OTIS R. BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES, APPLICANT V. CHAN KENDRICK, ET AL. No. 999 In The Supreme Court Of The United States October Term, 1987 On Appeal From The United States District Court For The District Of Columbia Application For A Stay Pending Direct Appeal From The United States District Court For The District Of Columbia Pursuant to Rules 43 and 44 of the Rules of this Court, the Solicitor General, on behalf of the Secretary of Health and Human Services, applies for a stay pending direct appeal of the district court's order declaring unconstitutional and enjoining the enforcement of the Adolescent Family Life Act (AFLA), 42 U.S.C. 300z et seq., to the extent that it authorizes the participation of religious organizations in funded programs. The judgment of the district court was entered on April 15, 1987, and a notice of appeal to this Court was filed on May 15, 1987; copies of the district court's decision (App. A) and of the notice of appeal (App. B) are attached. The Solicitor General has authorized the appeal, and the time for docketing the appeal expires on August 13, 1987. The jurisdiction of this Court will be invoked under 28 U.S.C. 1252. As set out more fully below, an immediate stay is required not only because the district court has invalidated an Act of Congress on the basis of a clear misapplication of Establishment Clause principles, but also because of the substantial and irreparable harm that will occur to the AFLA grantees affected by the district court's order, as well as to the pregnant teenagers and young mothers who are receiving services from those grantees. Congress has instructed the Secretary to award AFLA grants in localities that lack alternative sources of services for such individuals. 42 U.S.C. 300z-4(a)(2). Terminating funds to grantees labelled as "religious organizations" by the district court will leave these needy individuals with no real alternatives. The district court's order, unless stayed, will risk the termination of vital health care services for homeless young mothers and pregnant adolescents served by such diverse organizations as the Covenant House of New York City, the Catholic Charities of Fargo, North Dakota, and YWCAs in Florida and Oregon. STATEMENT The Adolescent Family Life Act, a product of bipartisan legislation, "authorizes appropriations for demonstration grants to individuals, public and nonprofit entities for services and research in the area of premarital adolescent sexual relations and pregnancy" (S. Rep. 97-161, 97th Cong., 1st Sess. 1 (1981)). In pertinent part, AFLA provides funding for programs that offer "prevention services" (intended to discourage adolescent premarital pregnancy) or "care services" (intended to care for pregnant, unmarried adolescents). 42 U.S.C. 300z-2(b). In enacting AFLA, Congress found that pregnancy and childbirth, particularly among unmarried adolescents, "often result() in severe adverse health, social, and economic consequences" (42 U.S.C. 300z(a) (5)), and that these issues are "best approached through a variety of integrated and essential services provided * * * by other family members, religious organizations, voluntary associations, and other groups in the private sector as well as services provided by publicily sponsored initiatives" (42 U.S.C. 300z(a)(8)(B)). This appeal involves a challenge to a provision of AFLA that requires prospective grantees to describe how they will, "as appropriate in the provision of services * * * involve religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicily sponsored initiatives." 42 U.S.C. 300z-5(a)(21). In a suit brought by a group of taxpayers, clergymen, and the American Jewish Congress, the district court held the statute unconstitutional on Establishment Clause grounds, both on its face and as applied, "insofar as religious organizations are involved in carrying out the programs of the Act" (slip op. 51-52). The district court first held (slip op. 26-34) that the statute on its face has the primary effect of advancing religion because it "explicitly permits religious organizations to be grantees and envisions a direct role for those organizations in the education and counselling components of AFLA grants" (id. at 32). The court stated that participation by religious organizations would inevitably advance religion because AFLA programs involve "teaching by grant recipients and subcontractors, including religious organizations, about the harm of premarital sexual relations and the factors supporting a choice of adoption rather than abortion, and these matters are fundamental elements of religious doctrine" (ibid. (emphasis in original)). Moreover, relying on this Court's decisions involving government aid to parochial schools, the district court determined (id. at 34) that "(t)opresume that AFLA counselors from religious organizations can put their beliefs aside when counselling on adolescent matters that are part of religious doctrine is simply unrealistic." The court next held (slip op. 35-42) that the statute as applied has the primary effect of advancing religion because grants in practice have been made to relgious organizations. The court found (id. at 38) that ten grantees or subgrantees "were themselves 'religious organizations' in the sense that they have explicit corporate ties to a particular religious faith and by-laws or policies that prohibit any deviation from religious doctrine." /1/ The court determined (ibid.) that another organization, although "without discernible religious ties," was nevertheless a "religious organization" -- and therefore constitutionally ineligible for grants -- in part because it had adopted a statement that its activities were "inspired by the Encyclical Humanae Vitae." The court also found that several AFLA programs took place at sites adorned with religious symbols and were administered by members of religious orders, thereby causing participants in the programs to "believe() that these federally funded programs were also sponsored by the religious denomination" (id. at 41). The court nowhere found, however, that any of the organizations in question were "prevasively religious." Finally, the district court held (slip op. 42-46) that the statute causes excessive government entanglement with religion. Relying on Lemon v. Kurtzman, 403 U.S. 602 (1971), the court surmised that, because AFLA authorizes funds to religious organizations, "the risk that AFLA funds will be used to transmit religious doctrine can be overcome only by government monitoring so continuous that it rises to the level of excessive entanglement" (slip op. 43-44). The district court therefore declared AFLA unconstitutional and enjoined its enforcement insofar as it pertains to "religious organizations." The court then ordered the parties to submit briefs on the question whether the "religious organizations" clause is severable from the balance of the Act under this Court's decision in Alaska Airlines v. Brock, No. 85-920 (Mar. 25, 1987). As of June 4, 1987, the briefs on the severability question were fully submitted. The district court has scheduled a hearing on severability for August 11, 1987; a copy of that scheduling order (App. C) is attached. On April 24, 1987, the Secretary moved the district court for a stay pending final judgment in that court or, in the alternative, for a stay pending direct appeal to this Court. On May 22, 1987, the district court declined to grant either form of requested relief, but it did enter an order (App. D) finding "that a limited stay is appropriate and proper." The court accordingly ordered that its April 15 interlocutory judgment "is stayed only to the extent that it enjoins funding of current AFLA grantees that are 'religious organizations,'" and that this stay "shall only be effective up to and including the last day of the current grant cycle, which the Court has been advised is September 30, 1987." /2/ On July 7, 1987, the Secretary filed a motion (App. E) advising the district court of the government's need for a stay pending appeal in order to permit the orderly consideration of grant applications for the next grant cycle. The Secretary expressed his belief that the district court, in granting on May 22 only a limited stay, had already denied by implication the Secretary's motion for a stay pending appeal. Out of an abundance of caution, however, the Secretary asked the district court to confirm that fact, so as to ensure the Secretary's ability to seek a stay from this Court in conformity with Rule 44.4 of this Court's Rules. Although the Secretary asked the district court to rule on this motion by July 15, and although appellees have filed responses to the motion, the district court has not acted on it. ARGUMENT The district court has invalidated a carefully considerred congressional enactment whose constitutionality was explicitly addressed and approved by the enacting Congress. In so doing, the court misapplied Establishment Clause principles and made unwarranted assumptions about the nature and purpose of the federal program at issue. As a consequence, many pregnant teenagers and young mothers who are receivng care from current grantees face the imminent disruption of the important services that Congress wished them to receive. The standard for granting a stay pending appeal is well established. A stay should issue if (1) there is a "reasonable probability" that four Justices will vote to note probable jurisdiction, (2) there is a "fair prospect" that the Court will ultimately reverse the judgment below, and (3) considerations of irreparable injury, the balance of hardships between the parties, and the public interest militate in favor of a stay. Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, Circuit Justice). See Schweiker v. McClure, 452 U.S. 1301, 1303 (1981) (Rehnquist, Circuit Justice); Houchins v. KQED, Inc., 429 U.S. 1341, 1345 (1977) (Rehnquist, Circuit Justice); Republican State Central Committee v. Ripon Society, 409 U.S. 1222, 1224 (1972) (Rehnquist, Circuit Justice). This standard is clearly satisfied in the present case. First, there is a "reasonable probability" that the Court will note probable jurisdiction. A district judge has declared a federal statute unconstitutional on the ground that it violates the Establishment Clause. The power "to judge the constitutionality of an Act of Congress * * * (is) 'the gravest and most delicate duty that * * * (a court) is called upon to perform,'" and in exercising that power a court must "accord () 'great weight to the decision of Congress.'" Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (citation omitted). Deference is particularly appropriate (ibid.) where the enacting Congress has expressly considered the constitutionality of the statute and concluded that there is no infirmity, as Congress concluded with respect to the statute challenged here. See S.Rep. 97-161, supra, at 15-16. Indeed, the very existence of the direct appeal statute (28 U.S.C. 1252) reflects the gravity and sensitivity of a lower court decision striking down an Act of Congress. See, e.g., Heckler v. Edwards, 465 U.S. 870 (1984); McLucas v. DeChamplain, 421 U.S. 21 (1975). "Given the presumption of constitutionality granted to all Acts of Congress," it is both likely that the Court will note probable jurisdiction here and appropriate that the statute remain in effect pending such review. Schweiker v. McClure, 452 U.S. at 1303 (Rehnquist, Circuit Justice). See New Motor Vehicle Board v. Orrin W. Fox Co., 434 U.S. 1345, 1351, 1352 (1977) (Rehnquist,Circuit Justice); Marshall v. Barlow's, Inc., 429 U.S. 1347, 1348 (1977) (Rehnquist, Circuit Justice); Katzenbach v. McClung, 85 S. Ct. 6, 7 (1964) (Black, Circuit Justice); Heart of Atlanta Motel v. United States, 85 S. Ct. 1, 2 (1964) (Black, Circuit Justice). Second, there is a "fair prospect" that the Court having assumed jurisdiction will reverse the judgment below. The strong presumption of constitutionality that attaches to Acts of Congress is an important factor in evaluating probability of success on the merits. See, e.g., Walters v. National Association of Radiation Survivors, 468 U.S. 1323, 1324 (Rehnquist, Circuit Justice). The likelihood of reversal in the present case is enhanced by district court's apparent errors in applying Establishment Clause principles. The court improperly assumed that any "religious organization" that participates in an AFLA program will inevitably inculcate religious doctrine or, on the other hand, will require excessive government monitoring in order to ensure that it does not do so. To reach this conclusion, the district court erroneously relied on this Court's parochial school cases, ignoring the governing premise of those cases that in parochial schools all forms of education or counselling are "integral part(s) of the dominant sectarian mission * * * in which an atmosphere dedicated to the advancement of religious belief is constantly maintained" (Meek v. Pittenger, 421 U.S. 349, 371 (1975)). But there are a great many "religious organizations" -- such as the hospitals and maternity homes providing care to pregnant teenagers here -- that are fully capable of discharging their services without permitting "ideological content * * * (to) creep in ()" (School District of the City of Grand Rapids v. Ball, No. 83-990 (July 1, 1985), slip op. 15). See, e.g., Roemer v. Maryland Public Works Bd., 426 U.S. 736, 755-759 (1976); Hunt v. McNair, 413 U.S. 734 (1973); Tilton v. Richardson, 403 U.S. 672 (1971). The district court's view, under which all arguably religious organizations must be excluded from funding programs that may touch upon moral or ethical issues, cannot be squared with this Court's decisions. Moreover, in the name of "neutrality," the decision below fosters an unwarranted discrimination against religion, by excluding from federal programs groups that, notwithstanding their formal or nominal religious affiliations, are fully capable of carrying out the mandate of Congress. Cf. Widmar v. Vincent, 454 U.S. 263, 274-275 (1981). /3/ Third, consideration of the equities and the public interest strongly supports the granting of a stay. "The presumption of constitutionality which attaches to every Act of Congress is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships" (Walters v. National Association of Radiation Survivors, 468 U.S. at 1324 (Rehnquist, Circuit Justice); see also Marshall v. Barlow's Inc., 429 U.S. at 1348 (Rehnquist, Circuit Justice)). Even apart from this presumption of constitutionality, the equities in the Secretary's favor are compelling. Twenty-two of the current 84 AFLA grantees are believed to be "religious organizations" within the meaning of the district court's opinion. /4/ Of those 22 grantees, eight are involved primarily in the provision of "care services" (42 U.S.C. 300z-2(b)) for pregnant, unmarried adolescents. Many of these adolescents are high-risk, vulnerable individuals for whom equivalent services are not otherwise available. The federal government now provides the bulk of these eight organizations' funding -- between 40% and 70% -- and it is unlikely that they could easily replace their federal money from other sources. Thus, because the district court has refused to stay its injunction beyond the end of the current grant cycle (August 31 in the case of two grantees, and September 30 in the case of the other six), seven of these organizations in all probability will soon be forced to close their doors, depriving the 2,000 adolescents now in their care of the services that Congress intended them to receive. See Declaration of Jo Ann Gasper (attached as Appendix F). Apart from the potential harm to current grantees and to those for whom they care, the denial of a stay would seriously disrupt administration of the AFLA program. The Secretary is now evaluating grant applications for the next grant cycle, and, under the district court's order, he will be foreclosed from considering applications from or involving any "religious organization," despite Congress's explicit directive (42 U.S.C. 300z-5(a)(21)) that applicants describe how they will include religious groups in the program. The district court, moreover, has declined to act on the Secretary's Rule 59(e) motion, filed April 24, 1987, seeking clarification of which organizations should be deemed "religious organization" for purposes of the April 15 injunction. As a result, the Secretary in considering applications for the next grant cycle labors under some uncertainty as to which applicants he may consider for grants consistently with the district court's order. See Declaration of Nabers Cabaniss (attached as Appendix G). Whereas the equities in the Secretary's favor are strong, the equities in appellees' favor are less compelling. Their sole interest is to exclude religious organizations from the universe of organizations participating in the AFLA program; if appellees eventually prevail, that interest will be sufficiently vindicated by prospective relief. /5/ In the meantime, the very people who urgently need services, and whom Congress intended to benefit, face the threat of an imminent cut-off of the assistance that they have been receiving up to now. The equities and the public interest thus support the granting of a stay. CONCLUSION A stay should be granted pending timely docketing of the appeal and, upon timely docketing of the appeal, pending this Court's ultimate disposition of the case. Respectfully submitted. CHARLES FRIED Solicitor General JULY 1987 /1/ Among these ten are St. Ann's Infant and Maternity Home, Catholic Charities of Arlington, Virginia, St. Margaret's Hospital, and Lutheran Family Services (slip op. 38 n.16). /2/ Although the grant cycle for most grantees does run through September 30, 1987, HHS informs us that the grant cycle for three grantees that arguably constitute "religious organizations" under the district court's order in fact expires on August 31, 1987. These three grantees are the Catholic Charities of Fargo, North Dakota; the YWCA of Maricopa County, Arizona; and the Child-Saving Institute of Omaha, Nebraska. /3/ If the district court's interpretation of the Establishment Clause were correct, all arguably religious organizations might have to be excluded from any federal program whose implementation may involve moral or ethical questions. For example, the participation of Catholic hospitals in the Medicare program might be called into question, on the theory that such hospitals might choose to follow Catholic doctrine in the provision of obstetrical services, in the treatment of severly deforemd infants and the terminally ill, or in the provision of psychiatric services or patient counselling. /4/ The Secretary on April 24, 1987, filed a Rule 59(e) motion asking the district court to clarify the nature of the "religious organizations" covered by its April 15 order. To date, the court has not ruled on this motion. At a hearing on the motion, however, the court suggested that "'you know it when you see it'" (May 14, 1987 Tr. 35) and, further, that "you don't need any definition from me of what is a religious organization and what is not" (id. at 36). /5/ Plantiffs based their claim of standing on their status as federal taxpayers. The clergy plaintiffs also asserted a "spiritual injury" stemming from the government's grant of funds to organizations associated with religions having views different from their own. The district court found that plaintiffs had standing as taxpayers. It should be noted in this connection that no plaintiff has ever asserted any immediate and acute injury or hardship, and the court identified no injury to any plaintiff beyond that suffered by taxpayers generally.