Application of the Religious Freedom Restoration Act to the Award of a Grant Pursuant to the Juvenile Justice and Delinquency Prevention Act ( 2007 )

Application of the Religious Freedom Restoration Act
to the Award of a Grant Pursuant to the Juvenile
Justice and Delinquency Prevention Act
The Religious Freedom Restoration Act is reasonably construed to require the Office of Justice
Programs to exempt World Vision—a religious organization that has been awarded a grant under the
Juvenile Justice and Delinquency Prevention Act—from the religious nondiscrimination provision in
42 U.S.C. § 3789d(c)(1).
June 29, 2007
MEMORANDUM OPINION FOR THE GENERAL COUNSEL
OFFICE OF JUSTICE PROGRAMS
World Vision, Inc., is a religious organization that has been awarded a $1.5
million grant by the Office of Justice Programs (“OJP”) pursuant to the Juvenile
Justice and Delinquency Prevention Act of 1974 (“JJDPA”), Pub. L. No. 93-415,
88 Stat. 1109 (codified as amended at 42 U.S.C. §§ 5601–5792a (2000 & Supp. III
2003)). As a condition of receiving grants pursuant to the JJDPA, recipients must
refrain from discriminating on the basis of religion in “employment in connection
with any programs or activity” funded by the grant. 42 U.S.C. § 3789d(c)(1)
(2000). You have asked whether the Religious Freedom Restoration Act
(“RFRA”)—which prohibits the government from “substantially burden[ing]”
religious exercise unless that burden “is the least restrictive means of furthering [a]
compelling governmental interest,” 42 U.S.C. § 2000bb-1(b) (2000)—requires
OJP to exempt World Vision from the religious nondiscrimination provision. We
conclude that RFRA is reasonably construed to require that such an accommoda-
tion be made for World Vision, and that OJP would be within its legal discretion,
under the JJDPA and under RFRA, to exempt World Vision from the religious
nondiscrimination requirement of section 3789d(c)(1). 1
I.
A.
World Vision is “a Christian relief and development organization founded in
1950.” Letter for Marie E. Burke, Office of Justice Programs, from Brian K.
Vasey, Associate General Counsel, World Vision, Inc., Re: World Vision Earmark
Award at 2 (Sept. 8, 2005) (“Sept. 8 Letter”). Its stated mission is “to love and
serve those in need as a demonstration of [its] faith, and the example of Christ.”
Id. at 2–3. By its own account, World Vision is “a thoroughly religious organiza-
tion.” Letter for Charles Moses and Marie Burke, Office of Justice Programs, from
1
This opinion memorializes advice that we provided to you orally in May 2006.
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Brian K. Vasey, Associate General Counsel, World Vision, Inc., Re: World Vision
Congressional Earmark Award at 2 (Sept. 23, 2005) (“Sept. 23 Letter”).
World Vision operates projects both domestically and abroad. Domestically, it
has focused on “at-risk youth” through its “Vision Youth Program.” Sept. 8 Letter
at 3. This program serves “at-risk youth” in various communities by meeting their
“basic needs,” pairing them with mentors, and providing job training and academic
tutoring. Id.; Congressional Earmark Submission to Office of Justice Programs
from World Vision, Inc. (“Grant Application”), att. 2, Program Narrative at 6–10
(May 26, 2005). The program serves beneficiaries regardless of their religious
affiliation. Sept. 8 Letter at 3. It “do[es] not proselytize, and no government funds
are ever used for religious activities.” Id.
Since its founding, World Vision has made it a policy to hire only “Christian
staff to assist with the mission of the organization.” Id. at 2. World Vision states
that it has done so in order to “maintain [its] identity and strength, which [are] at
the core of [its] success,” id. at 3, and because it “can only remain true to [its]
vision if [it] ha[s] the freedom to select like-minded staff, which includes staffing
on a religious basis,” Sept. 23 Letter at 1. World Vision states that the work of the
Vision Youth program is “very staff intensive.” Id. at 2. Its staff—all of whom
“share a faith, passion and commitment to [World Vision’s] mission”—works
closely with local volunteers and churches to meet the needs of at-risk youth. Id. 2
B.
In the Consolidated Appropriations Act, 2005, Congress appropriated
$102,177,000 to the Department of Justice “for demonstration projects, as
authorized by sections 261 and 262 of [the JJDPA].” Pub. L. No. 108-447, 118
Stat. 2809, 2866 (2004) (“2005 Appropriations Act”). Sections 261 and 262 of the
JJDPA permit the Department to make grants to organizations that are working
toward “the prevention, control, or reduction of juvenile delinquency.” 42 U.S.C.
§§ 5665–5666 (Supp. III 2003). The conference report accompanying the 2005
Appropriations Act states that “OJP is expected to review the following proposals,
[and] provide grants if warranted.” H.R. Rep. No. 108-792, at 769 (2004).
Included among the listed proposals was “$1,500,000 for World Vision for at-risk
youth programs.” Id. at 771.
OJP thereafter solicited and received a grant application from World Vision,
which requested $1,479,965 to continue funding the Vision Youth Program
2
We have had no contact with World Vision representatives and are not in a position to assess the
sincerity of its professions about its religious belief and motivations or the accuracy of its factual
representations about the organization and the two programs at issue. We therefore accept, for purposes
of this memorandum, the accuracy of such representations in its letters and grant submission, in the
understanding that review of such representations is ordinarily undertaken during the grant-making
process.
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Opinions of the Office of Legal Counsel in Volume 31
(“Vision Youth: Transforming the Lives of At-Risk Youth”) and to initiate a new
project called the “World Vision Northern Virginia Community Mobilization
Initiative” (“Community Mobilization Initiative”). The Vision Youth Program
seeks “to transform the lives of high-risk young people in eight locations across
the country” by facilitating “one-on-one mentoring, educational enhancement, and
life-skills training for at-risk children and youth.” Grant Application, att. 2,
Program Narrative at 1. The grant would fund a portion of the salary and benefits
of fourteen existing World Vision employees, each of whom would spend part of
his or her time managing the Vision Youth Program funded by the grant. Id., att. 1,
Budget Narrative at 1. Those employees oversee the training of Youth Outreach
Workers to implement the Vision Youth Program in local communities. Id.; see
also id., att. 2, Program Narrative at 7. The Youth Outreach Workers, in turn,
recruit and train volunteers from local faith-based organizations, “forming a
critical mass of supportive adults around these [at-risk] young people.” Id., att. 2,
Program Narrative at 7.
The Community Mobilization Initiative would seek to “address the escalating
gang presence and related violence and criminal activities in the Northern Virginia
metropolitan region.” Id. at 13. Like the Vision Youth program, the new initiative
would “provid[e] mentoring to youth at-risk for gang involvement, build[] rela-
tionships with youth currently involved in gang activity, provid[e] training and
workshops for families and the communities, and provid[e] alternative activities
for youth at-risk for gang involvement.” Id. at 16. The grant would fund all or part
of the salary and benefits of eight World Vision employees assigned to the anti-
gang initiative. Id., att. 1, Budget Narrative at 1–2. Those employees would work
with local law enforcement, schools, and social service agencies “to identify
concentrations of young people who are either in or vulnerable to recruitment by
local gangs.” Id., att. 2, Program Narrative at 18. In particular, they would initiate
a “Neighborhood Transformation Project” and a “Community Outreach Cam-
paign” to counteract gang formation and gang violence. Id. at 19–20.
OJP awarded World Vision the full amount of its request. Approximately
$713,110, or 48% of the grant funds, pays all or a portion of the salary and
benefits of World Vision employees on the two projects. Id., att. 1, Budget
Narrative at 1. The balance covers travel expenses, supplies, consultant fees, and
other miscellaneous expenses. Id. at 1–5. For the relevant fiscal year, the grant
represents approximately 10% of the entire budget for World Vision’s domestic
community-based programs, and approximately 75% of the public funding the
organization is receiving for domestic operations. Sept. 23 Letter at 2.
C.
This grant, like all grants under the JJDPA, is subject to 42 U.S.C. § 3789d(c),
the nondiscrimination provision of the Omnibus Crime Control and Safe Streets
Act of 1968, Pub. L. No. 90-351, 82 Stat. 197 (the “Safe Streets Act”). 42 U.S.C.
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
§ 5672(b) (2000) (“Section[] 3789d(c) . . . shall apply with respect to the admin-
istration of and compliance with this chapter”). That provision states that “[n]o
person in any State shall on the ground of . . . religion . . . be subjected to discrim-
ination under or denied employment in connection with any programs or activity
funded in whole or in part with funds made available under this chapter.” 42
U.S.C. § 3789d(c)(1).
After approving the grant, OJP informed World Vision that it was subject to the
religious nondiscrimination provision of the Safe Streets Act. Letter for Kimberlee
LaGree Ross, World Vision, Inc., from Michael L. Alston, Director, Office for
Civil Rights, Office of Justice Programs at 2 (Aug. 16, 2005). OJP noted that,
“[c]onsequently, in many circumstances, it would be impermissible for faith-based
organizations seeking or receiving funding authorized by these statutes to have
policies or practices that condition hiring and other employment-related decisions
on the religion of applicants or employees.” Id.
In response, World Vision “requested relief under the Religious Freedom and
[sic] Restoration Act of 1993.” Sept. 23 Letter at 1. 3
II.
Congress enacted the Religious Freedom Restoration Act in 1993, Pub. L. No.
103-141, 107 Stat. 1488 (codified as amended at 42 U.S.C. §§ 2000bb to 2000bb-4
(2000)), to respond to the Supreme Court’s decision in Employment Division v.
Smith, 494 U.S. 872 (1990), which had “virtually eliminated the requirement that
the government justify burdens on religious exercise imposed by laws neutral
toward religion.” 42 U.S.C. § 2000bb(a)(4) (2000); see also City of Boerne v.
Flores, 521 U.S. 507, 512–16 (1997). RFRA sought to re-impose that requirement
by providing that the “Government shall not substantially burden a person’s
exercise of religion even if the burden results from a rule of general applicability,”
42 U.S.C. § 2000bb-1(a), unless the government “demonstrates that application of
the burden to the person—(1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling
governmental interest,” id. § 2000bb-1(b). RFRA thus mandates strict scrutiny of
any federal law that substantially burdens the exercise of religion, even if the
3
On November 22, 2005, President Bush signed the Science, State, Justice, Commerce, and Relat-
ed Agencies Appropriations Act, 2006, which appropriated funds for demonstration projects under the
JJDPA and included this provision: “[S]ection 702(a) of Public Law 88-352 shall apply to any grants
for World Vision, described in House Report No. 108-792 and the statement of managers accompany-
ing this Act, and awarded by the Attorney General.” Pub. L. No. 109-108, 119 Stat. 2290, 2303 (“2006
Appropriations Act”). On its face, however, section 702(a) of Public Law 88-352 (codified at 42 U.S.C.
§ 2000e-1(a) (2000)) exempts religious organizations only from the nondiscrimination provisions of
Title VII of the Civil Rights Act of 1964, not from the nondiscrimination provision of the Safe Streets
Act. The 2006 Appropriations Act thus does not address whether World Vision is exempt from 42
U.S.C. § 3789d(c).
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Opinions of the Office of Legal Counsel in Volume 31
burden is incidental to the application of a religion-neutral rule. Gonzales v. O
Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 424, 430–31 (2006)
(“O Centro”). RFRA applies “to all Federal law, and the implementation of that
law, whether statutory or otherwise, and whether adopted before or after Novem-
ber 16, 1993.” 42 U.S.C. § 2000bb-3(a) (2000).
The White House Office of Faith-Based and Community Initiatives (“OFBCI”)
takes the position that “an organization’s ability to select employees that share its
common values and sense of purpose . . . is vital to all organizations, not just faith-
based groups.” OFBCI, Protecting the Civil Rights and Religious Liberty of Faith-
Based Organizations at 3 (“Faith-Based Organizations”) (available at http://
georgewbush-whitehouse.archives.gov/government/fbci/religious-hiring-booklet-2005.
pdf, last visited Aug. 12, 2014). Because “[a] secular group that receives govern-
ment money” to administer a federal program “is currently free to hire based on its
ideology and mission,” OFBCI has stated that “[a]llowing religious groups to
consider faith in hiring when they receive government funds simply levels the
playing field—by making sure that, when it comes to serving impoverished
Americans, faith-based groups are as welcome at the government’s table as non-
religious ones.” Id. OFBCI has accordingly concluded that faith-based groups
involved in administering federal social service programs “should retain their
fundamental civil rights, including their ability . . . to take their faith into account
when they make employment decisions.” Id.
Accordingly, the President directed in Executive Order 13279 that:
Consistent with the Free Exercise Clause and the Free Speech Clause
of the Constitution, faith-based organizations should be eligible to
compete for Federal financial assistance used to support social ser-
vice programs and to participate fully in the social service programs
supported with Federal financial assistance without impairing their
independence, autonomy, expression, or religious character. Accord-
ingly, a faith-based organization that applies for or participates in a
social service program supported with Federal financial assistance
may retain its independence and may continue to carry out its mis-
sion, including the definition, development, practice, and expression
of its religious beliefs, provided that it does not use direct Federal fi-
nancial assistance to support any inherently religious activities, such
as worship, religious instruction, or proselytization.
Id. § 2(f), 3 C.F.R. 258, 260 (2002 Comp.) (“Order”). That executive order
illustrates ways in which a faith-based organization may “continue to carry out its
mission, including the definition . . . and expression of religious beliefs” while
participating in a federally funded social service program:
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Among other things, faith-based organizations that receive Federal
financial assistance may use their facilities to provide social services
supported with Federal financial assistance, without removing or al-
tering religious art, icons, scriptures, or other symbols from these fa-
cilities. In addition, [such] a faith-based organization . . . may retain
religious terms in its organization’s name, select its board members
on a religious basis, and include religious references in its organiza-
tion’s mission statements and other chartering or governing docu-
ments.
Id. (emphasis added). 4 The Order directs that agency heads “implement new
policies for their respective agencies that are consistent with and necessary to
further the fundamental principles and policymaking criteria articulated in section
2 of this order.” Id. § 3(b)(ii). In addition, we understand that the President wishes
to exempt religious organizations that administer federally funded social services
from religious nondiscrimination requirements imposed on their employment
practices as a condition of funding, if RFRA is reasonably construed to require
such an accommodation. See Memorandum for Ralph Boyd, Assistant Attorney
General, Civil Rights Division, et al., from Jay Bybee, Assistant Attorney General,
Office of Legal Counsel, Re: Applicability of Religious Freedom Restoration Act
to Religious Nondiscrimination Requirements Imposed on Grantees Who Adminis-
ter Federally Funded Services Under the Substance Abuse and Mental Health
Services Act at 1, 11 (Dec. 2, 2002) (“SAMHSA Memorandum”) (discussing
application of this intention to SAMHSA grant program); E-mail for John P.
Elwood, Deputy Assistant Attorney General, Office of Legal Counsel, from
Neomi J. Rao, Associate Counsel to the President (May 10, 2006); cf. Faith-Based
Organizations at 9 (“President Bush will strive to ensure that faith-based organiza-
tions that receive Federal funds retain their civil right to base employment
decisions on their ideals and mission.”).
To implement Executive Order 13279, the Department of Justice adopted regu-
lations that closely track its language. See 28 C.F.R. pt. 38 (2006). The regulations
provide that, so long as such groups do not “use direct financial assistance from
the Department to support any inherently religious activities, such as worship,
religious instruction, or proselytization,” a religious organization that participates
in the Department-funded programs or services “will retain its independence from
Federal, State, and local governments, and may continue to carry out its mission,
4
We understand the four specific instances listed in section 2(f) of the Order to represent examples
of ways in which a faith-based group could participate in social service programs while “continu[ing]
to carry out its mission,” rather than to describe the limit of permissible accommodations. The relevant
passage begins by noting a specific accommodation that can be made “[a]mong other things,” and the
next sentence discusses three other instances of accommodations that can be made “[i]n addition” to
that. Exec. Order No. 13279, § 2(f) (emphasis added). Accordingly, we do not understand the Order to
suggest that it forecloses other possible accommodations of religiously-motivated hiring practices.
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Opinions of the Office of Legal Counsel in Volume 31
including the definition, practice, and expression of its religious beliefs.” Id.
§ 38.1(c). The regulations then repeat each of the specific examples of permissible
religious practices listed in section 2(f) of the Order. Id. The regulations note,
however, that “[s]ome Department programs . . . contain independent statutory
provisions requiring that all grantees agree not to discriminate in employment on
the basis of religion.” Id. § 38.1(f). The regulations therefore recommend that
grantees “consult with the appropriate Department program office to determine the
scope of any applicable requirements.” Id.
For the reasons explained below, we conclude that RFRA is reasonably con-
strued to require OJP to exempt World Vision from the Safe Streets Act’s religious
nondiscrimination provision otherwise applicable to the grant in question, and that,
accordingly, OJP would be within its legal discretion, under the JJDPA and under
RFRA, to exempt World Vision from the religious nondiscrimination requirements
of section 3789d(c)(1). In Part II.A, we explain that the World Vision programs
funded by the grant are an “exercise of religion” under RFRA. In Part II.B, we
determine that it is reasonable to conclude that requiring World Vision to comply
with the nondiscrimination provision as a condition of receiving the grant would
“substantially burden” its religious exercise. In Part II.C, we determine that
applying a religious nondiscrimination provision to World Vision would not
further a compelling governmental interest. Finally, in Part III, we discuss the
consistency of our conclusions with relevant decisions of the Supreme Court
concerning the government’s discretion to fund religious activities.
A.
RFRA originally provided that “the term ‘exercise of religion’ means the exer-
cise of religion under the First Amendment to the Constitution.” Pub. L. No. 103-
141, § 5(4), 107 Stat. at 1489. Many courts initially interpreted RFRA to require
that the exercise of religion be “central” to the claimant’s religious faith. See
Adkins v. Kaspar, 393 F.3d 559, 567 n.34 (5th Cir. 2004) (collecting cases). In
2000, however, Congress amended RFRA to incorporate the definition of “exer-
cise of religion” from the newly enacted Religious Land Use and Institutionalized
Persons Act (“RLUIPA”). Pub. L. No. 106-274, § 7(a)(3), 114 Stat. 803, 806
(codified at 42 U.S.C. § 2000bb-2(4) (2000)) (“As used in this chapter . . . the term
‘exercise of religion’ means religious exercise, as defined in section 2000cc-5 of
this title.”). RLUIPA provides that “[t]he term ‘religious exercise’ includes any
exercise of religion, whether or not compelled by, or central to, a system of
religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (2000) (emphasis added). Signifi-
cantly, courts that previously required a showing under RFRA that a burdened
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
religious practice was fundamental or central to the claimant’s faith have repudiat-
ed that view since the 2000 amendment. 5
Under the “broad definition” in RFRA, Adkins, 393 F.3d at 567, we conclude
that World Vision’s work as part of its “Vision Youth” and “Community Mobili-
zation Initiative” programs constitutes the “exercise of religion” within the
meaning of RFRA. The Supreme Court has long recognized that the “exercise” of
religion protected by the First Amendment “involves not only belief and profes-
sion but the performance of (or abstention from) physical acts.” Smith, 494 U.S. at
877; accord id. at 893 (O’Connor, J., concurring in the judgment) (“conduct
motivated by sincere religious belief” is “at least presumptively protected by the
Free Exercise Clause”). The “exercise” of religion encompasses activity “ground-
ed in religious belief.” Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983)
(collecting authorities); see also Wisconsin v. Yoder, 406 U.S. 205, 219–20 (1972)
(rejecting argument that only belief is protected by Free Exercise Clause). The
exercise of religion can include charitable work of the sort involved here. Justice
5
Compare, e.g., Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 662 (10th Cir.
2006) (“Under the definition of ‘religious exercise’ . . . , a religious exercise need not be mandatory for
it to be protected under RFRA.”), with Werner v. McCotter, 49 F.3d 1476, 1480 (10th Cir. 1995) (“To
exceed the ‘substantial burden’ threshold, government regulation must significantly inhibit or constrain
conduct or expression that manifests some central tenet of a prisoner’s individual beliefs . . . or must
deny a prisoner reasonable opportunities to engage in those activities that are fundamental to a
prisoner’s religion.”) (superseded by RFRA as recognized in Grace United Methodist, 451 F.3d at 662–
63); see also Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003)
(“RLUIPA’s broader definition of religious exercise, which need not be ‘compelled by or central to’ a
particular religion,” must be substituted for circuit’s earlier, stricter test); Adkins, 393 F.3d at 567 n.34
(noting pre-amendment decisions and amendment); id. at 570 (rejecting centrality test, relying on
RFRA amendment); Ford v. McGinnis, 352 F.3d 582, 593 (2d Cir. 2003) (“declin[ing] to adopt a
definition of substantial burden that would require claimants to show that they either have been
prevented from doing something their religion says they must, or compelled to do something their
religion forbids”); Peterson v. Minidoka County Sch. Dist. No. 131, 118 F.3d 1351, 1357 (9th Cir.
1997) (“Francis of Assisi was exercising his religion when he gave his costly clothes to the poor; if a
government had tried to prevent the gesture it would have violated his free exercise although he acted
from no binding precept.”).
While some post-amendment decisions still use language suggesting that religious beliefs must be
central to be covered by RFRA (or RLUIPA), those opinions typically do not address the effect of the
amendment, but rather uncritically quote decisions that predate the amendment. See, e.g., Murphy v.
Mo. Dep’t of Corr., 372 F.3d 979, 988 (8th Cir. 2004) (“To constitute a substantial burden [under
RLUIPA], the government policy or actions: must ‘significantly inhibit or constrain conduct or
expression that manifests some central tenet of a [person’s] individual [religious] beliefs; . . . or must
deny a [person] reasonable opportunities to engage in those activities that are fundamental to a
[person’s] religion.’”) (quoting Weir v. Nix, 114 F.3d 817, 820 (8th Cir. 1997)). Indeed, in Murphy, the
court of appeals did not have to consider whether centrality of belief was necessary, because it
accepted, for purposes of summary judgment, the sincerity of the plaintiff inmate’s profession that
worship with other church members, who could be Caucasian only, was central to his faith. Id. at 981,
988. The court of appeals remanded for trial on whether the inmate’s beliefs were sincere, on whether
the inability to worship communally was a substantial burden on the inmate’s faith, and on whether the
government had a compelling interest in prison security that justified its refusal to permit the inmate to
worship with others of the same faith. Id. at 988–89.
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Brennan, in his opinion concurring in the judgment in Corporation of Presiding
Bishop v. Amos, 483 U.S. 327, 340-46 (1987), observed that religious groups
“often regard the provision of [community] services as a means of fulfilling
religious duty and of providing an example of the way of life [they] seek[] to
foster.” Id. at 344. Justice Brennan opined that persons engaging in nonprofit
activities with those purposes were engaged in the “exercise of religion.” Id. at
343–45. As courts have recognized, charitable work of this sort is an aspect of
religious practice in many major world religions. See, e.g., W. Presbyterian
Church v. Bd. of Zoning Adjustment, 862 F. Supp. 538, 544 (D.D.C. 1994) (“[T]he
concept of acts of charity as an essential part of religious worship is a central tenet
of all major religions.”); cf. Jesus Ctr. v. Farmington Hills Zoning Bd. of Appeals,
544 N.W.2d 698, 704 (Mich. App. 1996) (“[P]roviding shelter or sanctuary to the
needy[] has been part of the Christian religious tradition since the days of the
Roman Empire.”).
World Vision’s stated purpose for undertaking these two programs is to “love
and serve those in need as a demonstration of [its] faith, and the example of
Christ.” Sept. 8 Letter at 2–3. That purpose is consistent with the organization’s
general mission statement, which provides that World Vision is a “partnership of
Christians whose mission is to follow our Lord and Saviour Jesus Christ in
working with the poor and oppressed to promote human transformation, seek
justice and bear witness to the good news of the Kingdom of God.” World Vision
International, Mission Statement (available at http://www.wvi.org/wvi/about_us/
who_we_are.htm, last visited June 22, 2007). * World Vision thus undertakes its
charitable work, including the Vision Youth and Community Mobilization
Initiative programs, as an expression of its religious beliefs. Even under RFRA’s
prior definition, the few courts that directly addressed whether such charitable
activities were an exercise of religion concluded that they were. See, e.g., Stuart
Circle Parish v. Bd. of Zoning Appeals, 946 F. Supp. 1225, 1237 (E.D. Va. 1996)
(granting preliminary injunction on RFRA and Free Exercise claim because
“plaintiffs have given strong evidence that the Meal Ministry [charitable feeding
program] is motivated by their religious belief and that their participation in the
Meal Ministry constitutes the free exercise of religion”); W. Presbyterian, 862 F.
Supp. at 546 (“Unquestionably, the Church’s feeding program in every respect is
religious activity and a form of worship.”); Jesus Ctr., 544 N.W.2d at 703–04
(holding that organization’s provision of shelter to homeless, which “flows from
its religious beliefs,” is an “exercise of religion” under RFRA). 6 Under the
*
Editor’s Note: The mission statement now can be found at http://www.wvi.org/our-mission-
statement (last visited Sept. 18, 2014).
6
During the debates that preceded the amendment to RFRA’s definition of religious exercise, a
number of members of Congress cited Western Presbyterian and similar cases and said that those cases
represented the kind of activities the members wished to protect through legislation. See, e.g., 145
Cong. Rec. 16,224 (1999) (statement of Rep. Canady) (“While RFRA was on the books, successful
claimants included a Washington, D.C. church whose practice of feeding a hot breakfast to homeless
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
circumstances, we conclude that the two programs operated by World Vision
constitute an “exercise of religion.”
Our conclusion that the work conducted under these two programs constitutes
the exercise of religion is not affected by the fact that World Vision does not seek
to proselytize those whom it serves, or the fact that secular organizations perform
similar work. A contrary rule, requiring the “exercise of religion” to include a
uniquely religious element (e.g., consumption of sacrament, liturgical expression,
evangelization of non-believers) would effectively limit the term to practices
deemed central to religious belief or observance. As noted above, Congress
explicitly rejected a centrality requirement when it amended RFRA in 2000.
B.
We next address whether requiring World Vision to comply with the Safe
Streets Act’s religious nondiscrimination provision as a condition of receiving the
OJP grant would “substantially burden” the exercise of religion by World Vision.
We conclude that RFRA is reasonably construed to provide that placing such a
condition on receipt of a grant would substantially burden World Vision’s
religious exercise.
1.
RFRA does not define the term “substantial[] burden.” Because “RFRA ex-
pressly adopted the compelling interest test ‘as set forth in Sherbert v. Verner, 374
U.S. 398 (1963)[,] and Wisconsin v. Yoder, 406 U.S. 205 (1972),’” O Centro, 546
U.S. at 420 (quoting 42 U.S.C. § 2000bb(b)(1)), however, it is widely accepted
that the Court’s pre-Smith decisions provide guidance in determining the meaning
of that term. See, e.g., Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 171 (4th
Cir. 1995). Those decisions indicate that directly prohibiting a religious organiza-
tion from hiring only persons of the same faith could impose a “substantial
burden” on the exercise of religion by the organization.
The Supreme Court’s opinion in Corporation of Presiding Bishop v. Amos is
instructive. The Court there rejected an Establishment Clause challenge to a
provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1(a),
which exempted religious organizations from the Title VII prohibition on religious
discrimination and permitted religious organizations to consider religion in hiring
for all of their activities. A former employee at a gymnasium operated by the
Church of Jesus Christ of Latter-Day Saints had been terminated after he failed to
men and women reportedly violated zoning laws”; “[t]he same sorts of cases would be affected by this
legislation.”); id. at 16,226 (statement of Rep. Hutchinson) (“It is necessary to make sure that a small
church is able to continue its ministry to the homeless.”); id. at 16,241 (statement of Rep. Bachus)
(“[W]e will not prohibit a church here in Washington, D.C., to feed the homeless”).
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Opinions of the Office of Legal Counsel in Volume 31
provide a certificate indicating that he was a member of the Church. The Church
cited the Title VII exemption in responding to his suit for religious discrimination;
the employee argued that exempting the religious organization violated the
Establishment Clause. The Court explained that the exemption served a valid
secular purpose because it “alleviate[d] significant governmental interference with
the ability of religious organizations to define and carry out their religious
missions.” Amos, 483 U.S. at 335.
The Court did not take issue with the trial court’s determination that running
the gymnasium was a “nonreligious activity,” id. at 332, but nevertheless upheld
the Title VII exemption even as applied to the nonreligious activities of a religious
organization. Id. at 335–36. The Court reasoned that the line between secular and
religious activities “is hardly a bright one” and that it would significantly burden a
religious group “to require it, on pain of substantial liability, to predict which of its
activities a secular court will consider religious.” Id. at 336. “Fear of potential
liability might affect the way an organization carried out what it understood to be
its religious mission.” Id. The Court thus deemed it permissible for Congress to
exempt the activities of religious organizations from the religious nondiscrimina-
tion requirements of Title VII. 7
This Office previously has concluded that the Court’s opinion in Amos, togeth-
er with Justice Brennan’s concurring opinion in the case, indicates that prohibiting
religious organizations from hiring only coreligionists can “impose a significant
burden on their exercise of religion, even as applied to employees in programs that
must, by law, refrain from specifically religious activities.” Direct Aid to Faith-
Based Organizations Under the Charitable Choice Provisions of the Community
Solutions Act of 2001, 25 Op. O.L.C. 129, 132 (2001). We explained further:
Many religious organizations and associations engage in extensive
social welfare and charitable activities, such as operating soup kitch-
ens and day care centers or providing aid to the poor and the home-
less. Even where the content of such activities is secular—in the
sense that it does not include religious teaching, proselytizing, prayer
or ritual—the religious organization’s performance of such functions
is likely to be “infused with a religious purpose.” Amos, 483 U.S. at
7
While we do not resolve the issue, an argument could be made that not permitting a religious
organization to discriminate on the basis of religion in hiring, while permitting non-religious
organizations to discriminate on the basis of their particular ideologies in hiring, would violate the Free
Exercise Clause and the Free Speech Clause. See Church of the Lukumi Babalu Aye, Inc. v. City of
Hialeah, 508 U.S. 520, 542 (1993) (city ordinances forbidding “ritual” killing of animals violated Free
Exercise Clause, because they “were gerrymandered with care to proscribe religious killings of animals
but to exclude almost all secular killings”); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S.
819, 830–37 (1995) (university’s policy of reimbursing publication expenses incurred by student
organizations, unless organizations engaged in religious activity, constituted viewpoint discrimination
in violation of Free Speech Clause).
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
342 (Brennan, J., concurring). And churches and other religious enti-
ties “often regard the provision of such services as a means of ful-
filling religious duty and of providing an example of the way of life
a church seeks to foster.” Id. at 344 (footnote omitted). In other
words, the provision of “secular” social services and charitable
works that do not involve “explicitly religious content” and are not
“designed to inculcate the views of a particular religious faith,”
Bowen v. Kendrick, 487 U.S. 589, 621 (1988), nevertheless may well
be “religiously inspired,” id., and play an important part in the “fur-
therance of an organization’s religious mission.” Amos, 483 U.S. at
342 (Brennan, J., concurring).
Id. at 132–33. We thus concluded that “the selection of coreligionists in particular
social-service programs will ordinarily advance a religious organization’s religious
mission, facilitate the religiously motivated calling and conduct of the individuals
who are the constituents of that organization, and fortify the organization’s
religious tradition.” Id. at 133. “Where an organization makes such a showing, the
title VII prohibition on religious discrimination would impose ‘significant
governmental interference’ with the ability of that organization ‘to define and
carry out [its] religious mission[],’ Amos, 483 U.S. at 335, even as applied to
employees who are engaged in work that is secular in content.” Id. 8
Another agency of the Executive Branch, the Department of Health and Human
Services (“HHS”), also has concluded that imposing a religious nondiscrimination
requirement on religious organizations under some circumstances can “substantial-
ly burden” the exercise of religion within the meaning of RFRA. The Substance
Abuse and Mental Health Services Administration (“SAMHSA”), in promulgating
regulations governing the disbursement of federal grants to private entities for
treatment of substance abuse, has stated:
[W]here a religious entity establishes that its exercise of religion
would be substantially burdened by the [applicable] religious non-
discrimination provisions . . . , RFRA super[s]edes those statutory
requirements, thus exempting the religious entity therefrom, unless
8
See also Memorandum for William P. Marshall, Deputy Counsel to the President, from Randolph
D. Moss, Assistant Attorney General, Office of Legal Counsel, Re: Application of the Coreligionists
Exemption in Title VII of the Civil Rights Act of 1964 at 29–30 (Oct. 12, 2000) (“Coreligionists
Exemption”) (exempting a religious organization from a nondiscrimination provision “might be a
permissible religious accommodation” where the organization’s “preference for coreligionist
employees in particular social-service programs . . . advance[s] [the] organization’s religious mission”).
Cf. NLRB v. Catholic Bishop of Chi., 440 U.S. 490, 502 (1979) (construing NLRB jurisdiction not to
extend to teachers in church-operated schools, in part because inquiry into and resolution of unfair
labor practice charges “may impinge on rights guaranteed by the Religion Clauses”); EEOC v. Catholic
Univ. of Am., 83 F.3d 455, 467–70 (D.C. Cir. 1996) (applying nondiscrimination provision in Title VII
to a religious university’s canon law faculty is a “substantial burden” under RFRA).
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Opinions of the Office of Legal Counsel in Volume 31
the Department has a compelling interest in enforcing them. . . .
Many . . . religious organizations . . . consider religious faith critical
to all of their employees’ activities, including those that involve
providing government-funded social services to the public. For these
groups, imposition of a religious nondiscrimination requirement can
impose a particularly harsh burden. . . . For groups that deem reli-
gious faith an important part of their self-definition, having to make
employment decisions without regard to their faith would substan-
tially alter the charter of their organization.
Charitable Choice Regulations Applicable to States Receiving Substance Abuse
Prevention and Treatment Block Grants, 68 Fed. Reg. 56,430, 56,435 (Sept. 30,
2003). SAMHSA therefore will exempt a charitable group from religious nondis-
crimination requirements if (as relevant here) the group certifies “that it sincerely
believes that employing individuals of a particular religion is important to the
definition and maintenance of their religious identity, autonomy, and/or communal
religious exercise”; “that it makes employment decisions on a religious basis in
analogous programs” not supported by the grant; and “that providing the services
in question is expressive of its values or mission.” 42 C.F.R. § 54.6(b) (2005).
Before the SAMSHA regulations were issued, this Office concluded that it was
“reasonable to read RFRA to permit the Secretary of HHS to exempt certain
religious organizations from prohibitions on religious discrimination in employ-
ment, even in the context of a federally funded program.” SAMHSA Memoran-
dum at 11. 9
2.
Here, of course, if the Safe Streets Act’s religious nondiscrimination require-
ment were enforced with respect to the World Vision grants, the government
would not be directly restricting World Vision’s hiring. Rather, it would be
conditioning the receipt of a nearly $1.5 million grant on World Vision’s willing-
ness to hire people who do not share the organization’s religious convictions. The
fact that a law “does not compel a violation of conscience,” however, “is only the
9
The legislative history of RLUIPA suggests that Congress wished to protect religious preferences
in hiring. During the debates preceding enactment of RLUIPA, a number of members of Congress
spoke of the importance of protecting the ability of religious groups to take religion into account in
hiring. See, e.g., 145 Cong. Rec. 16,224 (1999) (statement of Rep. Canady) (“While RFRA was on the
books, successful claimants included . . . a religious school resisting a requirement that it hire a teacher
of a different religion”; “the same sorts of cases would be affected by this legislation.”); id. at 16,218–
19 (statement of Rep. Blunt) (“This is clearly an area that needs protection. It is an area where local
governments constantly in recent years have fought in the face of what we consider to be First
Amendment rights. . . . In Philadelphia, Pennsylvania, Christian day care centers were threatened with
closure if they did not change their hiring practices which barred them from hiring non-Christians . . . .
[T]hese infringements on religious liberty are significant.”).
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
beginning, not the end, of our inquiry.” Thomas v. Review Bd., 450 U.S. 707, 717
(1981) (quoting Sherbert, 374 U.S. at 403–04) (emphasis in original). The
Supreme Court “has repeatedly held that indirect coercion or penalties on the free
exercise of religion, not just outright prohibition, are subject to scrutiny under the
First Amendment.” Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,
450 (1988). Indeed, the Court made clear, in the line of cases that RFRA explicitly
adopted, that “[i]t is too late in the day to doubt that the liberties of religion and
expression may be infringed by the denial of or placing of conditions on a benefit
or privilege.” Sherbert, 374 U.S. at 404. Where a condition placed on the availa-
bility of benefits “forces [a person] to choose between following the precepts of
her religion and forfeiting benefits, on the one hand, and abandoning one of the
precepts of her religion in order to [qualify for benefits], on the other hand,” the
government has “put[] the same kind of burden upon the free exercise of religion
as would a fine imposed against appellant for her [exercise of religion].” Id. Thus,
in Sherbert, the Supreme Court held that a state government violated the Free
Exercise Clause by conditioning unemployment compensation benefits on an
applicant’s willingness to be available for work on Saturday, in violation of the
applicant’s religious beliefs about observing the Sabbath. Id. at 403–10; see also
Frazee v. Ill. Dep’t of Empl. Sec., 489 U.S. 829, 832–35 (1989) (same); Hobbie v.
Unemployment Appeals Comm’n, 480 U.S. 136, 141 (1987) (same). And in
Thomas, the Court held that a state government violated the Free Exercise Clause
by denying unemployment benefits to a Jehovah’s Witness who had quit his job at
a foundry that made tank turrets, because his religious beliefs prevented him from
participating in the production of weapons. 450 U.S. at 709–12, 717–19.
Although Sherbert and its progeny involved conditions placed on individuals’
exercise of religion, we do not understand that line of cases to apply only to
individuals. The Supreme Court has entertained numerous Free Exercise Clause
challenges brought by institutions stemming from the denial of benefits or tax
exemptions. It has never suggested that institutions may not maintain such a claim.
See, e.g., Jimmy Swaggart Ministries v. Bd. of Equalization, 493 U.S. 378, 384–92
(1990) (considering but rejecting religious corporation’s free exercise claim);
Lyng, 485 U.S. at 447–53 (considering but rejecting tribal association’s free
exercise claim); Bob Jones Univ., 461 U.S. at 602–04 (considering but rejecting
university’s free exercise claim). To the contrary, it has suggested that the denial
of tax benefits to religious organizations can constitute a substantial burden. Bob
Jones Univ., 461 U.S. at 603–04 (acknowledging that “[d]enial of tax benefits will
inevitably have a substantial impact on the operation of private religious schools,”
but upholding denial of tax advantage because of “compelling” government
interest in “eradicating racial discrimination in education”).
Even if Sherbert and its progeny are properly read to apply only to individuals,
Congress seems to have intended that the Sherbert standard would apply to
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Opinions of the Office of Legal Counsel in Volume 31
institutions as well as to individuals under RFRA. 10 Thus, this Office previously
has advised that “the loss of [discretionary] grants may constitute a substantial
burden on religion, provided that the grant would materially affect the grantee’s
ability to provide the type of services in question and providing those services is
part of the grantee’s mission.” SAMHSA Memorandum at 7. And the 2003 HHS
regulations promulgated to govern the SAMHSA program provide that “religious
organizations” are eligible under RFRA for relief from religious nondiscrimination
requirements in employment statutes. 68 Fed. Reg. at 56,435; 42 C.F.R. § 54.6(b).
Thomas is perhaps the leading Supreme Court exposition of the standard for
determining when a condition on public benefits constitutes a substantial burden
on the exercise of religion. It states:
Where the state conditions receipt of an important benefit upon con-
duct mandated by religious belief, or where it denies such a benefit
because of conduct mandated by religious belief, thereby putting
substantial pressure on an adherent to modify his behavior and to
violate his beliefs, a burden upon religion exists. While the compul-
sion may be indirect, the infringement upon free exercise is nonethe-
less substantial.
450 U.S. at 717–18 (emphases added). 11 Thus, Thomas provides that the condition-
ing of a benefit can constitute a substantial burden only if the benefit is an
“important” one; its availability is conditioned upon performance of conduct
“proscribed by a religious faith,” or refraining from “conduct mandated by
religious belief”; and the result is to put “substantial pressure on an adherent to
modify his behavior and violate his beliefs.” Id. We discuss each of these issues in
turn.
10
RFRA provides that the “Government shall not substantially burden a person’s exercise of
religion . . . .” 42 U.S.C. § 2000bb-1(a) (emphasis added). Although RFRA does not define the term
“person,” Congress has made clear that the term ordinarily includes nonprofit corporations such as
World Vision. See 1 U.S.C. § 1 (2000) (“In determining the meaning of any Act of Congress, unless the
context indicates otherwise . . . the word[] ‘person’ . . . include[s] corporations, companies, associa-
tions, firms, partnerships, societies, and joint stock companies, as well as individuals.”); Wilson v.
Omaha Indian Tribe, 442 U.S. 653, 666 (1979) (the word “person” in 1 U.S.C. § 1 is “normally
construed” to include associations and artificial persons). Consistent with that understanding, numerous
courts have applied RFRA to claims brought by corporations, see, e.g., Daytona Rescue Mission, Inc. v.
City of Daytona Beach, 885 F. Supp. 1554 (M.D. Fla. 1995); churches and religious groups, see, e.g., O
Centro, 546 U.S. 418; W. Presbyterian, 862 F. Supp. 538; and universities, see, e.g., Catholic Univ., 83
F.3d 455.
11
See also Hobbie, 480 U.S. at 141; United States v. Lee, 455 U.S. 252, 257 (1982) (concluding
that obligation to pay social security taxes substantially burdened exercise of religion by Amish);
Yoder, 406 U.S. at 218 (concluding that misdemeanor statute compelling school attendance substantial-
ly burdened exercise of religion by Amish); cf. Lyng, 485 U.S. at 450 (suggesting that “indirect
coercion or penalties” with “tendency to coerce individuals into acting contrary to their religious
beliefs” may constitute substantial burden on exercise of religion). See generally Religious Objections
to the Postal Service Oath of Office, 29 Op. O.L.C. 37, 50–51 (2005) (discussing Thomas standard).
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a.
The precise scope of the term “important benefit” is not clear. Thomas suggests
that the benefit should be important enough to put “substantial pressure” on the
recipient to change its behavior so as not to lose the benefit. From that suggestion
we deduce that “importance” should be assessed not in the abstract but rather
functionally, by considering the substantiality of the pressure that placing condi-
tions on receipt of a benefit would exert on a particular party “to modify his
behavior and to violate his beliefs.” Thomas, 450 U.S. at 718; see also Guam v.
Guerrero, 290 F.3d 1210, 1222 (9th Cir. 2004) (RFRA) (applying Thomas test);
Jolly v. Coughlin, 76 F.3d 468, 477 (2d Cir. 1996) (same); cf. Lyng, 485 U.S. at
451 (explaining that to trigger strict scrutiny under pre-Smith interpretation of Free
Exercise Clause, governmental burden must have “tendency to coerce individuals
into acting contrary to their religious beliefs”).
The term “substantial”—which is the same modifier used in the statutory “sub-
stantial burden” test itself—indicates that the pressure must be “material” or
“considerable in amount, value, or worth.” Webster’s Third New International
Dictionary 2280 (2002). At the same time, the pressure need not be overwhelming.
Id. (“being that specified to a large degree or in the main”); 17 Oxford English
Dictionary 67 (2d ed. 1989) (“Of ample or considerable amount, quantity, or
dimensions. More recently also in a somewhat weakened sense, esp. ‘fairly
large.’”). Consistent with that meaning, the courts have interpreted the standard to
require more than de minimis pressure—usually “significant pressure” to modify
religious behavior, and “more than an inconvenience on religious exercise.”
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004)
(RLUIPA); Adkins, 393 F.3d at 570 (RLUIPA) (“a government action or regula-
tion creates a ‘substantial burden’ on a religious exercise if it truly pressures the
adherent to significantly modify his religious behavior and significantly violate his
religious beliefs”; “the effect of a government action or regulation is significant
when it either (1) influences the adherent to act in a way that violates his religious
beliefs, or (2) forces the adherent to choose between, on the one hand, enjoying
some generally available, non-trivial benefit, and, on the other hand, following his
religious beliefs”); San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024,
1034 (9th Cir. 2004) (RLUIPA) (“[A] ‘substantial burden’ on ‘religious exercise’
must impose a significantly great restriction or onus upon such exercise.”);
Guerrero, 290 F.3d at 1222 (RFRA) (“A substantial burden must be more than an
‘inconvenience.’”) (quoting Worldwide Church of God v. Phila. Church of God,
Inc., 227 F.3d 1110, 1121 (9th Cir. 2000); cf. Toyota Motor Mfg., Ky., Inc. v.
Williams, 534 U.S. 184, 197 (2002) (“The word ‘substantial’ [in the Americans
with Disabilities Act] thus clearly precludes impairments that interfere in only a
minor way . . . .”); Levitan v. Ashcroft, 281 F.3d 1313, 1320–21 (D.C. Cir. 2002)
(“substantial burden” test involves “substantial, as opposed to inconsequential
burden[s] on the litigant’s religious practice”); see also H.R. Rep. No. 106-219, at
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Opinions of the Office of Legal Counsel in Volume 31
13 (1999) (Congress “intended to ensure that strict scrutiny is not triggered by
trivial, technical, or de minim[i]s burdens on religious exercise”). 12
We are not aware of any judicial decisions applying RFRA to discretionary
grants of the sort at issue here, but the standard enunciated in Thomas appears to
be sufficiently broad to bear an interpretation that would include such grants. The
benefit at issue undoubtedly is important to World Vision. For the relevant fiscal
year, the nearly $1.5 million grant represents approximately 10% of the entire
budget for World Vision’s domestic community-based programs, and approxi-
mately 75% of the public funding the organization received domestically. Sept. 23
Letter at 2. World Vision has stated that if it does not receive the grant, its work on
the Vision Youth project will be “drastically reduced.” Sept. 8 Letter at 3. Losing
the grant “would have an indirect [e]ffect on training at all Vision Youth sites,”
and would mean that the “national and site Educational consultants . . . and the
pilot project for the sites would no longer be funded.” Id. “Program quality and
training nationally would be in jeopardy.” Id. Moreover, the second component of
the grant, the new anti-gang initiative, “would be next to impossible to undertake,
given the need to hire all new staff for this brand new program.” Id.
The denial of a grant to an institution such as World Vision may not be as
important as the denial of unemployment compensation to an individual as in
Sherbert or Thomas. Unemployment compensation may well have been critical for
the claimants in Sherbert and Thomas to maintain their household income. But the
Supreme Court’s pre-Smith case law acknowledged that losing benefits not critical
to subsistence (such as the tax exemption at issue in Bob Jones) can also impose a
substantial burden. In Sherbert, the Supreme Court acknowledged that “of the
approximately 150 or more Seventh-day Adventists in the Spartanburg area, only
appellant and one other have been unable to find suitable non-Saturday employ-
ment.” 374 U.S. at 399 n.2. Despite the possibility that she would eventually find
suitable work, the Court found the denial of unemployment compensation
important enough to the appellant to constitute a substantial burden. Cf. United
States v. Lee, 455 U.S. 252, 257 (1982) (payment of social security taxes, which
could later be recouped as benefits, was nevertheless substantial burden on
exercise of religion by Amish, given their belief “in a religiously based obligation
to provide for their fellow members the kind of assistance contemplated by the
social security system”). Indeed, the pre-Smith cases suggest that a substantial
burden may arise when a person is denied the opportunity to partake of a public
benefit on the same terms as others because of his religious activity. See Lyng, 485
U.S. at 449 (suggesting that “governmental action penaliz[ing] religious activity
by denying any person an equal share of the rights, benefits, and privileges
enjoyed by other citizens” would constitute substantial burden); see also Adkins,
12
Because the operative provisions of the two statutes are identical, courts applying RLUIPA and
RFRA regularly look to decisions involving the other statute for guidance. See, e.g., Cutter v.
Wilkinson, 544 U.S. 709, 723 n.11 (2005); Grace United Methodist, 451 F.3d at 661.
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
393 F.3d at 570 (RLUIPA) (“[T]he effect of a government action or regulation is
significant when it . . . forces the adherent to choose between, on the one hand,
enjoying some generally available, non-trivial benefit, and, on the other hand,
following his religious beliefs.”). As noted, this Office previously has advised that
“the loss of [discretionary] grants may constitute a substantial burden on religion,
provided that the grant would materially affect the grantee’s ability to provide the
type of services in question and providing those services is part of the grantee’s
mission.” SAMHSA Memorandum at 7. And the regulations that HHS promulgat-
ed in 2003 governing the SAMHSA program embody the understanding that the
loss of such discretionary grants may constitute a substantial burden on religion.
68 Fed. Reg. at 56,435; 42 C.F.R. § 54.6(b) (“To the extent that 42 U.S.C. 300x-
57(a)(2) or 42 U.S.C. 290cc-33(a)(2) precludes a program participant from
employing individuals of a particular religion to perform work connected with the
carrying on of its activities, those provisions do not apply if such program
participant is a religious corporation, association, educational institution, or
society and can demonstrate that its religious exercise would be substantially
burdened by application of these religious nondiscrimination requirements to its
employment practices in the program or activity at issue.”). That understanding is
consistent with the legislative history of RFRA, which indicates that some
members of Congress understood that the statute would apply to the denial of
funding as well as conditions on other sorts of benefits. 13
b.
There is language in Thomas suggesting that a condition substantially burdens
the exercise of religion only if it requires conduct “proscribed by a religious faith”
or abstention from conduct “mandated by religious belief.” 450 U.S. at 717-18.
Both under Sherbert and under RFRA before the 2000 amendment, courts
considered whether a practice was absolutely mandated or prohibited by the
claimant’s religious faith as a factor in favor of a determination that a condition
imposed a substantial burden, see, e.g., Thomas, 450 U.S. at 711 (Jehovah’s
Witness’s beliefs forbade participation in production of armaments); Hobbie, 480
U.S. at 138 (Seventh Day Adventists’ beliefs forbade work from sundown on
Friday to sundown on Saturday), and courts also seem to have given weight to
whether the practice was strongly encouraged or discouraged by the claimant’s
religious faith, see, e.g., In re Young, 82 F.3d 1407 (8th Cir. 1996) (because
debtor’s beliefs encouraged tithing, bankruptcy trustee could not treat resulting
13
The Senate Report, for example, states that “the denial of such funding, benefits or exemptions
may constitute a violation of the act, as was the case under the free exercise clause in Sherbert v.
Verner.” S. Rep. No. 103-111, at 15 (1993), reprinted in 1993 U.S.C.C.A.N. 1892, 1905.
179
Opinions of the Office of Legal Counsel in Volume 31
tithes as voidable transfers under RFRA) 14; In re Hodge, 220 B.R. 386 (D. Idaho
1998) (same).
We have already observed, however, that Congress amended RFRA in 2000 to
make clear that it protected “any exercise of religion, whether or not compelled by,
or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A) (emphasis
added). It would be anomalous for Congress to declare that the “exercise of
religion” includes practices neither central to nor mandated by religious faith, but
then to impose a rule that a burden on such practices could never be “substantial”
under RFRA. We therefore conclude that it is not necessary to show that a person
was required to violate a fundamental tenet of his religion to make a “substantial
burden” claim under RFRA. Perhaps because of the requirement that a burden be
“substantial,” however, many courts apparently continue to require a showing that
the practice burdened at least be “important” to the party’s exercise of religion.
See, e.g., Adkins, 393 F.3d at 570 (“[T]he Supreme Court’s express disapproval of
any test that would require a court to divine the centrality of a religious belief does
not relieve a complaining adherent of the burden of demonstrating the honesty and
accuracy of his contention that the religious practice at issue is important to the
free exercise of his religion.”) (footnote omitted); Henderson v. Kennedy, 265 F.3d
1072, 1074 (D.C. Cir. 2001) (“Although the amendments extended the protections
of RFRA to ‘any exercise of religion, whether or not compelled by, or central to, a
system of religious belief,’ the amendments did not alter the propriety of inquiring
into the importance of a religious practice when assessing whether a substantial
burden exists.”) (citation omitted).
In this case, World Vision has not claimed that its members are compelled by
religious conscience to associate only with people who share their faith, in the sense
that they would consider hiring non-Christians to be a sin. But World Vision
professes a consistent history of hiring coreligionists, which lends credence to its
stated belief, see supra note 2, that the organization “can only remain true to [its]
vision if [it] ha[s] the freedom to select like-minded staff, which includes staffing on
a religious basis.” Sept. 23 Letter at 1; see also Sept. 8 Letter at 2–3 (stating that
hiring staff members who profess similar Christian beliefs is essential for World
Vision to remain true to its religious “mission” and “identity”); World Vision
International, Mission Statement, available at http://www.wvi.org/wvi/about_us/
who_we_are.htm (last visited June 22, 2007) (describing organization as a “partner-
14
The panel decision in Young was vacated by the Supreme Court, Christians v. Crystal Evangeli-
cal Free Church, 521 U.S. 1114 (1997), for reconsideration in light of City of Boerne v. Flores, 521
U.S. 507 (1997), which held that the application of RFRA to state and local laws exceeded Congress’s
enforcement power under the Fourteenth Amendment. On remand, the Eighth Circuit concluded that
RFRA remained applicable to the federal bankruptcy code and reinstated the original panel decision
that the bankruptcy trustee could not treat the debtors’ tithe as a voidable transfer because of RFRA. In
re Young, 141 F.3d 854 (8th Cir. 1998).
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
ship of Christians”). * Hiring persons who do not share the organization’s religious
beliefs would, according to World Vision’s view of the program, dilute the organiza-
tion’s conception of undertaking these programs to “love and serve those in need as
a demonstration of [its] faith, and the example of Christ.” Sept. 8 Letter at 2–3. In
addition, it is apparent that performing service work is an important aspect of World
Vision’s exercise of religion, see supra note 6 and accompanying text, heeding the
Christian “call to share resources with each other” and the “call to servanthood,”
World Vision International, Core Values (available at http://www.wvi.org/wvi/
about_us/who_we_are.htm, last visited June 22, 2007) **; cf. Grant Application, att. 2,
Program Narrative at 10 (stating that World Vision is “dedicated to helping children
and their communities worldwide reach their full potential”). Thus, to comply with
the condition would require World Vision to retreat from an important religious
precept by abandoning the explicitly religious manner in which the organization has
chosen to define itself.
c.
In light of these principles, we think that it would be reasonable for OJP to
conclude that requiring World Vision to comply with the Safe Streets Act’s
nondiscrimination provision as a condition of accepting the approximately $1.5
million grant would “put[] substantial pressure on . . . [World Vision] to modify
[its] behavior and to violate [its] beliefs,’” by compromising its religious identity.
Thomas, 450 U.S. at 718. (Indeed, that reading seems at least as reasonable as
construing RFRA not to require an accommodation under these circumstances.)
Application of the provision would practically require World Vision either to
forgo substantial federal funding altogether or to compromise its religious identity
by abandoning its long-held view that its religious “mission” and “identity”
require it to staff the organization with coreligionists. Sept. 8 Letter at 2–3. Of
course, the nondiscrimination provision prohibits World Vision from making
hiring decisions based on religion only “in connection with any programs or
activity funded in whole or in part with [the grant].” 42 U.S.C. § 3789d(c)(1). But
World Vision’s current managers, who were (and presumably will continue to be)
hired under its current employment policy, will supervise the Vision Youth and
anti-gang programs, and a portion of their salaries would thus be traceable to
federal funds. See Grant Application, att. 1, Consolidated Budget Worksheet at 1
(stating that existing managers would spend between 8.1% and 80% of their
annual work hours on these projects). World Vision represents that the programs
that are the subject of the grants are “very staff intensive and require[] the
*
Editor’s Note: The mission statement now can be found at http://www.wvi.org/our-mission-
statement (last visited Sept. 18, 2014).
**
Editor’s Note: The statement of core values now can be found at http://www.wvi.org/our-core-
values (last visited Sept. 18, 2014).
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programmatic expertise, training and oversight” of existing World Vision employ-
ees, Sept. 23 Letter at 2, and that “[i]t is not possible for us to effectively conduct
these activities without such essential human resources.” Id.
As described in Part II.B.2.a, the benefit provided by the JJDPA grant is very
important to the organization. Without it, the Vision Youth program or would have
to be “drastically reduced,” and it would be “next to impossible” to undertake the
new anti-gang initiative. Because the grant is clearly critical to the organization’s
ongoing operations, we conclude, consistent with HHS’s SAMHSA regulations
and this Office’s previous views on those regulations, that it is reasonable to
conclude that conditioning the grant on the discontinuation of religion-based
hiring would place significant pressure on the organization to abandon its religious
character. We therefore believe it is reasonable to conclude that conditioning the
World Vision grant on compliance with the Safe Streets Act’s religious nondis-
crimination provision would constitute a substantial burden on religious exercise
under Thomas. See 42 C.F.R. § 54.6(b) (requiring charitable group that seeks
exemption under SAMHSA regulations from religious hiring restrictions to
certify, among other things, “that the grant would materially affect its ability to
provide the type of services in question”); SAMHSA Memorandum at 7 (“[I]f a
religious organization is otherwise best qualified to receive a $100,000 grant, and
its faith-based hiring practice is the sole reason that it may not receive the grant,
the pressure to revise that hiring practice[] to receive aid is quite significant.”); cf.
Children’s Healthcare Is a Legal Duty, Inc. v. Min de Parle, 212 F.3d 1084, 1093
(8th Cir. 2000) (concluding that requiring people to choose “between adhering to
their religious beliefs and foregoing all government health care benefits, or
violating their religious convictions and receiving the medical care provided by
Medicare and Medicaid,” created “especially acute” pressure “similar to that
contemplated by the Sherbert line of cases”; providing non-medical benefits for
such adherents as an accommodation thus served a valid secular purpose and did
not violate the Establishment Clause); Jesus Ctr., 544 N.W.2d at 704–05 (holding
that zoning board’s denial of permission to operate shelter in church was substan-
tial burden where, although other locations for operation were available, relocating
shelter would be costly and would detract from mission of church to combine
worship and social services).
Some courts have suggested that placing conditions on the exercise of religion
can constitute a “substantial burden” only with respect to widely available
benefits—perhaps because a benefit’s wide availability suggests the government
has deemed it to be important, or because a widely available benefit is more likely
to induce reliance and thereby increase the pressure that its conditional availability
could place upon a RFRA claimant. Cf. Adkins, 393 F.3d at 570 (RLUIPA)
(stating that conditioning “some generally available, non-trivial benefit” on failing
to “follow[] [one’s] religious beliefs” would constitute a substantial burden). But
see Lyng, 485 U.S. at 449 (suggesting that “governmental action penaliz[ing]
religious activity by denying any person an equal share of the rights, benefits, and
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
privileges enjoyed by other citizens” would constitute substantial burden). We
need not determine the relevance of that consideration, because even if a benefit’s
wide availability is a predicate for finding that conditions on it constitute a
“substantial burden,” the benefit in this case would satisfy that test. While in
absolute terms the JJDPA grant program may not be as “widely available” as the
unemployment compensation in Sherbert and Thomas, it is still broadly available
to the universe of potential grantees. As noted above, in the 2005 Appropriations
Act, Congress appropriated slightly more than $100 million for OJP to disburse for
anti-juvenile delinquency programs under sections 261 and 262 of the JJDPA.
Section 261 of the JJDPA makes this funding broadly available to any public or
private entity, individual or corporate, that wishes to administer an anti-juvenile
delinquency program:
The Administrator may make grants to and contracts with States,
units of general local government, Indian tribal governments, public
and private agencies, organizations, and individuals, or combinations
thereof, to carry out projects for the development, testing, and
demonstration of promising initiatives and programs for the preven-
tion, control, or reduction of juvenile delinquency.
42 U.S.C. § 5665(a) (Supp. III 2003). Section 261 further directs OJP to ensure
that the grant money is distributed widely to all areas of the country. Id. (“The
Administrator shall ensure that, to the extent reasonable and practicable, such
grants are made to achieve an equitable geographical distribution of such projects
throughout the United States.”). It would not be reasonable to characterize the
benefit in this case as too narrow to warrant protection under RFRA.
Moreover, because the conference report specifically identified World Vision
and said that “OJP [wa]s expected to review” the organization’s proposal and
“provide [a] grant[] if warranted,” H.R. Rep. No. 108-792, at 769, it appears that
World Vision was more likely than another potential grantee, not specifically
identified in the conference report, to receive a grant. Under the circumstances, the
benefit that World Vision risks losing is arguably more analogous to a general
entitlement than to a discretionary grant whose availability is limited and specula-
tive. We therefore conclude that, under the circumstances, the benefit is broadly
enough available that placing conditions on its availability could exert “substantial
pressure” on an organization in the position of World Vision. Other more narrowly
available benefits may not exert sufficient pressure on a RFRA claimant to qualify
as a “substantial burden” on the exercise of religion.
C.
If the application of restrictions on religious hiring constitutes a substantial
burden on World Vision’s religious exercise, the next step in the analysis is to
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determine whether the government has a compelling interest in requiring World
Vision not to discriminate on a religious basis in hiring. 42 U.S.C. § 2000bb-1(b);
see generally O Centro, 546 U.S. at 424–32. The burden to show a compelling
interest is on the government, O Centro, 546 U.S. at 428–30, and to meet its
burden the government must do more than cite its general interest in preventing
religious discrimination, id. at 431–33 (general interest in preventing drug abuse
not enough to justify denial of exemption from Controlled Substances Act for
sacramental consumption of hoasca). “RFRA requires the Government to demon-
strate that the compelling interest test is satisfied through application of the
challenged law ‘to the person’—the particular claimant whose sincere exercise of
religion is being substantially burdened.” Id. at 430–31 (citing 42 U.S.C.
§ 2000bb-1(b)). Given that many statutes exempt religious organizations from
prohibitions on religious discrimination in employment, we conclude that applying
the Safe Streets Act’s nondiscrimination provision to World Vision in this instance
would not further a compelling governmental interest. Accordingly, we do not
address whether the nondiscrimination requirement is the “least restrictive means”
of furthering such an interest under 42 U.S.C. § 2000bb-1(b)(2). Compare
Braunfeld v. Brown, 366 U.S. 599, 607–08 (1961) (plurality opinion) (concluding
that Sunday closing law that required merchants to choose between losing sales or
remaining open on Saturday did not violate Free Exercise Clause because State
had compelling interest in mandating single day of rest); id. at 610 (Frankfurter, J.,
concurring in the judgment) (incorporating by reference opinion in McGowan v.
Maryland, 366 U.S. 420, 521 (1961) (“[T]he burden which Sunday statutes impose
is an incident of the only feasible means to achievement of their particular goal.”)).
The recognition that religious discrimination in employment is permissible in
some circumstances suggests that there are contexts in which the government does
not have a compelling interest in enforcing prohibitions on such conduct. See
O Centro, 546 U.S. at 433 (holding that, in light of Controlled Substance Act’s
statutory exception for sacramental use of peyote despite its classification as
dangerous drug, “it is difficult to see” how congressional findings of dangerous-
ness of drug hoasca can support showing of compelling interest and “preclude any
consideration of a similar exception” for that drug); Church of the Lukumi Babalu
Aye, Inc. v. Hialeah, 508 U.S. 520, 547 (1993) (“It is established in our strict
scrutiny jurisprudence that ‘a law cannot be regarded as protecting an interest “of
the highest order” . . . when it leaves appreciable damage to that supposedly vital
interest unprohibited . . . .’”) (quoting Fla. Star v. B.J.F., 491 U.S. 524, 541–42
(1989) (Scalia, J., concurring in part and concurring in the judgment) (ellipsis in
original)); Fla. Star, 491 U.S. at 540 (“[T]he facial underinclusiveness of [the
statute] raises serious doubts about whether Florida is, in fact, serving, with this
statute, the significant interests which appellee invokes in support of affirmance.”).
Congress has created numerous exceptions to prohibitions on religious discrimina-
tion in employment. Religious entities are already exempt from the religious
nondiscrimination requirements of the Civil Rights Act of 1964, 42 U.S.C.
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
§ 2000e-1(a) (2000). That exemption “reflects Congress’s judgment that employ-
ment decisions are an important component of religious organizations’ autonomy,
and that the government has a much stronger interest in applying a religious
nondiscrimination requirement to secular organizations than to religious organiza-
tions[,] many of whose existence depends upon their ability to define themselves
on a religious basis.” 68 Fed. Reg. at 56,435. Indeed, Congress included in the
Science, State, Justice, Commerce, and Related Agencies Appropriations Act,
2006, a provision explicitly affirming that World Vision is exempt from the
nondiscrimination requirements of the Civil Rights Act of 1964, see supra note 3,
suggesting that Congress has concluded that there is no compelling governmental
interest in preventing World Vision—an overtly religious organization—from
considering religion in hiring. 15
Congress’s interest in forbidding religious discrimination in employment is
arguably stronger in the context of federally funded programs, because Congress
may have an interest in ensuring that federal funds do not promote religious
discrimination. But even so, many such programs do not impose a religious
nondiscrimination requirement upon the employment practices of grantees. Title
VI of the Civil Rights Act of 1964 does not prohibit recipients of federal financial
assistance from engaging in discrimination on the basis of religion, 42 U.S.C.
§ 2000d (2000) (“No person in the United States shall, on the ground of race,
color, or national origin, be excluded from participation in, be denied the benefits
of, or be subjected to discrimination under any program or activity receiving
Federal financial assistance.”), although some individual programs contain non-
discrimination requirements. 16 The nondiscrimination provisions that apply to
block grants administered under the Substance Abuse and Mental Health Services
program, 42 U.S.C. § 290cc-33(a)(2) (2000) (“No person shall on the ground
of . . . religion be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under, any program or activity funded in whole or in
15
Indeed, an argument can be made that, because much religious discrimination resembles ideolog-
ical or belief-based discrimination, and much of it involves the wish to associate with others of the
same belief with no implication of disparaging persons of other beliefs, “it is inappropriate to
generalize that all religious discrimination is invidious.” SAMHSA Memorandum at 10 n.8. See
generally Hsu v. Roslyn Union Free Sch. Dist. No. 3, 85 F.3d 839, 870 (2d Cir. 1996) (rejecting
argument that “all forms of discrimination on the basis of religion are invidious in all contexts”); Paul
Taylor, The Costs of Denying Religious Organizations the Right to Staff on a Religious Basis When
They Join Federal Social Service Efforts, 12 Geo. Mason U. Civ. Rts. L.J. 159, 181 (2002) (“Faith is an
idea. Unlike racism or other forms of ‘invidious discrimination,’ faith is not tied to the color of one’s
skin, to genetic makeup, or to one’s ethnic ancestry. It is a unique blend of emotion and intellect that
can be shared by anyone. When a religious group seeks to staff its church outreach program on a
religious basis, it is not engaging in the sort of invidious discrimination that is viewed as immoral and
thus rightly forbidden by law.”).
16
Subsequent amendments to Title VI indicate “that Congress was aware that religious organiza-
tions had been grantees under Title VI and that it did not disapprove of that practice.” Bowen v.
Kendrick, 487 U.S. 589, 604 n.9 (1988).
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Opinions of the Office of Legal Counsel in Volume 31
part with funds made available under section 290cc-21 of this title.”); id. § 300x-
57(a)(2) (“No person shall . . . on the ground of religion[] be excluded from
participation in, be denied the benefits of, or be subjected to discrimination under,
any program or activity funded in whole or in part with funds made available
under section 300x or 300x-21 of this title.”), do not apply to discretionary grants
administered directly by the Secretary—leaving religious organizations that
receive such grants free to consider faith in hiring. SAMHSA Memorandum at 2
n.1. Moreover, many statutes include “charitable choice” provisions, which
provide that religious groups that receive federal funds retain the level of autono-
my over internal governance matters that they possessed before receiving funding.
See, e.g., 42 U.S.C. § 290kk-1(b) (2000) (“The purpose of this section is to allow
religious organizations to be program participants on the same basis as any other
nonprofit private provider without impairing the religious character of such
organizations, and without diminishing the religious freedom of program benefi-
ciaries.”); id. § 290kk-1(d)(1) (“Except as provided in this section, any religious
organization that is a program participant shall retain its independence from
Federal, State, and local government, including such organization’s control over
the definition, development, practice, and expression of its religious beliefs.”); id.
§ 300x-65(a)(2) (“The purposes of this section are . . . to allow the organizations to
accept the funds to provide the services to the individuals without impairing the
religious character of the organizations or the religious freedom of the individu-
als.”); id. § 300x-65(c)(1) (“A religious organization that provides services under
any substance abuse program under this subchapter or subchapter III-A of this
chapter shall retain its independence from Federal, State, and local governments,
including such organization’s control over the definition, development, practice,
and expression of its religious beliefs.”); id. § 604a(f) (“A religious organization’s
exemption provided under section 2000e-1 of this title regarding employment
practices shall not be affected by its participation in, or receipt of funds from,
programs described in subsection (a)(2) of this section.”); id. § 9920(b)(3) (“A
religious organization’s exemption provided under section 2000e-1 of this title
regarding employment practices shall not be affected by its participation in, or
receipt of funds from, programs described in subsection (a).”).
In sum, “Congress’s application of religious nondiscrimination requirements in
the employment context is quite selective, which makes it difficult to regard the
government as having a compelling interest in imposing such a requirement in this
particular context.” 68 Fed. Reg. at 56,435. Moreover, there is nothing about the
grants at issue here that suggests any unusually strong governmental interest in
religious nondiscrimination in employment with respect to those receiving these
grants. Indeed, the opposite is the case: Congress specified by law that an exemp-
tion from one such prohibition, contained in title VII of the Civil Rights Act of
1964, was to be applied to this very grant. Because “‘[c]ontext matters’ in
applying the compelling interest test,” O Centro, 546 U.S. at 431 (quoting Grutter
v. Bollinger, 539 U.S. 306, 327 (2003)), and because “strict scrutiny does take
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
‘relevant differences’ into account—indeed, that is its fundamental purpose,” id. at
432 (quoting Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 228 (1995)
(emphasis in original)), our conclusion is limited to the issuance of this grant to
World Vision. In reaching that conclusion, we emphasize that World Vision would
satisfy the requirements of other relevant statutory exemptions from prohibitions
on religious discrimination, see, e.g., 42 U.S.C. § 300x-65; id. § 2000e-1(a),
reflecting a congressional judgment that religious discrimination in hiring under
such circumstances may be permissible.
In addition, the exemption that World Vision is seeking is not one directed at
allowing it to exclude people from a particular religion from employment. Rather,
it is directed at allowing it to hire only coreligionists. There is nothing to suggest
that its wish for such an exemption is driven by animus towards people of different
religions, rather than by a desire to remain an organization of coreligionists and to
expand an activity that it already engages in with coreligionists and that is
consistent with the kind of charitable activities that religious organizations
traditionally have engaged in with coreligionists in this country. Moreover, World
Vision’s representations that it can remain true to its religious mission only if it is
able to limit employment to coreligionists is borne out by its apparently consistent
hiring practice since its founding, and we are aware of no information to indicate
that its hiring practices reflect invidious discrimination. We need not resolve
whether the government would have a compelling interest in enforcing the Safe
Streets Act’s nondiscrimination provision with respect to a differently situated
grant applicant—perhaps one without such a history to authenticate its claim that
homogeneity of belief is essential to its mission, or whose hiring practices
implicate compelling government interests in eradicating racial or sex discrimina-
tion. In such a case, the government might well have a compelling interest in
requiring strict adherence with the Safe Streets Act’s nondiscrimination require-
ments. Cf. Hamilton v. Schriro, 74 F.3d 1545, 1552–53 (8th Cir. 1996) (“The
Religious Freedom Restoration Act . . . establishe[s] one standard for testing
claims of Government infringement on religious practices. This single test,
however, should be interpreted with regard to the relevant circumstances in each
case.”) (quoting S. Rep. No. 103-111, at 9 (1993), reprinted in 1993 U.S.C.C.A.N.
1892, 1898). This, however, is not such a case.
III.
Our conclusion here is consistent with Supreme Court precedents delimiting the
government’s discretion to fund religious activities.
A.
First, to the extent the Establishment Clause prohibits government funding of
evangelization or religious instruction, see Mitchell v. Helms, 530 U.S. 793, 836–
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Opinions of the Office of Legal Counsel in Volume 31
68 (2000) (O’Connor, J., joined by Breyer, J., concurring in the judgment)
(concluding that actual use of educational materials and equipment loaned by
government agency to religious and non-religious schools for religious indoctrina-
tion would violate the Establishment Clause), it does not appear that the OJP grant
here would implicate that prohibition. World Vision represents that it “do[es] not
proselytize, and no government funds are ever used for religious activities.”
Sept. 8 Letter at 3. The organization represents that that is true for all of its
programs, not only those at issue here.
We are mindful that “[c]ourts occasionally have suggested that whether an
organization engages in [religious] employment discrimination is a relevant factor
in determining whether the organization is so ‘pervasively sectarian’ that it is
constitutionally prohibited from receiving funds directly from the government.”
Coreligionists Exemption, supra note 8, at 19 & n. 39 (Oct. 12, 2000) (“Coreli-
gionists Exemption”) (citing Roemer v. Bd. of Public Works, 426 U.S. 736, 757
(1976) (plurality opinion); Tilton v. Richardson, 403 U.S. 672, 686–87 (1971)
(plurality opinion); Columbia Union Coll. v. Clarke, 159 F.3d 151, 166 (4th Cir.
1998); Minn. Fed’n of Teachers v. Nelson, 740 F. Supp. 694, 720 (D. Minn.
1990)). “But while religious discrimination in employment might be germane to
the question whether an organization’s secular and religious activities are separa-
ble in a government-funded program, that factor is not legally dispositive.”
Coreligionists Exemption at 20 (citing Columbia Union Coll., 159 F.3d at 163)).
To the contrary, “it is possible that a particular organization’s overall purpose and
character could be ‘primarily religious’ . . . , but that it could nevertheless assure
that its ‘privately funded religious activities are not offered as part of its [govern-
ment-funded] program.’” Id. at 19 (quoting Department of Housing and Urban
Development Restrictions on Grants to Religious Organizations that Provide
Secular Social Services, 12 Op. O.L.C. 190, 199 (1988)) (emphases deleted).
Department of Justice regulations provide, with exceptions not relevant here, that
“[o]rganizations that receive direct financial assistance from the Department . . .
may not engage in inherently religious activities, such as worship, religious
instruction, or proselytization, as part of the programs or services funded with
direct financial assistance from the Department.” 28 C.F.R. § 38.1(b)(1) (2006).
World Vision represents that it will administer the Vision Youth and Community
Mobilization Initiative programs without proselytizing and that “no government
funds are ever used for religious activities.” Sept. 8 Letter at 3. We see no reason
to assume that the organization will not comply with the regulation, and the
Supreme Court’s recent decisions seem to question the notion that “pervasively
sectarian” institutions presumptively will divert government funds to impermissi-
ble purposes. See Mitchell, 530 U.S. at 829 (plurality opinion) (“[N]othing in the
Establishment Clause requires the exclusion of pervasively sectarian schools from
otherwise permissible aid programs . . . . This doctrine, born of bigotry, should be
buried now.”); id. at 857 (O’Connor, J., joined by Breyer, J., concurring in the
judgment) (“To establish a First Amendment violation, plaintiffs must prove that
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Application of RFRA to the Award of a Grant Pursuant to the JJDPA
the aid in question actually is, or has been, used for religious purposes.”); id. at
858 (“[A]n absolute bar to the aid in question[,] regardless of the religious
school’s ability to separate that aid from its religious mission, constitutes a ‘flat
rule, smacking of antiquated notions of “taint,” [that] would indeed exalt form
over substance.’”) (quoting Zobrest v. Catalina Foothills School Dist., 509 U.S. 1,
13 (1993)); Bowen v. Kendrick, 487 U.S. 589, 624–25 (1988) (Kennedy, J.,
concurring) (“The question in an as-applied challenge is not whether the entity is
of a religious character, but how it spends its grant.”).
B.
Our conclusion also is consistent with the Supreme Court’s decision in Locke v.
Davey, 540 U.S. 712 (2004), in which the Court rejected a Free Exercise Clause
challenge to a state scholarship program that prohibited recipients from pursuing a
“degree in theology” while receiving the scholarship. Davey was decided after
Smith and did not purport to apply the “substantial burden” test embodied in
Sherbert and adopted by RFRA. It concerned a condition attached by a state to the
use of public funds, to which RFRA is inapplicable, City of Boerne, 521 U.S. 507,
and from which the state had chosen not to exempt any recipients on the grounds
of religious belief. Davey thus did not address the circumstances under which the
federal government, which is subject to RFRA, could avoid making an accommo-
dation for religious exercise. Rather, Davey held that the state was permitted to
impose such a restriction on the use of public funds, even though the restriction
was not religion-neutral, because of the state’s specific interest in, and historical
tradition of, denying taxpayer support to religious instruction. 540 U.S. at 722
(“[W]e can think of few areas in which a State’s antiestablishment interests come
more into play.”); id. at 723 (“[R]eligious instruction is of a different ilk.”). That
concern is not implicated here, because World Vision does not use public funds to
engage in religious instruction, much less the training of clergy. Sept. 8 Letter at 3.
Furthermore, the Court found the burden imposed by the condition in Davey to
be de minimis. The scholarship program did “not require students to choose
between their religious beliefs and receiving a government benefit,” 540 U.S. at
720–21 (citing, among other authorities, Sherbert, 374 U.S. 398), because
recipients could “attend pervasively religious schools,” could “take devotional
theology courses” while there, id. at 724–25, and could “still use their scholarship
to pursue a secular degree at a different institution from where they are studying
devotional theology.” Id. at 721 n.4. Thus, in the Court’s view, the condition
attached to the scholarship did not require the recipient to modify his religious
behavior; rather, he could take the scholarship money and study devotional
theology, so long as he did not use the money to pursue a degree in that field. By
contrast, as explained above, it does not appear that World Vision’s programs
could be revised to conform to the Safe Streets Act’s nondiscrimination provision
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Opinions of the Office of Legal Counsel in Volume 31
without losing their nature as exercises of religion protected by RFRA. The burden
that would be imposed here is not de minimis.
IV.
We conclude that RFRA is reasonably construed to require OJP to exempt
World Vision from the Safe Streets Act’s religious nondiscrimination provision in
awarding World Vision a grant pursuant to the JJDPA. World Vision is an entity
protected by RFRA; its programs at issue here are an exercise of religion; OJP
reasonably may conclude that imposing the nondiscrimination requirement on
World Vision would substantially burden the organization’s religious exercise;
and, in this case, the burden would not be justified by a compelling governmental
interest. We conclude that OJP would be within its legal discretion, under the
JJDPA and under RFRA, to accommodate World Vision in this manner, consistent
with the President’s direction that “a faith-based organization that applies for or
participates in a social service program supported with Federal financial assistance
may retain its independence and may continue to carry out its mission, including
the definition, development, practice, and expression of its religious beliefs,”
Exec. Order No. 13279, § 2(f), and that religious organizations that administer
federally funded social services be exempted from restrictions on religious hiring
under RFRA where it is reasonably construed to require that result.
JOHN P. ELWOOD
Deputy Assistant Attorney General
Office of Legal Counsel
190