CHAN KENDRICK, ET AL., CROSS-APPELLANTS V. OTIS R. BOWEN, SECRETARY
OF HUMAN AND HEALTH SERVICES, ET AL.

   No. 87-462

   In the Supreme Court of the United States

   October Term, 1987

   On Conditional Cross-Appeal From The United States Court For The
District Of Columbia

   Memorandum For The United States In Response To Cross-Appeal

   Cross-appellants challenge the district court's judgment (J.S. App.
1a-7a) holding that the references to "religious organizations" in the
Adolescent Family Life Act, 42 U.S.C. (& Supp. III) 300z et seq.
(AFLA), may be severed from the constitutional remainder of the Act.
The Secretary has previously docketed as No. 87-431 an appeal from the
order of the district court declaring those references
unconstitutional and enjoining the Secretary from enforcing the
statute "as it pertains to 'religious organizations'" (87-431 J.S.
App. 47a-49a).  Although we believe that the district court correctly
resolved the severability question, we agree that probable
jurisdiction should be noted in the cross-appeal.

   1. For the reasons stated in our jurisdictional statement docketed
as No. 87-431, we believe that AFLA does not violate the Establishment
Clause, either on its face or as applied.  If the Court notes probable
jurisdiction in No. 87-431 and ultimately concludes that the statute
is not unconstitutional, there will be no reason to reach the question
of severability.

   2. If, on the other hand, the Court concludes that the references
in AFLA to "religious organizations" do in fact violate the
Establishment Clause, the severability issue will be presented.  We
believe that the district court correctly resolved the question of
severability.  As this Court recently put it, an "unconstitutional
provision must be severed unless the statute created in its absence is
legislation that Congress would not have enacted" (Alaska Airlines,
Inc. v. Brock, No. 85-920 (Mar. 25, 1987), slip op. 7 (footnote
omitted)).  The district court scrupulously applied that standard,
concluding from its review of the text and history of the statute that
"(t)he involvement of religious organizations was just one means of
addressing th(e) problem (of teenage pregnancy) and not the primary
reason why Congress enacted the AFLA" (J.S. App. 3a).  The court found
(id. at 5a) that "both the express language of the AFLA and its
legislative history establish that Congress would have enacted the
AFLA without its references to 'religious organizations.'" That
finding is amply supported by the language of the statute, by its
evident purpose, and by its legislative history.

   3. We agree with cross-appellants, however, that probable
jurisdiction should be noted with respect to the severability issue
and that the question should be considered in conjunction with the
Secretary's appeal from the district court's constitutional decision.
Should the Court ultimately agree that AFLA is constitutional, it need
not reach the severability issue.

   It is therefore respectfully submitted that probable jurisdiction
should be noted in the cross-appeal and the case considered in
conjunction with the Secretary's appeal in No. 87-431.

   CHARLES FRIED

      Solicitor General

   OCTOBER 1987