After spending last week dealing with other religious liberty issues, my decks are cleared enough to peruse at least the relevant portions of the stimulus bill, as well as read some additional commentary from the Left. It looks like the following is the “final” language that made it through conference:
b) Prohibition. — An institution of higher education may not use funds received under this title to increase its endowment.
(c) Additional Prohibition. — No funds awarded under this title may be used for –
(1) the maintenance of systems, equipment, or facilities;
(2) modernization, renovation, or repair of stadiums or other facilities primarily used for athletic contests or exhibitions or other events for which admission is charged to the general public; or
(3) modernization, renovation, or repair of facilities –
(A) used for sectarian instruction or religious worship; or
(B) in which a substantial portion of the functions of the facilities are subsumed in a religious mission.
As I have said before, the problem with this language is the lack of a qualifier like “primarily” or “substantial” in clause (3)(A). People For the American Way continues to argue that the “straightforward and logical interpretation” of the provision is that it limits funding when religious instruction or religious worship are the “building’s primary function.” In essence, PFAW is insisting that we read “used” to mean “primarily used.”
But the statute just says “used.” And it’s not as if the drafters didn’t know how to use limiting language. After all, there is no funding for facilities “primarily used for athletic contests.” And there is no funding when a “substantial portion of the functions of the facilities” are subsumed in a religious mission.
A dialogue with a judge could likely go something like this:
Me: Your honor, the intent of the drafters is that this prohibition applies only when the “building’s primary function” is religious.
Court: Yes, that is the clear intent of subpart (B), but what about (A)? It doesn’t contain the limiting language. Other provisions contain the limiting language — indicating that Congress knows how to limit when it wants to. Why should I read a limitation into subpart (A)?
Me: It could not have been Congress’s intent to drive Christian student groups out of empty classroom buildings just because stimulus funds were being used to upgrade internet infrastructure. We’re talking about occasional use here . . .
Court: With all due respect, counselor, the record indicates that your client meets in that building every Wednesday and Friday night and has for the last nine years. The record also indicates that other religious organizations use that building an average of four nights per week for as long as meeting records have been kept. Is that “occasional use”? That sounds like “regular use” to me . . .
I would be more than happy for PFAW’s reading to be correct, and I don’t want to litigate facilities access again, more than 25 years after the Supreme Court decided the issue, but it seems to me that poor drafting is likely to lead to unnecessary litigation.
And for anyone who thinks I’m unnecessarily alarmist, I would also refer them to FIRE’s excellent post on the topic.
If Congress really meant “primarily used” instead of “used,” or “occasionally used” or even “regularly used,” why not say so in black and white?