Mullahs On A Bus

NOTES
Mullahs on a Bus: The Establishment Clause and U.S. Foreign Aid

JESSICA POWLEY HAYDEN* TABLE OF CONTENTS INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I. USAID RELIGIOUS LEADER OUTREACH AND CIVIL SOCIETY PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A. RELIGIOUS LEADER OUTREACH PROGRAMS: CENTRAL ASIA AND BANGLADESH B.
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II. ESTABLISHMENT CLAUSE LIMITATIONS ON FEDERAL AID . . . . . . . . . . III. THE CONSTITUTION BEYOND OUR BORDERS . . . . . . . . . . . . . . . . . . IV. THE ESTABLISHMENT CLAUSE AS A STRUCTURAL RESTRAINT . . . . . . . V. THE ESTABLISHMENT CLAUSE AND FOREIGN AID . . . . . . . . . . . . . . . VI. IMPLICATIONS OF A STRUCTURAL APPROACH FOR U.S. FOREIGN AID . . . . CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . INTRODUCTION
I had been in Uzbekistan for two days. After a harrowing ight in an ancient Soviet Tupelo to Karshi, I hired an Uzbek-built Nexia (sans seat belts) and headed south through the windy, mountainous roads to the Afghan border. I was on my way to Termiz, which sits on the southern border of the former Soviet Union and was the point from which the Soviets invaded Afghanistan in the 1980s. I was not here as part of a Special Operations mission or anything as sexy as an Alias plot, but I was here with al Qaeda on my mind. I was in search of young men and women susceptible to Islamic extremism. My job with the United States Agency for International Develop* Georgetown University Law Center, J.D. expected May 2007. 2006, Jessica Powley Hayden. Many thanks to R. David Harden for his invaluable insight and passion for Islamic outreach; to Professor Mark Tushnet for his guidance throughout this project; to my family for their support; and to Liam for his love and adventurous spirit that landed us in Kazakhstan.
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ment (USAID) was to introduce U.S. assistance programs to conservative village leaders, many of them mullahs and imams.1 Just outside of Termiz, my colleague David and I met with a U.S.-funded health care support group headed by Imam Batir, an enthusiastic, middle-aged man with expressive eyes and an easy smile. David, an American-Muslim who speaks uent Uzbek, was of particular interest to the group. The discussion quickly steered from health care to inquiries about religion in America. The group, made up of poor rural men and women of all ages, wanted to know what it was like to be Muslim in America. For the next ve minutes, David delivered a passionate address about his conversion to Islam at the age of fteen and how he has the freedom to practice as he chooses, free from any government interference. When David nished, the room erupted in applause.2 The USAID Islamic Outreach program in Central Asia is just one of many programs instituted by the American government since the terrorist attacks of 2001 to work within foreign Islamic communities. These programs are not without controversy.3 This Note examines this one aspect of the war on Islamic terrorism: the intersection of U.S. foreign aid to promote moderate Islam with the restrictions of the Establishment Clause. The terror threat differs from past enemy threats in that the militant Islamic terrorist acts on a religious beliefhowever divergent from mainstream Islam rather than a pure geopolitical or social animus. That religion is the source of conict is nothing new.4 But what differs in this war is that the United States must, in part, engage in the religious sphere to combat hostile and publicly dangerous manifestations of religious doctrine5 that calls upon young men and
1. A mullah is a member of the Islamic clergy. An imam is an Islamic spiritual leader or scholar. 2. See Jessica P. Hayden, Imams on the Edge: Dispatch from the Uzbek-Afghan Border, FOREIGN SERV. J., Sept. 2005, at 92, 92, available at http://www.afsa.org/fsj/sept05/reections.pdf. 3. Like much associated with the war on terror, the Islamic Outreach programs raise new issues regarding how we interpret and understand our Constitution and its applicability overseas. The unique nature of the terror threat has created legal and ethical questions that will challenge Congress, the Executive Branch, and courts for years to come. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (balancing national security interests against the due process rights of U.S. citizens being held as enemy combatants); S. Amend. 1977 to H.R. 2863, 109th Cong. (2006) (prohibiting cruel, inhuman, or degrading treatment or punishment of detainees); Neal K. Katyal & Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, 111 YALE L.J. 1259 (2002) (disputing the constitutionality of the military tribunals established by the Bush Administration to try enemy combatants); James Risen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, at A1 (revealing NSA terrorist surveillance program); Dana Priest, CIA Holds Terror Suspects in Secret Prisons, WASH. POST, Nov. 2, 2005, at A1 (revealing secret program which allegedly detains terror suspects in secret prisons overseas). 4. The Crusades mark one of the longest and most bitter conicts that centered, in part, on religion. Today, religion plays a central role in the Israel-Palestine conict. Our own roots are witness to religion and conict, as those who rst ed to the United States did so, in part, due to religious oppression. 5. The 9/11 Commission Report noted that Islam is not the enemy. It is not synonymous with terror. Nor does Islam teach terror. America and its friends oppose a perversion of Islam, not the great world faith itself. NATL COMMN ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT 363 (2004) [hereinafter 9/11 COMMISSION REPORT], available at http://www.gpoaccess.gov/911/pdf/ fullreport.pdf.
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women to kill themselves and Westerners.6 The war against terror is not fought just on battleelds in Iraq and Afghanistan but necessarily is concerned with ghting an ideology.7 And unlike ideologies the United States has fought in the pastcommunism, fascism, NazismIslamic extremism is inextricably attached to religion. So the question must be asked: When the United States government acts to combat Islamic extremism by promoting moderate Islam, does the Establishment Clause of the U.S. Constitution apply to its actions? Furthermore, is there a difference between funding religious groups on U.S. soil versus those in far-ung regions of the world? Part I of this Note examines two programs undertaken by USAID to promote moderate Islam and engage Islamic leaders. Part II explores the various Establishment Clause restrictions and limitations on federal aid. Part III examines the applicability of the Constitution beyond our borders and the differences between constitutional structural restraints and individual liberties. Specically, Part III argues that although territoriality plays a fundamental role in the availability of individual constitutional rights, it does not and should not play a role in structural restraints. Part IV asserts that the Establishment Clause should be interpreted, based on its text and history, as a structural restraint on government rather than an individual right. Part V explores how courts have resolved Establishment Clause challenges to foreign aid in the past and questions the logic of employing an individual rights model. Finally, Part VI proposes a model for applying the Constitution to government action abroad in which courts would bifurcate their analysis into two tracks: one which follows the individual rights line of jurisprudence,8 and the other in which the constitutional provision serves as a restraint on government action, such as the Establishment
6. President George W. Bush has compared the war against terror to that of communism, noting that [l]ike the ideology of communism, Islamic radicalism is elitist, led by a self-appointed vanguard that presumes to speak for the Muslim masses. President George W. Bush, Address at the National Endowment for Democracy (Oct. 6, 2005), available at http://www.whitehouse.gov/news/releases/2005/ 10/print/20051006-3.html. For a critique of the analogy between Islamic radicalism and communism, see Zbigniew Brzezinski, Do These Two Have Anything in Common?, WASH. POST, Dec. 4, 2005, at B2. 7. In a speech given to the United Nations, President Bush emphasized the unique nature of the war on terror. He noted, [W]e know that this war will not be won by force of arms alone. We must defeat the terrorists on the battleeld, and we must also defeat them in the battle of ideas . . . . We must defend and extend a vision of human dignity, and opportunity, and prosperitya vision far stronger than the dark appeal of resentment and murder. President George W. Bush, Remarks at the United Nations High-Level Plenary Meeting (Sept. 14, 2005), available at http://www.un.int/usa/05gwb0914.htm. 8. See, e.g., United States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) (holding that the Fourth Amendment warrant requirement does not bind federal searches of nonresident alien defendants property outside the United States); Reid v. Covert, 354 U.S. 1, 1819 (1957) (holding that the Fifth and Sixth Amendments require that crimes be tried by a jury after indictment by a grand jury for citizens outside the United States); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (D.D.C. 2005) (holding that the Due Process Clause of the Fifth Amendment applies to government actions in Guantanamo Bay).
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Clause.9 In light of countervailing foreign policy and political question concerns, this Note proposes a balancing test to determine if the Governments actions meet the constitutional requirements of the Establishment Clause. Courts are currently engaged in a serious debate about how far executive power allows the President to act in the name of foreign policy and national security.10 Traditional judicial deference to foreign policy issues has been criticized while scholars and judges debate where to place the line between foreign policy deference and domestic constitutional restraints. In the realm of the Establishment Clause and foreign aid, deference is not the answer. While courts may muddle through in an ad hoc analytical fashion, the U.S. involvement in inherently religious programs will only increase in the foreseeable future. Continued deference will lead courts down an analytical dead end.11 This Note proposes a principled analytical framework for examining the application of the Establishment Clause to U.S. aid programs overseas and lays the groundwork for balancing the important structural restraints placed on government action by the Establishment Clause with national security concerns. I. USAID RELIGIOUS LEADER OUTREACH AND CIVIL SOCIETY PROGRAMS The U.S. Government has taken on a variety of projects in the Middle East, Central Asia, South Asia, and other regions of the world to combat Islamic fundamentalism. The State Department, for example, experimented with an Arab youth magazine targeted at Muslims between the ages of eighteen and thirty-ve.12 The State Department also funds an International Visitor Leader9. As this Note will demonstrate, while many academics and judges currently view the Establishment Clause as conveying an individual right, a structural restraint model is not only more historically accurate, but also more analytically satisfying. 10. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding military tribunals created to try alleged terrorists detained at Guantanamo Bay were not authorized by Congress, and violated both the Uniform Code of Military Justice and the Geneva Convention); Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (We have long . . . made clear that a state of war is not a blank check for the President when it comes to the rights of the Nations citizens.). 11. While deference may be appropriate in some cases which implicate the Establishment Clause, it is not unthinkable that in the near future, courts will be faced with challenges to U.S. programs that implicate serious Establishment Clause concerns. For example, the United States currently engages in civic education programs across the Muslim world. Some of these include messages of religious tolerance. Hypothetically, the U.S. government could decide that it would be more effective to fund programs which focused on Christianity in an effort to show the monotheistic nature of both religions. Would focusing on Christianity in this context infringe on the Establishment Clause? Would animists or other polytheists have a legitimate challenge against the use of U.S. funds to promote a certain view of Christianity abroad? Unless courts are willing to adjudicate such cases on the merits, a deferential model will not provide the needed balance between religious and security concerns. Instead, the precedent of judicial deference will leave judges with little substance to consider how religion operates abroad, and the contours of how far the Executive may act will remain untested. 12. Hi Magazine was created in 2003, but publication of the print version was suspended at the end of 2005 due to low readership. Press Release, U.S. Dept of State, Suspension of Hi Magazine (Dec. 22, 2005), available at http://www.state.gov/r/pa/prs/ps/2005/58401.htm. The magazine can still be found online at www.himag.com. The magazine was intended to be a window to American culture and to promote a better understanding of American values, with stories focused on popular culture, sports,
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ship Program that brings students, community leaders (including religious leaders), and educators to the United States to learn more about American culture and government.13 Even the Pentagon has engaged in creative and unique efforts to work within the religious realm. Prior to the Iraqi elections, the military worked with Islamic scholars to craft messages that comported with Islam to persuade the Sunni population to vote.14 USAID arguably plays the most active role in engaging Islamic leaders across the world.15 Through its various health, education, economic, democracy, and governance programs, USAID has made a concerted effort over the last ve years to direct U.S. federal assistance and aid toward combating the root causes of terrorism. USAID programs offer the most concrete examples of the United States actively engaging in efforts to promote moderate Islam and doing so by directly funding programs aimed at religious organizations and activities.16
A. RELIGIOUS LEADER OUTREACH PROGRAMS: CENTRAL ASIA AND BANGLADESH
To combat what USAID believes is an American image problem17 in
relationships, and young Muslims in America. See Arab Youths Wooed with US Magazine, BBC NEWS, July 18, 2003, http://news.bbc.co.uk/1/hi/world/middle_east/3078063.stm. 13. See U.S. Dept of State, Bureau of Educ. & Cultural Affairs, International Visitor Leadership Program, http://exchanges.state.gov/education/ivp/ (last visited June 18, 2006). One of the 9/11 Commissions recommendations under the heading Prevent the Continued Growth of Islamic Terrorism was to [c]ommunicate and defend American ideals in the Islamic world, through much stronger public diplomacy to reach more people, including students and leaders outside of government. Our efforts here should be as strong as they were in combating closed societies during the Cold War. NATL COMMN ON TERRORIST ATTACKS UPON THE U.S., THE 9/11 COMMISSION REPORT: EXECUTIVE SUMMARY 18 (2004) [hereinafter 9/11 COMMISSION REPORT: EXECUTIVE SUMMARY], available at http://www.gpoaccess. gov/911pdf/execsummary.pdf. For a critique of the Commissions hearts and minds program, see Richard A. Posner, The 9/11 Report: A Dissent, N.Y. TIMES, Aug. 29, 2004, 7 (Book Reviews), at 1. Additionally, the Presidents 2006 Budget request contains increased funding for cultural exchanges and English-language Voice of America broadcast programming in the Middle East. See Glenn Kessler, Controversy May Effect U.S. Efforts, WASH. POST, Feb. 8, 2006, at A16. 14. See David S. Cloud & Jeff Gerth, Muslim Scholars Were Paid to Aid U.S. Propaganda, N.Y. TIMES, Jan. 2, 2006, at A1; see also Jeff Gerth, The Reach of War: Propaganda; Militarys Information War Is Vast and Often Secretive, N.Y. TIMES, Dec. 11, 2005, 1, at 11 (describing U.S. Army psychological operations in the Middle East). 15. Much of the funding for religious outreach programs is covered under cross-cutting activities (i.e., activities that cut across the programmatic sectors of USAID, including health, education, democracy, etc.). For example, Central Asias USAID mission allocated $85,000 in 2005 for crosscutting outreach programs, which included outreach efforts through tours of USAID programs and representational events with Islamic leaders to better inform others about USAID assistance and to incorporate community views into Mission programming. Data Sheet: Central Asian Republics Regional, Cross-Cutting Programs, http://www.usaid.gov/policy/budget/cbj2006/ee/pdf/car_1760420.pdf (last visited July 17, 2006). 16. These programs are differentiated from domestic faith-based initiatives in that beneciaries of U.S. funds are not chosen in spite of their religious afliations, but rather because of their ties to a specic religious group. See Exec. Order No. 13,279, 67 Fed. Reg. 77,141 (Dec. 12, 2002) (requiring equal protection for faith-based initiatives); Exec. Order No. 13,199, 66 Fed. Reg. 8,499 (Jan. 29, 2001) (declaring policy for the inclusion of faith-based organizations in social services). 17. A twenty-three nation poll conducted in late 2004 found that the United States ranked rst as being viewed by other countries as asserting a negative inuence in the world. See PROGRAM ON INTL
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Muslim communities across the globe, religious leader outreach programs have been instituted both to educate religious leaders on the good works that USAID undertakes in their communities, as well as to engage the leaders in participating in U.S. programs.18 For example, in Jalalabad, Kyrgyzstan, Project Hope operates a health clinic that serves many of the regions poor and sick. Project Hope, with funding from the U.S. government, trained dozens of imams on maternal health and child survival issues.19 USAID hopes that these community leaders will not only provide basic health resources to their communities, but also spread the word regarding the positive American undertakings. The Central Asia USAID Mission20 recently instituted an Islamic Outreach program.21 In this region of the former Soviet Union, religious oppression is rampant. In addition, there are few well trained Islamic scholars, a result of decades of Soviet atheist rule. Many analysts believe that regions such as Tajikistan and Uzbekistan could be fertile breeding ground for terrorist organizations, created by a backlash against state oppression and a vacuum of knowledgeable moderate Islamic leaders.22 The Central Asia USAID Mission developed a strategy which seeks to integrate independent and credible Islamic leaders into
POLY ATTITUDES, IN 20 OF 23 COUNTRIES CITIZENS WANT EUROPE TO BE MORE INFLUENTIAL THAN US (2005), http://www.pipa.org/OnlineReports/EvalWorldPowers/LeadWorld_Apr05/LeadWorld_Apr05_ rpt.pdf. 18. In many communities, recipients of USAID health or education programs are unaware of the ultimate donor. This is due, in part, to the structure of the programs in which non-governmental organizations (NGOs) like CARE, Soros Foundation, or Mercy Corps receive grants from USAID and implement the programs on the ground. Recipients often see the face of the NGO, rather than the U.S. government. USAIDs strategy is to correct this image and highlight the good works it undertakes. To that end, USAID has instituted a branding campaign worldwide to connect its programs to America. See Administration of Assistance Awards to U.S. Non-Governmental Organizations; Marking Requirements, 70 Fed. Reg. 50,183-01, 50,183-185 (Aug. 26, 2005) (to be codied at 22 C.F.R. pt. 226) (requiring all programs under the Foreign Assistance Act be marked as American Aid unless a waiver is obtained, in an effort to ensure that the American people are visibly acknowledged for their generosity in providing foreign assistance); see also Al Kamen, The Red in Red, White and Blue, WASH. POST, Mar. 18, 2005, at A21 (supporting the USAID branding policy, but noting that [n]ongovernmental groups operating overseas in nasty places are not too happy with putting the USAID logo on their cars, comparing it to a bulls-eye for bad guys to shoot at). There are some regions of the world in which the United States does not advertise its involvement. See Abdelwahab El-Affendi, Muslim Hearts and Minds? Perspectives in U.S. Reform and Public Diplomacy Strategies 3 (The Brookings Project on U.S. Policy Towards the Islamic World, Working Paper, Sept. 2005), available at http://www.brookings. edu/fp/research/projects/islam/paper_elaffendi.pdf; Gerth, supra note 14; Kamen, supra. 19. Project Hope provides broad training to medical practitioners. In Central Asia, religious leaders were selected in part because they were also leaders in their communities [and] were constantly faced with health and public health issues from their followers. Knowing more about issues like maternal health and child care survival helped these leaders educate their populations and leverage the ability of [local] clinics to meet the needs of the population. E-mail from R. David Harden, Deputy Director, USAID West Bank/Gaza, to author (Feb. 10, 2006, 08:47:52 PST) (on le with author). 20. This mission covers the following countries: Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uzbekistan. See USAID Central Asia, http://centralasia.usaid.gov (last visited May 12, 2006). 21. See Hayden, supra note 2, at 92. 22. See Terrorism, Religious Extremism, and Regional Stability in Central Asia: Hearing Before the Subcomm. on the Middle East and Central Asia of the H. Comm. on International Relations, 108th Cong. (2003) (statement of Fiona Hill, Senior Fellow, The Brookings Institute).
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USAIDs development activities and to create cognitive dissonance by challenging negative perceptions of U.S. foreign policy.23 In response, Mullahs on a Bus was instituted, a program that brings together USAID-funded programs and regional religious leaders to discuss the work that USAID is undertaking in their communities.24 In remote villages across the region, the program typically brings together about a dozen religious leaders who spend a day on a bus visiting various U.S.-funded projects and hearing directly from beneciaries of the positive work the United States undertakes in a variety of elds, such as agriculture, education, and health care.25 In Bangladesh, USAID recently has undertaken a massive training effort in partnership with the Islamic Foundation of Bangladesh.26 The intensive fortyve day course is offered at seven imam training academies in Bangladesh.27 USAID directly sponsors three days of the course in which imams and mullahs learn about American development efforts, including issues of democracy, human rights, family health, agriculture, rural electricity, natural resource management, food security, and childhood education.28 Nearly 5000 imams will participate in these sessions over an eighteen month period.29 The Bangladesh USAID mission notes that [t]he effort to reach out to inuential leaders in Bangladesh remains a priority for USAID. By learning more about development issues and approaches, imams can utilize their role as community leaders to raise public awareness and increase citizen participation in developing their towns and villages.30 These religious outreach programs, both in Central Asia and Bangladesh, are not focused at sending a particular religious message, but rather at bringing religious leaders into the fold of USAID programs. The beneciaries of the programs are religious leaders, but the messages are those of bettering education, providing quality health care, and preventing the spread of disease. For example, when the Charge DAffairs kicked off the Bangladesh imam training
23. USAID Ctr. for Dev. Info., USAID Summer Seminar Session 10Notes (2005), http:// www.usaid.gov/policy/cdie/notes10.html. 24. See, e.g., Tours of Aid Sites to Counter Radicals, USAID FRONTLINES (U.S. Agency for Intl Dev./Bureau for Legis. and Pub. Aff., Washington, D.C.), Nov. 2004, at 7, http://www.usaid.gov/press/ frontlines/Nov04_FrontLines.pdf. Mullahs on a Bus is the nickname USAID staff gave to the programs, as religious leaders were literally placed on buses to tour the USAID programs in their communities. 25. See Hayden, supra note 2, at 92 (quoting Claire Ehmann, Desk Ofcer, Ofce of Central Asian Republics). 26. This program was instituted after an ad hoc bus program yielded mullahs and imams who expressed a desire to work with USAID. See Memorandum from R. David Harden to SO Team Leaders, Mission Management, Outreach Activities: Legal and Policy Guidance (Aug. 21, 2002) (on le with author). 27. See id.; USAID Bangladesh, In Focus: Religious Leaders Learn about Development in Bangladesh (July 2005), http://www.usaid.gov/bd/focusjuly05.html. 28. USAID Bangladesh, supra note 27. 29. Id. 30. Id.
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program, she focused on AIDS prevention.31 The Charge DAffairs closed her speech by noting that [a]s community leaders you play a vital role in spreading awareness and information. I am sure that you will nd todays program useful and that you will share what you learn in your communities.32 As noted above, these programs serve two major functions. The rst is to educate imams who are community leaders on important social, civic, and health development programs and have them engage their communities, creating more effective assistance programs.33 While these development goals are laudable, the more important (and understated) goal is to provide a view of the United States to religious leaders that does not appear on the front pages of the Dhaka or Tashkent daily papers: that of a compassionate and caring United States. By putting a humanand humanitarianface on U.S. efforts, extremists claims of an evil empire may ring less true.34
B. ISLAM AND CIVIL SOCIETY PROGRAM: INDONESIA
The Indonesia USAID mission has been actively involved in Islamic engagement since 1997. Its Islam and Civil Society Program, implemented through the Asia Foundation,35 works on a variety of fronts to curb Islamic extremism and promote a pluralistic and democratic society.36 The program is quite expansive
31. See Judith A. Chammas, Charge DAffairs, U.S. Embassy, Dhaka, Opening Remarks at Imam Training Program (Aug. 31, 2005) (transcript available at http://dhaka.usembassy.gov/08.31.05_imam_ training_program.html). 32. Id. 33. According to the Asia Foundation, The imams will study program activities and implementation methodologies, and discuss the role of leaders of inuence in facilitating national development through a combination of personal initiatives and guidance to members of the communities that they serve. In some cases, participating imams will learn from the experience of fellow imams who are already engaged with USAID partner organizations, including the trafcking prevention efforts of imams . . . . The Asia Foundation, USAID and the Asia Foundation Launch Leaders Outreach Initiative (Apr. 16, 2005), http://www.asiafoundation.org/Locations/bangladesh_usaid.html. 34. USAID does not expect that training programs alone will win the hearts and minds of Muslims. Nor are the programs without criticism. The Egyptian IslamOnline.net reported after the opening ceremony that the director of the Imam Training Academy criticized the United States and Europe for failing to develop or patronize the Islamic NGOs in Bangladesh. He also urged Washington to invest more in mosques and Islamic organizations to win the hearts of the Bangladeshi people. IslamOnline.net, US Funds Imams Training in Bangladesh (Apr. 17, 2005), http:// www.islamonline.net/English/News/2005-04/17/article07.shtml. 35. The Asia Foundation is an NGO that receives grants from USAID to implement various programs. This structure is meant not to hide American involvement, but rather reects the way in which USAID structures its activities. The local and national NGOs are generally more capable of implementing programs, and the U.S. government provides the funds to carry out its policy and development goals. See USAID Primer: What We Do and How We Do It, http://www.usaid.gov/ about_usaid/primer.html (last visited June 18, 2006); see also supra note 18. 36. See Grant Impact Monitoring Report, The Asia Foundation, Islam and Civil Society Program (Mar. 2005) (on le with author); see also USAID, SUMMARY ASSESSMENT OF THE ISLAM AND CIVIL SOCIETY PROGRAM IN INDONESIA 7 (Feb. 2006), http://pdf.dec.org/pdf_docs/Pdacg325.pdf (noting that the
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and has instituted mandatory civic education classes for university students; published Friday yers on the rule of law and human rights which are distributed outside of 800 mosques in thirty-ve cities weekly; worked to create pesantren-based pluralism and civil society initiatives;37 integrated teachings on pluralism, democracy, gender equality, and womens rights with mubalighat38 sermons, reaching 20,000 women weekly; and funded the Liberal Islam Networks (JIL) Religion and Tolerance radio show.39 The mandatory civic education classes have been the most successful and most extensive of the programs, reaching over 125,000 students a year.40 USAID has long funded civil society and education programs and has done so in a secular fashion globally. This program, however, differs because it uses religion as a vehicle to discuss issues of democracy, pluralism, peace, and tolerance.41 What distinguishes several of the Indonesian programs is the implicit and explicit message that promotes a moderate or liberal form of Islam over more extreme sects. For example, JILs mission is specically to counter religious fundamentalism and militancy, and, with U.S. government funds, it produces a radio program to counter militant messages.42 Likewise, USAID, through funding to the Institute for Islamic and Social Studies (LKiS), has developed its yer
most important contribution of the program in Indonesia is that it has expanded a national dialogue on the issues of democracy, human rights, and gender equality . . . . What is most encouraging about this dialogue is that issues of democracy, pluralism, and tolerance are being discussed with reference to Islamic theology, practices, and symbols, as well as the problems and challenges facing contemporary Indonesian society.). 37. Pesantrens are traditional Islamic boarding schools. The role of traditional Islamic schools in Muslim countries has raised suspicion over the past several years. Critics of madrasahs claim that they are breeding grounds for terrorists, and many countries have taken steps to regulate education. For an interesting analysis, see Alexander Evans, Understanding Madrasahs, FOREIGN AFF., Jan./Feb. 2006, at 916. He suggests that [t]he majority of madrasahs actually present an opportunity, not a threat . . . . And for U.S. and European policymakers, madrasahs offer an important arena for public diplomacya chance to ensure that the Muslim leaders of tomorrow do not see the West as an enemy inherently hostile to all Muslim institutions. Rather than undermining the madrasah system . . . , Western policymakers should engage it. Id. at 9. The focus in Indonesia on religious education is not isolated. As part of an effort to address what many see as terrorist breeding grounds, several world-wide initiatives have been undertaken. USAID has committed $100 million over ve years for general education reform in Pakistan. The United States has also committed $90 million to the Middle East Partnership Initiative, which promotes secular education in the Arab World. See Christopher M. Blanchard, Islamic Religious Schools, Madrasas: Background 6 (Cong. Research Serv. Report No. RS12654, Feb. 10, 2005), available at http://www.fas.org/sgp/crs/misc/RS21654.pdf. 38. Mubalighat are female preachers. 39. See generally Grant Impact Monitoring Report, supra note 36. 40. See Telephone Interview with Nancy Yuan, Vice President and Director, The Asia Foundation, in Washington, D.C. (Feb. 14, 2006) (on le with author). The program is implemented in forty-six public universities and twenty-six private universities. The Asia Foundation is also extending the program to tertiary schools. Id. 41. See id. 42. Grant Impact Monitoring Report, supra note 36, at 78.
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program to counter the pro-terror, anti-Western yers typically distributed outside of mosques during Friday prayers.43 USAID notes:
Historically, the mosque is one of the most important Islamic public spaces, and Friday prayers is an important weekly ritual attended by most pious Muslim males. Given that, militant groups have long taken the opportunity to reach this prime target audience by passing out leaets to worshippers after Friday prayers. LKiS seeks to subvert that practice for democratic purposes by passing out its Friday yer, Al-Ikhtilaf, outside of mosques in order to promote religious tolerance, pluralism, and democratic values amongst the pious Muslim male population in Indonesia. In recently [sic] developments, LKiS has adapted this program to bring such messages of pluralism and tolerance, in Islamic language, to other target groups such as women and high school students.44
The goal of this program is to target the pious Muslim male population in Indonesia by crafting yers that use Koranic verses and Islamic symbols to discuss messages of tolerance and peace.45 Similarly, the LKiS program targets the female Muslim population by training female preachers on issues of democracy and then integrating those messages into religious sermons.46 II. ESTABLISHMENT CLAUSE LIMITATIONS ON FEDERAL AID The First Amendment of the United States Constitution states that Congress shall make no law respecting an establishment of religion . . . .47 The question of interpreting no law has challenged legal scholars and jurists for centuries. Thomas Jefferson, in a letter to the Danbury Baptist Association, described the Establishment Clause as creating a wall of separation between Church and State.48 Although eloquent as a metaphor, the wall is certainly one that is
43. See id. at 1112. Distributing religious material in this context is done for an arguably secular purpose: to promote ideas of pluralism, democracy, and civil society. The U.S. government has distributed religious material for other purposes, such as the desire to foment opposition to Soviet power by empowering religious opposition. See STEVE COLL, GHOST WARS: THE SECRET HISTORY OF THE CIA, AFGHANISTAN, AND BIN LADEN, FROM THE SOVIET INVASION TO SEPTEMBER 10, 2001, at 10205 (2004). 44. Grant Impact Monitoring Report, supra note 36, at 11. 45. Id. 46. See id. at 12. 47. U.S. CONST. amend. I. 48. Letter from Thomas Jefferson to Danbury Baptist Assn (Jan. 1, 1802), in DANIEL L. DREISBACH, THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE 148 (2002). The analogy was adopted by the court in Everson v. Board of Education: The establishment of religion clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another . . . . In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State. 330 U.S. 1, 1516 (1947) (citation omitted).
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permeable.49 As the Court recognized in Walz v. Tax Commission,50 [n]o perfect or absolute separation is really possible; the very existence of the Religion Clauses is an involvement of sortsone that seeks to mark boundaries to avoid excessive entanglement.51 Yet the Court has often relied on Jeffersons wall metaphor to promote strict separationism and an individual rights model of the Establishment Clause.52 In Lemon v. Kurtzman,53 the Court announced what is now known as the Lemon test to determine whether government funding or action runs afoul of the Establishment Clause. State action (1) must have a secular purpose;54 (2) its principal or primary effect must be one that neither advances nor inhibits religion;55 and (3) it cannot result in an excessive government entanglement with religion.56 As part of this test, courts will examine whether the aid will result in indoctrination and whether the program denes its aid recipients by religion.57 Although the Lemon test has come under extensive criticism by legal
49. As Justices Frankfurter and Reed have both opined, it is incredibly difcult to determine where that wall should be situated. See McGowan v. Maryland, 366 U.S. 420, 461 (1961) (Frankfurter, J., concurring) (noting that the multiple opinions in previous Establishment Clause cases such as Everson, McCollum, and Zorach make sufciently clear that separation is not a self-dening concept. [A]greement, in the abstract, that the First Amendment was designed to erect a wall of separation between Church and State, does not preclude a clash of views as to what the wall separates. (citation omitted)); McCollum v. Bd. of Educ., 333 U.S. 203, 247 (1948) (Reed, J., dissenting) (A rule of law should not be drawn from a gure of speech.). 50. 397 U.S. 664 (1970). 51. Id. at 670. In Walz, the Court upheld tax exemptions for churches because, in part, the New York State tax code did not single out one particular church or religious group but granted exemptions to all houses of worship within a broad class of property owned by nonprot corporations, including hospitals and libraries. Id. at 67273. In comparison, Islamic outreach programs direct funds specically to one religious group. 52. See infra text accompanying notes 10217 (analyzing the view that the Establishment Clause protects individual rights). While strict separationism and the individual rights model represent different conceptual ideas, they are inextricably linked. Under the theory that the Establishment Clause protects individual and minority rights, the implementation of this theory has resulted in the view that strict separation is the best way to achieve that goal. 53. 403 U.S. 602 (1971). 54. Id. at 612. The Court has looked at secular purpose as a kind of rational basis standard of review. Unless facts call the purpose into question, the Court will assume the statute has a secular purpose. See Edwards v. Aguillard, 482 U.S. 578, 59394 (1987) (no secular purpose where the purpose was to promote the particular religious doctrine of creationism); Wallace v. Jaffree, 472 U.S. 38, 56 (1985) (no secular purpose where the actual purpose was to promote prayer). 55. Lemon, 403 U.S. at 612. 56. Id. at 613. To avoid running afoul of the ban on excessive entanglement, government programs must be neutral with respect to religion, but the Court has been divided over whether the institutions receiving government funds themselves must be neutral with respect to religion. See MICHAEL S. ARIENS & ROBERT A. DESTRO, RELIGIOUS LIBERTY IN A PLURALISTIC SOCIETY 29193 (2002). However, in the context of education, the Court consistently has ruled that neutral government programs that result in funds being directed at religious organizations are constitutional so long as the decision to use the funds at a religious organization resulted from true private choice. See Zelman v. Simmons-Harris, 536 U.S. 639, 649 (2002) (listing six cases supporting this distinction). 57. See Agostini v. Felton, 521 U.S. 203, 234 (1997) (explaining that the Court will examine whether the aid will result in indoctrination, whether the aid program denes its recipients by
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scholars and Justices of the Supreme Court,58 it remains the lens through which domestic aid and programs regarding religion are examined. The USAID programs, if enacted domestically, would most likely violate the Establishment Clause. The Central Asian Mullahs on a Bus tours arguably serve a secular purpose. The goal is to educate the religious leaders not on faith or religion, but rather on the secular programs that the United States undertakes in the leaders community. If a religious leader chooses to work with the U.S. government on education or agricultural programs, the involvement of a religious leader does not make the activity per se religious. But the programs do target their participants by religion; in fact, they dene the recipients of aid by religion.59 The Bangladesh program trains Islamic imams, not local mayors or other civic leaders, and the goal is specically to work within the religious community. The Indonesian civil society programs are all sect-preferentialpreferring and promoting moderate over militant Islamand would be so problematic as to be almost per se unconstitutional if applied domestically.60 For example, if the United States began funding radio stations in the Midwest to promote a certain form of Christianity, the Establishment Clause would almost certainly be violated. The programs targeting Islamic boarding schools61 would run afoul of
reference to religion, and whether the aid creates excessive entanglement between government and religion). 58. See Van Orden v. Perry, 125 S. Ct. 2854, 286061 (2005) (collecting cases on the varied use and disuse of the Lemon test and determining that [w]hatever may be the fate of the Lemon test it will not be applied in the case at hand); Lambs Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring) (Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shufes abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again . . . .). Critiques of the Lemon test are not new. See, e.g., John H. Manseld, The Religion Clauses of the First Amendment and the Philosophy of the Constitution, 72 CAL. L. REV. 847, 848 (1984) (claiming that the Courts jurisprudence in this area has been obscured by the incantation of verbal formulae devoid of explanatory value, such as the Lemon Test); Mark V. Tushnet, The Constitution of Religion, 18 CONN. L. REV. 701, 702 (1986) (generally criticizing that [c]ontemporary constitutional law just does not know how to handle problems of religion). 59. Cf. Agostini, 512 U.S. at 234 (holding that programs that do not dene their recipients by religionamong other factorsdo not run afoul of the Establishment Clause). 60. Justice Breyer has recently opined that the Establishment Clause demands that the government must neither engage in nor compel religious practices, that it must effect no favoritism among sects or between religion and nonreligion, and that it must work deterrence of no religious belief. Van Orden, 125 S. Ct. at 2868 (Breyer, J., concurring) (citing Lee v. Weisman, 505 U.S. 577, 587 (1992); Sch. Dist. v. Schempp, 374 U.S. 203, 305 (1963); and Everson v. Bd. of Educ., 330 U.S. 1, 1516 (1947)). 61. Direct assistance to pervasively sectarian organizations is prohibited, under the theory that it advances religion. Although the plurality in Mitchell v. Helms stated that the pervasively sectarian factor in Establishment Clause jurisprudence is thankfully long past, 530 U.S. 793, 826 (2000), a majority of the Court has never expressly abandoned the factor. The Court has invalidated a tuition reimbursement and tax benet program where approximately eighty-ve percent of the programs funds went to parents who sent their children to church-afliated schools that placed religious restrictions on curriculum and faculty appointments and required attendance at religious services. See Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 76768 (1973). But see Mueller v. Allen, 463 U.S.
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true private choice doctrine.62 USAID is not providing funds for students to choose their education, but rather promoting certain ideas at target Islamic schools to counter extreme religious messages. Likewise, working with religious leaders to craft certain messages into their sermonsin fact giving them funding to do sowould also result in excessive entanglement. Yet the idea that the government, as part of its foreign policy agenda, cannot engage religious leadersand religionin a way that is apart from the domestic constitutional framework seems untenable. If those most vulnerable to Islamic extremism are pious young Muslims, targeting that group for programs that promote the values of pluralism and democracy is the most cost-efcient use of resources. Requiring that the program not dene its participants by religionfor example requiring both Christian and Muslim men to be included in the target age rangewould doom the program before it ever started. If USAID could not seek to inhibit the practice of militant Islam or fund programs that promote a more tolerant view, the agencys hands would be tied with respect to one of the highest priorities in todays war against terror. American foreign policy would remain a hostage to a standard set up for government action within the United States and for the purpose of protecting American citizens from intrusive government actions. III. THE CONSTITUTION BEYOND OUR BORDERS When Benjamin Franklin was sent to France in 1776, it took him nearly six weeks to arrive in Paris by boat.63 That the Founding Fathers could have imagined a world where travelers could leave Philadelphia in the evening and wake up the next morning in London or Lisbon is unlikely. That they could have imagined questions such as whether the Establishment Clause would apply to USAID civic education programs in Uzbekistan seems impossible.64 It is clear that the Executive Branch may do things overseas that it would be prohibited from doing domestically. The Presidents Article II powers grant him broad latitude in making decisions respecting foreign relations and development assistance.65 For example, the Mexico City Policy requires recipients of USAID
388, 401 (1983) (upholding tax deductions for educational expenses for children attending parochial schools, noting that the Court would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benets under the law). The Indonesian pesantrens are clearly pervasively sectarian. 62. See Zelman, 536 U.S. at 640 (holding that Establishment Clause challenges will not be successful if the program offers recipients of funds a true private choice and aid is then directed at religious schools). 63. Franklin sailed to France on October 27, 1776 and arrived on December 3. See EDMUND S. MORGAN, BENJAMIN FRANKLIN 316 (2002). 64. See, e.g., Thomas v. Review Bd., 450 U.S. 707, 722 (1981) (Rehnquist, J., dissenting) (noting that the Framers could not have foreseen incorporation or the expansion of social welfare programs because we simply do not know how they would view the scope of the two [Religion] Clauses). 65. U.S. CONST. art. II, 2; United States v. Verdugo-Urquidez, 494 U.S. 259, 27374 (1990) (concluding that due to the uncertainty and intricacy involved in foreign relations, coupled with Article
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funding to certify that they will not, while receiving assistance under the grant, perform or actively promote abortion as a method of family planning in [US]AID-recipient countries or provide nancial support to other foreign nongovernmental organizations that conduct such activities.66 NGOs that agree to this clause are prohibited from using government funds, or their own funds, for promoting or performing abortions.67 While several organizations have raised constitutional challenges to the policy, none have been successful.68 Courts have found that the decision whether or not to apply the requirement as a condition of receiving USAID funds is a nonjusticiable political question, and the President has authority to decide how to conduct foreign policy. While Congress can place similar restrictions on domestic clinics,69 the President could not unilaterally apply the Mexico City Policy to domestic NGOs. Early attempts to dene the scope of the Constitution were often inconsistent and led to one of the most notorious decisions in our legal history.70 The Court
II powers and national sovereignty, the Fourth Amendment does not inherently apply overseas); United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (holding the distribution of federal power not equal as applied to international and domestic issues and that the Executive speaks as the sole organ of the United States in foreign affairs). The Presidents foreign policy power can even preempt state law when the effect of a state law will conict with the national governments express foreign policy, even in the absence of an executive agreement preemption clause. The express federal policy and the clear conict raised by the state statute are alone enough to require state law to yield. Am. Ins. Assn v. Garamendi, 539 U.S. 396, 424 (2003) (holding that the Executives foreign policy on Holocaust-era insurance policy claims preempted a California statute that required more exacting procedures to force payment). 66. Ctr. for Reprod. Law & Policy v. Bush, 304 F.3d 183, 187 (2d Cir. 2002). President George W. Bush restored the Mexico City Policy when he entered ofce. See Restoration of the Mexico City Policy, 66 Fed. Reg. 17,303 (Mar. 28, 2001). 67. Restoration of the Mexico City Policy, 66 Fed. Reg. at 17,304. 68. See, e.g., Ctr. for Reprod. Law & Policy, 304 F.3d at 198 (holding that the Mexico City Policy did not violate the NGOs equal protection rights); Planned Parenthood Fedn of Am., Inc. v. Agency for Intl Dev., 915 F.2d 59, 65 (2d Cir. 1990) (Planned Parenthood II) (holding that the Mexico City Policy did not violate Planned Parenthoods freedom of speech or privacy); Planned Parenthood Fedn of Am., Inc. v. Agency for Intl Dev., 838 F.2d 649, 651 (2d Cir. 1988) (Planned Parenthood I) (holding that the plaintiffs First Amendment challenge to the Mexico City Policy did not present a nonjusticiable political question). In Planned Parenthood II, the court held that the Mexico City Policy did not prohibit the plaintiffs from exercising their First Amendment rights because they may use their own funds to pursue whatever abortion-related activities they wish in foreign countries . . . . The harm alleged . . . is the result of choices made by foreign NGOs to take AIDs money rather than engage in non-AID funded cooperative efforts . . . . Planned Parenthood II, 915 F.2d at 64. The court also held that the wisdom of, and motivation behind the Mexico City Policy was a nonjusticiable issue because all foreign policy decisions are based on a viewpoint, government would be immobilized if it could not make aid decisions based on particular viewpoints. Id. (Were the courts to allow challenges to foreign aid programs on the ground that the governments subsidy of a particular viewpoint abroad encourages the foreign recipients of American aid not to speak or associate with Americans opposed to that viewpoint, the political branches would nd it impossible to conduct foreign policy.). 69. See Rust v. Sullivan, 500 U.S. 173, 203 (1991) (holding that restrictions prohibiting discussing abortion as a family planning option as a condition of receiving funds in a Title X clinic are not unconstitutional abridgements of free speech). 70. See Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 42627 (1857) (holding the Constitution applicable in the Missouri Territory but not applicable to emancipated slaves because they were not citizens of the United States). The Court has reversed itself on issues such as the right to a jury trial,
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began to examine the scope of the Constitution in more depth following the Spanish-American War in the Insular Cases.71 The Court relied heavily on the concept of territoriality and went as far in In re Ross72 as to declare that the Constitution can have no operation outside the territory of the United States.73 The Insular Cases also distinguished between fundamental constitutional rights, as those applicable in the territories, and all others that were held to be inoperable in the territories.74 The holdings of the Insular Cases, while providing a starting place for analyzing the applicability of the Constitution abroad, have been limited by subsequent decisions, mainly Reid v. Covert.75 Reid marked a massive shift in the way the Court analyzed the application of the Constitution extraterritorially. At issue was the murder trial by a court martial in which a civilian, Mrs. Covert, was accused of killing her husband on an air base in England.76 Defense counsel argued that regardless of where Mrs. Covert was located at the time of the murder, she was entitled to a civilian trial.77 In other words, she did not forego her constitutional protections solely by committing a crime outside of the territory of the United States. The Court agreed. The plurality opinion emphatically dispelled the notion that the Constitution is bound by territory. Justice Black wrote, [a]t the beginning we reject the idea that when the United States acts against citizens abroad it can do so free of the Bill of Rights. The United States is entirely a creature of the Constitution.78 Reid established that the Fifth and Sixth Amendments of the Constitution apply to protect citizens who reside overseas and distinguished In re Ross,
holding in United States v. Dawson, 56 U.S. (15 How.) 467 (1853), that a right to a jury trial was reserved for criminal acts committed only in the States, but later holding in Reynolds v. United States, 98 U.S. (8 Otto.) 145 (1878), that a defendants location in the territory of Utah did not suspend his right to a trial by jury. 71. See GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION 8389 (1996); see also John A. Ragosta, Aliens Abroad: Principles for the Application of Constitutional Limitations to Federal Action, 17 N.Y.U. J. INTL L. & POL. 287, 28995 (1985). The Insular Cases consist of nine cases addressing the constitutional status of Puerto Rico and the Philippines argued in 1901, as well as the series of cases from DeLima v. Bidwell, 182 U.S. 1 (1901), to Balzac v. Puerto Rico, 258 U.S. 298 (1922), which established the framework of second-class status for overseas territories. NEUMAN, supra, at 83. 72. 140 U.S. 453 (1891). 73. Id. at 464. 74. In Dorr v. United States, the Court held that a right to a jury trial did not exist for a defendant in the Philippines. 195 U.S. 138, 149 (1904). The Court stressed the relationship between the United States and the territory but also stressed that had a fundamental right been implicated, the Constitution would apply. Id. at 147. 75. 354 U.S. 1 (1957). The Court in Reid suggested that the Insular Cases should not be expanded or followed. Justice Black, delivering the plurality opinion, wrote: The concept that the Bill of Rights and other constitutional protections against arbitrary government are inoperative when they become inconvenient or when expediency dictates otherwise is a very dangerous doctrine and if allowed to ourish would destroy the benet of a written Constitution and undermine the basis of our government. Id. at 14 (plurality opinion). 76. Id. at 3. 77. Id. at 4. 78. Id. at 56.
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describing it as a relic from a different era.79 This meant that the United States could not circumvent individual rights protected by the Constitution through a treaty or agreement with another country.80 There were diverse views, however, on how far the Constitution should be applied. Justice Black favored an application in which every provision of the Constitution applied to government action abroad. He focused not on who was being harmed, but on the actorthe government. As a creature of the Constitution, Justice Black argued that the government can only act abroad in accordance with all the limitations imposed by the Constitution.81 However, Justice Harlan was not ready to go that far. While agreeing that the Fifth and Sixth Amendments may have some operation outside of the United States, he could not agree with the suggestion that every provision of the Constitution must always be deemed automatically applicable to American citizens in every part of the world.82 Professor Neuman has described this shift in the Courts jurisprudence, specically Justice Blacks plurality opinion, as moving away from a strict territoriality approach to what he calls a municipal law approach, which focuses heavily on the prescriptive jurisdiction over American citizens worldwide under the nationality principle.83 Following the Reid decision, lower courts tended to read Reid in a broad fashion, protecting citizens rights against government action both on the high seas and in foreign countries.84 Yet the concept of territoriality has not died. In the 1990 case United States v. Verdugo-Urquidez,85 the Court held that the Fourth Amendment did not apply where U.S. ofcials searched foreign property owned by a citizen and resident
79. Id. at 12. 80. Id. at 16. The Court explained that although Congress has the authority to make agreements with foreign countries (such as creating obligations on how to try criminal offenses that occur on military bases overseas), no agreement with a foreign nation can confer power on the Congress, or any other branch of Government, which is free from the restraints of the Constitution. Id. 81. Id. at 6. 82. Id. at 74 (Harlan, J., concurring). Professor Gerald Neuman has called the Harlan/Frankfurter approach in Reid a form of global due process, suggesting an approach that recognizes constitutional rights as potentially applicable overseas and then using balancing tests to consider countervailing concerns. Gerald L. Neuman, Whose Constitution?, 100 YALE L.J. 909, 920 (1991). 83. Neuman, supra note 82, at 967. 84. Id. at 970; see, e.g., Ramirez de Arellano v. Weinberger, 745 F.2d 1500 (D.C. Cir. 1984) (holding that a citizen could bring a due process claim against the military for use of property overseas); United States v. Demanett, 629 F.2d 862 (3d Cir. 1980) (holding that U.S. and Colombian nationals were protected by the Fourth Amendment when searched by the Coast Guard); United States v. Tiede, 86 F.R.D. 227, 244 (U.S. Ct. Berlin 1979) (It is a rst principle of American lifenot only life at home but life abroadthat everything American public ofcials do is governed by, measured against, and must be authorized by the United States Constitution.); United States v. Cadena, 585 F.2d 1252, 1262 (5th Cir. 1978) (holding that the applicability of the Fourth Amendment is not limited to American citizens); Berlin Democratic Club v. Rumsfeld, 410 F. Supp. 144 (D.D.C. 1976) (holding that the First, Fourth, and Sixth Amendments were applicable to citizens living in Germany). 85. 494 U.S. 259 (1990).
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of that country who had no attachments to the United States.86 The decision focused on who is entitled to the Constitutions protections (citizens and resident aliens) and then relied heavily on the concepts of territoriality and protections being afforded to those who are a part of the national community.87 In more recent cases, and in the context of enemy combatants, the Court has upheld the framework of territorialitynding that Guantanamo Bay is a territory under U.S. controlto determine that detainees are entitled to Fifth Amendment protections.88 Judge Joyce Hen Green of the D.C. District Court recently opined in In re Guantanamo Detainee Cases that because Guantanamo Bay is controlled entirely by the U.S. government, the situation in these cases is very different from the circumstances in Verdugo-Urquidez, where the Fourth Amendment was not applicable because Mexico employs a completely different legal system.89 Thus, territoriality played a large role in the courts decision to implicate individual constitutional liberties for the detainees. This is an important distinction because the reliance on territory to trigger individual rights protection implicates a temporal and spatial limitation to those constitutional protections. The government must act in conformity with those provisions when acting within its jurisdiction. When the U.S. government controls a certain territory, the constitutional structural restraints are not outweighed by Verdugo-like considerations, whether or not the person harmed is an alien. At issue in the Guantanamo Bay case was an individual rights provision of the Constitution. Therefore, whether harm was occurring on U.S. territory was crucial.90 The focus shifts when considering pure structural restraint provisions. If the government is prohibited from actingregardless of location
86. Id. at 274; see also Stephen J. DiGianlippo, The Reach of the Constitution Beyond the Territory and People of the United States, 16 SUFFOLK TRANSNATL L. REV. 117, 13342 (1992) (discussing the Verdugo-Urquidez opinion). 87. Verdugo-Urquidez, 494 U.S. at 265. The Court also focused on policy considerations and noted that to grant Fourth Amendment protections to non-citizens or resident aliens overseas would have signicant and deleterious consequences for the United States in conducting activities beyond its boundaries. Id. at 273. Professor Neuman criticizes this social contract theory and argues that constitutional protections should extend to U.S. citizens everywhere and to aliens outside the United States in those instances where the U.S. government seeks to subject them to its laws. NEUMAN, supra note 71, at 97. 88. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (holding that U.S. citizens detained at Guantanamo Bay are entitled to process with respect to their classication as enemy combatants); Rasul v. Bush, 542 U.S. 466, 48384 (2004) (holding that Guantanamo detainees have a statutory right to le habeas corpus claims with the district court challenging the legality of their detention); In re Guantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (D.D.C. 2005) (interpreting Rasul to suggest that Guantanamo Bay must be considered the equivalent of a U.S. territory in which fundamental constitutional rights apply and recognizing detainee rights under the Due Process Clause of the Fifth Amendment). 89. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 46364. 90. Some scholars take issue with the failure to apply the Constitution to aliens abroad, proposing instead a Constitution that applies to all government action overseas whether it infringes on an individual right or is rooted in a structural restraint. See, e.g., Jules Lobel, The Constitution Abroad, 83 AM. J. INTL L. 871, 879 (1989) (arguing that the individual rights of aliens should be protected from U.S. government actions extraterritorially).
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territoriality should not enter into the equation. This is a different model than individual rights, which speaks to the status of the person harmed. Today there is no consensus on the scope of the Constitution, but the courts have generally agreed that the Constitution protects individual rights of citizens overseas.91 Although there is general agreement that the Constitution serves as the source of authority for government action both at home and overseas,92 what remains unclear is how the Constitution applies as a structural restraint rather than a protection of individual liberties. The vast majority of cases and scholarly articles have focused on the operation of the Constitution overseas in protecting individual rights such as the right to a trial by jury,93 the right to be free from unreasonable searches and seizures,94 and the right of free speech.95 Because many of the controversies regarding the application of constitutional rights abroad stem from individual rights cases, particularly regarding the application of the Constitution to aliens abroad, the lens through which the application of the Constitution abroad is analyzed has been with respect to these individual rights.96 Yet when it comes to protections against governmental sanction of religion, this individual rights model may not be the most appropriate. IV. THE ESTABLISHMENT CLAUSE AS A STRUCTURAL RESTRAINT Examining the scope of the Constitution through the lens of individual rights makes sense in the contexts discussed thus far. In the majority of cases, governmental action beyond our borders affected classic individual rights, such as those protected by the Fourth Amendment. Yet analogizing the Fourth Amendment line of cases to the Establishment Clause is misplaced; instead, a new method for analyzing the application of the Establishment Clause overseas is needed. Differentiating between individual rights and structural restraints has a profound impact on how we choose to interpret the protections of the Constitution
91. The 1987 Restatement formulates the scope of the Constitutions authority as protecting U.S. citizens outside the territory of the United States against the exercise of power abroad by U.S. government ofcials. The issue of aliens is unsettled. RESTATEMENT (THIRD) OF FOREIGN RELATIONS 721 cmt. b (1987). 92. Neuman, supra note 82, at 91516. 93. See U.S. CONST. amend. VI; Reid v. Covert, 354 U.S. 1, 30 (1957) (holding that citizens tried in Germany on an air base have the right to a trial by jury). 94. See U.S. CONST. amend. IV; United States v. Verdugo-Urquidez, 494 U.S. 259, 274 (1990) (holding that the Fourth Amendment warrant requirements do not bind federal searches of nonresident alien defendants property outside the United States). 95. See U.S. CONST. amend. I; see also supra note 68 (discussing Planned Parenthood I and Planned Parenthood II). 96. See Lamont v. Woods, 948 F.2d 925 (2d. Cir. 1991) (analyzing the extraterritorial application of the Establishment Clause by comparison to the Fourth Amendment Verdugo analysis); see also Susan L. Wallace, Constitutional LawEstablishment ClauseAssistance to Foreign Religious Schools Subject to Establishment Clause Prohibitions, 16 SUFFOLK TRANSNATL L. REV. 680 (1993) (describing the courts holding in Lamont).
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and how the government interfaces with religious organizations. This concept is no stranger to students of the Constitution.97 Structural restraints limit how the government can act, regardless of place or time. Although it may affect individual rights, the purpose of a structural clause is to manage government power.98 Individual rights, on the other hand, are constitutional duties owed to each individual.99 They say nothing about how the government can organize itself or disperse poweronly that it cannot infringe on those under its jurisdiction in a certain manner. Why does this matter with respect to the extraterritoriality application of the Establishment Clause? If the Establishment Clause is viewed not through the lens of individual rights, but rather as a structural restraint on governmentone which serves as a restraint on federal actionthat restraint carries the same force whether the government is funding St. Pauls Catholic School in Pennsylvania or the rural madrasahs in Tajikistan.100 Therefore, the constitutional analysis that courts employ for domestic Establishment Clause challenges would be identical to the analysis applied to challenges brought for overseas programs, with a modication to consider countervailing national security and foreign policy concerns. This analysis would bring a level of predictability and uniformity to how the Establishment Clause is applied and remove any concerns about the courts abstaining from adjudicating legitimate claims on political question grounds.101 Today, the generally accepted view of the Establishment Clause is that it protects individual liberties.102 This interpretation of the clause was born when the Court, in Everson v. Board of Education,103 incorporated the Establishment Clause into the Fourteenth Amendment and recognized the protection of individual religious liberty as obligatory on the states.104 The Court noted that [t]he broad meaning given the [First] Amendment . . . has been accepted by
97. See, e.g., LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 2-1 to 2-4, at 11836 (3d ed. 2000) (discussing the relationship between the structure of the Constitution and substantive rights); Carl H. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L. REV. 1, 23 (1998) (distinguishing between constitutional structural restraints and individual liberties). 98. Esbeck, supra note 97, at 3. 99. Id. at 23. 100. See supra note 56 and accompanying text (discussing limitations on aid to domestic parochial schools). 101. See, e.g., Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941, 100406 (2004) (discussing the Courts refusal to adjudicate certain claims based on an unwillingness to consider underlying foreign policy aims). 102. See generally Michael W. McConnell, Why is Religious Liberty the First Freedom?, 21 CARDOZO L. REV. 1243 (2000); cf. Esbeck, supra note 97, at 4 (arguing that the Court has sub silentio given the Establishment Clause a far different application than if its object were to guarantee individual religious rights). For the purposes of extraterritoriality, this interpretation means that the U.S. government is only barred from establishing religion when it is operating in a jurisdiction under its control. Elsewhere, it would be free to establish a religion. 103. 330 U.S. 1 (1947). 104. Id. at 16. As Justice Cardozo wrote, incorporated rights are those which are implicit in the concept of ordered liberty and so rooted in the traditions and conscience of our people as to be ranked
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this Court in its decisions concerning an individuals religious freedom and that these individual rights are applicable to state action abridging religious freedom.105 As part of the Rights Revolution, many fundamental rights of the Constitution were incorporated into the Fourteenth Amendment as applicable to the states.106 Many scholars argue that in the rush to recognize individual liberties, the Court in Everson failed to examine whether the Establishment Clause was an individual right, as opposed to a structural restraint on federal government.107 If the historical intent of the Establishment Clause was to restrain the federal government from interfering with the variety of state-church arrangements then in place,108 then how could it, at the same time, create a complete wall between the institutions of religion and state? Professor Esbeck, for example, has argued that the Court in Everson ignored the federalist limitation in the framework of the Establishment Clause and that by trying to create a liberty suitable for incorporation, the Court had to strain in order to squeeze a structural clause into a liberty mold.109 Following Everson, this individual rights model was further advanced by the Warren Court, which focused heavily on protecting individuals and minorities.110 The individual rights and separationism interpretation continued in the
fundamental. Palko v. Connecticut, 302 U.S. 319, 325 (1937) (quoting Snyder v. Massachusetts, 291 U.S. 97, 105 (1934)). 105. Everson, 330 U.S. at 15. This shift to focusing on individual rights was not without early criticism. See, e.g., WILBER G. KATZ, RELIGION AND AMERICAN CONSTITUTIONS 9 (1964) (arguing that [i]t seems undeniable that the First Amendment operated, and was intended to operate, to protect from Congressional interference the varying state policies of church establishment); Joseph M. Snee, Religious Disestablishment and the Fourteenth Amendment, 1954 WASH. U. L.Q. 371 (1954) (arguing that the Establishment Clause should not have been incorporated into the Fourteenth Amendment); Edward S. Corwin, The Supreme Court as National School Board, 14 LAW & CONTEMP. PROBS. 3, 19 (1949) (arguing that [s]o far as the Fourteenth Amendment is concerned, states are entirely free to establish religions, provided they do not deprive anybody of religious liberty, and that the Court is not free to substitute the word state for Congress). 106. See Mary Ann Glendon & Raul F. Yanes, Structural Free Exercise, 90 MICH. L. REV. 477, 477 (1991). 107. See, e.g., id. at 48486. More importantly, the Court needed to consider the implications of incorporating a structural restraint as opposed to an individual liberty model. See STEVEN D. SMITH, FOREORDAINED FAILURE: THE QUEST FOR A CONSTITUTIONAL PRINCIPLE OF RELIGIOUS FREEDOM 17, 30 (1995) ([T]he religion clauses were purely jurisdictional in nature; they did not adopt any substantive right or principle of religious freedom.). 108. Glendon & Yanes, supra note 106, at 48182. 109. Esbeck, supra note 97, at 27; see also William K. Lietzau, Rediscovering the Establishment Clause: Federalism and the Rollback of Incorporation, 39 DEPAUL L. REV. 1191, 1193 (1990) (arguing that the Establishment Clause was understood to apply only to the national government and incorporation is neither mandated nor permitted). But see Steven K. Green, Federalism and the Establishment Clause: A Reassessment, 38 CREIGHTON L. REV. 761, 76768 (2005) (arguing that the Establishment Clause was not designed to preserve state establishments and rebutting the anti-incorporation argument). 110. See Glendon & Yanes, supra note 106, at 49294; Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 216 (1963) (afrming the Everson separation approach).
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Burger and Rehnquist Courts.111 Justice Brennan, for example, strongly favored the individual rights model over structural restraint. The upshot was seemingly irreconcilable opinions on how the Religion Clauses operate.112 To reconcile Brennans Religion Clause jurisprudence is to understand that his vision of the Constitution was one in which the Bill of Rights was primarily a charter for judges to defend individuals and small or unpopular minority groups against majoritarian infringement.113 Specically, Brennans vision of the Religion Clauses was that they should function as a check on state power designed primarily to protect individuals who were not members of numerically dominant faiths.114 By treating a restraint on government action as an individual liberty, confusion as to the operation of the provision ensued. As Professor Esbeck notes, [t]he Courts reluctance to openly acknowledge that it views the Establishment Clause as structural has caused legal doctrine to appear muddled, thereby making the Courts holdings uncommonly vulnerable to criticism.115 One need only look at the criticism of the Lemon test to support Professor Esbecks claim.116 By treating the Establishment Clause as an individual right, the Court created an analytical dilemma, setting free exercise jurisprudence on a divergent and often conicting path from the Establishment Clause.117
111. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 607 (1971) (striking down Rhode Island and Pennsylvania statutes providing nancial support to nonpublic elementary and secondary elementary schools for teacher salaries, textbooks, and instructional materials in secular subjects); Aguilar v. Felton, 473 U.S. 401, 40407 (1985) (holding that public funding of non-religious teachers of remedial reading, remedial mathematics, and English as a second language in private schools impermissibly entangled the state with religion). Glendon and Yanes argue that the Rehnquist Court moved to what they call a deference doctrine. The main characteristic of this doctrine is an unwillingness to set aside decisions made by other branches of government with respect to the Religion Clauses. Glendon & Yanes, supra note 106, at 518. 112. Compare Lyng v. Nw. Indian Cemetery Protective Assn, 485 U.S. 439, 458 (1988) (Brennan, J., dissenting) (dissenting from holding that free exercise did not prohibit government from harvesting timber on government property even though the land had traditionally been used for Indian religious purpose), with Aguilar v. Felton, 473 U.S. 402, 404, 414 (1985) (Brennan, J.) (holding that federal funds used to pay public school teachers who taught in parochial schools violated the Establishment Clause). It seems difcult to reconcile Justice Brennans aggressive free exercise protection with his exaggerated suspicion regarding religion in the Aguilar case unless viewed through the lens of a Religion Clause that protects against majoritarian tyranny and [is] the champion of selected individual and minority rights. Glendon & Yanes, supra note 106, at 514; cf. Sherbert v. Verner, 374 U.S. 398, 41516 (1963) (Stewart, J., concurring) (stating that both minorities and majorities are protected by the Free Exercise Clause). 113. Glendon & Yanes, supra note 106, at 517. 114. Id. 115. Esbeck, supra note 97, at 11. 116. See supra note 58 and accompanying text. 117. Glendon & Yanes, supra note 106, at 48186. Professor Esbeck presents a useful hypothetical to illustrate this point, asking his reader to reconcile the following analytical dilemma: If a shelter for the homeless was opened by parishioners and operated out of the basement of a church, and the parishioners were faced with a municipal order to cease operations for noncompliance with zoning orders, they would have a tenable Free Exercise Clause challenge because their work is an outgrowth of their religious belief. If a month later the city were to adopt social welfare legislation and open shelters
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Yet, the Establishment Clause has not always been interpreted as creating an individual right. At the time of its ratication, the Establishment Clause worked as a restraint on national power to make laws respecting religion, as applied to both the national government and state government.118 Jefferson and Madison, in arguing that Congress had exceeded its authority by passing the Alien and Sedition laws, analogized the Religion Clauses to free speech and press, arguing that regulation of speech, press, and religion were matters that were intended to be left to the states.119 According to Professor Akhil Amar, as originally written, [the Establishment Clause] stood as a pure federalism provision . . . . [T]he clause was utterly agnostic on the substantive issue of establishment; it simply mandated that the issue be decided state by state and that Congress kept its hands off, that Congress make no law respecting the vexed question.120 The restraint on the power of the federal government to enact laws respecting states was a reection of the Framers deep commitment to federalism.121 Although scholars debate whether there is one Religion Clause or two and the scope of the Establishment Clause, a broad interpretation of the clause as a whole suggests that the Framers intent was not simply to protect against a national religion, but also to keep intact existing state-level arrangements, free from any congressional interference.122
run by the municipality, can that same activity be considered religious? While the answer appears to be no, logic prompts the question of how the same activity can be religious for one group of people but not for the other. Esbeck argues that the Supreme Court has reconciled, without articulating, the dilemma that the same activity is religious for purposes of the Free Exercise Clause but not religious for purposes of the Establishment Clause. Esbeck, supra note 97, at 7. 118. Esbeck, supra note 97, at 1415. 119. Both Jefferson and Madison made these analogies in the Kentucky and Virginia resolutions they authored in protest of the Alien and Sedition Act. See 4 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION 540 (Jonathan Elliot ed., 2d ed. 1907) (Kentucky resolutions) (stating that no power over freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people); id. at 577 (Virginia resolutions) (Both of these rights, the liberty of conscience, and of the press, rest equally on the original ground of not being delegated by the Constitution, and consequently withheld from the government . . . . Any construction or argument, then, which would turn the amendment into a grant or acknowledgement of power, with respect to the press, might be equally applied to the freedom of religion.); see also Green, supra note 109, at 77273 (arguing that these analogies in part demonstrate that the framers held a limited view of federal authority over religious matters, including those church-state relations existing in the states). 120. AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 246 (1998). 121. See id. at 3242; Lietzau, supra note 109, at 120104; Christopher N. Elliott, Federalism and Religious Liberty: Were Church and State Meant to be Separate?, 2 RUTGERS J. L. & RELIG. 5, 1518 (2000), available at http://www-camlaw.rutgers.edu/publications/law-religion/articles/RJLR_2_2_5.pdf. 122. See Glendon & Yanes, supra note 106, at 541; Snee, supra note 105, at 380 (arguing that the original intent of the First Amendment, as revealed through the differences in James Madisons proposed drafts of the amendment and his proposed drafts of an amendment to the Virginia Constitution, was to give the states power over religious matters that were denied to the federal government; [W]hile the state amendment prohibits the states from violating the equal rights of conscience, it does not . . . forbid the states to abridge the civil rights of its citizens on religious grounds . . . nor does it forbid them to establish a religion, provided only that the equal rights of conscience be not violated.).
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Justice Potter Stewart was a strong critic of the Courts individual rights model. In School District of Abington Township v. Schempp, Justice Stewart critiqued the majoritys interpretation:
As a matter of history, the First Amendment was adopted solely as a limitation upon the newly created National Government. The events leading to its adoption strongly suggest that the Establishment Clause was primarily an attempt to insure that Congress not only would be powerless to establish a national church, but would also be unable to interfere with existing state establishments.123
Justice Stewart criticized the Courts mechanistic approach to interpreting the Establishment Clause.124 Instead, he would have recognized religious freedom to exercise as the central animus in the First Amendment. In Schempp, this would have meant that religious prayer in school was not mandated, but that schools could decide whether or not to hold prayers.125 Justice Stewarts critiques of separationism have been reborn on the modern Court in the form of Justice Clarence Thomas. In several recent decisions, Justice Thomas challenged the individual rights model on the basis of federalism. In Elk Grove Unied School District v. Newdow,126 Justice Thomas argued the Establishment Clause is a federalism provision, which, for this reason, resists incorporation.127 Further, Justice Thomas differentiated between the Establishment Clause, which he views as a structural restraint on federal action, and the Free Exercise Clause, which protects individual liberties and is therefore more suited to incorporation.128 Justice Thomas wrote,
I accept that the Free Exercise Clause, which clearly protects an individual right, applies against the States . . . . But the Establishment Clause is another matter. The text and history of the Establishment Clause strongly suggest that it is a federalism provision . . . unlike the Free Exercise Clause, which does protect an individual right . . . .129
Of course, provisions can have a jurisdictional/structural restraint component and a substantive component. For example, Professor Smith uses the Eighth Amendment to highlight that the prohibition against cruel and unusual punishment served to prevent the national government from inicting inhumane punishment. Originally, this served as a restraint on national government (and later state) action and embodied a substantive right to be free from this kind of abuse. Likewise, the Religion Clauses may have served as a restraint on national government to establish religion while at the same time embodying the principle of religious freedom. SMITH, supra note 107, at 22. The important point to recognize is that the function of the First Amendment was to operate as a structural restraint. 123. 374 U.S. 203, 30910 (1963) (Stewart, J., dissenting) (emphasis added). 124. Id. at 310. 125. See id. at 31617. 126. 542 U.S. 1 (2004). 127. Id. at 45 (Thomas, J., concurring). 128. See id. at 49. 129. Id.
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He therefore concluded that it makes little sense to incorporate the Establishment Clause.130 Rather, the Establishment Clause works a restraint on the federal government, and [s]tates may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interest.131 Examining the Religion Clauses within the structure of the Bill of Rights provides additional support for a structural restraint model.132 Professor Amar has noted that the prevailing view of the Bill of Rights is one that grants individual rights and subjugates the principles of the structure of government.133 He recognizes that few constitutional scholars examine the text as a whole, but rather in discrete chunks.134 Challenging the contemporary wisdom that the primary purpose of the Bill of Rights was to protect individual rights, Amar writes:
Of course, individual and minority rights did constitute a motif of the Bill of Rightsbut not the sole, or even the dominant, motif. A close look at the Bill reveals structural ideas tightly interconnected with language of rights; states rights and majority rights alongside individual and minority rights; and protection of various intermediate associationschurch, militia, and jury designed to create an educated and virtuous electorate. The main thrust of the Bill was not to downplay organizational structure, but to deploy it; not to impede popular majorities, but to empower them.135
This very oversight has led judges and academics to overlook structural
130. Id. Several critics of the individual rights model have advocated for the rolling back of Establishment Clause incorporation, but few have gone as far as Justice Thomas. See, e.g., Lietzau, supra note 109, at 1194, 122533 (calling for a limited rollback of incorporation); Note, Rethinking the Incorporation of the Establishment Clause: A Federalist View, 105 HARV. L. REV. 1700, 171516 (1992) (arguing that abandoning Everson would literally permit the unsettling result of new state establishments, but also arguing that abandoning Everson may permit the states to cultivate their citizens religiosity, and by consequence, their civic virtue). 131. Zelman v. Simmons-Harris, 536 U.S. 639, 679 (2002) (Thomas, J., concurring). 132. The Bill of Rights must not be seen as just negative individual liberties, but a charter of positive protection for certain structures of civil society, notably religious organizations, community militia, and juries. Far from being neutral with regard to these structures, Amendments One, Two, Six, and Seven single them out for special treatment, and not just in disputes decided by judges, for the Bill of Rights is addressed to legislators as well. Glendon & Yanes, supra note 106, at 543. 133. Akhil Reed Amar, The Bill of Rights as a Constitution, 100 YALE L.J. 1131, 1132 (1991). 134. Id. at 1131. Professor Amar also notes that in the classroom the Bill of Rights is not taught in a holistic manner, but that different substantive classes focus on the relevant amendments. Id. Nathan Diament makes a similar observation with respect to constitutional law and foreign relations. In law schools, [areas of constitutional law dealing with foreign affairs are] typically taught in international law courses, not constitutional law courses. Nathan J. Diament, Foreign Relations and our Domestic Constitution: Broadening the Discourse, 30 CONN. L. REV. 911, 912 (1998). 135. Amar, supra note 133, at 1132.
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restraints embedded in the First Amendment.136 Had the Court examined the provisions of the Bill of Rights as a whole (what Glendon and Yanes call a holistic approach), a doctrine which emphasized the relationship between individual rights and structural restraints would have emerged.137 This doctrine would protect the individual right of free exercise and recognize the Establishment Clauses role as a restraint on government action. The federalism-based rationale for a structural restraint model is not the only basis for this interpretation. In fact, Justice Stewarts critique of the individual rights model, though based in a federalism approach, relies on the premise that the Establishment Clause served two functions.138 In addition to insuring that the national government would not interfere with existing state establishments, the purpose of the Clause was to limit Congress from establishing a national church.139 This was a restraint on the national government with respect to legislating on matters that would establish religion. Professor Esbeck elaborates on the national form of structural restraint by highlighting the Establishment Clause as working dual restraints on national power. The national government was limited in its actions in two dimensions: a state (or vertical) restraint and a national (or horizontal) restraint.140 The horizontal restraint constrained the national government from legislating on the national level respecting an establishment of religion.141 If the understanding of establishment in the late 1700s was a church ordained by law (like the Church of England), a clear application of the Establishment Clause on the horizontal dimension is that Congress has no authority to establish a national church.142 This national ban would have included those issues attendant with the establishment of a national religion, including taxation for religious purposes, a role for government in electing religious leaders, and so forth.143 Professor Esbeck argues that [t]hese resentments were likely thought within the scope of the Establishment Clauses national-level restraint, or so it would originally appear.144 Many scholars have subjugated the importance of the horizontal dimension by pointing out that ofcial acts in the early Republic were at odds with a national ethos of disestablishmentarianism.145 Yet regardless of the
136. Glendon & Yanes, supra note 106, at 543. 137. Id. 138. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 30910 (1963) (Stewart, J., dissenting). 139. Id. 140. Esbeck, supra note 97, at 1415. Professor Esbeck notes that the federalism-based model overlooks the horizontal dimension and focuses solely on the vertical. Id. at 15 n.50. 141. Id. at 17. The Constitution already contained a structural restraint respecting religion before the Bill of RightsCongress could not require any religious test for federal public ofce. U.S. CONST. art. VI, cl. 3. 142. Esbeck, supra note 97, at 1718. 143. See id. at 18. 144. Id. at 1819. 145. For example, Congress and the President took actions such as funding congressional chaplains, saying national Thanksgiving Day prayers, providing land grants to religious societies, and signing
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outcome of this debate, one can still conclude that the role of the Establishment Clause was structural, rather than an individual rights-based clause.146 It also appears that there is enough historical evidence to show that the purpose of the Establishment Clause was not merely jurisdictional, but also served as a fundamental restraint on national government actions in the realm of religion.147 In addition to being outright critical, at times, of strict separationism,148 there is additional evidence that the Court is employing a structural restraint model. Unlike many of the traditional individual rightsfree speech, right to a trial by a jury, freedom from unreasonable search and seizurethe Court has carved out special rules for the Establishment Clause that tend to suggest that it is a structural restraint and not a traditional individual right.149 Professor Esbeck examines several of these, such as the special standing rule for Establishment Clause violationsone need not suffer a personal harm but can bring a claim based on taxpayer status.150 Likewise, the remedies for Establishment Clause violations do not follow an individual rights model. Generally, when awards for a violation of a constitutional individual right are granted, the remedy is tailored to redress the harm to the plaintiff.151 In Establishment Clause cases, the remedy is class-wide and takes the form of injunctions.152 Remedies such as injunctions are typical of cases in which the government has exceeded its power, not when it has harmed an individual right. For example, an individual rights model remedy to school prayer would produce a requirement that objecting students be exempted from participating, whereas a structural restraint model leads to a ban on the practice entirely even if no one objects. The Supreme Court has followed the latter model, prohibiting school prayer spon-
treaties to provide Indians with church-based education at the expense of taxpayer dollars. Id. at 19 n.67. To reconcile these seemingly pro-establishment actions, some have suggested that the gap exists due to the common separation between ideals and practice. See, e.g., THOMAS C. CURRY, THE FIRST FREEDOMS: CHURCH AND STATE IN AMERICA TO THE PASSAGE OF THE FIRST AMENDMENT 21719, 221 (1986). Others view the lack of restraint by the federal government to support the claim that the Establishment Clause was only jurisdictional in function. AMAR, supra note 120, at 24849. 146. Esbeck, supra note 97, at 21. 147. Both Madison and Jefferson expressed doubts about the legitimacy of national action in the realm of religion. Madison vetoed a bill that would have provided federal land for a Baptist church. When asked, Jefferson refused to declare a national day of fasting and prayer. Jefferson wrote that the national government was interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. Esbeck, supra note 97, at 19 n.67 (quoting Letter from Thomas Jefferson to Rev. Samuel Miller (Jan. 23, 1808), in IX THE WRITINGS OF THOMAS JEFFERSON 42830 (Andrew A. Lipscomb ed., 1905)). 148. See, e.g., Wallace v. Jaffree, 472 U.S. 38, 106 (1985) (Rehnquist, C.J., dissenting) (The Establishment Clause did not require government neutrality between religion and irreligion nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply no historical foundation for the proposition that the Framers intended to build the wall of separation that was constitutionalized in Everson.). 149. Esbeck, supra note 97, at 3358. 150. Id. at 3340. 151. Id. at 40. 152. Id.
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sored by public schools,153 at high-school graduations,154 and before highschool football games.155 V. THE ESTABLISHMENT CLAUSE AND FOREIGN AID Two of the most hotly debated political and legal issues today are the role of religion in society156 and the war on terrorism.157 That the two have not been combined in a legal challenge of the USAID programs in Indonesia or Central Asia is something of a surprise.158 Historically, the government has abstained from mixing religion and foreign aid.159 Although some religious organizations receive federal funds, they do so either through a separate organization or with the understanding that the funds are to be used for secular missions.160 Yet
153. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 22627 (1963). 154. Lee v. Weisman, 505 U.S. 577, 599 (1992). 155. Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 317 (2000). 156. In 2005, the Supreme Courts decisions in Van Orden v. Perry, 125 S. Ct. 2854 (2005), and McCreary County v. ACLU, 125 S. Ct. 2722 (2005), drew public and political attention. Both cases grappled with whether courthouses should be permitted to display some form of the Ten Commandments. In addition, the conict between religion and science has resulted in recent litigation concerning the promotion of intelligent design in public school science classes. See Kitzmiller v. Dover Area Sch. Dist., 400 F. Supp. 2d 707 (M.D. Pa. 2005). 157. See sources cited supra note 3. 158. I do not imply that such a challenge could or should be brought but simply note that, given the divisiveness surrounding these issues, the programs appear to operate under the radar screen of most Americans. 159. See Wallace, supra note 96, at 684. Although the government funded religious missionaries in Native American schools in the 1800s, the funding ended because of disputes between the Catholic and Protestant groups. In addition, President John F. Kennedy considered using Quaker and Catholic foreign relief workers for the Peace Corps but changed his mind when Establishment Clause concerns were raised. Id.; see also Lamont v. Woods, 948 F.2d 825, 838 (2d Cir. 1991) (citing Congresss decision to drop a plan involving churches in the Peace Corps after Protestant protests as evidence that more recent history supports the view that the religion clauses do have extraterritorial application). 160. Even this level of separateness is not always a requirement domestically. See, e.g., Mitchell v. Helms, 530 U.S. 793, 801 (2000) (holding that a publicly funded educational program that lent materials to public and parochial schools does not violate the Establishment Clause). President Bushs Faith-Based Initiatives have removed several barriers to religious organizations obtaining funds, and, so long as the funding is used to promote a social service program, the funding is awarded neutrally to both religious and non-religious groups. See Exec. Order No. 13,198, 3 C.F.R. 750 (2002), reprinted in 5 U.S.C. 601 (Supp. II 2003) (creating ve agency centers for Faith-Based and Community Initiatives); Exec. Order No. 13,199, 3 C.F.R. 752 (2002), reprinted in 3 U.S.C. ch. 2 (Supp. II 2003) (declaring a policy for the greater inclusion of faith-based organizations in federally funded social services). USAID issued a policy reminder following the enactment of the faith-based program, outlining its policy toward funding faith-based organizations: USAIDs work with faith-based organizations is an essential component of our strong, active partnership with [NGOs] across the relief-to-development spectrum. Faith-based organizations are afforded the opportunity by USAID to compete for funding for social services activities on equal footing with all other types of organizations . . . . [I]t has been USAID policy that the agency will not support activities with a signicant religious or proselytizing purpose or content . . . . Consistent with the Establishment Clause, USAID may nance only programs that have a secular purpose and which do not have the primary effect of advancing or inhibiting religion . . . . Faith-based organizations may use their own funds for religious or sectarian purposes. However, these activities must be separated from USAID-nanced activi-
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addressing issues of Islamic extremism necessarily implicates intertwining foreign aid in sect-preferential programs.161 A decade and a half before 9/11, Professor John H. Manseld began thinking about the relationship between the Religion Clauses and foreign policy.162 Examining several cases regarding aid to education and employment discrimination, Professor Manseld suggests that courts should nd implicit in the Constitution . . . respect for the ways of foreign nations.163 Most interestingly for purposes of examining how the Religion Clauses play into the war on terror, Manseld describes a hypothetical aid program focused on creating better science programs in Malaysian schools.164 For him, a program that promotes better education to create a more secure and stable Malaysia, even if the program only operates in Islamic schools, would not violate the Establishment Clause. But, he cautions, working in those same Islamic schools for the purposes of promoting a moderate form of Islam as a bulwark against . . . Iranian-style Islamic fundamentalism may raise more serious constitutional concerns.165 He further argues that [f]or the United States directly to embrace the doctrines of a particular religion, albeit for political ends, might conict with the values of the religion clauses to an extent that cannot be outweighed by foreign policy considerations or the importance of respect for other cultures.166 The Supreme Court has yet to rule on how the Establishment Clause applies beyond our borders,167 but the Second Circuit examined the issue in Lamont v. Woods.168 There, the court held that the Establishment Clause applied to a USAID program that provided aid to Catholic and Jewish schools abroad.169 The court stated that the primary goal of the Establishment Clause is to prevent
ties so as to avoid the appearance that our assistance subsidizes or endorses religion or promotes religious doctrines or religious indoctrination. USAID Policy Reminder, Ofce of the General Counsel, Working with Faith-Based Organizations (July 31, 2001) (on le with author). 161. See supra text accompanying notes 6062. 162. See John H. Manseld, The Religion Clauses of the First Amendment and Foreign Policy, 36 DEPAUL L. REV. 1, 1 (1986). 163. Id. at 39. 164. Id. at 34. 165. Id. 166. Id. at 3435. 167. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS, REPORTERS NOTES 721, Reporters Note 4 (1987) (There has been no denitive adjudication, but issues under the First Amendment would arise if the United States entered into arrangements with a foreign country that involved foreign assistance or other expenditures of United States funds for religious purposes, or other ofcial involvement in religion (e.g., through the Peace Corps) . . . .); see also Am. Jewish Cong. v. Vance, 575 F.2d 939, 947 (D.C. Cir. 1978) (dismissing a challenge to U.S. arrangements with Saudi Arabia involving discrimination against Jewish Americans as raising a nonjusticiable political question). 168. 948 F.2d 825 (2d Cir. 1991). 169. Id. at 843. The USAID program was implemented through the American Schools and Hospitals Abroad (ASHA) program and awarded grants to twenty schoolsboth secondary schools and universitiesincluding Jewish Israeli schools and those afliated with the Roman Catholic Church in the Philippines, Egypt, Jamaica, Micronesia, and South Korea. Id. at 828.
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governmental advancement of religion and that American taxpayers grievances arise over the spending itself, not the location of the spending.170 Although the court held that the Establishment Clause did apply to foreign aid programs overseas, it implied that the analysis may not be the same as for domestic aid programs.171 In addition to nding that the plaintiffs had standing to bring this suit,172 the Second Circuit recognized that programs touching on foreign relations are not necessarily beyond judicial review,173 but at the same time suggested an out for national security considerations.174 The court recognized that the President and Congress have the authority to conduct foreign policy but emphasized that this power does not give them carte blanche to transgress well-established constitutional boundaries, and the Judiciary cannot shirk [its constitutional] responsibilit[ies] merely because [a] decision may have signicant political
170. Id. at 837. 171. The court noted that direct aid is considered to have a principal or primary effect of advancing religion whenever it ows to a pervasively sectarian institution in the usual Establishment Clause case, indicating that it considered the USAID program to be different than a purely domestic aid program. Id. at 841 (In our view, domestic Establishment Clause jurisprudence has more than enough exibility to accommodate any special circumstances created by the foreign situs of the expenditures, although the international dimension does, we believe, enter into the analysis.). More importantly, however, the court proposed a balancing test in which, even where U.S. funds are going to a pervasively sectarian foreign organization, the government will be permitted the opportunity to demonstrate some compelling reason why the usually unacceptable risk attendant on such funding in such an institution should, in the particular case, be borne. Id. at 842. The possible foreign policy ramications of invalidating grants under the program made it particularly inappropriate to adopt the mechanical approach of the pervasively sectarian test. Id. 172. Id. at 82931. The Supreme Court has held that taxpayers have standing if there is a logical link between that status and the type of legislative enactment attacked and a nexus between that status and the precise nature of the constitutional infringement alleged. Flast v. Cohen, 392 U.S. 83, 102 (1968). Although this double nexus standard is difcult to meet, taxpayers may bring constitutional challenges under the Establishment Clause. See Bowen v. Kendrick, 497 U.S. 589, 620 (1988) (holding that taxpayers had standing to challenge the Adolescent Family Life Act under the Establishment Clause). 173. Judicial deference in the realm of Executive power is often granted when the Court believes it is not competent to adjudicate political foreign policy questions. See, e.g., Baker v. Carr, 369 U.S. 186, 217 (1962) (holding that judicial deference in the arena of foreign political questions is appropriate because of an unusual need for non-judicial discretion, potential embarrassment due to multifarious pronouncements by various departments, and the impossibility of deciding a case without making a policy determination of a kind that is not in the competency of the court); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 63537 (1952) (Jackson, J., concurring) (stating that when the President acts pursuant to an express or implied authorization of Congress, he personif[ies] the federal sovereignty, and his actions would be supported by the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it). 174. The Restatement also suggests this kind of balancing approach. RESTATEMENT (THIRD) OF FOREIGN RELATIONS 721 cmt. d (1987) (stating that the freedoms of speech, press, religion, and assembly, and the right not to be subject to an establishment of religion, are protected against infringement in the exercise of foreign relations power as in domestic affairs, but noting that restraints should be balanced against national foreign affairs interests). I argue that this kind of balancing test should be employed in questions concerning the applicability of the Establishment Clause to foreign aid programs.
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overtones.175 Relying on cases which challenged the Presidents Mexico City Policy, the court distinguished between adjudicating a political question, such as the underlying foreign policy (here, the policy of promoting foreign schools that serve as study and demonstration centers for ideas and practices of the United States), and the justiciable question of how the policy is administered.176 The court concluded that [b]ecause [US]AIDs method of implementing the [program] was not itself an expression of foreign policy . . . , a challenge to the legality of that method did not present a nonjusticiable political question.177 The court distinguished Dickson v. Ford,178 which held that an Establishment Clause challenge to Israeli aid was a nonjusticiable political question.179 The court in Lamont noted that Dickson presented a case in which the plaintiffs sought to challenge the underlying foreign policy, not the way the policy was implemented.180 Perhaps most interestingly, the court also drew a distinction based on the Presidents war powers, noting that Dickson concerned national security issues, rather than merely foreign aid.181 The foreign policy out came in the form of a suggested balancing test. The court suggested that, on remand, if the district court determines that the ASHA program is pervasively sectarian, the government should be permitted to demonstrate some compelling reason why the usually unacceptable risk attendant on funding such an institution should, in the particular case, be borne.182 The court relied on Professor Manselds distinction between programs that promote a secular goal (such as science education) and those that have the primary effect of advancing religion, implying that the latter would be unconstitutional.183 The court did not consider whether the government could offer
175. Lamont, 948 F.2d at 83132 (quoting Japan Whaling Assn v. Am. Catacean Socy, 478 U.S. 221, 230 (1986)) (citation omitted). 176. Id. at 83233. 177. Id. 178. 521 F.2d 234 (5th Cir. 1975). 179. For a critique of this dichotomy between the underlying policy and its implementation, see Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941, 100206 (1964). Nzelibe argues that the courts should not abstain from any controversy that represents a bona de individual rights claim and should implement a balance of institutional competency model. Id. at 1005. 180. Lamont, 948 F.2d at 833. The court distinguished between the underlying policy of giving general aid to the state of Israel and the way in which a policy is implemented. The challenge in Dickson was against the policy of aiding Israel and maintaining a balance of power in the Middle East itself. A challenge to the way in which a policy is implemented (such as funding the Friday Flyer program in Indonesia to support the larger policy goal of reducing extremism) does not necessarily trigger the political question doctrine like a challenge to the Presidents overarching foreign policy vis-a ` -vis another country does. 181. Id. at 833 n.6. The USAID Islamic Outreach programs seem to be where the rubber meets the road. If the foreign policy goal of these programs is to decrease the potential for Islamic extremist terrorism, a potential plaintiff could claim that funding Islamic imams and mullahs to include messages of tolerant Islam is a challenge to the implementation of that policy, not the policy itself. On the other hand, this program is part of a national security strategic plan and therefore may shift the program to a Dickson analysis. 182. Id. at 842. 183. Id. at 842 n.20.
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compelling reasons to actually advance religion. Second, in determining whether the Establishment Clause applies to government grants to religious institutions located outside of the United States, the Lamont court based its analysis on the Fourth Amendment and the then-recently decided Verdugo-Urquidez case.184 The court rst examined the operation and text of the First Amendment as compared to the Fourth, distinguishing between individual rights and restrictions on Congresss competency to enact laws. The court noted that the Fourth Amendment right to be free from unreasonable searches and seizures is an individual right enjoyed by the people, which has been limited to citizens and resident aliens.185 On the other hand, the First Amendments construction contains no similar limiting language, and instead imposes a restriction on Congress.186 Differentiating between individual rights that can be limited spatially and temporally, Lamont suggested that the constitutional prohibition against establishments of religion targets the competency of Congress to enact legislation of that descriptionirrespective of time or place.187 Lamont relied on a 1901 Supreme Court case, Downes v. Bidwell,188 which examined the application of the Constitution in Puerto Rico. There, the Court stated,
when the Constitution declares no bill of attainder or ex post facto law shall be passed, and that no title of nobility shall be granted by the United States, it goes to the competency of Congress to pass a bill of that description. Perhaps the same remark may apply to the First Amendment, that Congress shall make no law respecting an establishment of religion . . . .189
This distinctionbetween individual rights and structural restraintsis fundamentally important in determining which constitutional provisions apply extraterritorially and which are more limited. Although Lamont appears to have placed a heavy emphasis on this distinction (and therefore seemed to be heading in the right direction), the court failed to further analyze this distinction. In fact, the court heavily relied upon an individual rights analysis in determining why the establishment of religion in foreign countries could be harmful to individuals in the United States. Lamont distinguished Verdugo-Urquidez by noting that the
184. United States v. Verdugo-Urquidez, 494 U.S. 259 (1990). The court in Verdugo-Urquidez examined the history of the Fourth Amendment, the operation and text of the constitutional provision, and the consequences of construing the provision to apply extraterritorially. Id. at 26575. The Lamont court used this same framework to step through the First Amendment. Lamont, 948 F.2d at 834. 185. Lamont, 948 F.2d at 835. 186. U.S. CONST. amend. I. Congress shall make no law respecting an establishment of religion . . . . Id. The court wrote, [i]ndeed, the basic structure of the Establishment Clause, which imposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confers a right on the people. Lamont, 948 F.2d at 835. 187. Lamont, 948 F.2d at 835. 188. 182 U.S. 244 (1901). 189. Id. at 277.
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search and seizure both occurred in Mexico and that had the violation occurred on U.S. soil, Fourth Amendment protections would have attached to the defendant.190 The court then explained that unlike Verdugo-Urquidez, Establishment Clause violations that occur overseas harm individuals domestically because religion transcends national boundaries, and aid to Catholic schools in the Philippines may strengthen not only that school, but also the Catholic Church worldwide, and in particular the Catholic sponsor in the United States and its domestic constituency.191 This analysis presupposes that the harm involved is an individual one, to American citizens, rather than a structural restraint on how Congress may behave. VI. IMPLICATIONS OF A STRUCTURAL APPROACH FOR U.S. FOREIGN AID Should the Court embrace fully a structural restraint model and shed the strict separationism and individual rights model, a more coherent Religion Clause doctrine would emerge.192 But more importantly for the purposes of this Note, a structural restraint model would provide clarity for how judges should apply the Establishment Clause to U.S. foreign aid directed to programs which directly work with and fund religious groups overseas. Unlike constitutional individual rights, a structural restraint on the government applies whether government action occurs in the United States or overseas. It implicates Congresss ability to legislate, not simply who can and cannot be harmed.193 The court in Lamont, while recognizing that the Establishment Clause functions differently than the Fourth Amendment, still analyzed the issue of extraterritorial applicability under a Fourth Amendmentand individual rightsmodel.194 This analysis confuses the purpose of the Establishment Clause and creates an unworkable model for overseas application. As evidenced by the recent Guantanamo Bay cases, the Court, when applying the Constitution abroad, will focus heavily on territorialityif the U.S. government has control over the territory, the Constitution will follow its actions.195 Although this rubric makes sense in the context of individual rights, it is less clear that it is applicable when the Constitution acts as a structural restraint.
190. Lamont, 948 F.2d at 83435. 191. Id. 192. Glendon and Yanes argue that a holistic approach would increase the likelihood that the establishment language was meant to protect diverse local arrangements that the citizens of the several states had made with respect to religion. Additionally, it would make it reasonable to suppose that the people were to be protected, not only in their solitary individual religious beliefs and practices, but in the associations and institutions where those beliefs and practices were generated, regenerated, nurtured, promoted, and transmitted. Glendon & Yanes, supra note 106, at 543. 193. See Esbeck, supra note 97, at 98. 194. See supra text accompanying notes 18491. 195. See supra text accompanying notes 8590. An interesting question that is beyond the scope of this Note is how the courts should treat the territory of Iraq. See generally Cloud & Gerth, supra note 14 (discussing the Pentagon programs that paid Islamic scholars to craft messages to persuade the Sunni population to vote).
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Why should a prohibition on federal actionabsent any compelling government interestsapply with any less force because the action is not on U.S. territory? In addition to the reliance on territoriality, courts are apt to defer to the Executive in the realm of foreign affairs. Yet this deference makes little sense when the prohibition on power is seen as a structural restraint. Courts have the competency to determine when the government is acting within the letter of the Constitution and when it is not.196 To remedy both the problem of judicial deference and of determining the scope of the Constitution, courts should bifurcate their extraterritorial constitutional analysis into two tracks. The rst track would follow the individual rights line of cases, which often deal with Fourth and Fifth Amendment rights. Following Verdugo-Urquidez, constitutional individual rights would apply to U.S. citizens regardless of physical location and to aliens within the territory of the United States. The second track would apply a structural restraint model and follow U.S. government action regardless of its location. How would this work for Establishment Clause challenges to USAID programs? By analyzing the harm under a structural restraint model, courts need not defer to the Executive Branch simply because a case involves foreign policy.197 Rather, the constitutional limitations placed on government action with respect to religion would follow the ag. The government does not have the authority to establish religion outside the territory of the United States any more than it does within. The next step would involve a consideration of the Executives foreign relations power, which certainly comes into play when examining programs designed to combat Islamic terrorism. When faced with an Establishment Clause challenge, a court following the structural restraint model would examine the program as if it were located in the United States, using the same analysis.198 If the court nds that the use of U.S. funds to promote a certain program infringes the Establishment Clause and would be unconstitutional within the United States, this need not mean it would automatically nd the program unconstitutional. Instead, the court could employ a balancing analysis (much like that suggested in Lamont)199 to determine if the program should be upheld.200 First, the court should determine if there is a compelling
196. Although the court in Lamont failed to make the distinction between individual and structural restraints, it emphatically declared that it was competent to adjudicate the application of the USAID grants to religious institutions overseas. See Lamont, 948 F.2d at 83132. 197. See supra note 174. 198. The analysis currently would involve the application of the modied Lemon test, although should courts adopt a structural restraint model this analysis, of course, would fall by the wayside. Yet even if courts continue to employ the Lemon test, this mode of analysis for extraterritoriality would still be applicable. 199. See supra text accompanying note 182. 200. This balancing test is already used in an ad hoc fashion. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS 721 cmt. d (1987) (suggesting a balancing test between Establishment Clause restraints and national foreign affairs interests).
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national security interest.201 Second, assuming that the national security interest is compelling, the program should be narrowly tailored to serve that compelling government interest.202 To highlight how this test would operate, I offer the following hypothetical. In 2012, the United States elects a President with a strong Christian faith. Although he discussed his belief in God throughout the campaign, it has become apparent during his rst year in ofce that his belief in God and Jesus Christ transcends the private sphere. As incidents of Islamic terror spread throughout the Middle East and Asia, the President has come to believe that the best way to eradicate terrorism is to convert predominantly Islamic countries to Christianity. As part of his strategic foreign policy plan, the President has cut off all diplomatic ties to countries with Islamic leadership and has authorized USAID funding to missionary organizations for the purpose of proselytizing. It is clear in this hypothetical that the Presidents policy would violate the Establishment Clause if implemented domestically. U.S. funds may not be used to proselytize or to promote one religion over another.203 The next step under the structural restraint model would be to apply the balancing test. Judges would consider the purpose of the Presidents proselytizing policy. Although many actions can be taken in the name of national security, scrutiny under this balancing test for the purpose of extraterritorial Establishment Clause challenges would not accept the governments claims at face value. Courts would examine the actual purpose of the program.204 If the court found that the action was taken for national security concerns and not for a purely religious or self-aggrandizing purposethe court would then examine whether the program was narrowly tailored to serve that compelling national security interest. Clearly, funding missionaries and cutting off diplomatic ties in an effort to convert Muslims to Christianity is not narrowly tailored. A less drastic example (and closer call) might involve a program in which the Executive has decided to take on religious education in madrasahs overseas.205 Critics of these Islamic schools claim they are a breeding ground for terrorism
201. National security, specically the war on terror, would most often be found to be a compelling state interest broadly dened. See, e.g., Haig v. Agee, 453 U.S. 280, 307 (1981) (It is obvious and unarguable that no governmental interest is more compelling than the security of the Nation.); see also Boos v. Barry, 485 U.S. 312, 324 (1998) (considering whether foreign policy and international concerns may provide a compelling state interest in support of speech restriction). 202. This narrow tailoring requirement would not be as stringent as the one imposed in free speech and equal protection domestic contexts. Instead, it would serve as a check on executive abuses and to ensure that the stated program is no more expansive than it need be to fulll national security demands. 203. See, e.g., supra text accompanying note 61. 204. This Establishment Clause actual purpose review would look much like the current equal protection jurisprudence, although, as mentioned above, it would be slightly more lenient. Instead of accepting the governments reasoning for a law at face value, the court would review the actual purpose. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 37374 (1886) (examining the actual administration of a facially neutral zoning law and nding a discriminatory purpose). 205. See generally Evans, supra note 37.
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and the President agrees. USAID begins to fund programs which aim to replace Korans with secular text books. In applying the balancing test, a court may reasonably nd that reducing fundamentalist education is a compelling national security concern. However, the attenuation between conservative religious education and terrorism may be broad enough that a court would be unwilling to nd that this program serves a compelling national security interest. Furthermore, this program may fail on the narrow tailoring prong. Opponents of the program could argue that it is fatally overbroad and reaches thousands of schools that have no relation to terrorism, while supporters could counter that the program is only operating in educational spheres, not within mosques or civil society organizations. The nder of fact would ultimately have to make a determination as to whether reducing conservative education is a compelling national security concern and whether the program implemented is narrowly tailored to serve that interest. Finally, consider one of USAIDs current programs, Indonesias LKiS program, which distributes Friday Flyers to counter the pro-terror, anti-Western yers that are often distributed outside of Mosques during Friday prayers.206 These yers often contain religious language and promote moderate religious ideas. While undoubtedly unconstitutional if funded in the United States, by applying a balancing test, courts need not abstain from adjudicating the constitutionality of the program. Courts would examine if the program was furthering a compelling national security concern (reducing Islamic extremism and extremist messages) while at the same time ensuring that the program is narrowly tailored to that goal. Much of this narrow tailoring analysis would turn on the breadth and messages of the program. Take the following two examples:
A) A local NGO in Indonesiafunded by USAIDhands out the following yer in front of mosques on Fridays: Believers know that tolerance and pluralism leads us to God. Those who kill others in the name of Allah serve neither themselves nor their God. They also hold discussion groups to talk about what tolerance and pluralism means in their society. B) A local NGO hands out the same yer as in A, but at the discussion groups efforts are made to convert participants to Christianity under the belief that Christian doctrine is more tolerant and peaceful, thereby reducing the likelihood of violent acts of terrorism.
The yer promotes tolerance and peace using the language of Islam, and the same yer is used in both examples A and B. However, example B is less tailored to the national security interest of reducing terrorism because it is the belief in tolerance and pluralism that moves believers away from terrorism (the compelling national security interest), rather than whether they practice Islam or Christianity. This model would take into account both the need for Americans to
206. See supra text accompanying note 43.
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be protected from government action in the sphere of religion and the compelling national security need to combat Islamic terrorism and promote a more moderate form of Islam. Instead of judicial deference, courts can play an active role in balancing religious liberty rights against national security concerns.207 CONCLUSION A common critique of executive actions during the War on Terrorism has been, its not about them; its about us. Although not a legal doctrine, the premise of the argument implicitly underscores the tension between individual rights and structural restraints. Although aliens in western China do not enjoy Fifth Amendment due process rights, when the U.S. government undertakes actions to promote moderate Islam in Kashgar, constitutional concerns are not absent simply because the governments programs are targeted at foreigners. As the world shrinks and our nations actions increasingly have international impact, our courts must begin to esh out the scope of our Constitution and how our government can constitutionally engage the world beyond our borders. The problem of Islamic terrorism is one that will plague our nation for years to come, inextricably linking our national security concerns to religion. Judicial deference to executive decisions is not the answer. All branches of the government must consider how our efforts to curb Islamic extremism abroad comport with the Establishment Clause. By bifurcating constitutional analysis between individual rights and structural restraints, courts can apply a more predictable and sensible analysis to extraterritorial government actions. Analyzing the Establishment Clause through a structural restraint lens brings greater clarity to how the government can and cannot act overseas, with a balance for national security concerns.
207. See, e.g., Hamdi v. Rumsfeld, 316 F.3d 450, 464 (4th Cir. 2003) (Despite the clear allocation of war powers to the political branches, judicial deference to executive decisions made in the name of war is not unlimited.). Although it is beyond the scope of this Note, there is a distinction between a national security interest asserted overseas and that same interest asserted within the U.S. territory. Reducing the threat of terrorism by working within the religious sphere may be constitutional overseas based on a structural restraint model, in which national security concerns may outweigh structural interests, but that same rationale would not hold the same force domestically. For example, President Truman attempted to seize the steel mills under the name of national security and war powers during the Korean War, and the Court held that even though the theatre of war is an expanding concept, it did not extend to this domestic act. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587 (1952). While this case involved issues of war powers and the role of congressional action, the same underlying principle would hold true in this analysisthat the President is more limited in his actions domestically than overseas when acting in the name of national security.

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NOTES

Mullahs on a Bus: The Establishment Clause and U.S. Foreign Aid

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ISLAM AND CIVIL SOCIETY PROGRAM: INDONESIA

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To combat what USAID believes is an American image problem17 in

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