Attorney General: Karen Senich, Executive Director, Connecticut Commission on Culture and Tourism, Formal Opinion 2007-031, Attorney General State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

December 4, 2007

Karen Senich, Executive Director

Connecticut Commission on

Culture and Tourism

One Financial Plaza

755 Main Street

Hartford, CT  06103

 

Dear Ms. Senich:

 

You have requested our opinion on whether religious organizations are eligible to accept awards in the Arts Presentation Grant Program (Grant Program) of the Connecticut Commission on Culture and Tourism (Commission).  Based on information about the Grant Program you have provided, we conclude that such awards are permissible within the limitations set forth below. 

 

We understand from communications with you and other members of your agency that:  (1) the primary purpose of the Grant Program is to encourage participation in artistic and cultural activities within the State; (2) awards are offered on the same terms, without regard to religion, to all eligible non-profit organizations; (3) awards are made to both religious and secular beneficiaries on a nondiscriminatory basis, creating no financial incentive to undertake any religious indoctrination; (4) the Grant Program does not require pervasive monitoring by your agency to prevent the promotion of religion; and (5) previously awarded funds have not been used to promote any religious activities.

 

Government financial assistance to a religious organization may implicate the Establishment Clause of the U.S. Constitution, which provides that “Congress shall make no law respecting an establishment of religion. . . .”  U.S. Const. amend. I.1  The Supreme Court has recognized that there exist “special Establishment Clause dangers where government makes direct money payments to sectarian institutions.”  Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 842 (1995).  “[O]ne of the few absolutes in Establishment Clause jurisprudence is the ‘prohibit[ion against] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith.’”  DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397, 416 (2d Cir. 2001) (quoting Bowen v. Kendrick, 487 U.S. 589, 611 (1988)).  “No tax in any amount, large or small, can be levied to support any religious activities.”  Everson v. Board of Educ., 330 U.S. 1, 15-16 (1947).

 

The Supreme Court’s case law under the Establishment Clause suffers from a lack of clarity and certainty.  At present, there is not a clear statement as to the proper approach to state aid to religious organizations that has been accepted by a majority of the Court.  Therefore, a degree of caution must be applied in drawing any conclusions about the constitutionality of government aid to religious organizations.

 

The Supreme Court has held that the Establishment Clause requires state aid to (1) have a secular purpose, and (2) not have the effect of advancing religion.  Agostini v. Felton, 521 U.S. 203, 222-23 (1997).  To determine whether state aid has the effect of advancing religion, the Court has identified three criteria:  (a) the aid does not result in governmental indoctrination; (b) it does not define its recipients by reference to their religion; and (c) it does not create an excessive entanglement between government and religion.  Id. at 234.

 

(1)        Secular Purpose

 

There does not appear to be any serious question that the Grant Program has a secular purpose.  The Commission’s general purpose is “to enhance and promote culture, history, the arts and the tourism and digital media and motion picture industries in Connecticut.”  Conn. Gen. Stat. §10-392(a).  The Commission has authority to “enter into contracts to provide grants, loans or advances to individuals, organizations, or institutions, public or private, that are engaged in or plan to engage in artistic and cultural programs or activities within the state.”  Id., § 10-400(2).  The Grant Program’s purpose is to encourage participation in artistic and cultural activities, which is a legitimate, secular purpose.  See McCreary County v. ACLU of Ky., 545 U.S. 844, 861-63 (2005).

 

(2)        Effect of Advancing Religion

 

Determinations as to the second part of the test - - whether the government aid has the effect of advancing religion - - are not as simple.  Although the Supreme Court’s doctrine under the Establishment Clause has long been criticized as inconsistent, resolving the issue presented here - - direct aid to religious organizations - - is particularly difficult in light of the Court’s most recent state aid case, Mitchell v. Helms, 530 U.S. 793 (2000), which produced multiple opinions with no clear majority position.2  The Second Circuit and other federal courts of appeals that have addressed the question of the appropriate test in the wake of Mitchell have concluded that the analysis developed in Justice O’Connor’s concurring opinion in Mitchell should control.  DeStefano, 247 F.3d at 418-19; Community House, Inc. v. City of Boise, 490 F.3d 1041, 1058 (9th Cir. 2007); Columbia Union Coll. v. Oliver, 254 F.3d 496, 504 (4th Cir. 2001); Simmons-Harris v. Zelman, 234 F.3d 945, 947 (6th Cir. 2000), rev’d on other grounds, 536 U.S. 639 (2002); see also Ira C. Lupu & Robert W. Tuttle, The Faith-Based Initiative and the Constitution, 55 DePaul L. Rev. 1, 24-25 (2005).  Accordingly, we will apply that analysis here.

(a)        Governmental Indoctrination

 

The first “effect” criterion focuses on whether “any use of [governmental] aid to indoctrinate religion could be attributed to the State.”  Agonstini, 521 U.S. at 230.  Government neutrality as to religion in the dispensing of funds is, by itself, insufficient under the Establishment Clause.  Mitchell, 530 U.S. at 838 (O’Connor, J., concurring).  As a general proposition, under a religion-neutral program as this appears to be, government may provide funds to a religious organization, but such assistance cannot be used to promote or support a religious activity.  Id. at 840 (O’Connor, J., concurring).  Therefore, to avoid constituting governmental indoctrination, a state aid program must not provide financial support for religious activities and must have reasonable safeguards against the use of state funds for religious activities.  Id. at 857-62 (O’Connor, J., concurring).

 

The difficulty posed in evaluating the Grant Program under this criterion is that the line drawn between artistic and cultural activities on the one hand, which the Grant Program seeks to promote, and religious activities on the other, may not always be an easy one to draw.  Many religious activities are by their very nature also artistic or cultural activities.  It is easy to imagine activities sponsored by a religious organization that for purposes of the Establishment Clause could be deemed religious or secular, depending on their specific factual context.  Therefore, it is not possible to conclude, as a blanket statement, that grants to a religious organization could not be deemed to constitute governmental indoctrination in the form of funding of a religious activity.  Instead, a case-by-case evaluation of grants to religious organizations will be necessary.  

 

In providing grants to religious organizations, the Commission - - as it appears to have done - - will have to evaluate whether the funds will be used for any religious activity.  What constitutes religious activity can defy easy definition.  Some guidance can be drawn from Supreme Court case law.  Clearly, religious worship, instruction or proselytization can never be supported by government funds.  See Everson, 330 U.S. at 15-16.  However, activities that cannot be funded or supported by government assistance are not limited to these core religious activities.  Instead, state funds may not be used for programs or materials “that have an explicitly religious content or are designed to inculcate the views of a particular religious faith.”  Bowen v. Kendrick, 487 U.S. 589, 621 (1988).  Such determinations can only be made on a case-by-case basis, evaluating the specific context of the proposed activity.

 

            (b)        Recipients Defined by Reference to Religion

 

The Grant Program neither restricts participation in the program on the basis of religious affiliation nor favors an organization because of its religious status.  The mere provision of funding to a religious organization does not necessarily result in the advancement of religion in violation of the Establishment Clause.  Agostini, 521 U.S. at 231.  As long as the Grant Program allocates aid “on the basis of neutral, secular criteria that neither favors nor disfavors religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis,” the second criterion is satisfied.  Id.; see DeStefano, 247 F.3d at 414.

 

            (c)        Excessive Entanglement

 

The excessive entanglement criterion aims at avoiding circumstances that result in “pervasive monitoring” by state officials.  Agostini, 521 U.S. at 233-34.  Typically, when government provides aid to religious organizations, some degree of administrative oversight or monitoring is necessary to ensure that the aid is not used for religious purposes.  Mitchell, 531 U.S. at 859-61 (O’Connor, J., concurring).  “[W]hen the constitutionality of state funding is measured by how taxpayer money is used by a recipient, the State must keep an eye on the activities that are supported by that funding.”  DeStefano, 247 F.3d at 414.  Acknowledging this reality, the Supreme Court has stated that “[i]nteraction between church and state is inevitable, and we have always tolerated some level of involvement between the two.  Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.”  Agostini, 521 U.S. at 233. 

 

The Grant Program appears to  require little interaction or monitoring to ensure that grant recipients are not using the funds for religious activities.  The Supreme Court has consistently held that state review of the programs of aid recipients and monitoring of their activities through periodic visits does not rise to the level of excessive entanglement.  Agostini, 521 U.S. at 234; Bowen, 487 U.S. at 615-17; DeStefano, 247 F.3d at 414.  Although the Commission will need to take steps to determine that grants are not used for religious activities - - for example, reviewing applications as to the nature of the programs for which a grant is sought and requiring recipients to agree not to use funds for religious purposes - - such steps would not appear to violate the Establishment Clause.  Mitchell, 531 U.S. at 861-63 (O’Connor, J., concurring).

 

Conclusion

           

Based on the description of the Grant Program you have provided and on the current state of Supreme Court case law, we conclude that awarding grants under the Grant Program to religious organizations will not violate either the federal or state constitutions, provided the Commission follows the following guidelines:

 

(1)  No grant should be awarded to support or promote a religious activity.  Religious activities may include programs or materials that have an explicitly religious content or are designed to inculcate the views of a particular religious faith.

 

(2)  Grants should be awarded on the basis of neutral, secular criteria that neither favor nor disfavor a recipient’s religious affiliation.  Grants should be made available to both religious and secular beneficiaries on a nondiscriminatory basis.

 

(3)  Any monitoring of recipient use of grant money should be limited to periodic reviews to ensure that grant recipients are not using the funds for religious activity, and should not be pervasive or excessive.

 

We hope this answers your questions.  Please contact our Office if you require further assistance in this matter. 

 

 

Very truly yours

 

 

 

RICHARD BLUMENTHAL
ATTORNEY GENERAL



1 Article Seventh of the Connecticut Constitution similarly provides that “no person shall by law be compelled to join or support, nor be classed or associated with, any congregation, church or religious association….”  Our state supreme court has construed Article Seventh as having a similar purpose as the Establishment Clause and has used federal case law in interpreting it. Board of Educ. v. State Bd. of Educ., 243 Conn. 772, 785 (1997); Snyder v. Newton, 147 Conn. 374 (1960), appeal dismissed, 365 U.S. 299 (1961).  We will therefore limit our inquiry to federal precedent.

2 In Mitchell, which involved state assistance in the form of secular educational materials and equipment, four justices forming a plurality held that aid programs must merely be religion-neutral to satisfy the Establishment Clause.  530 U.S. at 809-10 (Thomas, J., plurality).  The remaining five justices agreed that the assistance, even provided on a religion-neutral basis, cannot go to support a religious activity.  Id. at 838 (O’Connor, J., concurring); id. at 869 (Souter, J., dissenting).  The concurring and dissenting justices, however, split over the significance of the potential diversion of state aid from secular to religious activities of a beneficiary.  Id. at 840 (O’Connor, J., concurring); id. at 890 (Souter, J., dissenting). The Court’s composition, of course, has since changed, and it is uncertain what the future holds for these competing views. 


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