Bowen v. Kendrick, 487 U.S. 589 (1988)

In Bowen v. Kendrick, the Court upheld the Adolescent Family Life Act (AFLA) against an Establishment Clause challenge. The act allowed federal grants to go to agencies that provide services related to teen sexuality and pregnancy. Both public and private agencies (including private religious organizations) were eligible for grants under the act. The act was challenged on its face, that is, it was challenged as being unconstitutional by itself, rather than as applied to various agencies. Chief Justice Rehnquist wrote the majority opinion.

The Court ostensibly applied the Lemon test. The Lemon test requires that a law have a secular purpose, a primary effect that neither advances nor inhibits religion, and that the law not excessively entangle government and religion. Yet the Court held that even though the act in some ways paralleled the views and practices of certain religions, the purpose of the act was not to promote religion, but rather to address the problems caused by teen pregnancy and sexual behavior. The Court held that the primary effect of the act did not advance religion, because the grants were available to a wide range of agencies and organizations. It was reasonable for Congress to include religious organizations in the act because such organizations can have an influence on values and family structure, and many of the religious organizations that would receive funds under the program were not ‘‘pervasively sectarian.’’ Thus, the Court held that religion would only benefit incidentally and remotely from the act. Moreover, the Court held that the monitoring required under the act did not lead to excessive entanglement between government and religion. The Court did remand the case for a determination of whether the act violated the Establishment Clause as applied. This would require individual plaintiffs to challenge the program as applied to them, and thus the act could only be challenged through a patchwork of cases rather than on its face as the plaintiffs had attempted in Bowen.

Bowen is one of a series of cases that used the facial neutrality of a program—that is, the fact that aid was available to a wide range of providers, both religious and secular—to uphold the program despite effects that would seem to violate the Lemon test as applied in earlier decisions. The reasoning applied in this line of cases was expanded in Zelman v. Simmons-Harris (2002), a case that upheld a voucher program where the program was open to both religious and secular schools. Bowen might also serve as precedent for upholding ‘‘Charitable Choice’’ programs, and Charitable Choice proponents cite Bowen to support their arguments that such programs are constitutional. Bowen’s formalistic approach, and its language suggesting that it was reasonable forCongress to include religious organizations in AFLA since such organizations can have an influence on values and family structure, have been used by Charitable Choice advocates to argue that religious charities (which have an influence on helping the needy) should be allowed to receive government funding along with other charitable organizations. Yet, Bowen can be criticized for its formalistic reasoning and the resulting failure to seriously consider the effects of the program in question under the Lemon test.

FRANK S. RAVITCH

Cases and Statutes Cited

• Bowen v. Kendrick, 487 U.S. 589 (1988) 
• Lemon v. Kurtzman, 403 U.S. 602 (1971) 
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002) 
• Adolescent Family Life Act, 42 U.S.C. §§300z et. seq