487 U.S. 589 (1988)

BOWEN, SECRETARY OF HEALTH AND HUMAN SERVICES
v.
KENDRICK ET AL.

No. 87-253.

Supreme Court of United States.

Argued March 30, 1988 Decided June 29, 1988^[*] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

*592 Solicitor General Fried argued the cause for appellant in Nos. 87-253 and 87-431, and for the federal appellee in No. 87-462. With him on the briefs were Assistant Attorney General Willard, Acting Assistant Attorney General Spears, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Cynkar, Lawrence S. Robbins, Michael Jay Singer, Jay S. Bybee, and Theodore C. Hirt. Michael W. McConnell argued the cause for appellant in No. 87-775. With him on the briefs were Edward R. Grant, Clarke D. Forsythe, Paul Arneson, and Michael J. Woodruff.

Janet Benshoof argued the cause for appellees in Nos. 87-253, 87-431, and 87-775 and appellants in No. 87-462. With her on the briefs were Lynn M. Paltrow, Nan D. Hunter, Rachael N. Pine, and Bruce J. Ennis, Jr.^[†]

Briefs of amici curiae urging affirmance were filed for the American Public Health Association et al. by John H. Hall, Nadine Taub, and Judith Levin; for the Baptist Joint Committee on Public Affairs et al. by Oliver S. Thomas; for the Committee for Public Education and Religious Liberty by Leo Pfeffer; for the Council on Religious Freedom by Lee Boothby, Robert W. Nixon, and Rolland Truman; for the National Coalition for Public Education and Religious Liberty et al. by David B. Isbell, David H. Remes, and Herman Schwartz; and for the NOW Legal Defense and Education Fund et al. by Sarah E. Burns and Marsha Levick.

Briefs of amici curiae were filed for the Anti-Defamation League of B'nai B'rith et al. by Ruti G. Teitel, Justin J. Finger, Jeffrey P. Sinensky, Meyer Eisenberg, and Steven M. Freeman; for Catholic Charities, U. S. A., et al. by Patrick Francis Geary; and for the Unitarian Universalist Association et al. by Patricia Hennessey.

*593 CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

This litigation involves a challenge to a federal grant program that provides funding for services relating to adolescent sexuality and pregnancy. Considering the federal statute both "on its face" and "as applied," the District Court ruled that the statute violated the Establishment Clause of the First Amendment insofar as it provided for the involvement of religious organizations in the federally funded programs. We conclude, however, that the statute is not unconstitutional on its face, and that a determination of whether any of the grants made pursuant to the statute violate the Establishment Clause requires further proceedings in the District Court.

I

The Adolescent Family Life Act (AFLA or Act), Pub. L. 97-35, 95 Stat. 578, 42 U. S. C. § 300z et seq. (1982 ed. and Supp. IV), was passed by Congress in 1981 in response to the "severe adverse health, social, and economic consequences" that often follow pregnancy and childbirth among unmarried adolescents. 42 U. S. C. § 300z(a)(5) (1982 ed., Supp. IV). Like its predecessor, the Adolescent Health Services and Pregnancy Prevention and Care Act of 1978, Pub. L. 95-626, Tit. VI, 92 Stat. 3595-3601 (Title VI), the AFLA is essentially a scheme for providing grants to public or nonprofit private organizations or agencies "for services and research in the area of premarital adolescent sexual relations and pregnancy." S. Rep. No. 97-161, p. 1 (1981) (hereinafter Senate Report). These grants are intended to serve several purposes, including the promotion of "self discipline and other prudent approaches to the problem of adolescent premarital sexual relations," § 300z(b)(1), the promotion of adoption as an alternative for adolescent parents, § 300z(b)(2), the *594 establishment of new approaches to the delivery of care services for pregnant adolescents, § 300z(b)(3), and the support of research and demonstration projects "concerning the societal causes and consequences of adolescent premarital sexual relations, contraceptive use, pregnancy, and child rearing," § 300z(b)(4).

In pertinent part, grant recipients are to provide two types of services: "care services," for the provision of care to pregnant adolescents and adolescent parents, § 300z-1(a)(7), and "prevention services," for the prevention of adolescent sexual relations, § 300z-1(a)(8).^[1] While the AFLA leaves it up to the Secretary of Health and Human Services (the Secretary) to define exactly what types of services a grantee must provide, see §§ 300z-1(a)(7), (8), 300z-1(b), the statute contains a listing of "necessary services" that may be funded. These services include pregnancy testing and maternity counseling, adoption counseling and referral services, prenatal and postnatal health care, nutritional information, counseling, child care, mental health services, and perhaps most importantly for present purposes, "educational services relating to family life and problems associated with adolescent premarital sexual relations," § 300z-1(a)(4).^[2]

*595 In drawing up the AFLA and determining what services to provide under the Act, Congress was well aware that "the problems of adolescent premarital sexual relations, pregnancy, and parenthood are multiple and complex." § 300z(a) (8)(A). Indeed, Congress expressly recognized that legislative or governmental action alone would be insufficient:

"[S]uch problems are best approached through a variety of integrated and essential services provided to adolescents and their families by other family members, religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives." § 300z(a)(8)(B).

*596 Accordingly, the AFLA expressly states that federally provided services in this area should promote the involvement of parents, and should "emphasize the provision of support by other family members, religious and charitable organizations, voluntary associations, and other groups." § 300z(a)(10)(C). The AFLA implements this goal by providing in § 300z-2 that demonstration projects funded by the government

"shall use such methods as will strengthen the capacity of families to deal with the sexual behavior, pregnancy, or parenthood of adolescents and to make use of support systems such as other family members, friends, religious and charitable organizations, and voluntary associations."

In addition, AFLA requires grant applicants, among other things, to describe how they will, "as appropriate in the provision of services[,] involve families of adolescents[, and] involve religious and charitable organizations, voluntary associations, and other groups in the private sector as well as services provided by publicly sponsored initiatives." § 300z-5(a)(21). This broad-based involvement of groups outside of the government was intended by Congress to "establish better coordination, integration, and linkages" among existing programs in the community, § 300z(b)(3) (1982 ed., Supp. IV), to aid in the development of "strong family values and close family ties," § 300z(a)(10)(A), and to "help adolescents and their families deal with complex issues of adolescent premarital sexual relations and the consequences of such relations." § 300z(a)(10)(C).

In line with its purposes, the AFLA also imposes limitations on the use of funds by grantees. First, the AFLA expressly states that no funds provided for demonstration projects under the statute may be used for family planning services (other than counseling and referral services) unless appropriate family planning services are not otherwise available in the community. § 300z-3(b)(1). Second, the AFLA restricts the awarding of grants to "programs or projects *597 which do not provide abortions or abortion counseling or referral," except that the program may provide referral for abortion counseling if the adolescent and her parents request such referral. § 300z-10(a). Finally, the AFLA states that "grants may be made only to projects or programs which do not advocate, promote, or encourage abortion." § 300z-10(a).^[3]

Since 1981, when the AFLA was adopted, the Secretary has received 1,088 grant applications and awarded 141 grants. Brief for Federal Appellant 8. Funding has gone to a wide variety of recipients, including state and local health agencies, private hospitals, community health associations, privately operated health care centers, and community and charitable organizations. It is undisputed that a number of grantees or subgrantees were organizations with institutional ties to religious denominations. See App. 748-756 (listing grantees).

In 1983, this lawsuit against the Secretary was filed in the United States District Court for the District of Columbia by appellees, a group of federal taxpayers, clergymen, and the American Jewish Congress. Seeking both declaratory and injunctive relief, appellees challenged the constitutionality of the AFLA on the grounds that on its face and as applied the statute violates the Religion Clauses of the First Amendment.^[4] Following cross-motions for summary judgment, the *598 District Court held for appellees and declared that the AFLA was invalid both on its face and as applied "insofar as religious organizations are involved in carrying out the programs and purposes of the Act." 657 F. Supp. 1547, 1570 (DC 1987).

The court first found that under Flast v. Cohen, 392 U. S. 83 (1968), appellees had standing to challenge the statute both on its face and as applied. Turning to the merits, the District Court applied the three-part test for Establishment Clause cases set forth in Lemon v. Kurtzman, 403 U. S. 602 (1971).^[5] The court concluded that the AFLA has a valid secular purpose: the prevention of social and economic injury caused by teenage pregnancy and premarital sexual relations. In the court's view, however, the AFLA does not survive the second prong of the Lemon test because it has the "direct and immediate" effect of advancing religion insofar as it expressly requires grant applicants to describe how they will involve religious organizations in the provision of services. § 300z-5(a)(21)(B). The statute also permits religious organizations to be grantees and "envisions a direct role for those organizations in the education and counseling components of AFLA grants." 657 F. Supp., at 1562. As written, the AFLA makes it possible for religiously affiliated grantees to teach adolescents on issues that can be considered "fundamental elements of religious doctrine." The *599 AFLA does all this without imposing any restriction whatsoever against the teaching of "religion qua religion" or the inculcation of religious beliefs in federally funded programs. As the District Court put it, "[t]o presume that AFLA counselors from religious organizations can put their beliefs aside when counseling an adolescent on matters that are part of religious doctrine is simply unrealistic." Id., at 1563 (citing Grand Rapids School District v. Ball, 473 U. S. 373 (1985)).

The District Court then concluded that the statute as applied also runs afoul of the Lemon effects test.^[6] The evidence presented by appellees revealed that AFLA grants had gone to various organizations that were affiliated with religious denominations and that had corporate requirements that the organizations abide by religious doctrines. Other AFLA grantees were not explicitly affiliated with organized religions, but were "religiously inspired and dedicated to teaching the dogma that inspired them." 657 F. Supp., at 1564. In the District Court's view, the record clearly established that the AFLA, as it has been administered by the Secretary, has in fact directly advanced religion, provided funding for institutions that were "pervasively sectarian," or allowed federal funds to be used for education and counseling that "amounts to the teaching of religion." Ibid. As to the entanglement prong of Lemon, the court ruled that because AFLA funds are used largely for counseling and teaching, it would require overly intrusive monitoring or oversight to ensure that religion is not advanced by religiously affiliated AFLA grantees. Indeed, the court felt that "it is impossible to comprehend entanglement more extensive and continuous *600 than that necessitated by the AFLA." 657 F. Supp., at 1568.^[7]

In a separate order, filed August 13, 1987, the District Court ruled that the "constitutionally infirm language of the AFLA, namely its references to `religious organizations,' " App. to Juris. Statement in No. 431, p. 53a, is severable from the Act pursuant to Alaska Airlines, Inc. v. Brock, 480 U. S. 678 (1987). The court also denied the Secretary's Federal Rule of Civil Procedure 59(e) motion to clarify what the court meant by "religious organizations" for purposes of determining the scope of its injunction. On the same day that this order was entered, appellants docketed their appeal on the merits directly with this Court pursuant to 28 U. S. C. § 1252. A separate appeal from the District Court's August 13 order was also docketed, as was a cross-appeal by appellees on the severability issue. On November 9, 1987, we noted probable jurisdiction in all three appeals and consolidated the cases for argument. 484 U. S. 942 (1987).

II

The District Court in this lawsuit held the AFLA unconstitutional both on its face and as applied. Few of our cases in the Establishment Clause area have explicitly distinguished between facial challenges to a statute and attacks on the statute as applied. Several cases have clearly involved challenges to a statute "on its face." For example, in Edwards v. Aguillard, 482 U. S. 578 (1987), we considered the validity of the Louisiana "Creationism Act," finding the Act "facially invalid." Indeed, in that case it was clear that only a facial challenge could have been considered, as the Act had not been implemented. Id., at 581, n. 1. Other cases, as well, have considered the validity of statutes without the benefit of a record as to how the statute had actually been applied. *601 See Wolman v. Walter, 433 U. S. 229 (1977); Committee for Public Education & Religious Liberty v. Nyquist, 413 U. S. 756 (1973).

In other cases we have, in the course of determining the constitutionality of a statute, referred not only to the language of the statute but also to the manner in which it had been administered in practice. Levitt v. Committee for Public Education & Religious Liberty, 413 U. S. 472, 479 (1973); Meek v. Pittenger, 421 U. S. 349 (1975). See also Grand Rapids School District v. Ball, supra, at 377-379; Aguilar v. Felton, 473 U. S. 402 (1985). In several cases we have expressly recognized that an otherwise valid statute authorizing grants might be challenged on the grounds that the award of a grant in a particular case would be impermissible. Hunt v. McNair, 413 U. S. 734 (1973), involved a challenge to a South Carolina statute that provided for the issuance of revenue bonds to assist "institutions of higher learning" in constructing new facilities. The plaintiffs in that case did not contest the validity of the statute as a whole, but contended only that a statutory grant to a religiously affiliated college would be invalid. Id., at 736. In Tilton v. Richardson, 403 U. S. 672 (1971), the Court reviewed a federal statute authorizing construction grants to colleges exclusively for secular educational purposes. We rejected the contention that the statute was invalid "on its face" and "as applied" to the four church-related colleges that were named as defendants in the case. However, we did leave open the possibility that the statute might authorize grants which could be invalid, stating that "[i]ndividual projects can be properly evaluated if and when challenges arise with respect to particular recipients and some evidence is then presented to show that the institution does in fact possess" sectarian characteristics that might make a grant of aid to the institution constitutionally impermissible. Id., at 682. See also Roemer v. Maryland Bd. of Public Works, 426 U. S. 736, 760-761 (1976) (upholding a similar statute authorizing grants to colleges against *602 a "facial" attack and pretermitting the question whether "particular applications may result in unconstitutional use of funds").

There is, then, precedent in this area of constitutional law for distinguishing between the validity of the statute on its face and its validity in particular applications. Although the Court's opinions have not even adverted to (to say nothing of explicitly delineated) the consequences of this distinction between "on its face" and "as applied" in this context, we think they do justify the District Court's approach in separating the two issues as it did here.

This said, we turn to consider whether the District Court was correct in concluding that the AFLA was unconstitutional on its face. As in previous cases involving facial challenges on Establishment Clause grounds, e. g., Edwards v. Aguillard, supra; Mueller v. Allen, 463 U. S. 388 (1983), we assess the constitutionality of an enactment by reference to the three factors first articulated in Lemon v. Kurtzman, 403 U. S. 602 (1971). Under the Lemon standard, which guides "[t]he general nature of our inquiry in this area," Mueller v. Allen, supra, at 394, a court may invalidate a statute only if it is motivated wholly by an impermissible purpose, Lynch v. Donnelly, 465 U. S. 668, 680 (1984); Stone v. Graham, 449 U. S. 39, 41 (1980), if its primary effect is the advancement of religion, Estate of Thornton v. Caldor, Inc., 472 U. S. 703, 708 (1985), or if it requires excessive entanglement between church and state, Lemon, supra, at 613; Walz v. Tax Comm'n, 397 U. S. 664, 674 (1970). We consider each of these factors in turn.

As we see it, it is clear from the face of the statute that the AFLA was motivated primarily, if not entirely, by a legitimate secular purpose — the elimination or reduction of social and economic problems caused by teenage sexuality, pregnancy, and parenthood. See §§ 300z(a), (b) (1982 ed. and Supp. IV). Appellees cannot, and do not, dispute that, on the whole, religious concerns were not the sole motivation *603 behind the Act, see Lynch, supra, at 680, nor can it be said that the AFLA lacks a legitimate secular purpose, see Edwards v. Aguillard, 482 U. S., at 585. In the court below, however, appellees argued that the real purpose of the AFLA could only be understood in reference to the AFLA's predecessor, Title VI. Appellees contended that Congress had an impermissible purpose in adopting the AFLA because it specifically amended Title VI to increase the role of religious organizations in the programs sponsored by the Act. In particular, they pointed to the fact that the AFLA, unlike Title VI, requires grant applicants to describe how they will involve religious organizations in the programs funded by the AFLA. § 300z-5(a)(21)(B).

The District Court rejected this argument, however, reasoning that even if it is assumed that the AFLA was motivated in part by improper concerns, the parts of the statute to which appellees object were also motivated by other, entirely legitimate secular concerns. We agree with this conclusion. As the District Court correctly pointed out, Congress amended Title VI in a number of ways, most importantly for present purposes by attempting to enlist the aid of not only "religious organizations," but also "family members. . . , charitable organizations, voluntary associations, and other groups in the private sector," in addressing the problems associated with adolescent sexuality. § 300z(a)(8)(B); see also §§ 300z-5(a)(21)(A), (B). Cf. Title VI, § 601(a) (5) ("[T]he problems of adolescent [sexuality] . . . are best approached through a variety of integrated and essential services"). Congress' decision to amend the statute in this way reflects the entirely appropriate aim of increasing broad-based community involvement "in helping adolescent boys and girls understand the implications of premarital sexual relations, pregnancy, and parenthood." See Senate Report, at 2, 15-16. In adopting the AFLA, Congress expressly intended to expand the services already authorized by Title VI, to insure the increased participation of parents in education *604 and support services, to increase the flexibility of the programs, and to spark the development of new, innovative services. Id., at 7-9. These are all legitimate secular goals that are furthered by the AFLA's additions to Title VI, including the challenged provisions that refer to religious organizations. There simply is no evidence that Congress' "actual purpose" in passing the AFLA was one of "endorsing religion." See Edwards v. Aguillard, 482 U. S., at 589-594. Nor are we in a position to doubt that Congress' expressed purposes are "sincere and not a sham." Id., at 587.^[8]

As usual in Establishment Clause cases, see, e. g., Grand Rapids School District v. Ball, 473 U. S. 373 (1985); Mueller, supra, the more difficult question is whether the primary effect of the challenged statute is impermissible. Before we address this question, however, it is useful to review again just what the AFLA sets out to do. Simply stated, it authorizes grants to institutions that are capable of providing certain care and prevention services to adolescents. Because of the complexity of the problems that Congress sought to remedy, potential grantees are required to describe how they will involve other organizations, including religious organizations, in the programs funded by the federal grants. § 300z-5(a)(21)(B); see also § 300z-2(a). There is no requirement in the Act that grantees be affiliated with any religious denomination, although the Act clearly does not rule out grants to religious organizations.^[9] The services to be provided *605 under the AFLA are not religious in character, see n. 2, supra, nor has there been any suggestion that religious institutions or organizations with religious ties are uniquely well qualified to carry out those services.^[10] Certainly it is true that a substantial part of the services listed as "necessary services" under the Act involve some sort of education or counseling, see, e. g., §§ 300z-1(a)(4)(D), (G), (H), (J), (L), (M), (O), but there is nothing inherently religious about these activities and appellees do not contend that, by themselves, the AFLA's "necessary services" somehow have the primary effect of advancing religion. Finally, it is clear that the AFLA takes a particular approach toward dealing with adolescent sexuality and pregnancy — for example, two of its stated purposes are to "promote self discipline and other prudent approaches to the problem of adolescent premarital sexual relations," § 300z(b)(1), and to "promote adoption as an alternative," 300z(b)(2) — but again, that approach is not inherently religious, although it may coincide with the approach taken by certain religions.

Given this statutory framework, there are two ways in which the statute, considered "on its face," might be said to have the impermissible primary effect of advancing religion. First, it can be argued that the AFLA advances religion by expressly recognizing that "religious organizations have a role to play" in addressing the problems associated with teenage *606 sexuality. Senate Report, at 16. In this view, even if no religious institution receives aid or funding pursuant to the AFLA, the statute is invalid under the Establishment Clause because, among other things, it expressly enlists the involvement of religiously affiliated organizations in the federally subsidized programs, it endorses religious solutions to the problems addressed by the Act, or it creates symbolic ties between church and state. Secondly, it can be argued that the AFLA is invalid on its face because it allows religiously affiliated organizations to participate as grantees or subgrantees in AFLA programs. From this standpoint, the Act is invalid because it authorizes direct federal funding of religious organizations which, given the AFLA's educational function and the fact that the AFLA's "viewpoint" may coincide with the grantee's "viewpoint" on sexual matters, will result unavoidably in the impermissible "inculcation" of religious beliefs in the context of a federally funded program.

We consider the former objection first. As noted previously, the AFLA expressly mentions the role of religious organizations in four places. It states (1) that the problems of teenage sexuality are "best approached through a variety of integrated and essential services provided to adolescents and their families by[, among others,] religious organizations," § 300z(a)(8)(B), (2) that federally subsidized services "should emphasize the provision of support by[, among others,] religious and charitable organizations," § 300z(a)(10)(C), (3) that AFLA programs "shall use such methods as will strengthen the capacity of families . . . to make use of support systems such as . . . religious . . . organizations," § 300z-2(a), and (4) that grant applicants shall describe how they will involve religious organizations, among other groups, in the provision of services under the Act. § 300z-5(a)(21)(B).

Putting aside for the moment the possible role of religious organizations as grantees, these provisions of the statute reflect at most Congress' considered judgment that religious organizations can help solve the problems to which the *607 AFLA is addressed. See Senate Report, at 15-16. Nothing in our previous cases prevents Congress from making such a judgment or from recognizing the important part that religion or religious organizations may play in resolving certain secular problems. Particularly when, as Congress found, "prevention of adolescent sexual activity and adolescent pregnancy depends primarily upon developing strong family values and close family ties," § 300z(a)(10)(A), it seems quite sensible for Congress to recognize that religious organizations can influence values and can have some influence on family life, including parents' relations with their adolescent children. To the extent that this congressional recognition has any effect of advancing religion, the effect is at most "incidental and remote." See Lynch, 465 U. S., at 683; Estate of Thornton v. Caldor, Inc., 472 U. S., at 710; Nyquist, 413 U. S., at 771. In addition, although the AFLA does require potential grantees to describe how they will involve religious organizations in the provision of services under the Act, it also requires grantees to describe the involvement of "charitable organizations, voluntary associations, and other groups in the private sector," § 300z-5(a)(21)(B).^[11] In our view, this reflects the statute's successful maintenance of "a course of neutrality among religions, and between religion and non-religion," Grand Rapids School District v. Ball, 473 U. S., at 382.

*608 This brings us to the second ground for objecting to the AFLA: the fact that it allows religious institutions to participate as recipients of federal funds. The AFLA defines an "eligible grant recipient" as a "public or nonprofit private organization or agency" which demonstrates the capability of providing the requisite services. § 300z-1(a)(3). As this provision would indicate, a fairly wide spectrum of organizations is eligible to apply for and receive funding under the Act, and nothing on the face of the Act suggests it is anything but neutral with respect to the grantee's status as a sectarian or purely secular institution. See Senate Report, at 16 ("Religious affiliation is not a criterion for selection as a grantee . . ."). In this regard, then, the AFLA is similar to other statutes that this Court has upheld against Establishment Clause challenges in the past. In Roemer v. Maryland Bd. of Public Works, 426 U. S. 736 (1976), for example, we upheld a Maryland statute that provided annual subsidies directly to qualifying colleges and universities in the State, including religiously affiliated institutions. As the plurality stated, "religious institutions need not be quarantined from public benefits that are neutrally available to all." Id., at 746 (discussing Everson v. Board of Education, 330 U. S. 1 (1947) (approving busing services equally available to both public and private school children), and Board of Education v. Allen, 392 U. S. 236 (1968) (upholding state provision of secular textbooks for both public and private school students)). Similarly, in Tilton v. Richardson, 403 U. S. 672 (1971), we approved the federal Higher Educational Facilities Act, which was intended by Congress to provide construction grants to "all colleges and universities regardless of any affiliation with or sponsorship by a religious body." Id., at 676. And in Hunt v. McNair, 413 U. S. 734 (1973), we rejected a challenge to a South Carolina statute that made certain benefits "available to all institutions of higher education in South Carolina, whether or not having a religious affiliation." Id., at 741. In other cases involving indirect *609 grants of state aid to religious institutions, we have found it important that the aid is made available regardless of whether it will ultimately flow to a secular or sectarian institution. See, e. g., Witters v. Washington Dept. of Services for Blind, 474 U. S. 481, 487 (1986); Mueller v. Allen, 463 U. S., at 398; Everson v. Board of Education, supra, at 17-18; Walz v. Tax Comm'n, 397 U. S., at 676.

We note in addition that this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs. To the contrary, in Bradfield v. Roberts, 175 U. S. 291 (1899), the Court upheld an agreement between the Commissioners of the District of Columbia and a religiously affiliated hospital whereby the Federal Government would pay for the construction of a new building on the grounds of the hospital. In effect, the Court refused to hold that the mere fact that the hospital was "conducted under the auspices of the Roman Catholic Church" was sufficient to alter the purely secular legal character of the corporation, id., at 298, particularly in the absence of any allegation that the hospital discriminated on the basis of religion or operated in any way inconsistent with its secular charter. In the Court's view, the giving of federal aid to the hospital was entirely consistent with the Establishment Clause, and the fact that the hospital was religiously affiliated was "wholly immaterial." Ibid. The propriety of this holding, and the long history of cooperation and interdependency between governments and charitable or religious organizations is reflected in the legislative history of the AFLA. See S. Rep. No. 98-496, p. 10 (1984) ("Charitable organizations with religious affiliations historically have provided social services with the support of their communities and without controversy").

Of course, even when the challenged statute appears to be neutral on its face, we have always been careful to ensure that direct government aid to religiously affiliated institutions does not have the primary effect of advancing religion. *610 One way in which direct government aid might have that effect is if the aid flows to institutions that are "pervasively sectarian." We stated in Hunt that

"[a]id normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission. . . ." 413 U. S., at 743.

The reason for this is that there is a risk that direct government funding, even if it is designated for specific secular purposes, may nonetheless advance the pervasively sectarian institution's "religious mission." See Grand Rapids School District v. Ball, 473 U. S., at 385 (discussing how aid to religious schools may impermissibly advance religion). Accordingly, a relevant factor in deciding whether a particular statute on its face can be said to have the improper effect of advancing religion is the determination of whether, and to what extent, the statute directs government aid to pervasively sectarian institutions. In Grand Rapids School District, for example, the Court began its "effects" inquiry with "a consideration of the nature of the institutions in which the [challenged] programs operate." Id., at 384.

In this lawsuit, nothing on the face of the AFLA indicates that a significant proportion of the federal funds will be disbursed to "pervasively sectarian" institutions. Indeed, the contention that there is a substantial risk of such institutions receiving direct aid is undercut by the AFLA's facially neutral grant requirements, the wide spectrum of public and private organizations which are capable of meeting the AFLA's requirements, and the fact that, of the eligible religious institutions, many will not deserve the label of "pervasively sectarian."^[12] This is not a case like Grand Rapids, where the *611 challenged aid flowed almost entirely to parochial schools. In that case the State's "Shared Time" program was directed specifically at providing certain classes for nonpublic schools, and 40 of 41 of the schools that actually participated in the program were found to be "pervasively sectarian." Id., at 385. See also Nyquist, 413 U. S., at 768 (" `all or practically all' " of the schools entitled to receive grants were religiously affiliated); Meek v. Pittenger, 421 U. S., at 371. Instead, this litigation more closely resembles Tilton and Roemer, where it was foreseeable that some proportion of the recipients of government aid would be religiously affiliated, but that only a small portion of these, if any, could be considered "pervasively sectarian." In those cases we upheld the challenged statutes on their face and as applied to the institutions named in the complaints, but left open the consequences which would ensue if they allowed federal aid to go to institutions that were in fact pervasively sectarian. Tilton, 403 U. S., at 682; Roemer, 426 U. S., at 760. As in Tilton and Roemer, we do not think the possibility that AFLA grants may go to religious institutions that can be considered "pervasively sectarian" is sufficient to conclude that no grants whatsoever can be given under the statute to religious organizations. We think that the District Court was wrong in concluding otherwise.

Nor do we agree with the District Court that the AFLA necessarily has the eff