1. See Collin v. Smith, 447 F. Supp. 676 (N.D. Ill. 1978), aff'd, 587 F.2d 1197 (7th Cir. 1978), cert. denied, 439 U.S. 916 (1987).

2. See, e.g., American Booksellers Ass'n, v. Hudnut, 598 F. Supp. 1316, 1320 (S.D. Ind. 1984), aff'd, 771 F.2d 323 (7th Cir. 1985), aff'd, 475 U.S. 1001 (1986) (holding unconstitutional an Indianapolis ordinance which banned “the graphic sexually explicit subordination of women, whether in pictures or in words” in order to “prohibit all discriminatory practices of sexual subordination or inequality through pornography.”). Id.

3. Church groups were the catalysts for both the abolition, see 10 New Catholic Encyclopedia 299–301 (1967)Google Scholar, and the civil rights movements. See id. at 302-05. Correspondingly, the demands of equality often swayed the Supreme Court in the past to construe the First Amendment in favor of religious pluralism. See Howe, M., The Garden and the Wilderness (1965)Google Scholar.

4. Pub. L. No. 100-259, 102 Stat. 28 (1988) (codified at 20 U.S.C.A. § 1681 (West Supp. 1990); 29 U.S.C.A. § 794(b) (West Supp. 1990); 42 U.S.C.A. § 6107(4) (West Supp. 1990); 42 U.S.C.A. § 2000d-4(a) (West Supp. 1990)).

5. 465 U.S. 555 (1983). See Pub. L. No. 100-259, § 2, 102 Stat. 28 (1988); S. Rep. No. 64, 100th Cong., 1st Sess. 2 (1987).

6. 20 U.S.C. § 1681 et seq. (1982) (§ 901(a) of Title IX, § 1681(a), provides, with some exceptions: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance”).

7. Grove City College, 465 U.S. at 570-71. See North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 536-38 (1981). Thus, receipt of Federal funds for some activities would not thereby bring the entire program within Title IX's coverage.

8. See Pub. L. No. 100-259, § 2(1), 102 Stat. 28 (1988); S. Rep. No. 64, supra note 5, at 2. “Title IX was patterned after Title VI of the Civil Rights Act of 1964,” 42 U.S.C. § 2000d (1982), see Cannon v. Univ. of Chicago, 441 U.S. 677, 694 (1979), as was the Age Discrimination Act of 1975, 42 U.S.C. § 6102 (1982), see National Alliance v. Bowen, 789 F.2d 931, 934 (5th Cir. 1986), and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (Supp. V 1987), see S. Rep. No. 1297, 93rd Cong., 2d Sess. 39 (1974).

9. 42 U.S.C. § 6101 et seq. (1982) (§ 303 of the Age Discrimination Act, § 6102, provides, with some exceptions: “[N]o person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).

10. 29 U.S.C. § 794 (Supp. V 1987) (which provides in pertinent part: “No otherwise qualified individual with handicaps in the United States … shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).

11. 42 U.S.C. § 2000d et seq. (1982) (§ 601 of Title VI, § 2000d, provides: “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance”).

12. See, e.g., S. Rep. No. 64, supra note 5, at 19-20, 27; 134 Cong. Rec. S147-55 (daily ed. Jan. 27, 1988).

13. See S. Rep. No. 64, supra note 5, at 27; 134 Cong. Rec. S155 (daily ed. Jan. 27, 1988). Only Title IX provides a religious exemption, but limited to its proscription of sex discrimination. Section 901(a)(3), 20 U.S.C. § 1681(a)(3) (1982), excludes from coverage any “educational institution which is controlled by a religious organization if the application of [Title IX] would not be consistent with the religious tenets of such organization.” The Act “clarifies that … a religiously controlled education program or activity which receives Federal financial assistance and is therefore subject to the sex discrimination prohibition in Title IX, but is not part of an education institution, would still be within the scope of the religious tenet exemption.” S. Rep. No. 64, supra, at 20-21; see 20 U.S.C.A. § 1687(4) (West Supp. 1990). Aside from such programs, however, churches are regarded as principally engaged in religion, not education, see S. Rep. No. 64, supra, at 18; see also 134 Cong. Rec. S150 (daily ed. Jan. 27, 1988) (statement of Sen. Kennedy); id. at S2756 (daily ed. Mar. 22, 1988) (statement of Sen. DeConcini), and thus Title IX (and the issue of an exemption from its sex discrimination prohibition) would not apply to them.

14. 29 U.S.C.A. § 794(b)(1) (West Supp. 1990); 42 U.S.C.A. § 6107(4)(A) (West Supp. 1990); 42 U.S.C.A. § 2000d-4a(1) (West Supp. 1990). See 20 U.S.C.A. § 1687(1) (West Supp. 1990).

15. 29 U.S.C.A. § 794(b)(2) (West Supp. 1990); 42 U.S.C.A. § 6107(4)(B) (West Supp. 1990); 42 U.S.C.A. § 2000d-4a(2) (West Supp. 1990). See 20 U.S.C.A. § 1687(2) (West Supp. 1990).

16. Section 3 provides in full:

[T]he term “program or activity” and “program” mean all the operations of - …

(A) an entire corporation, partnership, or other private organization, or an entire sole proprietorship -

(i) if assistance is extended to such corporation, partnership, private organization, or sole proprietorship as a whole; or

(ii) which is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation; or

(B) the entire plant or other comparable, geographically separate facility to which Federal financial assistance is extended, in the case of any other corporation, partnership, private organization, or sole proprietorship. …

29 U.S.C.A. § 794(b)(3) (West Supp. 1990); 42 U.S.C.A. § 6107(4)(C) (West Supp. 1990); 42 U.S.C.A. § 2000d-4a(3) (West Supp. 1990). See 20 U.S.C.A. § 1687(3) (West Supp. 1990).

17. 29 U.S.C.A. § 794(b)(3)(A)(i) (West Supp. 1990); 42 U.S.C.A. § 6107(C)(i)(I) (West Supp. 1990); 42 U.S.C.A. § 2000d-4a(3)(A)(i) (West Supp. 1990). See 20 U.S.C.A. § 1687(3)(A)(i) (West Supp. 1990).

18. See Meek v. Pittinger, 421 U.S. 349, 359 (1975); Lemon v. Kurtzman, 403 U.S. 602, 612 (1971); Walz v. Tax Commission, 397 U.S. 664, 668 (1970).

19. 29 U.S.C.A. § 794(b)(3)(A)(ii) (West Supp. 1990); 42 U.S.C.A. § 6107(C)(i)(II) (West Supp. 1990); 42 U.S.C.A. § 2000d-4a(3)(A)(ii) (West Supp. 1990). See 20 U.S.C.A. § 1687(3)(A)(ii) (West Supp. 1990).

20. Actions which “foster an excessive government entanglement with religion” come in conflict with the Establishment Clause. Lemon v. Kurtzman, 403 U.S. at 612-13 (citations and internal quotations omitted). Cf. entanglement discussion, infra, at p. 208.

21. See S. Rep. No. 64, supra note 5, at 18. See also 134 Cong. Rec. S150 (daily ed. Jan. 27, 1988) (statement of Sen. Kennedy); id. at S2756 (daily ed. Mar. 22, 1988) (statement of Sen. DeConcini).

22. 29 U.S.C.A. § 794(b)(3)(B) (West Supp. 1990); 42 U.S.C.A. § 6107(4)(C)(ii) (West Supp. 1990); 42 U.S.C.A. § 2000d-4a(3)(B) (West Supp. 1990). See 20 U.S.C.A. § 1687(3)(B) (West Supp. 1990).

23. Id.

24. See Tilton v. Richardson, 403 U.S. 672, 685-86 (1970). Cf. Establishment Clause discussion, infra at p. 206.

25. Even indirect funding may bring a church within the Act's coverage. See Grove City College, 465 U.S. at 569-70 (where (in that part of the Court's decision not affected by the Act) a college financial aid program was held to be Federally funded even though the college received no Federal aid directly but enrolled students who did in the form of Federal tuition assistance). For instance, if elderly tenants of a church housing project use Federal subsidies to pay their rent, the project and the entire church (if geographically proximate, see discussion, infra) may come within Federal control.

26. S. Rep. No. 64, supra note 5, at 18.

27. See 134 Cong. Rec. S148 (daily ed. Jan. 27, 1988) (statement of Sen. Hatch); id. at S2740-41 (daily ed. Mar. 22, 1988) (statement of Sen. Armstrong).

28. By “congregationally structured churches” is meant self-governing churches with little or no supervision from consolidated authority. See 76 C.J.S. Religious Societies §§ 35-36 (1952).

29. See supra note 16.

30. In contrast to congregational churches, “hierarchical churches,” such as dioceses, provide direct and substantial centralized control over individual parishes within their jurisdiction. See 76 C.J.S. Religious Societies § 35(b) (1952).

31. See 134 Cong. Rec. S150, S153 (daily ed. Jan. 27, 1988) (statements of Sen. Kennedy). See also S. Rep. No. 64, supra note 5, at 19-20.

32. Id.

33. See S. Rep. No. 64, supra note 5, at 17-18. See also 134 Cong. Rec. S148 (daily ed. Jan. 27, 1988) (statement of Sen. Hatch); id. at S2740-41 (daily ed. Mar. 22, 1988) (statement of Sen. Armstrong).

34. See, e.g., 45 C.F.R. § 84.4(b)(1)(v) (1988)

A recipient in providing any aid, benefit, or service, may not, directly or through contractual, licensing, or other arrangements, on the basis of handicap … [a]id or perpetuate discrimination against a qualified handicapped person by providing significant assistance to an agency, organization, or person that discriminates on the basis of handicap in providing any aid, benefit, or service to beneficiaries of the recipient's program.

28. C.F.R. § 41.51(b)(1)(v) (1988).

35. See 28 C.F.R. § 42.104(b)(1)(iv)-(vi) (1988). See also 34 C.F.R. § 100.3(b)(1)(iv)-(vi)) (1988); 45 C.F.R. § 80.3(b)(1)(iv)-(vi) (1988).

36. 134 Cong. Rec. S151 (daily ed. Jan. 27, 1988) (statement of Sen. Kennedy).

37. Id.

38. See S. Rep. No. 1297, supra note 8, at 39.

39. Cf. 28 C.F.R. § 41.51(b)(1)(i) (1988); 34 C.F.R. § 104.4(b)(1)(i) (1988); 45 C.F.R. § 84.4(b)(1)(i) (1988).

40. Alcoholism is a handicap covered by agency regulations implementing § 504. See 42 Fed. Reg. 22,686 (1977). Nevertheless, an alcoholic, “whose current use of alcohol … prevents such individual from performing the duties of the job in question or whose employment, by reason of such current alcohol [ism]…, would constitute a direct threat to property or the safety of others,” is outside § 504's coverage, but only “as such [Section relates] to employment.” 29 U.S.C. § 706(7)(B) (1982). Alcoholics are considered “disabled” for purposes of the Americans with Disabilities Act, Pub. L. 101-336, 104 Stat. 327, 328 (1990) (codified at 42 U.S.C. § 12101); see S. Rep. No. 116, 101st Cong., 1st Sess. 22 (1989); H.R. Rep. No. 485 pt. II, 101st Cong., 2d Sess. 142 (1990); H.R. Conf. Rep. No. 558, 101st Cong., 2d Sess. 84-85 (1990), which leaves the coverage of alcoholics under § 504 where it finds it. Pub L. 101-336, § 512(1), 104 Stat. 327,277 (1990) (codified at 29 U.S.C. § 706(8)(c)(i)-(v) (Supp. 1991)).

41. The disruptive effects of a handicapping condition, however, are not unconditionally protected. As the Attorney General observed in 1977: “A person's behavioral manifestations of a disability may also be such that his employment or participation would be unduly disruptive to others, and § 504 presumably would not require unrealistic accommodations in such a situation.” 43 Op. Att. Gen. 12 (1977). See 42 Fed. Reg. 22, 686 (1977).

42. In addition, age, hypothetically, could not serve as a criterion for receiving communion, bar mitzvah, or other religious benefits, unless it were shown that the required maturity level was “impractical to measure directly on an individual basis.” 45 C.F.R. § 90.14(d) (1988).

43. West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943). If the first amendment protected only the popular, it would be superfluous, and antithetical to true religious freedom since moral outcries at their inception are seldom favored. For instance, few churches opposed slavery at the time the Constitution was ratified. See 10 New Catholic Encyclopedia 299–301 (1967)Google Scholar. Yet, these small numbers eventually formed the foundation for the abolition movement. See id. The same development occurred with regard to segregation and the civil rights movement. See id. at 302-05.

44. Before addressing such serious constitutional concerns, “we must first identify ‘the affirmative intention of the Congress clearly expressed’” to bring churches within the Act's broad coverage. NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 501 (1979) (quoting McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10, 21-22 (1963)) (further citation omitted); see Rayburn v. Gen. Conference of Seventh Day Adventists, 772 F.2d 1164, 1166 (4th Cir. 1985), cert. denied, 478 U.S. 1020 (1986). The fact that attempts to exempt churches failed, see S. Rep. No. 64, supra note 5, at 27, 30; 134 Cong. Rec. S155 (daily ed. Jan. 27, 1988) (rejecting Amendment No. 1384 which had provided: “Nothing contained in this [Act] shall be construed to extend the application of this [Act] to any part of a church, synagogue, or other religious institution or organization, if such part does not receive Federal financial assistance”), after substantial debate, see id. at S147-55, except as to Title IX alone, see supra note 13, and that the Act was passed over the President's veto, see 134 Cong. Rec. S2765 (daily ed. Mar. 22, 1988); id. at H1071-72, occasioned in part by the Act's perceived inclusion of churches, see id. at H1037-38 (veto message), fairly evidences Congress' intent, even absent express statutory language, to extend the Act's broad proscriptions to churches.

45. 110 S.Ct. 1595 (1990).

46. See Reynolds v. U.S., 98 U.S. 145, 166 (1978). See also Sherbert v. Verner, 374 U.S. 398, 403-04 (1963).

47. See Frazee v. Illinois Dep't of Employment Sec., 488 U.S. 814 (1989); Hobbie v. Unemployment Appeals Comm'n of Fla., 480 U.S. 136, 141 (1987); Thomas v. Review Bd., Ind. Employment Sec. Div., 450 U.S. 707, 716-18 (1981); Sherbert, 374 U.S. at 403-04. Thus, even though churches remained free to discriminate so long as they avoided Federal funds, see 134 Cong. Rec. S153 (daily ed. Jan. 27, 1988) (statement of Sen. Thurmond); id. at S153 (statement of Sen.Kennedy), that would not have foreclosed application of first amendment scrutiny to the Act's funding conditions. See Thomas, 450 U.S. at 716-18; Sherbert, 374 U.S. at 403-04.

48. See Bob Jones Univ. v. United States, 461 U.S. 574, 603 (1983) (“‘The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest’#x201D; id. (quoting U.S. v. Lee, 455 U.S. 252, 257-58 (1982)).

49. Id. at 603-04.

50. See Hobbie, 480 U.S. at 141-42.

51. See Bob Jones Univ., 461 U.S. at 602-04; Lee, 455 U.S. at 257-58; Thomas, 450 U.S. at 718-19; Sherbert, 374 U.S. at 406-09.

52. See Meek, 421 U.S. at 359; Lemon, 403 U.S. at 612; Walz, 397 U.S. at 668.

53. The decision in Bob Jones Univ., 461 U.S. 574, is not inconsistent. Noting that the case dealt “only with religious schools — not with churches or other purely religious institutions,” id. at 604 n.29, the Supreme Court held that removal of petitioner's tax exemption furthered the government's goal of preventing the tax system from underwriting race discrimination. See id. at 604. Since the exemption was university-wide, it directly aided all aspects of petitioner's program, including its discriminatory practices. Therefore, its elimination was necessary to avoid governmental support. In contrast, whatever benefits the funding of church-related programs would provide to discrimination practiced in those religious functions, not directly fundable, could only be considered incidental.

54. See Smith, 110 S.Ct. at 1598.

55. See id. at 1606.

56. See id. at 1597.

57. See id. at 1598.

58. See id.

59. Id. at 1599.

60. Id.

61. Id.

62. See id. at 1599-1600. Nevertheless, Justice Scalia noted approvingly that “a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation,” id. at 1606, for instance, through dispensing exemptions from general laws, occasioned, however, not by constitutional compulsion, but rather as a consequence of legislative choice. See id.

63. See id.

64. See Sherbert, 374 U.S. at 406;

We must … consider whether some compelling state interest … justifies the substantial infringement of appellant's first amendment right. It is basic that no showing merely of a rational relationship to some colorable state interest would suffice; in this highly sensitive constitutional area, only the gravest abuses, endangering paramount interests, give occasion for permissible limitation.

Id. (Internal quotations omitted). See also Hobbie, 480 U.S. at 141 (“Both Sherbert and Thomas held that such infringements must be subjected to strict scrutiny and could be justified only by proof by the state of a compelling interest” id.); Thomas, 450 U.S. at 718 (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest … only those interests of the highest order can overbalance legitimate claims to the free exercise of religion” id. (internal quotations omitted)); Wisconsin v. Yoder, 406 U.S. 205, 214 (1972) (“[I]t must appear … that there is a state interest of sufficient magnitude to override the interest claiming protection under the Free Exercise Clause” id.).

65. Smith, 110 S.Ct. at 1605 (quoting Braunfeld v. Brown, 366 U.S. 599, 606 (1960)).

66. Id.

67. 374 U.S. 398 (1963).

68. Justice Scalia listed only ten such claims that the Court had reviewed since 1963. See Smith, 110 S.Ct. at 1602-03 (citing Lyng v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439 (1988); Hobbie, 480 U.S. 136; O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987); Bowen v. Roy, 476 U.S. 693 (1986); Goldman v. Weinberger, 475 U.S. 503 (1986); Thomas, 450 U.S.707; Yoder, 406 U.S. 205; Gillette v. United States, 401 U.S. 437 (1971); Lee, 455 U.S. 252; Sherbert, 374 U.S. 398).

69. Of the ten claims for exemption raised, six were rejected. See Smith, 110 S.Ct. at 1602-03 (citing Lyng, 485 U.S. 439; O'Lone, 482 U.S. 342; Bowen, 476 U.S. 693; Goldman, 475 U.S. 503; Gillette, 401 U.S. 437; Lee, 455 U.S. 252).

70. Arguing, as did the dissent in Smith, that the view of Free Exercise which Justice Scalia advanced was limited “to criminal prohibitions (as opposed to conditions on the receipt of benefits),” id. at 1616 (Blackmun, J., dissenting), seems misplaced, given the Court's judgment to affirm the denial of respondents' unemployment compensation benefits. See id. at 1606. Exploring other possible distinctions—for example, between conduct malum in se and malum prohibitum—must await a more comprehensive exposition of Smith, in which I plan to revisit the religious associational issues initially considered here.

71. Id. at 1601.

72. See Spence v. Washington, 418 U.S. 405 (1974) (viewing conduct as “symbolic speech” when “[a]n intent to convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it” id. at 411). See also Texas v. Johnson, 491 U.S. 397, 400 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 294 (1984); United States v. O'Brien, 391 U.S. 367, 376 (1968).

73. To survive scrutiny, restraints on “symbolic speech” must be “within the constitutional power of Government; [must] furthe[r] an important or substantial governmental interest; … the governmental interest [must be] unrelated to the suppression of free expression; and … the incidental restriction on alleged first amendment freedoms [must be] no greater than is essential to the furtherance of that interest.” O'Brien, 391 U.S. at 377. A majority in Barnes v. Glen Theatre, Inc., 111 S.Ct. 2456 (1991) (Rehnquist, C.J., joined by O'Connor and Kennedy, JJ.); id. at 2468 (Souter, J., concurring); id. at 2471 (White, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.), declined Justice Scalia's invitation to reject the O'Brien test. See id. at 2466 (Scalia, J., concurring) (arguing that, apart from “where the government prohibits conduct precisely because of its communicative attributes,” id., restrictions on “symbolic speech” (whether or not religious) merit no heightened first amendment review. Id.). Sacramental peyote use, however, was not considered in Smith explicitly under the O'Brien test. Conceivably, the Court regarded that use as inner directed, and thus not communicative. But, more likely, it may have tacitly found the law a justified restriction on “symbolic speech,” concluding that Oregon's strong and legitimate interest in forbidding controlled drugs was “served in a direct and effective way.” Ward v. Rock Against Racism, 491 U.S. 781 (1989) (“[W]e have held that the O'Brien test [for reviewing restraint on symbolic speech] ‘in the last analysis is little, if any, different from the standard applied [here] to time, place, or manner restrictions,’” id. (quoting Clark, 468 U.S. at 298)), by its across-the-board ban. But see Smith, 110 S.Ct. at 1617-20 (Blackmun, J., dissenting).

74. Smith, 110 S.Ct. at 1601.

75. Roberts v. United States Jaycees, 468 U.S. 609, 622 (1984). See New York State Club Ass'n v. City of New York, 108 S.Ct. 2225 (1988); NAACP v. Alabama, 357 U.S. 449, 460 (1958).

76. Roberts, 468 U.S. at 623 (recognizing both a freedom of expressive association and of intimate association).

77. Id. at 623. Cf. Eu v. San Francisco Cty. Democratic Comm., 489 U.S. 214, 225 (1989):

Freedom of association means not only that an individual voter has the right to associate with the political party of their choice, but also that a political party has a right to identify the people who constitute the association and to select a standard bearer who best represents the party's ideologies and preferences.

Id. This inquiry is likely to involve courts less with religion than would the entangling search for a sect's central beliefs which the Supreme Court in Smith, 110 S.Ct. at 1604, had disfavored.

78. See EEOC v. Fremont Christian School, 781 F.2d 1362 (9th Cir. 1986); Rayburn, 772 F.2d 1164; EEOC v. Pacific Press Publishing Ass'n, 676 F.2d 1272 (9th Cir. 1982); EEOC v. Southwestern Baptist Theological Seminary, 651 F.2d 277 (5th Cir. 1981), cert. denied, 456 U.S. 905 (1982); EEOC v. Mississippi College, 626 F.2d 477 (5th Cir. 1980), cert. denied, 453 U.S. 912 (1981); McClure v. Salvation Army, 460 F.2d 553 (5th Cir.), cert. denied, 409 U.S. 896 (1972); Carter v. Baltimore Annual Conference, No. 86-2543 (D. D.C. Oct. 5, 1987) (WESTLAW, 1987 18470); Maguire v. Marquette Univ., 627 F.Supp. 1499 (E.D. Wis. 1986); Whitney v. Greater New York Corp. of Seventh-day Adventists, 401 F.Supp. 1363 (S.D.N. Y. 1975).

79. 42 U.S.C. § 2000e et seq. (1982).

80. Id. at 2000e-2(a).

81. Id. at § 2000e-1. Cf. McClure, 460 F.2d 553 at 558:

The language and the legislative history of [this section] compel the conclusion that Congress did not intend that a religious organization be exempted from liability for discriminating against its employees on the basis of race, color, sex or national origin with respect to their compensation, terms, conditions or privileges of employment.

Id. See also Fremont Christian School, 781 F.2d at 1366; Rayburn, 111 F.2d at 1166; Pacific Press, 676 F.2d at 1277; Southwestern Baptist, 651 F.2d at 282; Mississippi College, 626 F.2d at 484; Maguire, 627 F. Supp. at 1506; Whitney, 401 F. Supp. at 1365-67.

82. See Fremont Christian School, 781 F.2d at 1367-70; Rayburn, 772 F.2d at 1168-72; Pacific Press, 676 F.2d at 1279-82; Southwestern Baptist, 651 F.2d at 285-87; Mississippi College, 626 F.2d at 486-89; Whitney, 401 F. Supp. at 1367-68.

83. Cf. Rayburn, 772 F.2d at 1167-68:

The right to choose ministers without government restriction underlies the well-being of religious community,… for perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large.

Id. (citation and footnote omitted).

84. Id. at 1169.

85. McClure, 460 F.2d at 560. See Fremont Christian School, 781 F.2d at 1369.

86. Rayburn, 772 F.2d at 1169 (citation and internal quotations omitted) (holding a non-ordained church employee, teaching Bible studies and performing pastoral functions, beyond Title VII's coverage). See Southwestern Baptist, 651 F.2d at 283 (holding the faculty of a theological seminary and the administrators who supervised them beyond coverage); Maquire, 627 F. Supp. at 1504-05 (holding the theology faculty of a church-related university beyond coverage). But see Fremont Christian School, 781 F.2d at 1370 (holding, with little analysis, teachers in a parochial day school within Title VII's coverage). Thus, the statement in the Senate Report accompanying the Act, S. Rep. No. 64, supra note 5, at 27, that “religious employers are subject to Title VII in the same manner as non-religious employers” appears mistaken.

87. Roberts, 468 U.S. at 623 (challenge to Jaycees' denial of full voting privileges to associate female members). See NAACP v. Alabama, 357 U.S. at 460-61; Griswold v. Connecticut, 381 U.S. 481, 483 (1965). Cf. Maguire, 627 F. Supp. at 1507 (“Despite [plaintiff's] protests that she is a Catholic, … the determination of who fits into that category is for religious authorities and not for the government to decide ….”).

88. See Roberts, 468 U.S. at 623.

89. Id.

90. See id. at 624; Bob Jones Univ., 461 U.S. at 603-04.

91. New York State Club Assoc., 108 S.Ct. at 2234; id. at 2237 (O'Connor, J., concurring) (“[T]here may well be organizations whose expressive purposes would be substantially undermined if they were unable to confine their membership to those of the same sex, race, religion, or ethnic background, or who share some other such common bond. The associational rights of such organizations must be respected. …”). Cf. Roberts, 468 U.S. at 628:

[A]cts of invidious discrimination in the distribution of publicly available goods, services, and other advantages cause unique evils that government has a compelling interest to prevent—wholly apart from the point of view such conduct may transmit. Accordingly, like violence or other types of potentially expressive activities that produce special harms distinct from their communicative impact, such practices are entitled to no constitutional protection.…

Id.

92. Exploring whether associations “reinforced by Free Exercise Clause concerns,” Smith, 110 S.Ct. at 1601, should merit more protection than due other expressive associations must await a more comprehensive exposition of Smith.

93. Rust v. Sullivan, 111 S.Ct. 1759, 1774 (1991).

94. See FCC v. League of Women Voters, 468 U.S. 364, 402 (1984).

95. Rust, 111 S.Ct. at 1774. Rust referred to agency regulations which construed such independence (in the context of Federally funded family planning projects operated by recipients that also offered abortion-related services) to mean “physica[1] and financial] separation]” (to prevent Federal funds from being used to finance such services), 42 C.F.R. § 59.9 (1989)(cited in Rust, 111 S.Ct. at 1774)—

Factors relevant to this determination shall include (but are not limited to):

(a) The existence of separate accounting records;

(b) The degree of separation from facilities (e.g., treatment, consultation, examination, and waiting rooms) in which prohibited [abortion-related] activities occur and the extent of such prohibited activities;

(c) The existence of separate personnel;

(d) The extent to which signs and other forms of identification of the … [Federally funded] project are present and signs and material promoting abortion are absent.

42 C.F.R. § 59.9.

96. See Rust, 111 S.Ct. at 1774; FCC v. League of Women Voters, 468 U.S. at 400; Regan v. Taxation with Representation of Washington, 461 U.S. 543, 544 (1983).

97. Cf. Rayburn, 772 F.2d at 1171-72 (“[Churches'] employment decisions may be subject to Title VII scrutiny, where the decision does not involve [their] spiritual functions”); Mississippi College, 626 F.2d 477 (Title VII may be applied to promotion of a secular teacher at a denominational college); Southwestern Baptist, 651 F.2d 277 (Title VII applicable to some administrative and support staff at a seminary); Pacific Press, 676 F.2d 1272 (editorial secretary at church-affiliated publishing house); Whitney, 401 F. Supp. 1363 (typist-receptionist).

98. 403 U.S. 602.

99. Id. at 612-13 (quoting Walz v. Tax Commission, 397 U.S. 664 at 674) (citations omitted).

100. See Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (“[W]e have repeatedly emphasized our unwillingness to be confined to any single test or criterion in this sensitive area ….” (citations omitted)). But see County of Allegheny v. ACLU, 492 U.S. 573, 591 (1989) (“[The Lemon test] has been applied regularly in the Court's later Establishment Clause cases. …” (footnote omitted)).

101. See Edwards v. Aguillard, 482 U.S. 578, 636 (1987) (Scalia, J., dissenting) (“[The Lemon test] is ‘a constitutional theory that has no basis in the history of the amendment it seeks to interpret, is difficult to apply and yields unprincipled results’….” (quoting Wallace v. Jaffree, 472 U.S. 38, 112 (1985) (Rehnquist, J., dissenting)). Cf. Allegheny, 492 U.S. at 655 (Kennedy, J., dissenting) (“I am content for present purposes to remain within the Lemon framework, but do not wish to be seen as advocating, let alone adopting, that test as our primary guide in this difficult area. …”).

102. See Allegheny, 492 U.S. at 591 (Blackmun, J., joined by Brennan, Marshall, Stevens, and O'Connor, JJ.). See also Board of Educ. v. Mergens, 110 S.Ct. 2356, 2371 (1990) (O'Connor, J., joined by Rehnquist, C.J., White and Blackmun, JJ.); id. at 2390 n.19 (Stevens, J., dissenting).

103. Gunther, G., Constitutional Law 1552 (1991)Google Scholar. See Allegheny, 492 U.S. at 591-92 (Blackmun, J., joined by Brennan, Marshall, Stevens, and O'Connor, JJ.). Although four justices in Allegheny criticized Justice O'Connor's endorsement alternative, see id. at 668-69 (Kennedy, J., concurring in judgement in part and dissenting in part, joined by Rehnquist, C.J., White and Scalia, JJ.), two, a year later, joined her plurality opinion in Mergens, 110 S.Ct. 2356, (O'Connor, J., joined by Rehnquist, C.J., White and Blackmun, JJ.), where she renewed that approach. The Court, with its new appointees, will have an opportunity to renew that approach, or adopt the “state religion” option that Justices Kennedy and Scalia continue to advance, see id. at 2377 (Kennedy, J., concurring in part and concurring in judgement, joined by Scalia, J.) (the Establishment Clause means that “the government cannot ‘give direct benefits to religion in such a degree that it in fact establishes a (state) religion or religious faith, or tends to do so’… [Furthermore,] the government cannot coerce any … [person] to participate in a religious activity” id. (quoting Allegheny, 492 U.S. at 659 (Kennedy, J., concurring in judgment in part and dissenting in part) (citation and further internal quotations omitted))), when it reviews the First Circuit's invalidation of public school commencement benedictions in Lee v. Weisman, 908 F.2d 1090 (1990), cert. granted, 111 S.Ct. 1305, (1991). But, given the support on the Court that “endorsement” continues to enjoy, speculating about whether the Act's conditions tend toward uniformity in church internal affairs to “such a degree that… [they] in fact establis[h] a (state) religion” is premature and likely not needed.

104. Lynch, 465 U.S. at 687 (O'Connor, J., concurring). See Mergens, 110 S.Ct. at 2371 (plurality opinion); Allegheny, 492 U.S. at 623 (O'Connor, J., concurring); Wallace, 472 U.S. at 67 (O'Connor, J., concurring).

105. Mergens, 110 S.Ct. at 2371 (quoting Lynch, 465 U.S. at 690 (O'Connor, J., concurring)).

106. See Pub. L. No. 100-259, § 2, 102 Stat. 28 (1988); S. Rep. No. 64, supra note 5, at 2. Cf. Mergens, 110 S.Ct. at 2371; Bob Jones Univ., 461 U.S. at 604 n.30.

107. School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 390 (1985) (quoted in Allegheny, 492 U.S. at 597). See Allegheny, 492 U.S. at 594 (“A]t the very least, [this] prohibits government from appearing to take a position on questions of religious belief. …” (citation omitted)); id. at 627 (O'Connor, J., concurring).

108. A broad array of religious groups, listed at 134 Cong. Rec. S209 (daily ed. Jan. 28, 1988), favored passage of the Act.

109. McGowan v. Maryland, 366 U.S. 420,442 (1961). See Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680, 696 (1989); Bob Jones Univ., 461 U.S. at 604 n.30; Harris v. McRae, 448 U.S. 297, 319-20 (1980).

110. See, e.g., 29 U.S.C.A. § 794(b)(1)(A) (West Supp. 1989), 42 U.S.C.A. § 6107(4)(A)(i) (West Supp. 1989), 42 U.S.C.A. § 2000d-4a(1)(A) (West Supp. 1989), 20 U.S.C.A. § 1687(1)(A) (West Supp. 1989) (“department, agency, special purpose district, or other instrumentality of a State or of a local government”); 29 U.S.C.A. § 794(b)(2)(A) (West Supp. 1989), 42 U.S.C.A. § 6107(4)(B)(i) (West Supp. 1989), 42 U.S.C.A. § 2000d-4a(2)(A) (West Supp. 1989), 20 U.S.C.A. § 1687(1)(A) (West Supp. 1989) ("college, university, or other post-secondary institution, or a public system of higher education”).

111. In deciding whether the effects of a government program were primarily secular, and not religious, the Court, in an analogous context, has “emphasized that the benefits derived by religious organizations flowed to a large number of nonreligious groups as well.” Texas Monthly, Inc. v. Bullock, 109 S.Ct. 890, 897 (1989). See Mueller v. Allen, 463 U.S. 388, 393 (1983).

112. Compare Walz, 397 U.S. at 674-75 (granting tax exemption lessens entanglement) with Bob Jones Univ., 461 U.S. at 604 n.30 (denying tax exemption lessens entanglement).

113. Hernandez, 490 U.S. at 696 (citation omitted).

114. Id. (quoting Aguilar v. Felton, 473 U.S. 402, 414 (1985)).

115. See Bowen v. Kendrick, 487 U.S. 589, 609 (1988); Catholic Bishop, 440 U.S. at 503-04; Lemon, 403 U.S. at 616.

116. Walz, 397 U.S. at 675 (“Obviously a direct money subsidy would be a relationship pregnant with involvement and, as with most governmental grant programs, could encompass sustained and detailed administrative relationships for enforcement of statutory or administrative standards ….” (emphasis added)).

117. 28 C.F.R. § 42.106(b) (1988); 45 C.F.R. § 80.6(b) (1988); 34 C.F.R. § 100.6(b) (1988). See 29 U.S.C. § 794(a)(2) (1982) (applying “the remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 … [to claims arising under § 504]”); 28 C.F.R. § 41.5(a)(1) (1988). Cf. 45 C.F.R. § 90.42(a) (1988).

118. 28 C.F.R. § 42.106(c) (1988); 45 C.F.R. § 80.6(c) (1988); 34 C.F.R. § 100.6(c) (1988). Cf. 45 C.F.R. § 90.45(b) (1988).

119. 45 C.F.R. § 80.6(c) (1988); 34 C.F.R. § 100.6(c) (1988).

120. 28 C.F.R. § 42.107(a) (1988); 45 C.F.R. § 80.7(a) (1988); 34 C.F.R. § 100.7(a) (1988).

121. See Bowen, 487 U.S. at 609 (“this Court has never held that religious institutions are disabled by the First Amendment from participating in publicly sponsored social welfare programs ….”).

122. See id. at 616. Cf. Walz, 397 U.S. at 674 (since every contact between church and state is potentially entangling, excessiveness “is inescapably … [a test] of degree”). What constitutes “entanglement” may likewise vary with the context- applied more strictly, perhaps, in deciding whether to extend financial assistance, than in deciding whether to enforce criminal sanctions directly.

123. See Bowen, 487 U.S. at 615-16.

124. Congress could alternatively provide for a broader religious tenet exemption. Cf. Smith, 110 S.Ct. at 1606; Presiding Bishop v. Amos, 483 U.S. 327 (1987).