BNUMBER: B-240365.2
DATE: March 14, 1996
TITLE: [Letter]
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B-240365.2
March 14, 1996
Mr. Stephen M. Bodolay
Legal Counsel
Federal Law Enforcement Training Center
Building 94
Glynco, GA 31524
Dear Mr. Bodolay:
This responds to your request regarding the Federal Law Enforcement
Training Center's (Center) authority to use its appropriation to pay
clergy for invocations at graduation ceremonies associated with the
completion of training. When we first corresponded with you
concerning this issue, we agreed with your observation that the
Establishment Clause of the First Amendment to the Constitution might
prohibit the use of your appropriation for this purpose. B-240365,
Apr. 10, 1991. We further noted that the Supreme Court had just
granted certiorari in the case of Lee v. Weisman, No. 90-1014, March
18, 1991, and that the Supreme Court's decisions in that case might
provide some useful guidance on the constitutional issues presented by
your request. The Supreme Court issued its Weisman opinion at the end
of June 1992 (505 U.S. 577), and you have renewed your request for our
opinion on the propriety of the payment in light of Weisman.
Unless an expenditure is expressly authorized by law, we resolve
questions concerning the use of an appropriation for a particular
purpose by application of a "necessary expense" analysis. To justify
an expenditure as a "necessary expense," we must determine whether:
(1) the expenditure bears a logical relationship to the appropriation
to be charged; (2) the expenditure is prohibited by law; and (3) the
expenditure is not otherwise provided for, i.e., within the scope of
another appropriation or statutory funding scheme. See 63 Comp. Gen.
422, 427-28 (1984); B-230304, Mar. 18, 1988. Here, there is no
dispute with respect to the first and third criteria. The sole issue
is whether the Establishment Clause that provides, in pertinent part,
that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . ." proscribes
the use of your appropriation to pay clergy for invocations at
Center-sponsored graduation ceremonies.
While the Weisman decision would preclude the use of appropriated
funds to pay clergy for invocations at public high school graduation
ceremonies, it does not preclude the use of appropriated funds to pay
clergy for invocation at all types of graduation ceremonies, including
those of the Center. We base this opinion on our understanding that
Center graduates are adults, voluntarily present at the graduation
ceremonies, and not required to actively participate in the
nonsectarian prayer.
As we noted in our earlier letter to you, in Marsh v. Chambers, 403
U.S. 83 (1983), the Supreme Court approved the use of public funds for
invocations by chaplains at the opening of sessions of a state
legislature. In Weisman, a closely divided court concluded for a
variety of reasons that the Establishment Clause prohibited a public
school's inclusion of a nonsectarian prayer in a school graduation
ceremony. The Supreme Court in Weisman was particularly sensitive to
the subtle coercive pressure that state sponsored nonsectarian prayer
had on students in elementary and secondary schools. Although the
Court recognized that "in our culture standing or remaining silent can
signify adherence to a view or simple respect . . . ", id. at 593, in
the public school promotional or graduation setting, "the dissenter of
high school age" could reasonably view respectful silence during the
invocation and benediction as participation in or approval of it. Id.
The State may not force elementary and secondary public school
children to choose between silently participating in such group prayer
exercises or protesting them. Id.
The Court made clear that they were not addressing whether "that
choice is acceptable if the affected citizens are mature adults." Id.
Further, the Court distinguished Marsh on the basis of inherent
differences between a public school graduation and a session of the
state legislature:
"The atmosphere at the opening of a session of a state
legislature where adults are free to enter and leave with
little comment and for any number of reasons cannot compare
with the constraining potential of the one school event most
important for the student to attend. The influence and force
of a formal exercise in a school graduation are far greater
than the prayer exercise we condoned in Marsh." Weisman, 505
U.S. at 597.
We think it is significant that unlike the students in Weisman, the
Center's graduates are mature adults. Because the Court's decision is
narrowly drawn, and highly dependent on the age level of the
ceremony's participants, we think that the issue presented by the
Center's expenditure of funds for an invocation at its graduation
ceremony is factually and legally distinguishable from the situation
addressed in Weisman. Presumably the Center's ceremony is more in the
nature of the Marsh prayer exercise where the influence and force of
the prayer exercise on attending adults is far less than the subtle
coercive pressures brought to bear on the school age children in
Weisman.
In our earlier letter, we stated that until Weisman was issued, the
Center could continue to accept the gratuitous services of clergy
under the Center's gift acceptance authority. This, of course,
remains as true today as before. With respect to the use of your
appropriation, as a general rule, to conclude that a proposed
expenditure fails the "necessary expense" test as being prohibited by
law, we would require some affirmative expression in law prohibiting
the expenditure. Because the Supreme Court has declined to broadly
construe the Establishment Clause to prohibit the invocation of the
deity at all state-sponsored ceremonies, absent clearer guidance from
the Court, we would not object to the Center's expenditure of funds
for this purpose should the Center conclude that such expenditures are
necessary for their traditional graduation ceremony.
Sincerely yours,
Gary L. Kepplinger
Associate General Counsel
B-240365.2
March 14, 1996
DIGEST
Since the Supreme Court has not directly addressed the applicability
of the Establishment Clause of the First Amendment to the United
States Constitution to this type of expenditure, we would not object
to the Federal Law Enforcement Training Center's use of appropriated
funds to pay clergy for invocations at the Center's traditional
graduation ceremonies.