Bench Memos/NRO, Friday, February 13, 2009
We all know that there are plenty of policy problems with the stimulus bill, but there is a pretty serious constitutional problem as well. Buried deep in a bill mostly involving itself with spending billions of dollars, Congress takes a moment to explain how $3.5 billion it allocates for renovation of public or private university facilities can’t be spent:
(2) PROHIBITED USES OF FUNDS.—No funds awarded under this section may be
(C) modernization, renovation, or repair of facilities—
(i) used for sectarian instruction, religious worship, or a school or department of divinity; or
(ii) in which a substantial portion of the functions of the facilities are subsumed in a religious mission; or construction of new facilities.
A moment of fiscal restraint! There’s just one problem: This provision violates the Constitution by singling out groups with religious viewpoints, and denying them access to facilities on the same grounds as other groups. To understand how, it is necessary to focus on the word “used.” If a facility ordinarily open to use by students groups—be it a dorm common area or a classroom—were to be renovated with stimulus funds, the statute on its face would prohibit the religious group from using the space, if the use were for anything that might be construed as sectarian instruction or worship. This is hardly an open question of constitutional law. The Supreme Court has time, and time, and time, and time, and time again not only found that the Constitution’s Establishment Clause does not require such exclusion of religious speech, but that the First Amendment prohibits it on Free Speech and Free Exercise grounds.
Senator DeMint recognized the constitutional error, and sought to amend the stimulus bill to remove the offending language. His first attempt failed, and the reasons offered in opposition ranged from erroneous to irrelevant.
Several critics, including Senator Durbin on the floor, argued that the language only covers buildings used primarily or substantially for religion. This is a plain misreading of the statute, which in section (i) prohibits any use for religious worship. Indeed, because the statute uses a disjunctive “or” to separate subsections (i) and (ii), it is clear that the “substantial portion of the functions” requirement of part (ii) is not necessary to violate subsection (i), which forbids mere use.
The next argument made by Durbin was that language similar to this has been included in education funding bills since the 60s. Why should that matter? The weight of Supreme Court precedent makes clear that an overbroad and discriminatory restriction such as the language in this bill cannot stand. Should the fact that Congress has written unconstitutional language in the past require it to continue to use that unconstitutional language in the future? When the anti-religious language was first used, Congress had an excuse: The Supreme Court had issued rulings which expressed greater hostility to funding that even incidentally touched religion. The Court has since rejected that theory, stating firmly in Rosenberger that “There is no Establishment Clause violation in the University’s honoring its duties under the Free Speech Clause.” Congress no longer has an excuse to perpetuate the constitutional error.
Finally, I have heard some opponents claim that the statute would not prohibit religious groups from meeting in common spaces because Supreme Court precedent is well-settled in favor of equal access, and therefore the usual suspects will not bring suit. Leaving aside for one moment the prudence of anti-religious legal challengers, if even the opposition concedes that the law is so well-settled, isn’t that all the more reason to support removing or amending the offending language? To use the “but we won’t sue because we’d surely lose” argument concedes that the language, as written, is unconstitutional. Members of Congress, having taken an oath to support and defend the Constitution, should not be in the business of passing unconstitutional laws.