No Stimulus for You

It will come as no surprise that I am not a fan of the stimulus bill, but I am blogging today about a small aspect of it. Both the House and Senate versions authorize grants to state higher education agencies for “Higher Education Facilities,” but impose limits on sub-grants to colleges and universities for renovation and modernization of buildings. No grant may be used for “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 . . . .”

I think this passes constitutional muster for two reasons.

First, it seems (and I could be wrong here) that some governmental body would have to decide to make a grant to an institution for renovating a religious purpose. Cases upholding the use of public funds for sectarian uses (e.g., vouchers) rely on an independent choice of the recipient to direct it to religious uses. Unless there is some neutral and secular criteria for the selection of grant recipients who would then direct the funds to religious uses, the direct funding of a sectarian use would be problematic.

Second, in Locke v. Davey, the Court upheld a scholarship program that excluded use of the scholarships for the study of devotional theology. Scholars differ on what Locke really means, but it may support exclusion of religious uses here.

But the breadth of the prohibition may create problems. If, as some critics argue, the exclusion applies to buildings in which there is any religious use then it could be read to command state universities who operate limited purpose public forums in these buildings to exclude religious uses that are otherwise within the purpose of the forum — something that has been held to be unconstitutional viewpoint discrimination.

I suspect we’ll see a narrowing construction.

H/T: Religion Clause Blog.

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