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NOTES

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

JESSICA POWLEY HAYDEN*

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171

I. USAID RELIGIOUS LEADER OUTREACH AND CIVIL SOCIETY

PROGRAMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174

A. RELIGIOUS LEADER OUTREACH PROGRAMS: CENTRAL ASIA AND

BANGLADESH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

B. ISLAM AND CIVIL SOCIETY PROGRAM: INDONESIA . . . . . . . . . . . . 178

II. ESTABLISHMENT CLAUSE LIMITATIONS ON FEDERAL AID . . . . . . . . . . 180

III. THE CONSTITUTION BEYOND OUR BORDERS . . . . . . . . . . . . . . . . . . 183

IV. THE ESTABLISHMENT CLAUSE AS A STRUCTURAL RESTRAINT . . . . . . . 188

V. THE ESTABLISHMENT CLAUSE AND FOREIGN AID . . . . . . . . . . . . . . . 197

VI. IMPLICATIONS OF A STRUCTURAL APPROACH FOR U.S. FOREIGN AID . . . . 202

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206

INTRODUCTION

I had been in Uzbekistan for two days. After a harrowing flight in an ancient SovietTupelo to Karshi, I hired an Uzbek-built Nexia (sans seat belts) and headed souththrough the windy, mountainous roads to the Afghan border. I was on my way toTermiz, which sits on the southern border of the former Soviet Union and was thepoint from which the Soviets invaded Afghanistan in the 1980s. I was not here as partof a Special Operations mission or anything as sexy as an Alias plot, but I was herewith al Qaeda on my mind. I was in search of young men and women susceptible toIslamic 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; toProfessor Mark Tushnet for his guidance throughout this project; to my family for their support; and toLiam for his love and adventurous spirit that landed us in Kazakhstan.

171

ment (USAID) was to introduce U.S. assistance programs to conservative villageleaders, many of them mullahs and imams.1

Just outside of Termiz, my colleague David and I met with a U.S.-fundedhealth care support group headed by Imam Batir, an enthusiastic, middle-agedman with expressive eyes and an easy smile. David, an American-Muslim whospeaks fluent Uzbek, was of particular interest to the group. The discussionquickly steered from health care to inquiries about religion in America. Thegroup, made up of poor rural men and women of all ages, wanted to know whatit was like to be Muslim in America. For the next five minutes, David delivereda passionate address about his conversion to Islam at the age of fifteen and howhe has the freedom to practice as he chooses, free from any governmentinterference. When David finished, the room erupted in applause.2

The USAID Islamic Outreach program in Central Asia is just one of manyprograms instituted by the American government since the terrorist attacks of2001 to work within foreign Islamic communities. These programs are notwithout controversy.3 This Note examines this one aspect of the war on Islamicterrorism: the intersection of U.S. foreign aid to promote moderate Islam withthe restrictions of the Establishment Clause.

The terror threat differs from past enemy threats in that the militant Islamicterrorist acts on a religious belief—however divergent from mainstream Islam—rather than a pure geopolitical or social animus. That religion is the source ofconflict is nothing new.4 But what differs in this war is that the United Statesmust, in part, engage in the religious sphere to combat hostile and publiclydangerous 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/reflections.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 uniquenature of the terror threat has created legal and ethical questions that will challenge Congress, theExecutive 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 enemycombatants); S. Amend. 1977 to H.R. 2863, 109th Cong. (2006) (prohibiting “cruel, inhuman, ordegrading 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 constitutional-ity of the military tribunals established by the Bush Administration to try enemy combatants); JamesRisen & Eric Lichtblau, Bush Lets U.S. Spy on Callers Without Courts, N.Y. TIMES, Dec. 16, 2005, atA1 (revealing NSA terrorist surveillance program); Dana Priest, CIA Holds Terror Suspects in SecretPrisons, WASH. POST, Nov. 2, 2005, at A1 (revealing secret program which allegedly detains terrorsuspects in secret prisons overseas).

4. The Crusades mark one of the longest and most bitter conflicts that centered, in part, on religion.Today, religion plays a central role in the Israel-Palestine conflict. Our own roots are witness to religionand conflict, as those who first fled 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 worldfaith itself.” NAT’L COMM’N 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.

172 [Vol. 95:171THE GEORGETOWN LAW JOURNAL

women to kill themselves and Westerners.6 The war against terror is not foughtjust on battlefields in Iraq and Afghanistan but necessarily is concerned withfighting an ideology.7 And unlike ideologies the United States has fought in thepast—communism, fascism, Nazism—Islamic extremism is inextricably at-tached to religion. So the question must be asked: When the United Statesgovernment 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. soilversus those in far-flung regions of the world?

Part I of this Note examines two programs undertaken by USAID to promotemoderate Islam and engage Islamic leaders. Part II explores the various Establish-ment Clause restrictions and limitations on federal aid. Part III examines theapplicability of the Constitution beyond our borders and the differences be-tween constitutional structural restraints and individual liberties. Specifically,Part III argues that although territoriality plays a fundamental role in theavailability of individual constitutional rights, it does not and should not play arole in structural restraints. Part IV asserts that the Establishment Clause shouldbe interpreted, based on its text and history, as a structural restraint on govern-ment rather than an individual right. Part V explores how courts have resolvedEstablishment Clause challenges to foreign aid in the past and questions thelogic of employing an individual rights model. Finally, Part VI proposes amodel for applying the Constitution to government action abroad in whichcourts would bifurcate their analysis into two tracks: one which follows theindividual rights line of jurisprudence,8 and the other in which the constitutionalprovision 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 thatpresumes to speak for the Muslim masses.” President George W. Bush, Address at the NationalEndowment 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 waron terror. He noted, “[W]e know that this war will not be won by force of arms alone. We must defeatthe terrorists on the battlefield, and we must also defeat them in the battle of ideas . . . . We must defendand extend a vision of human dignity, and opportunity, and prosperity—a vision far stronger than thedark appeal of resentment and murder.” President George W. Bush, Remarks at the United NationsHigh-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 FourthAmendment warrant requirement does not bind federal searches of nonresident alien defendants’property outside the United States); Reid v. Covert, 354 U.S. 1, 18–19 (1957) (holding that the Fifthand Sixth Amendments require that crimes be tried by a jury after indictment by a grand jury forcitizens 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 governmentactions in Guantanamo Bay).

2006] 173THE ESTABLISHMENT CLAUSE AND U.S. FOREIGN AID

Clause.9 In light of countervailing foreign policy and political question con-cerns, this Note proposes a balancing test to determine if the Government’sactions meet the constitutional requirements of the Establishment Clause.

Courts are currently engaged in a serious debate about how far executivepower allows the President to act in the name of foreign policy and nationalsecurity.10 Traditional judicial deference to foreign policy issues has beencriticized while scholars and judges debate where to place the line betweenforeign policy deference and domestic constitutional restraints. In the realm ofthe Establishment Clause and foreign aid, deference is not the answer. Whilecourts may muddle through in an ad hoc analytical fashion, the U.S. involve-ment in inherently religious programs will only increase in the foreseeablefuture. Continued deference will lead courts down an analytical dead end.11

This Note proposes a principled analytical framework for examining the applica-tion of the Establishment Clause to U.S. aid programs overseas and lays thegroundwork for balancing the important structural restraints placed on govern-ment 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 Islamicfundamentalism. The State Department, for example, experimented with anArab youth magazine targeted at Muslims between the ages of eighteen andthirty-five.12 The State Department also funds an International Visitor Leader-

9. As this Note will demonstrate, while many academics and judges currently view the Establish-ment Clause as conveying an individual right, a structural restraint model is not only more historicallyaccurate, but also more analytically satisfying.

10. See, e.g., Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (holding military tribunals created to tryalleged terrorists detained at Guantanamo Bay were not authorized by Congress, and violated both theUniform 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 itcomes to the rights of the Nation’s citizens.”).

11. While deference may be appropriate in some cases which implicate the Establishment Clause, itis not unthinkable that in the near future, courts will be faced with challenges to U.S. programs thatimplicate serious Establishment Clause concerns. For example, the United States currently engages incivic education programs across the Muslim world. Some of these include messages of religioustolerance. Hypothetically, the U.S. government could decide that it would be more effective to fundprograms 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 orother polytheists have a legitimate challenge against the use of U.S. funds to promote a certain view ofChristianity abroad? Unless courts are willing to adjudicate such cases on the merits, a deferentialmodel will not provide the needed balance between religious and security concerns. Instead, theprecedent of judicial deference will leave judges with little substance to consider how religion operatesabroad, 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 endof 2005 due to low readership. Press Release, U.S. Dep’t 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 befound online at www.himag.com. The magazine was intended to be a window to American culture andto promote a better understanding of American values, with stories focused on popular culture, sports,


ship Program that brings students, community leaders (including religiousleaders), and educators to the United States to learn more about Americanculture and government.13 Even the Pentagon has engaged in creative andunique efforts to work within the religious realm. Prior to the Iraqi elections, themilitary worked with Islamic scholars to craft messages that comported withIslam to persuade the Sunni population to vote.14

USAID arguably plays the most active role in engaging Islamic leadersacross the world.15 Through its various health, education, economic, democracy,and governance programs, USAID has made a concerted effort over the last fiveyears to direct U.S. federal assistance and aid toward combating the root causesof terrorism. USAID programs offer the most concrete examples of the UnitedStates actively engaging in efforts to promote moderate Islam and doing so bydirectly 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 problem”17 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. Dep’t of State, Bureau of Educ. & Cultural Affairs, International Visitor LeadershipProgram, http://exchanges.state.gov/education/ivp/ (last visited June 18, 2006). One of the 9/11 Commis-sion’s recommendations under the heading “Prevent the Continued Growth of Islamic Terrorism” wasto “[c]ommunicate and defend American ideals in the Islamic world, through much stronger publicdiplomacy to reach more people, including students and leaders outside of government. Our efforts hereshould be as strong as they were in combating closed societies during the Cold War.” NAT’L COMM’N 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 Commission’s “hearts and minds” program, seeRichard A. Posner, The 9/11 Report: A Dissent, N.Y. TIMES, Aug. 29, 2004, § 7 (Book Reviews), at 1.Additionally, the President’s 2006 Budget request contains increased funding for cultural exchangesand English-language “Voice of America” broadcast programming in the Middle East. See GlennKessler, 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; Military’s InformationWar 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 Asia’s USAID mission allocated $85,000 in 2005 for cross-cutting outreach programs, which included “outreach efforts through tours of USAID programs andrepresentational events with Islamic leaders to better inform others about USAID assistance and toincorporate community views into Mission programming.” Data Sheet: Central Asian RepublicsRegional, Cross-Cutting Programs, http://www.usaid.gov/policy/budget/cbj2006/ee/pdf/car_176-0420.pdf (last visited July 17, 2006).

16. These programs are differentiated from domestic faith-based initiatives in that beneficiaries ofU.S. funds are not chosen in spite of their religious affiliations, but rather because of their ties to aspecific religious group. See Exec. Order No. 13,279, 67 Fed. Reg. 77,141 (Dec. 12, 2002) (requiringequal 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 first asbeing viewed by other countries as asserting a “negative influence” in the world. See PROGRAM ON INT’L


Muslim communities across the globe, religious leader outreach programs havebeen instituted both to educate religious leaders on the good works that USAIDundertakes in their communities, as well as to engage the leaders in participat-ing in U.S. programs.18 For example, in Jalalabad, Kyrgyzstan, Project Hopeoperates a health clinic that serves many of the region’s poor and sick. ProjectHope, with funding from the U.S. government, trained dozens of imams onmaternal health and child survival issues.19 USAID hopes that these communityleaders will not only provide basic health resources to their communities, butalso spread the word regarding the positive American undertakings.

The Central Asia USAID Mission20 recently instituted an Islamic Outreachprogram.21 In this region of the former Soviet Union, religious oppression isrampant. In addition, there are few well trained Islamic scholars, a result ofdecades of Soviet atheist rule. Many analysts believe that regions such asTajikistan and Uzbekistan could be fertile breeding ground for terrorist organiza-tions, created by a backlash against state oppression and a vacuum of knowledge-able moderate Islamic leaders.22 The Central Asia USAID Mission developed astrategy which seeks “to integrate independent and credible Islamic leaders into

POL’Y 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 theultimate donor. This is due, in part, to the structure of the programs in which non-governmentalorganizations (NGOs) like CARE, Soros Foundation, or Mercy Corps receive grants from USAID andimplement the programs on the ground. Recipients often see the face of the NGO, rather than the U.S.government. USAID’s strategy is to correct this image and highlight the good works it undertakes. Tothat end, USAID has instituted a branding campaign worldwide to connect its programs to America. SeeAdministration of Assistance Awards to U.S. Non-Governmental Organizations; Marking Require-ments, 70 Fed. Reg. 50,183-01, 50,183-185 (Aug. 26, 2005) (to be codified at 22 C.F.R. pt. 226)(requiring all programs under the Foreign Assistance Act be marked as “American Aid” unless a waiveris obtained, in an effort “to ensure that the American people are visibly acknowledged for theirgenerosity 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]ongov-ernmental groups operating overseas in nasty places are not too happy with putting the USAID logo ontheir cars, comparing it to a bull’s-eye for bad guys to shoot at”). There are some regions of the world inwhich the United States does not advertise its involvement. See Abdelwahab El-Affendi, Muslim Heartsand Minds? Perspectives in U.S. Reform and Public Diplomacy Strategies 3 (The Brookings Project onU.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 leaderswere selected in part “because they were also leaders in their communities [and] were constantly facedwith health and public health issues” from their followers. Knowing more about issues like maternalhealth 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 file 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, 108thCong. (2003) (statement of Fiona Hill, Senior Fellow, The Brookings Institute).


USAID’s development activities” and “to create ‘cognitive dissonance’ bychallenging negative perceptions of U.S. foreign policy.”23 In response, “Mul-lahs on a Bus” was instituted, a program that brings together USAID-fundedprograms and regional religious leaders to discuss the work that USAID isundertaking in their communities.24 In remote villages across the region, theprogram typically brings together about a dozen religious leaders who spend aday on a bus visiting various U.S.-funded projects and hearing directly frombeneficiaries of the positive work the United States undertakes in a variety offields, such as agriculture, education, and health care.25

In Bangladesh, USAID recently has undertaken a massive training effort inpartnership with the Islamic Foundation of Bangladesh.26 The intensive forty-five day course is offered at seven imam training academies in Bangladesh.27

USAID directly sponsors three days of the course in which imams and mullahslearn about American development efforts, including issues of democracy,human rights, family health, agriculture, rural electricity, natural resource man-agement, food security, and childhood education.28 Nearly 5000 imams willparticipate in these sessions over an eighteen month period.29 The BangladeshUSAID mission notes that “[t]he effort to reach out to influential leaders inBangladesh remains a priority for USAID. By learning more about developmentissues and approaches, imams can utilize their role as community leaders toraise public awareness and increase citizen participation in developing theirtowns and villages.”30

These religious outreach programs, both in Central Asia and Bangladesh, arenot focused at sending a particular religious message, but rather at bringingreligious leaders “into the fold” of USAID programs. The beneficiaries of theprograms are religious leaders, but the messages are those of bettering educa-tion, providing quality health care, and preventing the spread of disease. Forexample, when the Charge D’Affairs kicked off the Bangladesh imam training

23. USAID Ctr. for Dev. Info., USAID Summer Seminar Session 10—Notes (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 Int’lDev./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 theprograms, as religious leaders were literally placed on buses to tour the USAID programs in theircommunities.

25. See Hayden, supra note 2, at 92 (quoting Claire Ehmann, Desk Officer, Office of Central AsianRepublics).

26. This program was instituted after an ad hoc bus program yielded mullahs and imams whoexpressed 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 file withauthor).

27. See id.; USAID Bangladesh, In Focus: Religious Leaders Learn about Development in Bang-ladesh (July 2005), http://www.usaid.gov/bd/focusjuly05.html.

28. USAID Bangladesh, supra note 27.29. Id.30. Id.


program, she focused on AIDS prevention.31 The Charge D’Affairs closed herspeech by noting that “[a]s community leaders you play a vital role in spreadingawareness and information. I am sure that you will find today’s program usefuland that you will share what you learn in your communities.”32

As noted above, these programs serve two major functions. The first is toeducate imams who are community leaders on important social, civic, andhealth development programs and have them engage their communities, creat-ing more effective assistance programs.33 While these development goals arelaudable, the more important (and understated) goal is to provide a view of theUnited States to religious leaders that does not appear on the front pages of theDhaka or Tashkent daily papers: that of a compassionate and caring UnitedStates. By putting a human—and humanitarian—face on U.S. efforts, extrem-ists’ 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 engage-ment since 1997. Its Islam and Civil Society Program, implemented through theAsia Foundation,35 works on a variety of fronts to curb Islamic extremism andpromote a pluralistic and democratic society.36 The program is quite expansive

31. See Judith A. Chammas, Charge D’Affairs, U.S. Embassy, Dhaka, Opening Remarks at ImamTraining 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 therole of leaders of influence in facilitating national development through a combination ofpersonal initiatives and guidance to members of the communities that they serve. In somecases, participating imams will learn from the experience of fellow imams who are alreadyengaged with USAID partner organizations, including the trafficking prevention efforts ofimams . . . .

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” ofMuslims. Nor are the programs without criticism. The Egyptian “IslamOnline.net” reported after theopening ceremony that the director of the Imam Training Academy “criticized the United States andEurope for failing to ‘develop or patronize’ the Islamic NGOs in Bangladesh.” He also urgedWashington to “invest more in mosques and Islamic organizations to win the hearts of the Bangladeshipeople.” 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 variousprograms. This structure is meant not to hide American involvement, but rather reflects the way inwhich USAID structures its activities. The local and national NGOs are generally more capable ofimplementing programs, and the U.S. government provides the funds to carry out its policy anddevelopment 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 file 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


and has instituted mandatory civic education classes for university students;published “Friday flyers” on the rule of law and human rights which aredistributed outside of 800 mosques in thirty-five cities weekly; worked to createpesantren-based pluralism and civil society initiatives;37 integrated teachings onpluralism, democracy, gender equality, and women’s rights with mubalighat38

sermons, reaching 20,000 women weekly; and funded the Liberal Islam Net-work’s (JIL) “Religion and Tolerance” radio show.39

The mandatory civic education classes have been the most successful andmost extensive of the programs, reaching over 125,000 students a year.40

USAID has long funded civil society and education programs and has done soin a secular fashion globally. This program, however, differs because it usesreligion as a vehicle to discuss issues of democracy, pluralism, peace, andtolerance.41

What distinguishes several of the Indonesian programs is the implicit andexplicit message that promotes a moderate or liberal form of Islam over moreextreme sects. For example, “JIL’s mission is specifically to counter religiousfundamentalism and militancy,” and, with U.S. government funds, it produces aradio program to counter militant messages.42 Likewise, USAID, through fund-ing to the Institute for Islamic and Social Studies (LKiS), has developed its flyer

most important contribution of the program in Indonesia is that “it has expanded a national dialogue onthe issues of democracy, human rights, and gender equality . . . . What is most encouraging about thisdialogue is that issues of democracy, pluralism, and tolerance are being discussed with reference toIslamic theology, practices, and symbols, as well as the problems and challenges facing contemporaryIndonesian society.”).

37. Pesantrens are traditional Islamic boarding schools. The role of traditional Islamic schools inMuslim countries has raised suspicion over the past several years. Critics of madrasahs claim that theyare breeding grounds for terrorists, and many countries have taken steps to regulate education. For aninteresting analysis, see Alexander Evans, Understanding Madrasahs, FOREIGN AFF., Jan./Feb. 2006, at9–16. He suggests that

[t]he majority of madrasahs actually present an opportunity, not a threat . . . . And for U.S. andEuropean policymakers, madrasahs offer an important arena for public diplomacy—a chanceto ensure that the Muslim leaders of tomorrow do not see the West as an enemy inherentlyhostile 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 addresswhat many see as “terrorist breeding grounds,” several world-wide initiatives have been undertaken.USAID has committed $100 million over five years for general education reform in Pakistan. TheUnited States has also committed $90 million to the Middle East Partnership Initiative, which promotessecular 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 athttp://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 file with author). The program is implemented in forty-six publicuniversities and twenty-six private universities. The Asia Foundation is also extending the program totertiary schools. Id.

41. See id.42. Grant Impact Monitoring Report, supra note 36, at 7–8.


program to counter the pro-terror, anti-Western flyers typically distributedoutside 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 piousMuslim males. Given that, militant groups have long taken the opportunity toreach this prime target audience by passing out leaflets to worshippers afterFriday prayers. LKiS seeks to subvert that practice for democratic purposesby passing out its “Friday flyer,” Al-Ikhtilaf, outside of mosques in order topromote religious tolerance, pluralism, and democratic values amongst thepious Muslim male population in Indonesia. In recently [sic] developments,LKiS has adapted this program to bring such messages of pluralism andtolerance, in Islamic language, to other target groups such as women and highschool students.44

The goal of this program is to target the “pious Muslim male population inIndonesia” by crafting flyers that use Koranic verses and Islamic symbols todiscuss messages of tolerance and peace.45 Similarly, the LKiS program targetsthe female Muslim population by training female preachers on issues of democ-racy 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 “Congressshall make no law respecting an establishment of religion . . . .”47 The questionof interpreting “no law” has challenged legal scholars and jurists for centuries.Thomas Jefferson, in a letter to the Danbury Baptist Association, described theEstablishment Clause as creating a “wall of separation between Church andState.”48 Although eloquent as a metaphor, the wall is certainly one that is

43. See id. at 11–12. 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 religiousmaterial for other purposes, such as the desire to foment opposition to Soviet power by empowering religiousopposition. See STEVE COLL, GHOST WARS: THE SECRET HISTORY OF THE CIA, AFGHANISTAN, AND BIN LADEN,FROM THE SOVIET INVASION TO SEPTEMBER 10, 2001, at 102–05 (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 Ass’n (Jan. 1, 1802), in DANIEL L. DREISBACH,

THOMAS JEFFERSON AND THE WALL OF SEPARATION BETWEEN CHURCH AND STATE 148 (2002). The analogywas adopted by the court in Everson v. Board of Education:

The “establishment of religion” clause of the First Amendment means at least this: Neither astate nor the Federal Government can set up a church. Neither can pass laws which aid onereligion, 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 separationbetween Church and State.”

330 U.S. 1, 15–16 (1947) (citation omitted).


permeable.49 As the Court recognized in Walz v. Tax Commission,50 “[n]operfect or absolute separation is really possible; the very existence of theReligion Clauses is an involvement of sorts—one that seeks to mark boundariesto avoid excessive entanglement.”51 Yet the Court has often relied on Jefferson’s“wall” metaphor to promote strict separationism and an individual rights modelof the Establishment Clause.52

In Lemon v. Kurtzman,53 the Court announced what is now known as theLemon test to determine whether government funding or action runs afoul of theEstablishment Clause. State action (1) must have a secular purpose;54 (2) itsprincipal or primary effect must be one that neither advances nor inhibitsreligion;55 and (3) it cannot result in an excessive government entanglementwith religion.56 As part of this test, courts will examine whether the aid willresult in “indoctrination” and whether the program defines its aid recipients byreligion.57 Although the Lemon test has come under extensive criticism by legal

49. As Justices Frankfurter and Reed have both opined, it is incredibly difficult to determine wherethat “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 sufficiently clear that ‘separation’ is not a self-defining concept.‘[A]greement, in the abstract, that the First Amendment was designed to erect a “wall of separationbetween Church and State,” does not preclude a clash of views as to what the wall separates.’” (citationomitted)); McCollum v. Bd. of Educ., 333 U.S. 203, 247 (1948) (Reed, J., dissenting) (“A rule of lawshould not be drawn from a figure 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 allhouses of worship within a broad class of property owned by nonprofit corporations, including hospitalsand libraries. Id. at 672–73. In comparison, Islamic outreach programs direct funds specifically to onereligious group.

52. See infra text accompanying notes 102–17 (analyzing the view that the Establishment Clauseprotects individual rights). While strict separationism and the individual rights model represent differentconceptual ideas, they are inextricably linked. Under the theory that the Establishment Clause protectsindividual and minority rights, the implementation of this theory has resulted in the view that strictseparation 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 secularpurpose. See Edwards v. Aguillard, 482 U.S. 578, 593–94 (1987) (no secular purpose where the purposewas 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 institutionsreceiving government funds themselves must be neutral with respect to religion. See MICHAEL S. ARIENS

& ROBERT A. DESTRO, RELIGIOUS LIBERTY IN A PLURALISTIC SOCIETY 291–93 (2002). However, in thecontext of education, the Court consistently has ruled that neutral government programs that result infunds being directed at religious organizations are constitutional so long as the decision to use the fundsat 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 examinewhether the aid will result in “indoctrination,” whether the aid program “defines its recipients by


scholars and Justices of the Supreme Court,58 it remains the lens through whichdomestic aid and programs regarding religion are examined.

The USAID programs, if enacted domestically, would most likely violate theEstablishment Clause. The Central Asian “Mullahs on a Bus” tours arguablyserve a secular purpose. The goal is to educate the religious leaders not on faithor religion, but rather on the secular programs that the United States undertakesin the leaders’ community. If a religious leader chooses to work with the U.S.government on education or agricultural programs, the involvement of a reli-gious leader does not make the activity per se religious. But the programs dotarget their participants by religion; in fact, they define the recipients of aid byreligion.59 The Bangladesh program trains Islamic imams, not local mayors orother civic leaders, and the goal is specifically to work within the religiouscommunity.

The Indonesian civil society programs are all sect-preferential—preferringand promoting moderate over militant Islam—and would be so problematic asto be almost per se unconstitutional if applied domestically.60 For example, ifthe United States began funding radio stations in the Midwest to promote acertain form of Christianity, the Establishment Clause would almost certainly beviolated. The programs targeting Islamic boarding schools61 would run afoul of

reference to religion,” and whether the aid creates “excessive entanglement” between government andreligion).

58. See Van Orden v. Perry, 125 S. Ct. 2854, 2860–61 (2005) (collecting cases on the varied use anddisuse of the Lemon test and determining that “[w]hatever may be the fate of the Lemon test” it will notbe applied in the case at hand); Lamb’s 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 sitsup in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks ourEstablishment Clause jurisprudence once again . . . .”). Critiques of the Lemon test are not new. See,e.g., John H. Mansfield, The Religion Clauses of the First Amendment and the Philosophy of theConstitution, 72 CAL. L. REV. 847, 848 (1984) (claiming that the Court’s jurisprudence in this area hasbeen “obscured by the incantation of verbal formulae devoid of explanatory value, such as the LemonTest”); Mark V. Tushnet, The Constitution of Religion, 18 CONN. L. REV. 701, 702 (1986) (generallycriticizing that “[c]ontemporary constitutional law just does not know how to handle problems ofreligion”).

59. Cf. Agostini, 512 U.S. at 234 (holding that programs that do not define their recipients byreligion—among other factors—do not run afoul of the Establishment Clause).

60. Justice Breyer has recently opined that the Establishment Clause demands that the “governmentmust ‘neither engage in nor compel religious practices,’ that it must ‘effect no favoritism among sectsor between religion and nonreligion,’ and that it must ‘work deterrence of no religious belief.’” VanOrden, 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, 15–16(1947)).

61. Direct assistance to “pervasively sectarian” organizations is prohibited, under the theory that itadvances religion. Although the plurality in Mitchell v. Helms stated that the pervasively sectarianfactor in Establishment Clause jurisprudence is “thankfully long past,” 530 U.S. 793, 826 (2000), amajority of the Court has never expressly abandoned the factor. The Court has invalidated a tuitionreimbursement and tax benefit program where approximately eighty-five percent of the program’s fundswent to parents who sent their children to church-affiliated schools that placed religious restrictions oncurriculum and faculty appointments and required attendance at religious services. See Comm. for Pub.Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 767–68 (1973). But see Mueller v. Allen, 463 U.S.


“true private choice” doctrine.62 USAID is not providing funds for students tochoose their education, but rather promoting certain ideas at target Islamicschools to counter extreme religious messages. Likewise, working with reli-gious leaders to craft certain messages into their sermons—in fact giving themfunding to do so—would also result in excessive entanglement.

Yet the idea that the government, as part of its foreign policy agenda, cannotengage religious leaders—and religion—in a way that is apart from the domes-tic constitutional framework seems untenable. If those most vulnerable toIslamic extremism are pious young Muslims, targeting that group for programsthat promote the values of pluralism and democracy is the most cost-efficientuse of resources. Requiring that the program not define its participants byreligion—for example requiring both Christian and Muslim men to be includedin the target age range—would doom the program before it ever started. IfUSAID could not seek to “inhibit” the practice of militant Islam or fundprograms that promote a more tolerant view, the agency’s hands would be tiedwith respect to one of the highest priorities in today’s war against terror.American foreign policy would remain a hostage to a standard set up forgovernment action within the United States and for the purpose of protectingAmerican citizens from intrusive government actions.

III. THE CONSTITUTION BEYOND OUR BORDERS

When Benjamin Franklin was sent to France in 1776, it took him nearly sixweeks to arrive in Paris by boat.63 That the Founding Fathers could haveimagined a world where travelers could leave Philadelphia in the evening andwake up the next morning in London or Lisbon is unlikely. That they couldhave imagined questions such as whether the Establishment Clause would applyto USAID civic education programs in Uzbekistan seems impossible.64

It is clear that the Executive Branch may do things overseas that it would beprohibited from doing domestically. The President’s Article II powers grant himbroad latitude in making decisions respecting foreign relations and developmentassistance.65 For example, the Mexico City Policy requires recipients of USAID

388, 401 (1983) (upholding tax deductions for educational expenses for children attending parochialschools, noting that the Court “would be loath to adopt a rule grounding the constitutionality of afacially neutral law on annual reports reciting the extent to which various classes of private citizensclaimed benefits 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 besuccessful if the program offers recipients of funds a true private choice and aid is then directed atreligious 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) (notingthat the Framers could not have foreseen incorporation or the expansion of social welfare programsbecause “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, 273–74 (1990)(concluding that due to the uncertainty and intricacy involved in foreign relations, coupled with Article


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 financial support to other foreign nongov-ernmental organizations that conduct such activities.”66 NGOs that agree to thisclause are prohibited from using government funds, or their own funds, forpromoting or performing abortions.67 While several organizations have raisedconstitutional challenges to the policy, none have been successful.68 Courtshave found that the decision whether or not to apply the requirement as acondition of receiving USAID funds is a nonjusticiable political question, andthe President has authority to decide how to conduct foreign policy. WhileCongress can place similar restrictions on domestic clinics,69 the Presidentcould not unilaterally apply the Mexico City Policy to domestic NGOs.

Early attempts to define the scope of the Constitution were often inconsistentand 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); UnitedStates v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 320 (1936) (holding the distribution of federalpower 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 President’s foreign policy power can evenpreempt state law when the effect of a state law will conflict with the national government’s expressforeign policy, even in the absence of an executive agreement preemption clause. “The express federalpolicy and the clear conflict raised by the state statute are alone enough to require state law to yield.”Am. Ins. Ass’n v. Garamendi, 539 U.S. 396, 424 (2003) (holding that the Executive’s foreign policy onHolocaust-era insurance policy claims preempted a California statute that required more exactingprocedures 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 office. See Restoration of the Mexico CityPolicy, 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 NGO’s equal protection rights); Planned Parenthood Fed’n of Am., Inc. v. Agencyfor Int’l Dev., 915 F.2d 59, 65 (2d Cir. 1990) (Planned Parenthood II) (holding that the Mexico CityPolicy did not violate Planned Parenthood’s freedom of speech or privacy); Planned Parenthood Fed’nof Am., Inc. v. Agency for Int’l Dev., 838 F.2d 649, 651 (2d Cir. 1988) (Planned Parenthood I) (holdingthat the plaintiffs’ First Amendment challenge to the Mexico City Policy did not present a nonjustici-able political question). In Planned Parenthood II, the court held that the Mexico City Policy did notprohibit the plaintiffs from exercising their First Amendment rights because they “may use their ownfunds to pursue whatever abortion-related activities they wish in foreign countries . . . . The harmalleged . . . is the result of choices made by foreign NGOs to take AID’s money rather than engage innon-AID funded cooperative efforts . . . .” Planned Parenthood II, 915 F.2d at 64. The court also heldthat 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 itcould not make aid decisions based on particular viewpoints. Id. (“Were the courts to allow challengesto foreign aid programs on the ground that the government’s subsidy of a particular viewpoint abroadencourages the foreign recipients of American aid not to speak or associate with Americans opposed tothat viewpoint, the political branches would find it impossible to conduct foreign policy.”).

69. See Rust v. Sullivan, 500 U.S. 173, 203 (1991) (holding that restrictions prohibiting discussingabortion as a family planning option as a condition of receiving funds in a Title X clinic are notunconstitutional abridgements of free speech).

70. See Dred Scott v. Sanford, 60 U.S. (19 How.) 393, 426–27 (1857) (holding the Constitutionapplicable in the Missouri Territory but not applicable to emancipated slaves because they were notcitizens of the United States). The Court has reversed itself on issues such as the right to a jury trial,


began to examine the scope of the Constitution in more depth following theSpanish-American War in the Insular Cases.71 The Court relied heavily on theconcept 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 beinoperable in the territories.74 The holdings of the Insular Cases, while provid-ing 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 ofthe Constitution extraterritorially. At issue was the murder trial by a courtmartial in which a civilian, Mrs. Covert, was accused of killing her husband onan 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 civiliantrial.77 In other words, she did not forego her constitutional protections solelyby committing a crime outside of the territory of the United States. The Courtagreed. The plurality opinion emphatically dispelled the notion that the Constitu-tion is bound by territory. Justice Black wrote, “[a]t the beginning we reject theidea that when the United States acts against citizens abroad it can do so free ofthe Bill of Rights. The United States is entirely a creature of the Constitution.”78

Reid established that the Fifth and Sixth Amendments of the Constitutionapply 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 wasreserved 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 defendant’s location in the territory of Utah did not suspend hisright to a trial by jury.

71. See GERALD L. NEUMAN, STRANGERS TO THE CONSTITUTION 83–89 (1996); see also John A.Ragosta, Aliens Abroad: Principles for the Application of Constitutional Limitations to Federal Action,17 N.Y.U. J. INT’L L. & POL. 287, 289–95 (1985). The Insular Cases consist of nine cases addressingthe constitutional status of Puerto Rico and the Philippines argued in 1901, as well as the series of casesfrom DeLima v. Bidwell, 182 U.S. 1 (1901), to Balzac v. Puerto Rico, 258 U.S. 298 (1922), whichestablished “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 UnitedStates and the territory but also stressed that had a fundamental right been implicated, the Constitutionwould apply. Id. at 147.

75. 354 U.S. 1 (1957). The Court in Reid suggested that the Insular Cases should not be expanded orfollowed. Justice Black, delivering the plurality opinion, wrote:

The concept that the Bill of Rights and other constitutional protections against arbitrarygovernment are inoperative when they become inconvenient or when expediency dictatesotherwise is a very dangerous doctrine and if allowed to flourish would destroy the benefit of awritten Constitution and undermine the basis of our government.

Id. at 14 (plurality opinion).76. Id. at 3.77. Id. at 4.78. Id. at 5–6.


describing it as a “relic from a different era.”79 This meant that the UnitedStates could not circumvent individual rights protected by the Constitutionthrough a treaty or agreement with another country.80 There were diverse views,however, on how far the Constitution should be applied. Justice Black favoredan application in which every provision of the Constitution applied to govern-ment action abroad. He focused not on who was being harmed, but on theactor—the government. As a “creature of the Constitution,” Justice Blackargued that the government can only act abroad “in accordance with all thelimitations imposed by the Constitution.”81 However, Justice Harlan was notready to go that far. While agreeing that the Fifth and Sixth Amendments mayhave some operation outside of the United States, he could not “agree with thesuggestion that every provision of the Constitution must always be deemedautomatically applicable to American citizens in every part of the world.”82

Professor Neuman has described this shift in the Court’s jurisprudence,specifically Justice Black’s plurality opinion, as moving away from a strictterritoriality approach to what he calls a “municipal law” approach, whichfocuses heavily on the “prescriptive jurisdiction over American citizens world-wide under the nationality principle.”83 Following the Reid decision, lowercourts tended to read Reid in a broad fashion, protecting citizens’ rights againstgovernment 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 applywhere U.S. officials 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 militarybases overseas), “no agreement with a foreign nation can confer power on the Congress, or any otherbranch 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 constitutionalrights as potentially applicable overseas and then using balancing tests to consider countervailingconcerns. 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); UnitedStates v. Demanett, 629 F.2d 862 (3d Cir. 1980) (holding that U.S. and Colombian nationals wereprotected by the Fourth Amendment when searched by the Coast Guard); United States v. Tiede, 86F.R.D. 227, 244 (U.S. Ct. Berlin 1979) (“It is a first principle of American life—not only life at homebut life abroad—that everything American public officials do is governed by, measured against, andmust 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 Americancitizens); 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).


of that country who had no attachments to the United States.86 The decisionfocused on who is entitled to the Constitution’s protections (citizens andresident aliens) and then relied heavily on the concepts of territoriality andprotections being afforded to those who are a part of the “national communi-ty.”87 In more recent cases, and in the context of “enemy combatants,” the Courthas upheld the framework of territoriality—finding that Guantanamo Bay is aterritory under U.S. control—to determine that detainees are entitled to FifthAmendment protections.88 Judge Joyce Hen Green of the D.C. District Courtrecently opined in In re Guantanamo Detainee Cases that because GuantanamoBay is controlled entirely by the U.S. government, “the situation in these casesis very different from the circumstances in Verdugo-Urquidez,” where theFourth Amendment was not applicable because Mexico employs a completelydifferent legal system.89 Thus, territoriality played a large role in the court’sdecision to implicate individual constitutional liberties for the detainees.

This is an important distinction because the reliance on territory to triggerindividual rights protection implicates a temporal and spatial limitation to thoseconstitutional protections. The government must act in conformity with thoseprovisions when acting within its jurisdiction. When the U.S. governmentcontrols a certain territory, the constitutional structural restraints are not out-weighed by Verdugo-like considerations, whether or not the person harmed is analien. At issue in the Guantanamo Bay case was an individual rights provisionof the Constitution. Therefore, whether harm was occurring on U.S. territorywas crucial.90 The focus shifts when considering pure structural restraint provi-sions. If the government is prohibited from acting—regardless of location—

86. Id. at 274; see also Stephen J. DiGianfilippo, The Reach of the Constitution Beyond the Territoryand “People” of the United States, 16 SUFFOLK TRANSNAT’L L. REV. 117, 133–42 (1992) (discussing theVerdugo-Urquidez opinion).

87. Verdugo-Urquidez, 494 U.S. at 265. The Court also focused on policy considerations and notedthat to grant Fourth Amendment protections to non-citizens or resident aliens overseas “would havesignificant and deleterious consequences for the United States in conducting activities beyond itsboundaries.” Id. at 273. Professor Neuman criticizes this social contract theory and argues thatconstitutional protections should extend to U.S. citizens everywhere and to aliens outside the UnitedStates “in those instances where the U.S. government seeks to subject them to its laws.” NEUMAN, supranote 71, at 97.

88. See, e.g., Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004) (holding that U.S. citizens detained atGuantanamo Bay are entitled to process with respect to their classification as “enemy combatants”);Rasul v. Bush, 542 U.S. 466, 483–84 (2004) (holding that Guantanamo detainees have a statutory rightto file habeas corpus claims with the district court challenging the legality of their detention); In reGuantanamo Detainee Cases, 355 F. Supp. 2d 443, 464 (D.D.C. 2005) (interpreting Rasul to suggestthat “Guantanamo Bay must be considered the equivalent of a U.S. territory in which fundamentalconstitutional rights apply” and recognizing detainee rights under the Due Process Clause of the FifthAmendment).

89. In re Guantanamo Detainee Cases, 355 F. Supp. 2d at 463–64.90. 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 anindividual right or is rooted in a structural restraint. See, e.g., Jules Lobel, The Constitution Abroad, 83AM. J. INT’L L. 871, 879 (1989) (arguing that the individual rights of aliens should be protected fromU.S. government actions extraterritorially).


territoriality should not enter into the equation. This is a different model thanindividual rights, which speaks to the status of the person harmed.

Today there is no consensus on the scope of the Constitution, but the courtshave generally agreed that the Constitution protects individual rights of citizensoverseas.91 Although there is general agreement that the Constitution serves asthe source of authority for government action both at home and overseas,92

what remains unclear is how the Constitution applies as a structural restraintrather than a protection of individual liberties. The vast majority of cases andscholarly articles have focused on the operation of the Constitution overseas inprotecting individual rights such as the right to a trial by jury,93 the right to befree from unreasonable searches and seizures,94 and the right of free speech.95

Because many of the controversies regarding the application of constitutionalrights abroad stem from individual rights cases, particularly regarding theapplication of the Constitution to aliens abroad, the lens through which theapplication of the Constitution abroad is analyzed has been with respect to theseindividual rights.96 Yet when it comes to protections against governmentalsanction of religion, this individual rights model may not be the most appropri-ate.

IV. THE ESTABLISHMENT CLAUSE AS A STRUCTURAL RESTRAINT

Examining the scope of the Constitution through the lens of individual rightsmakes sense in the contexts discussed thus far. In the majority of cases,governmental action beyond our borders affected classic individual rights, suchas those protected by the Fourth Amendment. Yet analogizing the FourthAmendment line of cases to the Establishment Clause is misplaced; instead, anew method for analyzing the application of the Establishment Clause overseasis needed.

Differentiating between individual rights and structural restraints has a pro-found impact on how we choose to interpret the protections of the Constitution

91. The 1987 Restatement formulates the scope of the Constitution’s authority as protecting U.S.citizens outside the territory of the United States against the exercise of power abroad by U.S.government officials. The issue of aliens is unsettled. RESTATEMENT (THIRD) OF FOREIGN RELATIONS § 721cmt. b (1987).

92. Neuman, supra note 82, at 915–16.93. 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 nonresidentalien defendants’ property outside the United States).

95. See U.S. CONST. amend. I; see also supra note 68 (discussing Planned Parenthood I and PlannedParenthood II).

96. See Lamont v. Woods, 948 F.2d 925 (2d. Cir. 1991) (analyzing the extraterritorial application ofthe Establishment Clause by comparison to the Fourth Amendment Verdugo analysis); see also Susan L.Wallace, Constitutional Law—Establishment Clause—Assistance to Foreign Religious Schools Subjectto Establishment Clause Prohibitions, 16 SUFFOLK TRANSNAT’L L. REV. 680 (1993) (describing thecourt’s holding in Lamont).


and how the government interfaces with religious organizations. This concept isno stranger to students of the Constitution.97 Structural restraints limit how thegovernment can act, regardless of place or time. Although it may affect indi-vidual rights, the purpose of a structural clause is to manage governmentpower.98 Individual rights, on the other hand, are constitutional duties owed toeach individual.99 They say nothing about how the government can organizeitself or disperse power—only that it cannot infringe on those under its jurisdic-tion in a certain manner.

Why does this matter with respect to the extraterritoriality application of theEstablishment Clause? If the Establishment Clause is viewed not through thelens of individual rights, but rather as a structural restraint on government—onewhich serves as a restraint on federal action—that restraint carries the sameforce whether the government is funding St. Paul’s Catholic School in Pennsyl-vania or the rural madrasahs in Tajikistan.100 Therefore, the constitutionalanalysis that courts employ for domestic Establishment Clause challengeswould be identical to the analysis applied to challenges brought for overseasprograms, with a modification to consider countervailing national security andforeign policy concerns. This analysis would bring a level of predictability anduniformity to how the Establishment Clause is applied and remove any concernsabout the courts abstaining from adjudicating legitimate claims on politicalquestion grounds.101

Today, the generally accepted view of the Establishment Clause is that itprotects individual liberties.102 This interpretation of the clause was born whenthe Court, in Everson v. Board of Education,103 incorporated the EstablishmentClause into the Fourteenth Amendment and recognized the protection of indi-vidual 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 118–36 (3d ed.2000) (discussing the relationship between the structure of the Constitution and substantive rights); CarlH. Esbeck, The Establishment Clause as a Structural Restraint on Governmental Power, 84 IOWA L.REV. 1, 2–3 (1998) (distinguishing between constitutional structural restraints and individual liberties).

98. Esbeck, supra note 97, at 3.99. Id. at 2–3.100. 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, 1004–06

(2004) (discussing the Court’s refusal to adjudicate certain claims based on an unwillingness toconsider underlying foreign policy aims).

102. See generally Michael W. McConnell, Why is Religious Liberty the “First Freedom?,” 21CARDOZO L. REV. 1243 (2000); cf. Esbeck, supra note 97, at 4 (arguing that the Court has “sub silentiogiven the Establishment Clause a far different application than if its object were to guarantee individualreligious 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 itscontrol. 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


this Court in its decisions concerning an individual’s religious freedom” andthat these individual rights are “applicable to state action abridging religiousfreedom.”105

As part of the “Rights Revolution,” many fundamental rights of the Constitu-tion were incorporated into the Fourteenth Amendment as applicable to thestates.106 Many scholars argue that in the rush to recognize individual liberties,the Court in Everson failed to examine whether the Establishment Clause wasan individual right, as opposed to a structural restraint on federal govern-ment.107 If the historical intent of the Establishment Clause was to “restrain thefederal government from interfering with the variety of state-church arrange-ments then in place,”108 then how could it, at the same time, create a completewall between the institutions of religion and state? Professor Esbeck, forexample, has argued that the Court in Everson ignored the federalist limitationin 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 squeezea structural clause into a ‘liberty’ mold.”109

Following Everson, this individual rights model was further advanced by theWarren Court, which focused heavily on protecting individuals and minori-ties.110 The individual rights and separationism interpretation continued in the

fundamental.” Palko v. Connecticut, 302 U.S. 319, 325 (1937) (quoting Snyder v. Massachusetts, 291U.S. 97, 105 (1934)).

105. Everson, 330 U.S. at 15. This shift to focusing on individual rights was not without earlycriticism. See, e.g., WILBER G. KATZ, RELIGION AND AMERICAN CONSTITUTIONS 9 (1964) (arguing that “[i]tseems undeniable that the First Amendment operated, and was intended to operate, to protect fromCongressional interference the varying state policies of church establishment”); Joseph M. Snee,Religious Disestablishment and the Fourteenth Amendment, 1954 WASH. U. L.Q. 371 (1954) (arguingthat 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 toestablish religions, provided they do not deprive anybody of religious liberty,” and that the Court is notfree 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 484–86. More importantly, the Court needed to consider the implications ofincorporating 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 orprinciple of religious freedom.”).

108. Glendon & Yanes, supra note 106, at 481–82.109. 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) (arguingthat the Establishment Clause was understood to apply only to the national government and incorpora-tion is “neither mandated nor permitted”). But see Steven K. Green, Federalism and the EstablishmentClause: A Reassessment, 38 CREIGHTON L. REV. 761, 767–68 (2005) (arguing that the EstablishmentClause was not designed to preserve state establishments and rebutting the anti-incorporation argu-ment).

110. See Glendon & Yanes, supra note 106, at 492–94; Sch. Dist. of Abington Twp. v. Schempp, 374U.S. 203, 216 (1963) (affirming the Everson separation approach).


Burger and Rehnquist Courts.111 Justice Brennan, for example, strongly favoredthe individual rights model over structural restraint. The upshot was seeminglyirreconcilable opinions on how the Religion Clauses operate.112 To reconcileBrennan’s Religion Clause jurisprudence is to understand that his vision of theConstitution was one in which “the Bill of Rights was primarily a charter forjudges to defend individuals and small or unpopular minority groups againstmajoritarian infringement.”113 Specifically, Brennan’s vision of the ReligionClauses was that they should function as a check on state power designedprimarily to protect individuals who were not members of “numerically domi-nant faiths.”114

By treating a restraint on government action as an individual liberty, confu-sion as to the operation of the provision ensued. As Professor Esbeck notes,“[t]he Court’s reluctance to openly acknowledge that it views the EstablishmentClause as structural has caused legal doctrine to appear muddled, therebymaking the Court’s holdings uncommonly vulnerable to criticism.”115 One needonly look at the criticism of the Lemon test to support Professor Esbeck’sclaim.116 By treating the Establishment Clause as an individual right, the Courtcreated an analytical dilemma, setting free exercise jurisprudence on a divergentand often conflicting path from the Establishment Clause.117

111. See, e.g., Lemon v. Kurtzman, 403 U.S. 602, 607 (1971) (striking down Rhode Island andPennsylvania statutes providing financial support to nonpublic elementary and secondary elementaryschools for teacher salaries, textbooks, and instructional materials in secular subjects); Aguilar v.Felton, 473 U.S. 401, 404–07 (1985) (holding that public funding of non-religious teachers of remedialreading, remedial mathematics, and English as a second language in private schools impermissiblyentangled the state with religion). Glendon and Yanes argue that the Rehnquist Court moved to whatthey call a “deference doctrine.” The main characteristic of this doctrine is an unwillingness to set asidedecisions 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 Ass’n, 485 U.S. 439, 458 (1988) (Brennan,J., dissenting) (dissenting from holding that free exercise did not prohibit government from harvestingtimber on government property even though the land had traditionally been used for Indian religiouspurpose), with Aguilar v. Felton, 473 U.S. 402, 404, 414 (1985) (Brennan, J.) (holding that federalfunds used to pay public school teachers who taught in parochial schools violated the EstablishmentClause). It seems difficult to reconcile Justice Brennan’s “aggressive free exercise protection” with his“exaggerated suspicion regarding religion in the Aguilar case” unless viewed through the lens of aReligion Clause that protects against “majoritarian tyranny and [is] the champion of selected individualand minority rights.” Glendon & Yanes, supra note 106, at 514; cf. Sherbert v. Verner, 374 U.S. 398,415–16 (1963) (Stewart, J., concurring) (stating that both minorities and majorities are protected by theFree 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 481–86. Professor Esbeck presents a useful hypothetical

to illustrate this point, asking his reader to reconcile the following analytical dilemma: If a shelter forthe homeless was opened by parishioners and operated out of the basement of a church, and theparishioners were faced with a municipal order to cease operations for noncompliance with zoningorders, they would have a tenable Free Exercise Clause challenge because their work is an outgrowth oftheir religious belief. If a month later the city were to adopt social welfare legislation and open shelters


Yet, the Establishment Clause has not always been interpreted as creating anindividual right. At the time of its ratification, the Establishment Clause workedas a restraint on national power to make laws respecting religion, as applied toboth the national government and state government.118 Jefferson and Madison,in arguing that Congress had exceeded its authority by passing the Alien andSedition laws, analogized the Religion Clauses to free speech and press, arguingthat regulation of speech, press, and religion were matters that were intended tobe left to the states.119 According to Professor Akhil Amar, “as originallywritten, [the Establishment Clause] stood as a pure federalism provision . . . .[T]he clause was utterly agnostic on the substantive issue of establishment; itsimply mandated that the issue be decided state by state and that Congress keptits hands off, that Congress make no law ‘respecting’ the vexed question.”120

The restraint on the power of the federal government to enact laws respectingstates was a reflection of the Framers’ deep commitment to federalism.121

Although scholars debate whether there is one Religion Clause or two and thescope of the Establishment Clause, a broad interpretation of the clause as awhole suggests that the Framers’ intent was not simply to protect against anational religion, but also to keep intact existing state-level arrangements, freefrom 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 butnot for the other. Esbeck argues that the Supreme Court has reconciled, without articulating, thedilemma that “the same activity is religious for purposes of the Free Exercise Clause but not religiousfor purposes of the Establishment Clause.” Esbeck, supra note 97, at 7.

118. Esbeck, supra note 97, at 14–15.119. 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 freedomof 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 thepeople”); id. at 577 (Virginia resolutions) (“Both of these rights, the liberty of conscience, and of thepress, rest equally on the original ground of not being delegated by the Constitution, and consequentlywithheld from the government . . . . Any construction or argument, then, which would turn the amend-ment into a grant or acknowledgement of power, with respect to the press, might be equally applied tothe freedom of religion.”); see also Green, supra note 109, at 772–73 (arguing that these analogies inpart 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 32–42; Lietzau, supra note 109, at 1201–04; Christopher N. Elliott, Federalism and

Religious Liberty: Were Church and State Meant to be Separate?, 2 RUTGERS J. L. & RELIG. 5, 15–18(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 theoriginal intent of the First Amendment, as revealed through the differences in James Madison’sproposed drafts of the amendment and his proposed drafts of an amendment to the Virginia Constitu-tion, 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 doesnot . . . forbid the states to abridge the civil rights of its citizens on religious grounds . . . nor does itforbid them to establish a religion, provided only that the equal rights of conscience be not violated.”).


Justice Potter Stewart was a strong critic of the Court’s individual rightsmodel. In School District of Abington Township v. Schempp, Justice Stewartcritiqued the majority’s interpretation:

As a matter of history, the First Amendment was adopted solely as a limita-tion upon the newly created National Government. The events leading to itsadoption strongly suggest that the Establishment Clause was primarily anattempt to insure that Congress not only would be powerless to establish anational church, but would also be unable to interfere with existing stateestablishments.123

Justice Stewart criticized the Court’s “mechanistic” approach to interpreting theEstablishment Clause.124 Instead, he would have recognized religious freedomto exercise as the central animus in the First Amendment. In Schempp, thiswould have meant that religious prayer in school was not mandated, but thatschools could decide whether or not to hold prayers.125

Justice Stewart’s critiques of separationism have been reborn on the modernCourt in the form of Justice Clarence Thomas. In several recent decisions,Justice Thomas challenged the individual rights model on the basis of federal-ism. In Elk Grove Unified 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 theEstablishment Clause, which he views as a structural restraint on federal action,and the Free Exercise Clause, which protects individual liberties and is there-fore more suited to incorporation.128 Justice Thomas wrote,

I accept that the Free Exercise Clause, which clearly protects an individualright, applies against the States . . . . But the Establishment Clause is anothermatter. The text and history of the Establishment Clause strongly suggest thatit is a federalism provision . . . unlike the Free Exercise Clause, which doesprotect an individual right . . . .129

Of course, provisions can have a jurisdictional/structural restraint component and a substantivecomponent. For example, Professor Smith uses the Eighth Amendment to highlight that the prohibitionagainst cruel and unusual punishment served to prevent the national government from inflictinginhumane 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 ReligionClauses may have served as a restraint on national government to establish religion while at the sametime embodying the principle of religious freedom. SMITH, supra note 107, at 22. The important point torecognize is that the function of the First Amendment was to operate as a structural restraint.

123. 374 U.S. 203, 309–10 (1963) (Stewart, J., dissenting) (emphasis added).124. Id. at 310.125. See id. at 316–17.126. 542 U.S. 1 (2004).127. Id. at 45 (Thomas, J., concurring).128. See id. at 49.129. Id.


He therefore concluded that “it makes little sense to incorporate the Establish-ment Clause.”130 Rather, the Establishment Clause works a restraint on thefederal government, and “[s]tates may pass laws that include or touch onreligious matters so long as these laws do not impede free exercise rights or anyother individual religious liberty interest.”131

Examining the Religion Clauses within the structure of the Bill of Rightsprovides additional support for a structural restraint model.132 Professor Amarhas noted that the prevailing view of the Bill of Rights is one that grantsindividual rights and subjugates the principles of the structure of government.133

He recognizes that few constitutional scholars examine the text as a whole, butrather in “discrete chunks.”134 Challenging the contemporary wisdom that theprimary purpose of the Bill of Rights was to protect individual rights, Amarwrites:

Of course, individual and minority rights did constitute a motif of the Bill ofRights—but not the sole, or even the dominant, motif. A close look at the Billreveals structural ideas tightly interconnected with language of rights; states’rights and majority rights alongside individual and minority rights; andprotection of various intermediate associations—church, militia, and jury—designed to create an educated and virtuous electorate. The main thrust of theBill was not to downplay organizational structure, but to deploy it; not toimpede 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 ofEstablishment Clause incorporation, but few have gone as far as Justice Thomas. See, e.g., Lietzau,supra note 109, at 1194, 1225–33 (calling for a limited rollback of incorporation); Note, Rethinking theIncorporation of the Establishment Clause: A Federalist View, 105 HARV. L. REV. 1700, 1715–16(1992) (arguing that abandoning Everson would literally permit the “unsettling” result of new stateestablishments, but also arguing that abandoning Everson may “permit the states to cultivate theircitizens’ 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 ofcivil society, notably religious organizations, community militia, and juries. Far from being“neutral” with regard to these structures, Amendments One, Two, Six, and Seven single themout for special treatment, and not just in disputes decided by judges, for the Bill of Rights isaddressed 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. NathanDiament makes a similar observation with respect to constitutional law and foreign relations. “In lawschools, [areas of constitutional law dealing with foreign affairs are] typically taught in internationallaw courses, not constitutional law courses.” Nathan J. Diament, Foreign Relations and our DomesticConstitution: Broadening the Discourse, 30 CONN. L. REV. 911, 912 (1998).

135. Amar, supra note 133, at 1132.


restraints embedded in the First Amendment.136 Had the Court examined theprovisions of the Bill of Rights as a whole (what Glendon and Yanes call aholistic approach), a doctrine which emphasized the relationship between indi-vidual rights and structural restraints would have emerged.137 This doctrinewould protect the individual right of free exercise and recognize the Establish-ment Clause’s role as a restraint on government action.

The federalism-based rationale for a structural restraint model is not the onlybasis for this interpretation. In fact, Justice Stewart’s critique of the individualrights model, though based in a federalism approach, relies on the premise thatthe Establishment Clause served two functions.138 In addition to insuring thatthe national government would not interfere with existing state establishments,the purpose of the Clause was to limit Congress from establishing a nationalchurch.139 This was a restraint on the national government with respect tolegislating on matters that would establish religion.

Professor Esbeck elaborates on the national form of structural restraint byhighlighting the Establishment Clause as working dual restraints on nationalpower. The national government was limited in its actions in two dimensions: “astate (or vertical) restraint and a national (or horizontal) restraint.”140 Thehorizontal restraint constrained the national government from legislating on thenational level respecting “an establishment of religion.”141 If the understandingof “establishment” in the late 1700s was a church ordained by law (like theChurch of England), a clear application of the Establishment Clause on thehorizontal dimension is that Congress has no authority to establish a nationalchurch.142

This national ban would have included those issues attendant with theestablishment of a national religion, including taxation for religious purposes, arole for government in electing religious leaders, and so forth.143 ProfessorEsbeck argues that “[t]hese resentments were likely thought within the scope ofthe Establishment Clause’s national-level restraint, or so it would originallyappear.”144 Many scholars have subjugated the importance of the horizontaldimension by pointing out that official acts in the early Republic were at oddswith 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, 309–10 (1963) (Stewart, J., dissenting).139. Id.140. Esbeck, supra note 97, at 14–15. 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 Rights—Congress could not require any religious test for federal public office. U.S. CONST. art.VI, cl. 3.

142. Esbeck, supra note 97, at 17–18.143. See id. at 18.144. Id. at 18–19.145. 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


outcome of this debate, one can still conclude that the role of the EstablishmentClause was structural, rather than an individual rights-based clause.146 It alsoappears that there is enough historical evidence to show that the purpose of theEstablishment Clause was not merely jurisdictional, but also served as a funda-mental restraint on national government actions in the realm of religion.147

In addition to being outright critical, at times, of strict separationism,148 thereis additional evidence that the Court is employing a structural restraint model.Unlike many of the traditional individual rights—free speech, right to a trial bya jury, freedom from unreasonable search and seizure—the Court has carved outspecial rules for the Establishment Clause that tend to suggest that it is astructural restraint and not a traditional individual right.149 Professor Esbeckexamines several of these, such as the special standing rule for EstablishmentClause violations—one need not suffer a personal harm but can bring a claimbased on taxpayer status.150 Likewise, the remedies for Establishment Clauseviolations do not follow an individual rights model. Generally, when awards fora violation of a constitutional individual right are granted, the remedy is tailoredto redress the harm to the plaintiff.151 In Establishment Clause cases, theremedy is class-wide and takes the form of injunctions.152 Remedies such asinjunctions are typical of cases in which the government has exceeded itspower, not when it has harmed an individual right. For example, an individualrights model remedy to school prayer would produce a requirement that object-ing students be exempted from participating, whereas a structural restraintmodel leads to a ban on the practice entirely even if no one objects. TheSupreme 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. at19 n.67. To reconcile these seemingly pro-establishment actions, some have suggested that the gapexists 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 217–19, 221(1986). Others view the lack of “restraint” by the federal government to support the claim that theEstablishment Clause was only jurisdictional in function. AMAR, supra note 120, at 248–49.

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 thenational government was “interdicted by the Constitution from intermeddling with religious institu-tions, their doctrines, discipline, or exercises.” Esbeck, supra note 97, at 19 n.67 (quoting Letter fromThomas Jefferson to Rev. Samuel Miller (Jan. 23, 1808), in IX THE WRITINGS OF THOMAS JEFFERSON

428–30 (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 itprohibit the Federal Government from providing nondiscriminatory aid to religion. There is simply nohistorical foundation for the proposition that the Framers intended to build the ‘wall of separation’ thatwas constitutionalized in Everson.”).

149. Esbeck, supra note 97, at 33–58.150. Id. at 33–40.151. Id. at 40.152. Id.


sored by public schools,153 at high-school graduations,154 and before high-school football games.155

V. THE ESTABLISHMENT CLAUSE AND FOREIGN AID

Two of the most hotly debated political and legal issues today are the role ofreligion in society156 and the war on terrorism.157 That the two have not beencombined in a legal challenge of the USAID programs in Indonesia or CentralAsia is something of a surprise.158 Historically, the government has abstainedfrom mixing religion and foreign aid.159 Although some religious organizationsreceive federal funds, they do so either through a separate organization or withthe 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, 226–27 (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 Court’s 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 casesgrappled with whether courthouses should be permitted to display some form of the Ten Command-ments. In addition, the conflict between religion and science has resulted in recent litigation concerningthe promotion of “intelligent design” in public school science classes. See Kitzmiller v. Dover AreaSch. 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 mostAmericans.

159. See Wallace, supra note 96, at 684. Although the government funded religious missionaries inNative American schools in the 1800s, the funding ended because of disputes between the Catholic andProtestant groups. In addition, President John F. Kennedy considered using Quaker and Catholicforeign relief workers for the Peace Corps but changed his mind when Establishment Clause concernswere raised. Id.; see also Lamont v. Woods, 948 F.2d 825, 838 (2d Cir. 1991) (citing Congress’sdecision 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 lentmaterials to public and parochial schools does not violate the Establishment Clause). President Bush’sFaith-Based Initiatives have removed several barriers to religious organizations obtaining funds, and, solong as the funding is used to promote a social service program, the funding is awarded neutrally toboth religious and non-religious groups. See Exec. Order No. 13,198, 3 C.F.R. 750 (2002), reprinted in5 U.S.C. § 601 (Supp. II 2003) (creating five agency centers for Faith-Based and CommunityInitiatives); 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 socialservices). USAID issued a policy reminder following the enactment of the faith-based program,outlining its policy toward funding faith-based organizations:

USAID’s work with faith-based organizations is an essential component of our strong, activepartnership with [NGOs] across the relief-to-development spectrum. Faith-based organizationsare afforded the opportunity by USAID to compete for funding for social services activities onequal footing with all other types of organizations . . . . [I]t has been USAID policy that theagency will not support activities with a significant religious or proselytizing purpose orcontent . . . . Consistent with the Establishment Clause, USAID may finance only programsthat have a secular purpose and which do not have the primary effect of advancing orinhibiting religion . . . . Faith-based organizations may use their own funds for religious orsectarian purposes. However, these activities must be separated from USAID-financed activi-


addressing issues of Islamic extremism necessarily implicates intertwining for-eign aid in sect-preferential programs.161

A decade and a half before 9/11, Professor John H. Mansfield began thinkingabout the relationship between the Religion Clauses and foreign policy.162

Examining several cases regarding aid to education and employment discrimina-tion, Professor Mansfield suggests that courts should find “implicit in theConstitution . . . respect for the ways of foreign nations.”163 Most interestinglyfor purposes of examining how the Religion Clauses play into the war on terror,Mansfield describes a hypothetical aid program focused on creating betterscience programs in Malaysian schools.164 For him, a program that promotesbetter education to create a more secure and stable Malaysia, even if theprogram only operates in Islamic schools, would not violate the EstablishmentClause. But, he cautions, working in those same Islamic schools for thepurposes of promoting a moderate form of Islam as a “bulwark against . . . Ira-nian-style Islamic fundamentalism” may raise more serious constitutional con-cerns.165 He further argues that “[f]or the United States directly to embrace thedoctrines of a particular religion, albeit for political ends, might conflict withthe values of the religion clauses to an extent that cannot be outweighed byforeign policy considerations or the importance of respect for other cultures.”166

The Supreme Court has yet to rule on how the Establishment Clause appliesbeyond 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 aUSAID 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 orpromotes religious doctrines or religious indoctrination.

USAID Policy Reminder, Office of the General Counsel, Working with Faith-Based Organizations(July 31, 2001) (on file with author).

161. See supra text accompanying notes 60–62.162. See John H. Mansfield, 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 34–35.167. See RESTATEMENT (THIRD) OF FOREIGN RELATIONS, REPORTERS NOTES § 721, Reporters Note 4

(1987) (“There has been no definitive adjudication, but issues under the First Amendment would arise ifthe United States entered into arrangements with a foreign country that involved foreign assistance orother expenditures of United States funds for religious purposes, or other official involvement inreligion (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 discrimina-tion 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 schools—both secondary schools and universi-ties—including Jewish Israeli schools and those affiliated with the Roman Catholic Church in thePhilippines, Egypt, Jamaica, Micronesia, and South Korea. Id. at 828.


governmental advancement of religion and that American taxpayers’ grievancesarise over the spending itself, not the location of the spending.170 Although thecourt held that the Establishment Clause did apply to foreign aid programsoverseas, it implied that the analysis may not be the same as for domestic aidprograms.171

In addition to finding that the plaintiffs had standing to bring this suit,172 theSecond Circuit recognized that programs touching on foreign relations are notnecessarily beyond judicial review,173 but at the same time suggested an “out”for national security considerations.174 The court recognized that the Presidentand Congress have the authority to conduct foreign policy but emphasized thatthis power “does not give them carte blanche to transgress well-establishedconstitutional boundaries, and the Judiciary ‘cannot shirk [its constitutional]responsibilit[ies] merely because [a] decision may have significant 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 flows to a ‘pervasively sectarian’ institution” in the “usual Establishment Clausecase,” indicating that it considered the USAID program to be different than a purely domestic aidprogram. Id. at 841 (“In our view, domestic Establishment Clause jurisprudence has more than enoughflexibility 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 pervasivelysectarian foreign organization, the government will be permitted the opportunity to “demonstrate somecompelling reason why the usually unacceptable risk attendant on such funding in such an institutionshould, in the particular case, be borne.” Id. at 842. The “possible foreign policy ramifications ofinvalidating grants” under the program made it “particularly inappropriate” to adopt the “mechanicalapproach” of the “pervasively sectarian” test. Id.

172. Id. at 829–31. The Supreme Court has held that taxpayers have standing if there is “a logicallink between that status and the type of legislative enactment attacked” and “a nexus between thatstatus and the precise nature of the constitutional infringement alleged.” Flast v. Cohen, 392 U.S. 83,102 (1968). Although this double nexus standard is difficult to meet, taxpayers may bring constitutionalchallenges under the Establishment Clause. See Bowen v. Kendrick, 497 U.S. 589, 620 (1988) (holdingthat taxpayers had standing to challenge the Adolescent Family Life Act under the EstablishmentClause).

173. Judicial deference in the realm of Executive power is often granted when the Court believes itis 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 appropriatebecause of an unusual need for non-judicial discretion, potential embarrassment due to multifariouspronouncements by various departments, and the impossibility of deciding a case without making apolicy determination of a kind that is not in the competency of the court); Youngstown Sheet & TubeCo. v. Sawyer, 343 U.S. 579, 635–37 (1952) (Jackson, J., concurring) (stating that when the President“acts pursuant to an express or implied authorization of Congress,” he “personif[ies] the federalsovereignty,” and his actions “would be supported by the strongest of presumptions and the widestlatitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who mightattack 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, andassembly, and the right not to be subject to an establishment of religion, are protected againstinfringement in the exercise of foreign relations power as in domestic affairs,” but noting that restraintsshould be balanced against national foreign affairs interests). I argue that this kind of balancing testshould be employed in questions concerning the applicability of the Establishment Clause to foreign aidprograms.


overtones.’”175 Relying on cases which challenged the President’s Mexico CityPolicy, the court distinguished between adjudicating a political question, such asthe underlying foreign policy (here, the policy of promoting foreign schools thatserve as “study and demonstration centers for ideas and practices of the UnitedStates”), and the justiciable question of how the policy is administered.176 Thecourt concluded that “[b]ecause [US]AID’s method of implementing the [pro-gram] was not itself an expression of foreign policy . . . , a challenge to thelegality of that method did not present a nonjusticiable political question.”177

The court distinguished Dickson v. Ford,178 which held that an EstablishmentClause challenge to Israeli aid was a nonjusticiable political question.179 Thecourt in Lamont noted that Dickson presented a case in which the plaintiffssought to challenge the underlying foreign policy, not the way the policy wasimplemented.180 Perhaps most interestingly, the court also drew a distinctionbased on the President’s war powers, noting that Dickson concerned nationalsecurity issues, rather than merely foreign aid.181

The foreign policy “out” came in the form of a suggested balancing test. Thecourt suggested that, on remand, if the district court determines that the ASHAprogram is pervasively sectarian, “the government should be permitted todemonstrate some compelling reason why the usually unacceptable risk atten-dant on funding such an institution should, in the particular case, be borne.”182

The court relied on Professor Mansfield’s distinction between programs thatpromote a secular goal (such as science education) and those that have theprimary effect of advancing religion, implying that the latter would be unconsti-tutional.183 The court did not consider whether the government could offer

175. Lamont, 948 F.2d at 831–32 (quoting Japan Whaling Ass’n v. Am. Catacean Soc’y, 478 U.S.221, 230 (1986)) (citation omitted).

176. Id. at 832–33.177. 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, 1002–06 (1964). Nzelibe argues thatthe courts should not abstain from any controversy that represents a “bona fide” individual rights claimand 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 givinggeneral aid to the state of Israel and the way in which a policy is implemented. The challenge inDickson was against the policy of aiding Israel and maintaining a balance of power in the Middle Eastitself. A challenge to the way in which a policy is implemented (such as funding the Friday Flyerprogram in Indonesia to support the larger policy goal of reducing extremism) does not necessarilytrigger the political question doctrine like a challenge to the President’s overarching foreign policyvis-a-vis another country does.

181. Id. at 833 n.6. The USAID Islamic Outreach programs seem to be where the “rubber meets theroad.” If the foreign policy goal of these programs is to decrease the potential for Islamic extremistterrorism, a potential plaintiff could claim that funding Islamic imams and mullahs to include messagesof tolerant Islam is a challenge to the implementation of that policy, not the policy itself. On the otherhand, this program is part of a national security strategic plan and therefore may shift the program to aDickson analysis.

182. Id. at 842.183. Id. at 842 n.20.


compelling reasons to actually advance religion.Second, in determining whether the Establishment Clause applies to govern-

ment grants to religious institutions located outside of the United States, theLamont court based its analysis on the Fourth Amendment and the then-recentlydecided Verdugo-Urquidez case.184 The court first examined the operation andtext of the First Amendment as compared to the Fourth, distinguishing betweenindividual rights and restrictions on Congress’s competency to enact laws. Thecourt noted that the Fourth Amendment right to be free from unreasonablesearches and seizures is an individual right enjoyed by the “people,” which hasbeen limited to citizens and resident aliens.185 On the other hand, the FirstAmendment’s construction contains no similar limiting language, and insteadimposes a restriction on Congress.186 Differentiating between individual rightsthat can be limited spatially and temporally, Lamont suggested that the “constitu-tional prohibition against establishments of religion targets the competency ofCongress to enact legislation of that description—irrespective of time or place.”187

Lamont relied on a 1901 Supreme Court case, Downes v. Bidwell,188 whichexamined the application of the Constitution in Puerto Rico. There, the Courtstated,

when the Constitution declares “no bill of attainder or ex post facto law shallbe passed,” and that “no title of nobility shall be granted by the UnitedStates,” it goes to the competency of Congress to pass a bill of that descrip-tion. Perhaps the same remark may apply to the First Amendment, thatCongress shall make no law respecting an establishment of religion . . . .189

This distinction—between individual rights and structural restraints—is funda-mentally important in determining which constitutional provisions apply extrater-ritorially and which are more limited. Although Lamont appears to have placeda heavy emphasis on this distinction (and therefore seemed to be heading in theright direction), the court failed to further analyze this distinction. In fact, thecourt heavily relied upon an individual rights analysis in determining why theestablishment of religion in foreign countries could be harmful to individuals inthe 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-Urquidezexamined 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 265–75. The Lamontcourt 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 reli-

gion . . . .” Id. The court wrote, “[i]ndeed, the basic structure of the Establishment Clause, whichimposes a restriction on Congress, differs markedly from that of the Fourth Amendment, which confersa 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.


search and seizure both occurred in Mexico and that had the violation occurredon U.S. soil, Fourth Amendment protections would have attached to the defen-dant.190 The court then explained that unlike Verdugo-Urquidez, EstablishmentClause violations that occur overseas harm individuals domestically “becausereligion transcends national boundaries,” and aid to Catholic schools in thePhilippines “may strengthen not only that school, but also the Catholic Churchworldwide, and in particular the Catholic sponsor in the United States and itsdomestic constituency.”191 This analysis presupposes that the harm involved isan individual one, to American citizens, rather than a structural restraint on howCongress 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 strictseparationism and individual rights model, a more coherent Religion Clausedoctrine would emerge.192 But more importantly for the purposes of this Note, astructural restraint model would provide clarity for how judges should apply theEstablishment Clause to U.S. foreign aid directed to programs which directlywork with and fund religious groups overseas.

Unlike constitutional individual rights, a structural restraint on the govern-ment applies whether government action occurs in the United States or over-seas. It implicates Congress’s ability to legislate, not simply who can and cannotbe harmed.193 The court in Lamont, while recognizing that the EstablishmentClause functions differently than the Fourth Amendment, still analyzed the issueof extraterritorial applicability under a Fourth Amendment—and individualrights—model.194 This analysis confuses the purpose of the EstablishmentClause and creates an unworkable model for overseas application.

As evidenced by the recent Guantanamo Bay cases, the Court, when applyingthe Constitution abroad, will focus heavily on territoriality—if the U.S. govern-ment 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 lessclear that it is applicable when the Constitution acts as a structural restraint.

190. Lamont, 948 F.2d at 834–35.191. 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 severalstates 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, butin 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 184–91.195. See supra text accompanying notes 85–90. 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 note14 (discussing the Pentagon programs that paid Islamic scholars to craft messages to persuade theSunni population to vote).


Why should a prohibition on federal action—absent any compelling govern-ment interests—apply 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 theExecutive in the realm of foreign affairs. Yet this deference makes little sensewhen the prohibition on power is seen as a structural restraint. Courts have thecompetency to determine when the government is acting within the letter of theConstitution and when it is not.196

To remedy both the problem of judicial deference and of determining thescope of the Constitution, courts should bifurcate their extraterritorial constitu-tional analysis into two tracks. The first track would follow the individual rightsline of cases, which often deal with Fourth and Fifth Amendment rights.Following Verdugo-Urquidez, constitutional individual rights would apply toU.S. citizens regardless of physical location and to aliens within the territory ofthe United States. The second track would apply a structural restraint model andfollow U.S. government action regardless of its location.

How would this work for Establishment Clause challenges to USAID pro-grams? By analyzing the harm under a structural restraint model, courts neednot defer to the Executive Branch simply because a case involves foreignpolicy.197 Rather, the constitutional limitations placed on government actionwith respect to religion would follow the flag. The government does not havethe authority to establish religion outside the territory of the United States anymore than it does within.

The next step would involve a consideration of the Executive’s foreign relationspower, which certainly comes into play when examining programs designed tocombat Islamic terrorism. When faced with an Establishment Clause challenge, acourt following the structural restraint model would examine the program as if it werelocated in the United States, using the same analysis.198 If the court finds that the useof U.S. funds to promote a certain program infringes the Establishment Clause andwould be unconstitutional within the United States, this need not mean it wouldautomatically find the program unconstitutional. Instead, the court could employ abalancing analysis (much like that suggested in Lamont)199 to determine if theprogram 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 structuralrestraints, it emphatically declared that it was competent to adjudicate the application of the USAIDgrants to religious institutions overseas. See Lamont, 948 F.2d at 831–32.

197. See supra note 174.198. The analysis currently would involve the application of the modified Lemon test, although

should courts adopt a structural restraint model this analysis, of course, would fall by the wayside. Yeteven if courts continue to employ the Lemon test, this mode of analysis for extraterritoriality would stillbe 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 restraintsand national foreign affairs interests).


national security interest.201 Second, assuming that the national security interest iscompelling, the program should be narrowly tailored to serve that compelling govern-ment 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 hasbecome apparent during his first year in office that his belief in God and JesusChrist transcends the private sphere. As incidents of Islamic terror spreadthroughout the Middle East and Asia, the President has come to believe that thebest way to eradicate terrorism is to convert predominantly Islamic countries toChristianity. As part of his strategic foreign policy plan, the President has cut offall diplomatic ties to countries with Islamic leadership and has authorizedUSAID funding to missionary organizations for the purpose of proselytizing.

It is clear in this hypothetical that the President’s policy would violate theEstablishment Clause if implemented domestically. U.S. funds may not be usedto proselytize or to promote one religion over another.203 The next step underthe structural restraint model would be to apply the balancing test. Judges wouldconsider the purpose of the President’s proselytizing policy. Although manyactions can be taken in the name of national security, scrutiny under thisbalancing test for the purpose of extraterritorial Establishment Clause chal-lenges would not accept the government’s claims at face value. Courts wouldexamine 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 purpose—the court wouldthen examine whether the program was narrowly tailored to serve that compel-ling national security interest. Clearly, funding missionaries and cutting offdiplomatic ties in an effort to convert Muslims to Christianity is not narrowlytailored.

A less drastic example (and closer call) might involve a program in which theExecutive 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, specifically the “war on terror,” would most often be found to be acompelling state interest broadly defined. 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 theNation.”); see also Boos v. Barry, 485 U.S. 312, 324 (1998) (considering whether foreign policy andinternational 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 speechand equal protection domestic contexts. Instead, it would serve as a check on executive abuses and toensure that the stated program is no more expansive than it need be to fulfill 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 ofaccepting the government’s reasoning for a law at face value, the court would review the actualpurpose. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373–74 (1886) (examining the actual administra-tion of a facially neutral zoning law and finding a discriminatory purpose).

205. See generally Evans, supra note 37.


and the President agrees. USAID begins to fund programs which aim to replaceKorans with secular text books. In applying the balancing test, a court mayreasonably find that reducing fundamentalist education is a compelling nationalsecurity concern. However, the attenuation between conservative religious edu-cation and terrorism may be broad enough that a court would be unwilling tofind that this program serves a compelling national security interest. Further-more, this program may fail on the narrow tailoring prong. Opponents of theprogram could argue that it is fatally overbroad and reaches thousands ofschools that have no relation to terrorism, while supporters could counter thatthe program is only operating in educational spheres, not within mosques orcivil society organizations. The finder of fact would ultimately have to make adetermination as to whether reducing conservative education is a compellingnational security concern and whether the program implemented is narrowlytailored to serve that interest.

Finally, consider one of USAID’s current programs, Indonesia’s LKiS program,which distributes Friday Flyers to counter the pro-terror, anti-Western flyers that areoften distributed outside of Mosques during Friday prayers.206 These flyers oftencontain religious language and promote moderate religious ideas. While undoubtedlyunconstitutional if funded in the United States, by applying a balancing test, courtsneed not abstain from adjudicating the constitutionality of the program. Courts wouldexamine if the program was furthering a compelling national security concern (reduc-ing Islamic extremism and extremist messages) while at the same time ensuring thatthe program is narrowly tailored to that goal.

Much of this “narrow tailoring” analysis would turn on the breadth andmessages of the program. Take the following two examples:

A) A local NGO in Indonesia—funded by USAID—hands out the followingflyer in front of mosques on Fridays: Believers know that tolerance andpluralism leads us to God. Those who kill others in the name of Allahserve neither themselves nor their God. They also hold discussiongroups to talk about what tolerance and pluralism means in their society.

B) A local NGO hands out the same flyer as in A, but at the discussiongroups efforts are made to convert participants to Christianity under thebelief that Christian doctrine is more tolerant and peaceful, therebyreducing the likelihood of violent acts of terrorism.

The flyer promotes tolerance and peace using the language of Islam, and thesame flyer is used in both examples A and B. However, example B is lesstailored to the national security interest of reducing terrorism because it is thebelief in tolerance and pluralism that moves believers away from terrorism (thecompelling national security interest), rather than whether they practice Islam orChristianity. This model would take into account both the need for Americans to

206. See supra text accompanying note 43.


be protected from government action in the sphere of religion and the compel-ling national security need to combat Islamic terrorism and promote a moremoderate form of Islam. Instead of judicial deference, courts can play an activerole in balancing religious liberty rights against national security concerns.207

CONCLUSION

A common critique of executive actions during the War on Terrorism hasbeen, “it’s not about them; it’s about us.” Although not a legal doctrine, thepremise of the argument implicitly underscores the tension between individualrights and structural restraints. Although aliens in western China do not enjoyFifth Amendment due process rights, when the U.S. government undertakesactions to promote moderate Islam in Kashgar, constitutional concerns are notabsent simply because the government’s programs are targeted at foreigners.

As the world shrinks and our nation’s actions increasingly have internationalimpact, our courts must begin to flesh out the scope of our Constitution and howour government can constitutionally engage the world beyond our borders. Theproblem of Islamic terrorism is one that will plague our nation for years tocome, inextricably linking our national security concerns to religion. Judicialdeference to executive decisions is not the answer. All branches of the govern-ment must consider how our efforts to curb Islamic extremism abroad comportwith the Establishment Clause. By bifurcating constitutional analysis betweenindividual rights and structural restraints, courts can apply a more predictableand sensible analysis to extraterritorial government actions. Analyzing theEstablishment Clause through a structural restraint lens brings greater clarity tohow the government can and cannot act overseas, with a balance for nationalsecurity concerns.

207. See, e.g., Hamdi v. Rumsfeld, 316 F.3d 450, 464 (4th Cir. 2003) (“Despite the clear allocationof war powers to the political branches, judicial deference to executive decisions made in the name ofwar is not unlimited.”). Although it is beyond the scope of this Note, there is a distinction between anational 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 overseasbased on a structural restraint model, in which national security concerns may outweigh structuralinterests, but that same rationale would not hold the same force domestically. For example, PresidentTruman attempted to seize the steel mills under the name of national security and war powers duringthe Korean War, and the Court held that even though the theatre of war is an expanding concept, it didnot 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 underlyingprinciple would hold true in this analysis—that the President is more limited in his actions domesticallythan overseas when acting in the name of national security.


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