, 413 U.S. at 782-83 n.38). In fact, here it is
deliberately directed away from religion: funding religious activities is
expressly prohibited by statute. By no means can the VJTA be said to
“create [a] financial incentive fo r” eligible veterans to undertake a reli­
gious activity, nor does it “provide greater or broader benefits” to recipi­
ents w h o choose to work in religious organizations. Id. at 488.

 8 This point is discussed in greater detail in fra at p. 41.


                                                     38
          On the contrary, aid recipients have full opportunity to expend
          vocational rehabilitation aid on wholly secular education, and
          as a practical matter have rather greater prospects to do so.
          Aid recipients’ choices are made among a huge variety o f pos­
          sible careers, o f which only a small handful are sectarian.

Id. Finally, “ [t]he function o f the ... program is hardly ‘to provide desired
financial support for nonpublic, sectarian institutions.’” Id. (quoting
Nyquist, 413 U.S. at 783).
   We believe that the program also passes the third prong o f the Lemon
test, which prohibits excessive entanglement, as that prong has recently
been interpreted in Kendrick, 487 U.S. at 615-16. The Kendrick Court
squarely rejected the argument that including religious institutions in
neutral programs subsidizing the performance o f secular tasks may lead
to an “‘excessive government entanglement with religion.’” Id. at 615
(quoting Lemon, 403 U.S. at 613). Noting that this prong o f the Lemon test
had been much criticized over the years, the Kendrick Court explained
that cases finding entanglement had mostly involved aid to parochial
schools, which w ere “pervasively sectarian” and had ‘“ as a substantial
purpose the inculcation o f religious values.’” Id. at 616 (quoting Aquilar
v. Felton, 473 U.S. 402, 411 (1985)). By contrast, the Court noted that
there was no reason to assume that the religious institutions eligible fo r
government funds are pervasively sectarian and thus no reason to fear
that the kind o f monitoring required to assure that public money is spent
in a constitutional manner w ill lead to excessive entanglement. Id.

B. “Pervasively Sectarian" Institutions

   Thus far w e have determined that under Kendrick and Witters the VA
may reimburse religiously-affiliated institutions fo r training veterans fo r
employment performing nonreligious activities. There is, however, som e
tension between these tw o cases as to whether the VA may also include
within the program what the Court refers to as “pervasively sectarian”
institutions. The Court has at times examined the nature o f the religious
institution and refused to allow government monies to go to institutions
“in which religion is so pervasive that a substantial portion o f its func­
tions are subsumed in the religious mission.” Hunt v. NcNair, 413 U.S.
734, 743 (1973).9 For example, in Kendrick the majority seem ed to indi­
cate that the “entanglement” prong o f the Lemon test forbids including
pervasively sectarian institutions even within programs designating fund­
ing fo r “specific secular purposes.” 487 U.S. at 610.


  9   In R oem er v. Board o f Pub Works, 426 U.S 736 (1976), the Court defined a “pervasively sectarian"
institution somewhat tautologicaUy as an institution “so permeated by religion that the secular side can­
not be separated from the sectarian ” Id. at 758-59 (quoting the district court, 387 F. Supp. at 1293)


                                                  39
    A ll o f the members o f the Court, however, do not share this view: there
is considerable disagreement among them about the significance o f a
determ ination that an organization is “pervasively sectarian.” There is
som e suggestion in Chief Justice Rehnquist’s m ajority opinion in
Kendrick that the class of “pervasively sectarian” institutions is limited to
parochial schools. Kendrick, 487 U.S. at 611. Moreover, Justice Kennedy,
in his concurring opinion in Kendrick fo r him self and Justice Scalia, indi­
cates som e skepticism about the utility o f the “pervasively sectarian”
concept and suggests that the significant determination is not the nature
o f the institution but how the money given by the federal government is
spent. A s Justice Kennedy puts it, “ [t]he question in an as-applied chal­
lenge is not w hether the entity is o f a religious character, but how it
spends its grant.” Id. The separate concurrence o f Justice O’Connor also
suggests that the proper inquiry is whether any public funds have been
used to prom ote religion. Id. at 623.
    Even Justices Blackmun, Brennan, Marshall and Stevens in their dis­
sent in Kendrick indicated that “the Constitution does not prohibit the
governm ent from supporting secular social-welfare services solely
because they are provided b y a religiously-affiliated organization.” 487
U.S. at 640.10 Thus, the dissent in Kendrick suggests the importance o f
evaluating the substantive nature o f the use o f public funds.11
    We need not, however, resolve the differing viewpoints among the
Justices in Kendrick as to whether the proper focus o f the inquiry is on
the institution or on the use to which the m oney is put because w e
b elieve that Witters is controlling in this context. Because Witters makes
clear that funds from a governm ent program similar in almost every
respect to the VJTA can be used fo r training in religious activities, a for­
tiori VJTA funds can be used fo r training in nonreligious activities even
i f perform ed fo r pervasively sectarian institutions. Many o f the similari­
ties betw een the program in Witters and the VJTA program have already
been set forth above. Both programs involve government funding fo r an
“unmistakably secular purpose”; “no m ore than a minuscule amount o f
the aid awarded under [each] program is likely to flow to religious edu­
cation”; no one can suggest that the ‘“ actual purpose’ in creating the pro­
g ra m ^ ] was to endorse religion”; despite the direct payment under the


  10Significantly, the dissent noted
      T h ere is a very real and important difference betw een running a soup kitchen or a hospital,
      and counseling [clients] on how to make the difficult decisions facing them. The risk o f
      advancing religion at public expense, and o f creating an appearance that the government is
      endorsing the medium and the message, is much greater when the religious organization is
      directly engaged in pedagogy, with the express intent o f shaping belief and changing behav­
      ior, than w here it is neutrally dispensing medication, food, or shelter.
K en d rick, 487 U S at 641 (Blackmun, J., dissenting) (footn ote omitted).
   11Confusingly, the dissent also indicated that the label “pervasively sectarian” may serve in some cases
as a proxy fo r a m ore detailed analysis o f the institution, the nature o f the aid, and the manner in which
the aid may be used K endrick, 487 U.S at 633 (Blackmun, J., dissenting). See also Roemer, 426 U.S. at 758.


                                                     40
VJTA, the choice o f recipient is made by the veteran, thus “ [a]ny aid pro­
vided under [the] program[s] that ultimately flow s to religious institu­
tions does so only as a result o f the genuinely independent and private
choices o f [the] aid recipient[]”; and the programs are ‘“made available
generally without regard to the sectarian-nonsectarian, o r public-non-
public nature o f the institution benefited,’ and [are] in no w ay skewed
towards religion.” Witters, 474 U.S. at 485-88 (quoting Wallace v. Jaffree,
472 U.S. 38, 74 (1985) and Committee fo r Pub. Educ. & Religious Liberty
v. Nyquist, 413 U.S. at 782-83 n.38). Finally, in both programs the funds
are specific reimbursement fo r costs previously incurred, not cash o r in-
kind grants with the effect ‘“ o f a direct subsidy to the religious [institu­
tion]’ from the State.” Id. at 487 (quoting Grand Rapids Sch. Dist. v. Ball,
473 U.S. 373, 394 (1985)).12
   The only difference between the VJTA and the program upheld in
Witters is that here the money is paid directly to the pervasively sectari­
an institution employing the veteran, while in the vocational rehabilita­
tion program challenged in Witters, the vocational assistance was paid
directly to the student, who transmitted it to the educational institution
o f his choice. The difference between the program upheld in Witters and
this one, however, is wholly formal: while the name o f a pervasively sec­
tarian organization appears on a government check in the VJTA but not
the Witters program, in both programs the religious em ployer providing
the training receives the money “as a result o f the genuinely independent
and private choices o f ’ the aid recipient. Id. at 487. Thus, as in Witters, “it
does not seem appropriate to view any aid ultimately flowing to the (p er­
vasively sectarian institution) as resulting from a state action sponsoring
or subsidizing religion. N or does the mere circumstance that petitioner
has chosen to use neutrally available state aid to help pay fo r his religious
education confer any message o f state endorsement o f religion.” Id. at
488-89. Accordingly, regardless o f the possibly pervasively sectarian iden­
tity o f the recipient o f the government’s check, the VJTA program is con­
stitutional under the analysis in Witters because the veteran, not the g o v­
ernment, is choosing the recipient o f the funds.13 Thus, w e believe that
the Establishment Clause does not erect barriers to any institution’s par­
ticipation in the VJTA program fo r training in nonreligious activities.14


  l2These similarities distinguish the VJTA from programs reimbursing parochial schools for part o f the
salaries o f teachers who teach both secular and sectarian subjects, Grand R apids Sch. D is t v B a ll, 473
U S 373 (1985), as w ell as programs where government-employed teachers provide remedial services to
parochial school students on parochial school grounds, A g u ila r, 473 U S at 412. In those and in most o f
the other cases involving government aid to parochial schools, the court looked to the amount and per­
centage o f funds going to parochial schools. Where the principal beneficiaries o f an aid program are reli­
gious institutions, the Court often infers that its purpose is to endorse religion, and thus invalidates the
program. Here, the purpose o f the program is to aid veterans, and no more than a “minuscule amount o f
the aid awarded” will go to pervasively religious institutions. Witters, 474 U S. at 486
  13 The decision to pay the monies directly to the em ployer rather than to the veteran is unexplained in
the legislative history, but its purpose could be to reduce administrative costs or the possibility o f fraud


                                                     41
       IV. Distinguishing Religious From Nonreligious Activities

   Having concluded that religiously-affiliated and pervasively sectarian
institutions are eligible for participation in the VJTA program, we turn to
the question o f “which criteria ... the VA [may] constitutionally prescribe
by regulation fo r rendering a determination o f the nature o f the involved
activity.” Memorandum at 3. If, as noted above, “religious institutions are
[not] disabled by the First Am endm ent from participating in publicly
sponsored social w elfare programs,” Kendrick, 487 U.S. at 609, and yet
they must carry out their responsibilities in a “lawful, secular manner,”
id. at 612, then government is inevitably charged with the task o f distin­
guishing betw een that which is nonreligious and that which is religious.
M oreover, Kendrick makes plain that “the very supervision o f the aid to
assure that it does not further religion [does not] render[] the statute
invalid.” Id. at 615. The problem for the governm ent therefore is how to
distinguish objectively those activities that are religious from those activ­
ities that are not.15
   In review ing applications to determine whether an activity is “religious,”
one important objective signpost the VA should consider is whether the
activity is also traditionally perform ed in nonreligious organizations. Such
a requirement w ould not only serve the goal o f the job training program
by making the veteran more employable generally, it would also say some­
thing “objective” about the activity in question. But meeting this require­
ment is not sufficient by itself to make an activity nonreligious; the activ­
ity perform ed by the veteran must also be scrutinized in its organizational
context. To illustrate: a nonreligious organization may employ a person
w hose responsibility is to ensure that its em ployees behave in a manner
consistent with the goals and values o f the organization (e.g., a discipli­
nary o fficer o f a fraternal organization); such a position in a religiously-


  14You have not asked specifically whether the VA may choose to exclude all positions at religious insti­
tutions or m ore narrowly, all positions at pervasively sectarian institutions from the program to avoid the
need to distinguish between religious and nonrehgious activities. Such a position may seem superficial­
ly attractive to avoid running afoul o f the Establishment Clause as interpreted by the Supreme Court.
Having decided that the Establishment C lause does not prohibit religious institutions from participating
in the program, however, w e think it appropriate to emphasize, that the language o f the statute is
unequivocal in excluding only “religious a ctiv itie s.” Section 7 (a )(2 ) o f the VJTA provides that the
Administrator “shall approve a proposed program o f jo b training o f an employer” unless the program
does not m eet the criteria set by section 7(b). This language does not vest unfettered discretion in the
Administrator, it suggests only that those programs failing to meet the requirements o f section 7 (b ) may
be excluded. Veterans seeking training fo r nonrehgious activities by religious institutions are thus pre­
sumably entitled by statute to have religious employers reimbursed fo r training them.
  15Justice Brennan pointed out the problem inherent in the very enterprise where government seeks to
distinguish betw een such activities in his concurrence in C oi'poration o f P resid in g Bishop v Amos, 483
U.S 327, 340-46 (1987). He there said
     What makes the application o f a religious-secular distinction difficult is that the character o f
      an activity is not self-evident. As a result, determining whether an activity is religious or sec­
      ular requires a searching case-by-case analysis.
Id. at 343.

                                                     42
affiliated organization may be too intertwined with the organization’s reli­
gious tenets to be characterized as nonreligious.
   Thus, the degree to which the activity is informed and affected by the
religious tenets o f the organization might also be a relevant factor. Amos,
594 F. Supp. 791, 799 (D. Utah 1984), rev’d on other grounds, 483 U.S. 327
(1987) (Court should examine “the nexus between the primary function
o f the activity in question and the religious rituals or tenets o f the reli­
gious organization or matters o f church administration”). On the other
hand, that the activity is mandated by religious tenets is not sufficient by
itself to cause that activity to be deemed religious. F or example, charity
may be required by an organization’s religious law, but a position in a reli­
giously-affiliated foundation dispensing the foundation’s monies is not, it
seems to us, necessarily a religious activity.16
   The difficulty in distinguishing between religious and nonreligious
activities lies in seeking to define that which lies between the tw o rela­
tively clear ends o f a continuum. Thus, w hile it may seem obvious that
activities such as custodial, maintenance and cafeteria services are non­
religious, and that performing sacraments or leading prayer services are
overtly religious actions, defining that which lies between is far more dif­
ficult.17 Perhaps the best that can be said is that a religiously-affiliated
organization wishing to participate in the job-training program ought to
be required to state the specific jo b or jobs in which the veteran is to be
employed, the tasks that jo b entails, and w hy it believes the activities in
that jo b can fairly be characterized as nonreligious. This is consistent



  ,6To take a further example, Jewish law er\joins as a religious matter violations o f the law o f the nation
in which the community lives. J.J Schacter, D in a De-M alkkuta D ina A Review. 1977 Dine’ Yisrael
Annual 77, 79 ( “The Talmudic dictum din a demalkkuta dina, the law o f the state is law, first formulated
by Samuel in the third century C E and thereafter accepted as part o f Jewish law was understood in the
medieval period to be a legal ratification o f th[e] existing state o f a ffairs"). Yet to characterize as per­
forming a “religious activity" every lawyer, accountant, auditor, and other individual em ployed to ensure
that a Jewish organization is adhering to the laws o f the United States is plainly to ascnbe too much to
the religious requirement and to ignore the more obvious reason for performing the activity.
 17 The VA has expressed concern about the decision by the Seventh Circuit that placing CETA workers,
who w ere paid by the government, in certain positions in sectarian schools violated the Establishment
Clause. Deckei' v O ’D onnell, 661 F2d 598 (7th Cir. 1980). In that case the court held unconstitutional
“ft]he outstationing [by public authorities] o f CETA workers in sectarian elementary or secondary
schools for the purpose o f providing remedial education”; “the placement o f CETA workers in instruc­
tional positions m summer or recreation or similar programs at sectarian schools”; “instructional posi­
tions m adult education programs”, “regulations] allowing the employment o f CETA w orkers in custo­
dial child care after school hours”, the “use o f CETA workers in ‘diagnostic o r therapeutic speech and
hearing services’”, regulations permitting “CETA employees to provide services relating to the health and
safety o f the students”; and placement o f “CETA workers in ‘[fu nctions perform ed with respect to the
administration and grading o f State-prepared examinations." O ’D onneU, 661 F2d at 610-13. The
O ’D onnell court struck down even the regulations “allowing CETA workers to provide ‘support services
fo r the administration o f federally funded or regulated programs made applicable to religious institu­
tions’”; “placements in cafeteria work or other work directly related in the provision o f food services to
students"; and “the placement o f CETA workers in ac^unct custodial or maintenance w ork related to
cafeteria w ork and health services ” Id at 614.
                                                 Continued


                                                     43
w ith the approach taken by the one court that sought to set forth gener­
al criteria as to permissible regulations. Thus, as noted in your m em o­
randum, in Am os the district court sought to articulate criteria to deter­
m ine what activity can be classified as religious. See Amos, 594 F. Supp.
791 (D. Utah 1984), rev’d on other grounds, 483 U.S. 327 (1987).
Generally, the district court suggested examining the nexus between the
activity and the religious tenets or rituals o f the institution.18 While
inevitably lacking somewhat in specificity, these criteria seem to us, as a
general matter, w orthy o f consideration in the formulation o f regulations.
   The m ore specific criteria w e set forth above are meant only as exam ­
ples that ought to be considered in promulgating regulations. They are by
no means exclusive. We hope that we have here provided sufficient guid­
ance to enable the VA to begin drafting and formulating regulations dis­
tinguishing betw een religious and nonreligious activities. We stand ready
to review such regulations p rio r to their issuance, and to assist in any
other appropriate way.

                                               Conclusion

  The exclusion o f religious activities from the ambit o f activities for
w hich the VJTA may fund training does not violate the Free Exercise
Clause. The exclusion neither prohibits, impedes nor penalizes anyone
seeking to perform a religiously-mandated requirement. Second, the
inclusion o f the institutions in the program that are religiously-affiliated



  17(...con tin u ed)
  Th e outcom e in O ’D on n ell does not support the argument that these activities becam e religious mere­
ly because they w ere perform ed in a pervasively sectarian institution. O'D onnell ran afoul o f the princi­
ple that the “ potential fo r divisive political conflict over the issue o f funding” along religious lines may
be sufficient to warrant invalidating the program under the Establishment Clause Id at 615 That “poten­
tial fo r divisiveness" existed in part because o f the nature o f the CETA program, which was to give block
grants to a designated, finite group of wprim [ary] sponsors” (and their sub-grantees) who were chosen to
provide em ploym ent to eligible workers. Id at 602, 615 This program is thus to be contrasted with the
VJTA, which affords any em ployer meeting the statutory criteria the opportunity to participate in the pro­
gram M oreover, it is precisely the discretion vested in the government and its grantees under CETA that
distinguishes it from the VJTA and the program upheld in Witters. As noted above, Witters turned on the
fact that the beneficiary determined where the money was to go, as is the case with the VJTA. In CETA,
the governm ent determined which programs were to receive funds and beneficiaries w ere encouraged
to w ork fo r previously-designated institutions This makes CETA a very different program from the one
upheld in W itters and distinguishes O ’D o n n e ll from the situation here.
  18 The Supreme Court reversed the district court on the ground that non-profit, church-owned and
church-run facilities w ere exem pt from the provisions o f title VII prohibiting discrimination on the basis
o f religion Th e Court did not address the issue o f how best to distinguish between religious and non-reh-
gious activities. The A m os distnct court’s test is thus unaffected, and seem s to us helpful. The court there
labeled an activity “religious” if “there is a substantial connection between the activity in question and
the religious organization’s religious tenets or matters o f church administration " Id. at 799. However,
w here “the nexus betw een the pnmary function o f the activity in question and the religious tenets or rit­
uals o f the religious organization or matters o f church administration is tenuous o r non-existent,” for an
activity to be religious there must be a “substantial relationship between the em ployee’s job and church
administration or the religious organization’s ntuals or tenets ” Id.

                                                       44
but not pervasively sectarian does not violate the Establishment Clause.
Although the question is a closer one, inclusion o f pervasively sectarian
institutions is also in our view constitutional, so long as the selection o f
such institution is the result o f the genuinely independent and private
choice o f the veteran. Finally, distinguishing between nonreligious and
religious activities, how ever difficult a task, is here required by statute
and is constitutional. Regulations doing so should focus, at a minimum,
on the nexus betw een religious tenets and the jo b to be undertaken.

                                               D o u g l a s W. K m ie c
                                          Assistant Attorney General
                                            Office o f Legal Counsel




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