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.