After my Friday post, several people e-mailed me with questions. A few were puzzled, assuming that the language was “standard” or “boilerplate” in funding bills and wondering how it could possibly impact religious liberty.

It appears that the funding provision has been stripped from the Senate version of the bill, and we shall see what happens at conference. In the meantime, it’s worth getting to the bottom of what the original bill means.

Those who dismissed the bill were reading into it what they presume is the intent of the bill. People for the American Way’s Right Wing Watch blog states things this way:

What the bill says is that if a facility’s use is primarily religious, stimulus funds can’t be used modernize, renovate, or repair it–not that groups will be barred from hosting a Bible study in the student union if the university receives said funding.
As far as federal legislation goes, this seems pretty clear . . . and I can understand why a Religious Right group such as the ACLJ might oppose it, but the least the can do is oppose it for what it actually says instead of concocting some nonsensical myth in order to get it stripped from the bill.

One clause indeed prohibits funding for buildings only when a “substantial portion of the functions of the facilities are subsumed in a religious mission.” (emphasis added). The meaning here is obvious, and it clearly applies to buildings like chapels, or perhaps divinity schools, or many facilities at religious universities. It has no real application to secular, public universities that open up classroom buildings to student groups.

Another clause, however, prohibits funding for buildings that are “used” for “sectarian instruction” or “religious worship.” It does not say “primarily used.” It simply says “used.” For People for the American Way’s reading to be correct, one has to assume that the drafters intended “used” to be read as “primarily used.”

Here’s how the prohibition might work in the real world: A university dusts off an old modernization project for a large and aging classroom building. Prior to submitting its funding proposal to the government, the university counsel’s office works to ensure that the building complies with all applicable regulations, and in so doing finds that a Christian student group uses the building for its Friday-night Bible study. This is clearly “use” of the building for “sectarian instruction,” so–to be on the safe side, since millions of dollars are at stake–he issues a notice that the group move its activities to another building. The process is repeated as other buildings are made eligible for funding.

Such an action would clearly violate the Constitution. Religious groups cannot be singled out for exclusion from otherwise-accessible public buildings, and thus litigation would be virtually inevitable.

I also strongly recommend reading Robert Shibley’s analysis over at FIRE’s blog.