FILED
BILLINGS DIV.
2004 OCT 26 PM 1 39
PATRICK E. DUFFY, CLERK
By Rayna M. Weiss
DEPUTY CLERK

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

BUTTE DIVISION

FREEDOM FROM RELIGION FOUNDATION,
INC.; EDITH PAXMAN; RON CALVERT;
and JAMES SOULAR,

Plaintiffs,

CV 03-30-BU-RWA

v.

MEMORANDUM & ORDER

MONTANA OFFICE OF RURAL HEALTH;
MONTANA STATE UNIVERSITY-BOZEMAN;
DAVID M. YOUNG, Executive Director
of the Montana Office of Rural
Health; MONTANA FAITH-HEALTH
COOPERATIVE,

Defendants.

Pending before the Court are cross-motions for summary judgment in this case under 42 U.S.C. § 1983, asserting violations of Plaintiffs' rights under the First Amendment to the United States Constitution. Also pending is Defendants' Motion to Strike. For the reasons stated below, Plaintiffs' motion for summary judgment is granted, Defendants' motion for summary judgment is denied, and Defendants' motion to strike is granted in part and denied in part[1].

I. BACKGROUND

Montana State University-Bozeman ("MSU-Bozeman") is the official site of the Montana Office of Rural Health ("MORH"). MSU-Bozeman operates the MORH, which is a state agency funded by federal grants and state matching funds. The mission of the MORH is "to improve health care delivery, health care status and daily functioning for all Montanans through health promotion, disease prevention and reduction of the impact of illness, disease and disability." Aff. of Richard L. Bolton ("Bolton Aff."), Ex. 29.

Defendant David M. Young ("Young") is an employee of MSU-Bozeman and is the Executive Director of the MORH. The MORH, through Young and together with the Montana Association of Churches, co-founded and is a charter member of the Montana Faith-Health Cooperative ("MFHC"). The MFHC is a group of fifteen faith-based, health-based, and government organizations seeking to build relationships between health and faith-based organizations. The mission of the MFHC is "to foster and promote faith-health partnerships across Montana designed to improve the holistic health and well-being of Montanans and their communities." David Young Aff., Ex 2. The MFHC is physically located within the offices of the MORH, in the same suite of rooms as Young's office. Young depo., pg. 91-92.

In 2002, the MORH applied for federal funding from the United States Department of Health and Human Services ("HHS"), under the Compassion Capital Fund Demonstration Program ("CCF").[2] Young Aff., ¶ 5. A three year continuing grant was awarded. An initial grant award of $614,555 was transferred to MSU-Bozeman to fund the Montana Faith-Health Demonstration Project ("MFHDP"), with a similar level of funding provided in 2003. Young, as the principal investigator and project director, is primarily responsible for administering the grant. A committee of the MFHC reviews all applications and recommends finalists and alternates to Young, as an integral part of the subgrant selection process.

Parish nursing programs are given preference in receiving grant subcontracts from the MORH. Deposition of David M. Young ("Young depo."), pgs. 152-53). The Parish Nurse Center at Carroll College receives especially preferential treatment, as it is funded through a line-item subgrant and does not go through the competitive bidding process required of most other applicants. The Parish Nurse Center subgrant funds a continuing education course for nurses who wish to become parish nurses. The parish nurse program is dedicated to the integration of faith and health-care services and, as will be discussed in greater detail below, "has a significant religious or faith-based component" which is "integral" to the parish nursing concept. Young depo., pgs. 100, 143.

Plaintiff Freedom from Religion Foundation is an organization with over 5000 members who oppose government endorsement of religion in violation of the First Amendment. Its purpose is "to protect the fundamental Constitutional principle of separation of church and state by representing and advocating on behalf of its members. Plaintiff's SUF ¶ 170. Individual plaintiffs Edith Paxman, Ron Calvert and James Soular are Montana resident taxpayers and members of FRF. They filed the present action for declaratory and injunctive relief, contending that Defendants' use of taxpayer monies to fund parish nursing, and especially the Carroll College Parish Nurse Center, violates the Establishment Clause of the First Amendment to the United States Constitution. Plaintiffs further contend that MOHR subsidization of the MFHC and the close interrelationship between the MORH, Young, and the MFHC constitutes improper state funding and endorsement of religion, also in violation of the Establishment clause.[3]

Both sides have moved for summary judgment in their favor. Defendants have also moved to strike certain factual materials submitted by Plaintiffs in support of their motion. The motions have each been fully briefed and are now ripe for decision by the Court.

II. DISCUSSION

A. Defendants' Motion to Strike

Plaintiff's counsel, Richard L. Bolton, initially submitted an affidavit in support of Plaintiff's motion for summary judgment, with numerous exhibits attached to it. (Court File, Docs. No. 29 & 30) Defendants moved to strike Exhibits 1-11, 32-52, 56-59, 61, and 67-83, on the grounds that they are hearsay and not within Mr. Bolton's personal knowledge. Defendants also moved to strike Exhibits 32-51, 67-69, 77 and 81, on the ground that they are not relevant. The motion to strike was filed along with Defendants' own motion for summary judgment.

In response to Defendants' cross-motion for summary judgment, Plaintiffs resubmitted Bolton's affidavit, along with affidavit testimony intended to establish the authenticity and relevance of each of the exhibits. Defendants complain that Plaintiffs are attempting to get "two bites at the apple," but this is not so because Plaintiffs were entitled to submit additional factual material in response to Defendants' motion.

In his affidavit as amended, Bolton states from personal knowledge that all Exhibits are true and correct copies of the documents they depict. Basically, the documents can be divided into two groups: those provided to Plaintiffs by Defendants during discovery, and those downloaded from MFHC, MORH or other websites. With respect to the first group, Plaintiffs contend that they are admissions against interest whose authenticity is established because they were provided during discovery. With respect to the second, Plaintiffs contend that they are adopted admissions against interest whose authenticity is established by Defendants' own references to the websites in discovery and deposition materials.

Specifically, Plaintiffs assert as follows:

Exhibits 82 and 83 are Defendants' Answer and Preliminary Pretrial Statement, filed by Defendants in the Court record.

Exhibits 39-40, 43-46, 52, 56, and 71-72 are defendants' own statements, produced in response to requests for production served in this case and admissible as statements against interest. Ex. 40 is a paper authored by Young, produced during discovery, and identified in his deposition at pgs. 97-99. Exhibit 72 was also identified by Young in his deposition at pgs. 173-74.

Exhibits 67-70 are copies of materials from the MFHC website, which was created and maintained by MORH. The authenticity of the website is established by Young's affidavit, ¶ 3, describing the MFHC website maintained by the MORH and providing the address for the MFHC website, which is the same as that on Exhibits 67-70. They are admissible as admissions against interest and adoptive admissions.

Exhibits 1-5 are copies of materials from the Carroll College Parish Nurse Center website. The authenticity of the website is established because the Parish Nurse Center website is listed on the MOHR website. The material is admissible as an adopted admission against interest. Defendants rely upon Ex. 5 in their Statement of Undisputed Facts ("SUF"), ¶ 10.

Exhibits 6-9 were produced by Defendants during discovery and pertain to the Parish Nurse program funded by Defendants. At least one of these exhibits (Ex.8) is relied upon by Defendants in support of their own motion.

Exhibit 10 is a copy of material from the International Parish Nurse Resource Center, which is referenced on the Carroll College Parish Nurse Center website adopted by Defendants. This information is included in Ex. 5, relied upon by Defendants in their SUF ¶ 10.

Exhibits 32-38 are copies of material from the MOHR website, the authenticity of which is established by Young's deposition at pg. 178.

Exhibits 47-51 are also materials from the MOHR website, the authenticity of which is admitted in Exs. 82 and 83.

Exhibits 57-59 are documents relating to the MFHC, maintained by the MORH and provided by defendants during discovery. They are relevant as background information. Exhibit 59 was identified by Young in his deposition, pgs. 78-79.

Exhibit 61 is a copy of a brochure for the MFHC which was produced by defendants during discovery and identified by Young in his deposition at pgs. 95-97.

Ex. 73 is a press release by MSU-B, obtained via the MSU-Bozeman website and admissible as a statement against interest or adoptive admission.

Exhibit 74 is a copy of a local newspaper article produced in discovery by defendants.

Exhibits 75-78 were provided by defendants during discovery and were also identified by Young during his deposition at pgs. 158-59, 163-64, 113-14, and 161-62.

Exhibits 79-80 are from the MFHC website, maintained by MORH and Ex. 79. was identified by Young at his deposition, pgs. 163-64.

Bolton's affidavit testimony that the attached exhibits are "true and correct copies" of the materials in question is sufficient only to establish that they are, in fact, true and correct copies of what they purport to be. However, the documents must otherwise be authenticated before they are admissible. Rule 901, Fed.R.Evid. A document may be authenticated by "evidence sufficient to support a finding that the matter in question is what its proponent claims." Rule 901, Fed.R.Evid.

All materials presented by Plaintiffs that were downloaded from other websites have been sufficiently authenticated by Defendants' own identification of, and reference to, the same websites in materials provided during discovery and in Young's deposition. Similarly, Defendants' complaints about Bolton's lack of personal knowledge to authenticate documents provided by them during discovery, containing their own statements or statements of others adopted by them, are not well taken. See Orr v. Bank of America, NT & SA, 285 F.3d 764, 777 (9th Cir. 2002) (citing Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 889 n. 12 (9th Cir. 1996) (documents produced by a party on its own letterhead were deemed authentic when offered by the party-opponent). All challenged exhibits, with the exception of Exhibit 74, are admissible as either statements against interest or adopted statements of others, particularly given the close interrelationship between the MORH and MFHC, and the Parish Nurse Center that they fund. Exhibits 74 is merely a photocopy of a newspaper produced by Defendants during discovery, without any further foundation and is not sufficiently authenticated by Mr. Bolton's affidavit.

Finally, the relevance of all the disputed materials is clear. While not all the exhibits bear directly upon the issues to be decided in this case, they are all, at a minimum, relevant to establish the background and context of the case.

Thus, while it is proper to strike Mr. Bolton's first affidavit on the grounds and for the reasons stated in Defendants' motion to strike, his second affidavit and Exhibits attached thereto will remain as a matter of record in this case and are properly considered by the Court in ruling upon both pending motions for summary judgment.

B. Cross-Motions for Summary Judgment

Rule 56(c), Fed.R.Civ.P., states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." The moving party must initially identify those portions of the record before the Court which it believes establish an absence of material fact. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Ass'n., 809 F.2d 626, 630 (9th Cir. 1987). If the moving party adequately carries its burden, then the party opposing summary judgment must then "set forth specific facts showing that there is a genuine issue for trial." Kaiser Cement Corp. v. Fischbach & Moore, Inc., 793 F.2d 1100, 1103-04 (9th Cir.), cert. denied, 479 U.S. 949 (1986).

The fact that cross-motions for summary judgment are filed does not mean that summary judgment must necessarily be granted in favor of one party or the other. Instead, the Court must consider each motion separately, under the standards of Rule 56, to determine whether summary judgment is properly granted. United States v. Fred A. Arnold, Inc., 573 F.2d 605, 606 (9th Cir. 1978).

With those standards in mind, the Court turns to the merits of the pending motions. Before addressing the substantive issues raised by the parties' cross-motions, the Court must resolve certain threshold issues.

1. Standing

A plaintiff seeking to invoke the jurisdiction of the federal courts must demonstrate that he has standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). Standing under Article III of the Constitution requires a showing that: (1) the plaintiff has suffered an injury-in-fact, (2) the injury is fairly traceable to the challenged action of the defendant, and (3) the injury is likely to be redressed by a favorable decision. Id.; Environmental Defense Center, Inc., v. EPA, 344 F.3d 832, 863 (9th Cir.2003). In this case, Defendants argue that Plaintiffs lack standing because they have not alleged a sufficiently concrete and particularized injury.

Plaintiffs assert what is known as a good-faith pocketbook challenge, which they contend gives rise to Article III standing. See PLANS, Inc. v. Sacramento City Unified School Dist., 319 F.3d 504, 506 (9th Cir.2003) (citing Doremus v. Bd. of Educ., 342 U.S. 429, 434-35 (1952)). In a good-faith pocketbook challenge, taxpayer standing exists if Plaintiffs "identif[y] a measurable sum of public funds being used to further a challenged activity." PLANS, INC., 319 F.3d at 506. Here, Plaintiffs have pointed to a measurable sum of public funds used by MORH and Young to directly sponsor continuing education training at the Carroll College Parish Nurse Center. Plaintiffs' challenge is based on the asserted fundamentally and inherently religious nature of parish nursing in general, and of the Carroll College program in particular. Plaintiffs also challenge the undeniable subsidization of the MFHC by MSU-Bozeman, the MORH and Young at taxpayer expense, including (1) providing office space; (2) providing and maintaining a website on the MSU domain; and (3) providing organizational and leadership services through MSU-Bozeman employees.

Because Plaintiffs challenge parish nursing in its entirety and the MORH relationship with the MFHC as a whole, and because they have shown that a measurable amount of public funds are used by the MORH and Young to support parish nursing and the MFHC, Plaintiffs have taxpayer standing to pursue their claims. Id. at 508.

Additionally, Plaintiffs' claim that an individual grantee (MORH) is improperly administering CCF grant monies in violation of a constitutional limitation on its ability to do so constitutes a challenge to congressional taxing and spending power, even though the challenge is directed not at the facial validity of the CCF or the MFHDP, but at the manner in which MORH is administering the funds. See Bowen v. Kendrick, 487 U.S. 589, 618-620 (1988). Thus, Plaintiffs also have standing under Flast v. Cohen, 392 U.S. 83 (1968) (finding taxpayer standing when injury is alleged to have resulted from Congress' exercise of power under the taxing and spending clause.)

2. Eleventh Amendment Immunity

Defendants contend that they are entitled to immunity from suit under the Eleventh Amendment to the U.S. Constitution. " 'The Eleventh Amendment bars suits which seek either damages or injunctive relief against a state, an 'arm of the state,' its instrumentalities, or its agencies.' " Fireman's Fund Ins. Co. v. City of Lodi, California, 302 F.3d 928, 957 n. 28 (9th Cir. 2002) (quoting Franceschi v. Schwartz, 57 F.3d 828, 831 (9th Cir.1995)). However, under Ex Parte Young, 209 U.S. 123 (1908), " 'the Eleventh Amendment does not bar actions seeking only prospective declaratory or injunctive relief against state officers in their official capacities.' " Id. (quoting Los Angeles County Bar Assoc. v. Eu, 979 F.2d 697, 704 (9th Cir.1992)).

In this case, Plaintiffs do not dispute that MSU-B is an agency of the State of Montana and is immune from suit in federal court under the Eleventh Amendment. They also do not contest MORH's immunity. However, they correctly note that Young, sued in his official capacity for prospective injunctive relief, is not entitled to that same immunity. Id. Young's undisputed authority and actions in connection with the administration and subcontracting of CCF grant monies and his ongoing interrelationship with the MFHC are at the heart of Plaintiffs' claims and make him an appropriate party defendant, for purposes of a suit to enjoin the allegedly unconstitutional activities at issue herein.

3. The Establishment Clause

The Establishment Clause of the First Amendment, which applies to the States via the Fourteenth Amendment, prohibits Congress from making any law respecting an establishment of religion. U.S. Const. amend. I; Zelman v. Simmons-Harris, 536 U.S. 639, 648 (2002). It prohibits "not only the institution of an official church, but any government act favoring religion, a particular religion, or for that matter irreligion. Thus, it bars the use of public funds for religious aid." Mitchell v. Helms, 530 U.S. 793, 867-868 (2000) (Souter, J., dissenting).

Over the years, the test for determining whether government activity is permissible under the Establishment Clause has evolved and changed. Originally, in Lemon v. Kurtzman, 403 U.S. 602 (1971), the U.S. Supreme Court established what is known as the "Lemon test," which required that "a statute or practice which touches upon religion, if it is to be permissible under the Establishment Clause, must have a secular purpose; it must neither advance nor inhibit religion in its principal or primary effect; and it must not foster an excessive entanglement with religion." County of Allegheny v. American Civil Liberties Union, Pittsburgh Chapter, 492 U.S. 573, 592 (1989) (citing Lemon, 403 U.S. at 612-13). In Agostini v. Felton, 521 U.S. 203 (1997), the Court merged the second and third Lemon requirements so that the current test requires that the Court determine "whether the government acted with the purpose of advancing or inhibiting religion" and "whether the aid has the 'effect' of advancing or inhibiting religion." Agostini, 521 U.S. at 222-223. Excessive entanglement is one factor to be considered in evaluating the effect of the government action. Id. at 234.

In this case, Plaintiffs challenge two aspects of Defendants' conduct as violating the Establishment Clause. First, they question Young's and MORH's administration of the CCF grant to provide direct funding for parish nursing, and they specifically challenge the award of a line-item subgrant to the Carroll College Parish Nurse Center. Plaintiffs also challenge the close interrelationship between the MORH and David Young on one hand, and the MFHC on the other, contending that it amounts to improper funding and endorsement of religion by the State. The Court will address each of these claims separately.

a. Parish Nurse Center

Plaintiffs do not challenge the facial validity of the CCF grant program or HHS' decision to award a CCF grant to MSU-Bozeman. Thus, the purposes and effects of the CCF program and/or HHS's administration of that program are not at issue. Nor do Plaintiffs challenge the facial validity of the MFHDP. Instead, Plaintiffs' challenge is leveled at MORH's administration of the CCF funds it receives from HHS, especially the award of subgrants for parish nursing and more particularly the subgrant to the Carroll College Parish Nurse Center.

Primary responsibility for operation of the MORH and administration of the CCF grant rests with Young, who is Executive Director of the MORH and project manager/principal investigator for the MFHDP. The Court's analysis under Agostini therefore focuses on the purposes and effects of Young's activities in those capacities, on behalf of the MORH and MSU-Bozeman. Zelman, 536 U.S. at 649 (question is "whether the government acted with the purpose of advancing or inhibiting religion [and] whether the aid has the " 'effect' of advancing or inhibiting religion.") (quoting Agostini, 521 U.S. at 222-223)).

"The purpose prong of the Lemon test asks whether government's actual purpose is to endorse or disapprove of religion." Edwards v. Aguillard, 482 U.S. 578, 585 (1987) (quoting Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O'Connor, J., concurring). Intention to promote religion "may be evidenced by promotion of religion in general, (citation omitted) . . . or by advancement of a particular religious belief (citations omitted)." Id. While a Court should usually defer to the government's statement of a secular purpose, deference is not required if the statement is a sham or insincere. Id. At 586-87.

In this case, Young's ostensible purpose for direct and preferential funding of parish nursing was secular. i.e., to enhance the capability of community and faith based programs to provide health care services. However, the undisputed facts inescapably lead the Court to the conclusion that Young's actions were actually motivated not by the purpose of enhancing the delivery of health care, but by the more specific purpose of advancing and endorsing religion as a substantial component of the health care to be provided.

The undisputed evidence shows that Young is a religious man. He is a member of a Congregational church, is a certified rural chaplain, and often ended his email correspondence with biblical passages (until he was advised in 2003 to discontinue doing so, because they might be construed as "religious."). Young depo. at pgs. 21, 39-40. In 2001, Young, in his capacity as Director of the MORH, assumed the chair of a FORCE ("Faith-Based Organizations for Rural Community Empowerment") Work Group. Bolton Aff., Ex. 42. Thereafter, he concluded communications to FORCE members with religious proverbs such as:

See that none of you repays evil for evil, but always seek to do good to one another and to all. Rejoice always. Pray constantly . . . . . . 1 Thess 5:15-17

and

Be joyful in hope, patient in affliction, faithful in prayer. Share with God's people who are in need. Practice hospitality. Rom 12:12-13

and

I know that the Lord secures justice for the poor and upholds the cause of the needy. Ps. 140:12

Bolton Aff., Exs. 44, 45 pg. 2, 46.

Under Young's direction, the MOHR maintains a "Spirituality and Health" website, listing organizations, events and resources related to the integration of spirituality and health. Bolton Aff., Exs. 47-49.

Young's interest in parish nursing preceded MORH's receipt of a CCF grant in 2002. In 2001, Young wrote a White paper entitled "Rural Community-Based Home Health Care and Support Services," which was published by the MORH. Bolton Aff., Ex. 32. In a summary of that paper, Young described the history of parish nursing as a "reuniting" of "the two healing traditions- medicine and religion. . ." Id.

In his White Paper, Young supports the use of faith-based organizations in the delivery of health care services, based upon a claimed "strong positive correlation between volunteer work, observable religious activity (i.e. church attendance) and good health." Bolton Aff., Ex. 34. Young describes the Christian Medical Commission ("CMC") created by the World Council of Churches, which

works to enable the Church to participate fully in God's holistic mission in the world with particular focus on health and healing in all dimensions of life, thus fulfilling the mandate of Christ '. . . that they may have life in all its abundance." Specifically, the CMC aims to promote biblical and theological reflection on the nature of Christ's ministry and the role of the Church as a healing community; equip, strengthen and enable the Church to participate fully in the ministry of healing and wholeness by increasing its understanding of and involvement in this ministry."

Bolton Aff., Ex. 34, pg. 2.

Young also refers to an article entitled "The Church as an Institution of Health," written by Rev. Abigail Evans of the Princeton Theological Seminary. Rev. Evans states that

Following the example of Jesus Christ, the Christian Church is called to a ministry of health. In faithfulness to the Gospel, denominations and agencies are creating new health ministries that promote physical and spiritual well-being.

Bolton Aff., Ex. 34 pg. 2.

Young also argues that the benefits of faith-based programs are "well-documented," and that "[n]umerous studies have shown religious beliefs and practice to be positively correlated with a host of desirable social characteristics . . ." Id. at pgs. 8-9. Young continues with a description and discussion of parish nursing and rural chaplaincy and provides a detailed "Chronology of Selected Key Events in the Emerging Faith-Health Movement," as well as "Selected Resources on Faith-Based Health Care" and "Parish Nurse Preparation Courses/Training Programs/Contacts." Bolton Aff., Exs. 35-38.

Young's scholarly inquiry into these matters is arguably germane to the mission of the MORH "to improve health care delivery, health care status and daily functioning for all Montanans through health promotion, disease prevention and reduction of the impact of illness, disease and disability." However, the White Paper is even more noteworthy because of what it reveals about Young's own personal views on the integration of religion and health care. Specifically, Young believes that the people with a strong faith background are healthier, and that having a faith or spiritual orientation promotes one's health. Young depo., pgs. 31-32, 62-63. He personally supports and encourages parish nursing as a means of delivering health services to a rural population. Young. depo., at pg. 103-04. Young is certainly entitled to academic freedom and to his own personal beliefs about the roles of faith, spirituality, and religion in the daily lives and health of Montana citizens. However, his implementation of those beliefs through the offices of the MOHR and MSU-Bozeman is another matter entirely.

Young acknowledges that there are many health care services that may be provided by faith communities without involving matters of faith and spirituality. Young depo., at pg. 118-119. Young further acknowledges that the faith-health connection he advocates goes beyond simply using the faith community to provide health care access to a greater community, by seeking to integrate faith and spirituality as a substantive part of the health care program itself. Young depo. pg. 120-121. This is where his efforts go astray. While provision of health care services through a faith community may be an acceptable purpose for governmental action, the promotion and integration of religion, and specifically Judeo-Christian religious principles, as a substantive component of the health care services provided is not. See Edwards, 482 U.S. at 585.

The Court finds on the undisputed evidence that by awarding MFHDP subgrants to fund parish nursing, Young acted with the clear primary purpose of promoting and endorsing the use and application of Judeo-Christian principles in the provision of otherwise secular health care, thereby furthering his own personal belief in the benefits of such principles. Having so found, the Court need go no further to find that Young's actions, on behalf of MORH, violated the Establishment Clause. See Id.

Assuming that Young's actions were actually motivated by an acceptably secular purpose, they still violated the Establishment Clause if they had the impermissible effect of promoting or endorsing religion. Agostini, 521 U.S. at 223. In determining the effect of a governmental action or program at issue, the Court must consider whether it "result[s] in governmental indoctrination; define[s] its recipients by reference to religion; or create[s] an excessive entanglement." Agostini, 521 U.S. at 234.

With respect to the first element, the Court must decide "whether any indoctrination that occurs could reasonably be attributed to governmental action." Mitchell, 530 U.S. at 809. The first question is whether religious indoctrination does, in fact, occur. The answer to this question requires examination of the substance of parish nursing, in general, and of the Carroll College parish nurse curriculum, in particular.

According to Young's White Paper, "[p]arish nursing is one aspect of 'healthy ministry,' " which is "derived from the call to wholeness and service as presented in the Christian Scriptures . . . ." Bolton Aff., Ex. 35 pg. 1. Young noted the following "key statements" of parish nursing, developed in 2000:

Bolton Aff., Ex. 35, pg. 2. A Parish nurse may fill many roles--as health counselor, educator, advocate, and more; however, the role of "theological reflection" requires integration of faith and health issues, therapeutic use of prayer and scripture, and support for "worship events for healing and health." Bolton Aff., Ex. 3; see also Exs. 10 & 35.

The home page of the Carroll College Parish Nurse Center website starts with a message: "to preach the kingdom of God and to heal (Luke 9:2)." Bolton Aff., Ex. 1. According to this website,

Delivering a parish nurse preparation course is more than presenting content. It is bringing together a group of nurses interested in pursuing a holistic health ministry. Prayer and worship are part of the ministry that these nurses will bring to their clients and so these aspects also needed to be modeled in the preparation course.

Bolton Aff., Ex. 4.

The outline for the Basic Preparation Course for Parish Nurse/Health Ministry at Carroll College in 2003 stated that

The Health Ministry of Parish Nursing program within a congregation recognizes that the ministry of the church community is to proclaim God's desire that we strive toward an abundant, healthful life. Jesus said in John 10:10, "I came that they may have life and have it abundantly." Persons of the church need affirmation and support in their growth toward health-filled living and abundance.

Bolton Aff. Ex. 7. The "health ministry or parish nurse program" is based on concepts of "achieving wholeness, acknowledging the close connection between mind, body, and spirit," and that "[h]ealthcare requires more than medical treatment of disease or illness." Id.

Participants in the 2003 class described it as "the combination of spiritual and academic "food" in the preparatory course," and "[f]inding ways to incorporate Faith in God (mine and the clients/patient's) into the healing process . . ." Bolton Aff., Ex.8. The MORH funded preparation course includes general instruction about "The Faith Community As a Healing Place," as well as more specific instruction in therapeutic use of prayer and providing spiritual care. Bolton Aff., Exs. 5, 7. The "spiritual dimension" is central to the practice of parish nursing. Bolton Aff., Ex. 11. Prayer and worship are part of the ministry, and as such are reflected in the preparation course. Bolton Aff., Ex. 4. In 2003, the MORH funded preparation course ended with "a powerful interactive reading of the Stations of the Cross related to the healing ministry." Bolton Aff., Ex. 8.

The undisputed facts of record show that the parish nursing and health ministry curriculum at the Carroll College Parish Nurse Center is replete with religious teachings and indoctrination. Its purpose is to educate and provide nurses who incorporate religion into the delivery of their services. The question under Agostini is whether this indoctrination is attributable to the State.

The indoctrination that occurs is obviously attributable to the government, since MORH directly funds the continuing education program at the Parish Nurse Center, and otherwise directly funds parish nursing in Montana.

Moreover, the preferential treatment of parish nursing during the subgrant process, and the noncompetitive, line-item nature of the subgrant awarded to the Carroll College Parish Nurse Center, also mean that aid is not "allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion," nor is it "made available to both religious and secular beneficiaries on a nondiscriminatory basis." See Agostini, 521 U.S. at 231. Because these inherently and pervasively religious activities are directly funded by means of preferential subgrants, the resulting indoctrination is attributable to governmental action, rather than private action or some other neutral mechanism. See Mitchell, 530 U.S. at 809-813.

Defendants acknowledge that "federal funding of faith based groups" violates the Establishment Clause if the funds are used for "inherently religious activities." Defs.' Combined Mot. to Strike and Mot. for Summ. J., pg. 10 (citing 69 Fed. Reg. 31883 at 31884). Parish nursing is just such an activity. Parish nursing is inherently and pervasively religious; it is simply not possible to separate out its secular purpose of providing nursing care from its sectarian purpose of providing parish nursing care, stepped in concepts of Judeo-Christian theology. Religion permeates every aspect of the program; if one were to remove the religious overtones from any aspect of the program, the entire premise of the program would be completely undercut.

Defendants argue that in funding parish nursing, they are engaging in conduct that is consistent with the CCF, and that "[t]here is no violation of the Establishment Clause in providing federal grant funds in the manner required by the grant." Defs' Combined Mot. to Strike and Mot. for Summ. J., pg. 11. However, as the United States of America points out in its amicus brief, "the federal regulations and grant terms require [MSU-Bozeman] to monitor its subcontractors and ensure that federal grant funds are not used for inherently religious activities." Amicus Br. at 16.

While Montana State's grant application does include a subcontract with the Parish Nurse Center, it simply states the activity funded would be a 35 hour continuing education course for professional nurses. See Program Narrative at 18. The grant does not describe the topics or curriculum that the course will involve; thus, altering the course curriculum to ensure compliance with federal regulations would not breach the terms of the grant."

Id. at 17.

For all of the foregoing reasons, the Court finds that Defendants' direct and preferential funding of inherently and pervasively religious parish nursing programs was undertaken for the impermissible purpose, and has the impermissible effect, of favoring and advancing the integration of religion into the provision of secular health care services.

b. The MFHC

Plaintiffs contend that Young's and MOHR's close interrelationship with the MFHC constitutes improper governmental subsidization and endorsement of religion. At the heart of the Establishment Clause is "the prohibition against governmental endorsement of religion 'preclud[ing] the government from conveying or attempting to convey a message that religion or a particular religion belief is favored or preferred.' " County of Allegheny, 492 U.S. at 593 (quoting Wallace v. Jaffree, 472 U.S. 38, 70 (1985). As noted above, the Establishment Clause prohibits "any government act favoring religions, a particular religion, or for that matter irreligion." Mitchell, 530 U.S. at 857-868 (Souter, J., dissenting). Thus, government "may not involve itself too deeply in [a religious] institution's affairs." County of Allegheny, 492 U.S. at 590-91.

Determination of whether Defendants' actions with respect to the MFHC violate the Establishment Clause requires that the Court first examine the background and nature of the MFHC, as well as the extent and nature of the ongoing relationships at issue herein.

The MFHC was officially formed in June of 2001. As noted above, the MFHC is composed of a group of fifteen organizations seeking to build relationships between health and faith-based organizations. The official mission of the MFHC is "to foster and promote faith-health partnerships across Montana designed to improve the holistic health and well-being of Montanans and their communities." David Young Aff., Ex. 2. One of its goals is "to discover and promote the importance and power of faith for individuals and communities seeking wholeness and health." Bolton Aff., Ex. 63, pg. 2. The MFHC is not necessarily aligned with any particular religion or faith; however, it plainly advocates and seeks to promote the integration of faith and religion into the provision of health care services, as opposed to being religion or faith-neutral. Bolton Aff., Ex. 40.

The MORH (through Defendant Young) and the Montana Association of Churches are co-founders of the MFHC. Young is on the steering committee that developed the mission and goals of the MFHC and continues to manage important aspects of MFHC's activities. Bolton Aff., Ex. 63. The MORH is a charter member of the MFHC. As noted above, MFHC is actively involved in the subgrant selection process for the MFHDP. MFHC offices are located in the same suite of rooms at the MORH as Young's office. MSU-Bozeman provides the MFHC with office space, a website, and organizational and leadership services, at no cost.

A brochure advertising the MFHC begins with the statement:

Faith + Health

The Healing Link!

Bolton Aff., Ex. 61. The brochure contains the logos of both the MOHR and the Montana Association of Churches. Young, in his capacity as director of the MORH, is listed as a contact for more information about the MFHC at his office address, phone number and email address. Bolton Aff., Ex. 61. Margaret McDonald of the Montana Association of Churches is also listed as a contact.

The brochure contains a quote from Deeply Woven Roots by Rev. Gary Gunderson, stating that

Health is inherently communal. At the core of every faith tradition stands an explicit commitment to be with the sick, the poor, the alienated, the marginal, the wounded and the dying. The ultimate context of health and health care is religious.

The MORH helped fund the MFHC's first statewide Annual Faith-Health Summit in 2002, and participated in the second Summit in 2003. Both Summits opened and closed with a blessing or prayer. Bolton Aff., Ex. 76 & Ex. 84; Young depo. pg. 165-66.

Plaintiffs' claims as they pertain to the MFHC are analyzed under the Lemon-Agostini factors set forth above. The first question is whether Young's actions with respect to the MFHC were undertaken for the impermissible purpose of "advancing or inhibiting religion." Agostini, 521 U.S. at 222-223. Again, while Young may now contend that his purpose for forming and participating in the ongoing affairs of the MFHC was secular, the undisputed facts unequivocally show otherwise. The MFHC has no secular purpose; its sole mission is to "foster and promote faith-health partnerships across Montana," with the belief that this will then improve the well being of Montanans and their communities. The MFHC is just another means by which Young has attempted to use the offices and funding of the MORH for the impermissible primary purpose of endorsing and promoting his personal belief in the advantages of faith-based health care.

Moreover, Young's and MORH's direct financial subsidization, leadership and promotion of the MFHC's ongoing activities has the impermissible "effect" of advancing or inhibiting religion. Id. MFHC's mission of promoting a faith-health connection constitutes indoctrination as to the supposed benefits of faith-based as opposed to purely secular health care. This indoctrination is attributable to the state, due to the direct financial subsidization and deep, ongoing involvement of Young and the MORH. The same considerations also compel the conclusion that Defendants' conduct is reasonably viewed as an improper State endorsement of religion. Agostini, 521 U.S. at 235.

Plaintiffs' endorsement claim may also be analyzed as a stand-alone claim. There has been some question about the continued vitality of such a claim, after Agostini. See DeStefano v. Emergency Housing Group, Inc., 247 F.3d 397, 410-411 (2d Cir. 2001) ("In recent Supreme Court decisions, the 'endorsement' inquiry has been subsumed under the Lemon-Agostini framework such that analysis of the criteria for determining a practice's primary effect also resolves any endorsement challenge." However, "the endorsement inquiry remains a viable test of constitutionality in certain unique and discrete circumstances--for example, where the government embraces a religious symbol or allows the prominent display of religious imagery on public property." Id. (Citations omitted.)

Such is the case here. By allowing the MFHC to reside in the offices of the MORH; by maintaining the MFHC website on the MSU-Bozeman domain; by placing the MORH logo alongside that of the Montana Association of Churches in MFHC literature; by listing Young, in his official capacity, as a contact person for the MFHC; by speaking as a representative of MORH at the MFHC's annual Faith-Health Summit and publicly endorsing the integration of faith and health care; and by Young's many other actions of involvement with the MFHC, Young and the MORH have clearly conveyed that the State endorses the faith-health connection promoted by the MFHC. This blatant public endorsement and preference of faith and religion over non-faith and irreligion runs afoul of the Establishment Clause.

c. The Appropriate Remedy

Having found that Young's actions on behalf of the MORH and MSU-Bozeman, in (1) direct and preferential government funding of parish nursing; and (2) subsidizing and endorsing the activities of the MFHC, violate the Establishment Clause of the U.S. Constitution, the Court must now determine the proper remedy for such violations.[4] Plainly and simply, Young, in his official capacity on behalf of the MORH and MSU-Bozeman, must no longer engage in the objectionable conduct. This means that he must cease and withdraw direct MFHDP funding of inherently and pervasively religious parish nursing programs, and in particular the Carroll College Parish Nurse Center. It means that he, on behalf of the MORH and MSU-Bozeman, may no longer provide physical housing or otherwise subsidize (directly or through the provision of in-kind services such as web services, clerical services, or the like) the activities of the MFHC, or remain actively involved in the executive leadership, organizational and/or promotional affairs of the MFHC. Young, in his official capacity, may not engage in any activities with respect to the MFHC that could be reasonably construed to amount to government endorsement of the mission of the MFHC. From this point forward, Young is prospectively enjoined accordingly.

Based on the foregoing,

IT IS ORDERED that Plaintiffs' Motion for Summary Judgment (Doc. # 26) is GRANTED; Defendants' Motion for Summary Judgment (Doc. 34-3) is DENIED, and Defendants' Motion to Strike (Docs. #34-1, 34-2) is GRANTED with respect to Richard L. Bolton's first affidavit and attached exhibits (Docs. #29 & #30), and DENIED with respect to Mr. Bolton's second affidavit and attached exhibits (Docs. #41 & #42), in conformity with the above Memorandum.

The Clerk is directed to notify counsel of record of the making of this Order.

Dated this 26th day of October, 2004.

[signed] U.S. Magistrate Judge

Footnotes

1 By leave of Court, the United States of America has appeared as amicus curiae in this matter.

2 The CCF is part of the President's Faith Based Initiative, which is intended to provide funding to help small faith-based and community-based organizations expand their capacities to provide services. United States of America's Mem. as Amicus Curiae, pg. 2 n.1 (citing H.R. Conf. Rep. No. 107-342, at 106 (2001)).

3 Additional facts will be discussed as they become relevant to issues raised by the pending motions.

4: Defendants suggest that because they have voluntarily altered or discontinued some of their objectionable conduct, this Court may not or need not grant the relief requested. However, it is a "'well-settled principle that a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.'" Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir. 2003) (quoting Carreras v. City of Anaheim, 768 F.2d 1039, 1047 (9th Cir. 1985) (internal quotation marks omitted)); see also City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 289 n. 10 (1982) ("Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave the defendant free to return to his old ways.") (alterations and internal quotation marks omitted). Here, Defendants' stated intention to do some things differently in the future does not satisfy the Court that the same or similar violations will not occur in the future, absent judicial intervention.