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U.S. House leaders, headed by Rep. Nancy Pelosi (D-Calif.), are pushing for a restriction on education spending that would prohibit the use of federal economic stimulus funds on any university buildings used by Jewish campus groups -- such as Rutgers Hillel -- or that allow prayer services or religious instruction within those buildings.

The House version of the economic stimulus bill -- passed by the Senate Feb. 10 at $838 billion -- contained funding for the renovation, modernization, or repair of higher education class buildings, research centers, libraries, and school housing. But it also came with a prohibition on using those funds on buildings that are "used for sectarian instruction, religious worship, or a school or department of divinity" as well as buildings "in which a substantial portion of the functions of the facilities are subsumed in a religious mission".

After the bill passed the House and was moved to the Senate for consideration, South Carolina Republican Sen. Jim DeMint proposed an amendment to strip the religious prohibition, saying students who practice a religion "simply want equal access to public facilities, which is their constitutional right. This hostility toward religion must end. Those who voted for this discrimination are standing in the schoolhouse door to deny people of faith from entering any campus building renovated by this bill."

DeMint's amendment was defeated 54-43, allowing the religious prohibition to stay in the bill. Both of New Jersey's senators, Democrats Frank Lautenberg and Robert Menendez, voted against DeMint's amendment. Calls and emails to Menendez's office and to his spokesman were not returned. Lautenberg's spokesman was unable to be reached by press time as well.

The school funding was not included in the Senate version of the bill, but was readmitted to the final bill, which must be agreed upon by Senate and House committee members. President Barack Obama has said he expects to sign the bill by Monday, Feb. 16.

ACLU vs. religious students

But the fight over the amendment raised concerns over the issue of whether the prohibited uses of the stimulus money would be constitutional. The American Civil Liberties Union (ACLU) holds that the U.S. Constitution itself prohibits the use of federal funds for buildings that host religious events or classes, and that the clause in the stimulus bill is a formality.

The ACLU's Amanda Simon, writing at the organization's Blog of Rights, said that the provision in the bill simply "preserves constitutional safeguards by prohibiting federal funds for construction or repair of buildings used for worship and other religious purposes. In order to protect religious freedom, the Senate should vote down Sen. Jim DeMint's (R-S.C.) amendment in order to protect the religious freedom of all those whose religious buildings aren't eligible for federal funds."

However, Simon doesn't mention what would likely pose the most common problem: buildings that are ostensibly non-religious, but that are host to religious activities or classes. For example, the Rutgers University Hillel uses space in Brower Commons to hold Friday night Shabbat dinners. Brower Commons is the main dining hall on the College Avenue campus, and would present Rutgers with the following conflict: accept the stimulus money and send Hillel packing, or decline to use federal money on the students' dining facilities.

DeMint spokesman Wesley Denton added that comparative religion classes could also be subject to the terms of the bill. And what about students who recite morning prayers in their dormitories? DeMint, in a statement, expressed frustration that such behavior could be restricted.

"This is now an ACLU stimulus designed to trigger lawsuits designed to intimidate religious organizations across the nation," DeMint said. "This language is so vague, it's not clear if students can even pray in a dorm room renovated with this funding since that is a form of 'religious worship.' If this provision remains in the bill, it will have a chilling effect on students of faith in America."

In the statement released Feb. 5 by DeMint, he called the funding restriction itself "unconstitutional." The ACLU fired back by sending a letter defending the provision to every member of the Senate.

Enter Joseph Baldacchino

The Jewish State reached out to Joseph Baldacchino for clarification on the Constitution's "establishment clause," which is at the heart of such disputes. Baldacchino is the president of the National Humanities Institute, based in Bowie, Md. One of the NHI's flagship programs is the Center for Constitutional Studies, and Baldacchino is currently co-authoring a constitutional history of the U.S. called "Who We Are: The Story of America's Constitution".

Historically, the establishment clause meant that "certain denominations would be favored and actually receive regular funding from the government, and other denominations did not," Baldacchino said. It was intended to preclude the federal government from establishing a national religion.

He added that funding multi-use buildings and multi-subject teaching facilities wouldn't be establishing any favored religion or denomination.

"So our reading would be that this would not violate the establishment clause," he said.

In the case of Brower Commons or the university dorms, Baldacchino said, Judaism wouldn't be singled out for funding, nor would the school's decision to use federal funds on the buildings endanger its religious pluralism. He said opponents of the DeMint amendment would be hard-pressed to make a case that the federal government, in that instance, would be establishing Judaism as the national religion.

"I think the restriction is rather petty, and what it really tends to do is in the name of the establishment clause, restrict the free exercise clause," Baldacchino said. "Here's a group wanting to practice their religion, and exercise it freely as guaranteed by the First Amendment, and [supporters of the funding restriction] are using an overbroad conception of the establishment clause to impinge upon that free exercise."

Based on constitutional history, the evolution of constitutional law, pre-state British constitutional thought, and extensive study of the U.S. Constitution's framers, Baldacchino said the NHI's position is that the DeMint amendment would pass constitutional muster.

In fact, Baldacchino said, while the federal government must not establish a favored religion, they shouldn't establish secularism as superior to any religion or denomination either. But putting schools in the position of either moving religious groups and classes out of public buildings or not accepting federal money would suggest that religious groups are actually at a disadvantage federally, and that poses unique problems to constitutional religious protections.

"Putting such a restriction is sort of going out of your way, in effect, to establish that secularism has preference -- the point of view that any of the traditional religions are somehow second-class -- so in that sense I would be opposed to the restriction," Baldacchino said.