Petition for Writ of Certiorari — Jafaria Deforrest Newton, Petitioner v. Illinois

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JAFARIA D. NEWTON,Petitioner,

-vsPEOPLE OF THE STATE OF ILLINOIS, Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Illinois

PETITION FOR WRIT OF CERTIORARI

JAMES E. CHARD

State Appellate Defender

JOHN M. MCCARTHY

Deputy Defender

ELLEN CURRX

ARDC No. 6192852

Deputy Defender

Office of the State Appellate Defender

Fifth Judicial District

909 Water Tower Circle

Mt. Vernon, IL 62864

(618) 244-3466

5thDistrict@osad.state.il.us

COUNSEL FOR PETITIONER

Ofcounsel

Sonthonax B. Saintgermain

Assistant Appellate Defender

QUESTION PRESENTED FOR REVIEW

Section 407(b)(2) of the Illinois Controlled Substance Act enhances the penalty

of an unlawful delivery when it occurs within 1,000 feet of"a church,synagogue,or any

other building, structure, or place used primarily for religious worship." To obtain the

enhancement,the State must prove beyond a reasonable doubt thatthe alleged building

functions as a place used primarily for religious worship.Butthe Illinois Supreme Court

held that where the alleged building or structure has the traditional characteristics

associated with churches or synagogues,the State does not have to prove thatitfunctions

primarily as a place ofreligious worship. The Illinois Supreme Courtfound this holding

supported because"the legislature has already determined that a church or synagogue

meets that requirement." The Illinois Supreme Court also held that for other—or nontraditional—religious groups,§ 407(b)(2)requires the State to present additional evidence

thatthe structures are used primarily for religious worship.The questions presented are:

1.

Whether the presumption in § 407(b)(2)—that structures with traditional

characteristics associated with churches or synagogues are places used

primarily for religious worship—comports with the requirements of the

Due Process Clause as to the State's burden of proof.

Whether the State's standard of proof—that structures with traditional

characteristics associated with churches or synagogues are irrefutably

presumed to be places used primarily for religious worship—provides greater

criminal protections for traditional Judeo-Christian places of worship,in

violation of the Establishment Clause of the First Amendment.

-i-

TABLE OF CONTENTS

Question Presented for Review ........................................... i

Table of Authorities ................................................... iv

Opinion Below ....................................................... 1

Statement of Jurisdiction .............................................. 1

Constitutional and Statutory Provisions Involved........................... 2

Statement of the Case ................................................. 3

Reason for Granting the Petition ........................................ 8

I.

THE PRESUMPTION IN § 407(B)(2), AS CONSTRUED BY THE

ILLINOIS SUPREME COURT,IS MANDATORYAND DOES NOT

COMPORT WITH THE REQUIREMENTS OF THE DUE PROCESS

CLAUSE.................................................. 9

II.

THE LEGISLATURE'S POLICY DETERMINATION CREATING

THE PRESUMPTION IN § 407(B)(2), AS CONSTRUED BY THE

ILLINOIS SUPREME COURT,FAVORS TRADITIONAL JEWISH

AND CHRISTIAN PLACES OF WORSHIP OVER OTHERS,

VIOLATING THE ESTABLISHMENT CLAUSE. ............... 12

A.

THIS CASE PRESENTS THE BEST VEHICLE TO

REAFFIRM THAT THE CENTRALINQUIRYIN ANY

ESTABLISHMENT CLAUSE CHALLENGE IS TO

UPHOLD NEUTRAL TREATMENT OF RELIGIONS.

."................................................. 14

B.

REGARDLESS OF WHICH TEST IS APPLIED,THE

STANDARD OF PROOF FOR A § 407(B)(2)

ENHANCEMENT VIOLATES THE ESTABLISHMENT

CLAUSE. .......................................... 16

Conclusion ......................................................... 19

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INDEX TO APPENDIX

Supreme Court Opinion............................................ 1a-16a

Appellate Court Decision.......................................... 17a-28a

-iii-

TABLE OF AUTHORITIES

CASES

Apprendi u. New Jersey, 530 U.S. 466(2000)............................... 9

Bauchman v. W. High Sch., 132 F.3d 542(10th Cir. 1997)................... 14

Bd. ofEduc. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687(1994) ... 12, 16

Comm. For Pub. Ed. &Religious Liberty v. Nyquist, 413 U.S. 756(1973)....... 12

County ofAllegheny v. ACLU Greater Pittsburgh Chapter,

492 U.S. 573(1989)........................................ 12-13, 17

Cty. Court of Ulster Cty., N.Y. v. Allen, 442 U.S. 140(1979)................ 10-11

Edwards v. Aguillard, 482 U.S. 578(1987) ............................ 13, 17

Engel v. Vitale, 370 U.S. 421 (1962) .................................. 15, 18

Epperson u. Arkansas, 393 U.S. 97(1968) ............................ 12, 15

Francis u. Franklin, 471 U.S. 307(1985)................................ 10-12

Freethought Soc. of Greater Phila. v. Chester County,

334 F.3d 247(3d Cir. 2003)....................................... 14

Gillette v. United States, 401 U.S. 437(1971)............................ 14-15

In re Winship, 397 U.S. 358(1970)....................................... 9

Larson v. Valente, 456 U.S. 228(1982)................................ 16, 18

Lee v. Weisman, 505 U.S. 577(1992)................................ 14-15, 18

Lemon v. Kurtzman, 403 U.S. 602(1971)............................... 7, 12

Lynch v. Donnelly, 465 U.S. 668(1984) .................................. 13

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n,

138 S.Ct.1719(2018)........................................... 16

Morissette v. United States, 342 U.S. 246(1952) ........................... 10

Mullaney v. Wilbur, 421 U.S. 684(1975) ................................. 10

Patterson v. New York, 432 U.S. 197(1977)............................... 10

People v. Falbe, 189 Ill. 2d 635(2000)..:............................... 7, 15

-iv-

Rosenberger v. Rector &Visitors of Uniu. of Va., 515 U.S. 819 (1995).........14-15

Rowan County v. Lund, N.C., 138 S. Ct. 2564(2018) .................. 14, 16-17

Sandstrom v. Montana, 442 U.S. 510(1979) ............................ 10-12

Tex. Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)............................ 13

Tot v. United States, 319 U.S. 463(1943)............................... 9, 12

Town of Greece, N.Y. u. Galloway, 572 U.S. 565(2014).....

............ 13, 17

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012(2017) .... 16

Van Orden v. Perry, 545 U.S. 677(2005) ......................... 12-14, 16-17

Wallace v. Jaffree, 472 U.S. 38(1985)................................. 13, 17

CONSTITUTIONAL AND STATUTORY AUTHORITY

U.S.CONST.amend VI ................................................. 9

U.S. CONST. amend XIV, § 1 ............................................ 9

28 U.S.C.§1257(a).................................................... 1

No.

IN THE

SUPREME COURT OF THE UNITED STATES

JAFARIA D. NEWTON,Petitioner,

~~~~

PEOPLE OF THE STATE OF ILLINOIS, Respondent.

On Petition For Writ Of Certiorari

To The Supreme Court Of Illinois

The petitioner, Jafaria D. Newton, respectfully prays that a writ of certiorari

issue to review the judgment below.

OPINION BELOW

The Illinois Supreme Court's decision appears at 2018 IL 122958 and is reproduced

at Pet. App. la. The Illinois Appellate Court, Fourth District's unpublished decision is

reproduced at Pet. App. 2a.

JURISDICTION

On October 18,2018,the Illinois Supreme Courtissued an opinion. No petition for

rehearing was filed.Thejurisdiction ofthis Courtisinvoked pursuantto 28 U.S.C.§1257(a).

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CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

Amendment I

Congress shall make no law respecting an establishment ofreligion,

or prohibiting the free exercise thereof;or abridging thefreedom ofspeech,

or of the press; or the right of the people peaceably to assemble, and to

petition the Government for a redress of grievances.

Section 1. All persons born or naturalized in the United States,and

subject to the jurisdiction thereof, are citizens of the United States and

ofthe State wherein they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of citizens of the United

States; nor shall any State deprive any person oflife, liberty, or property,

without due process oflaw; nor deny to any person within its jurisdiction

the equal protection of the laws.

720 ILCS 570/407(b)(2)(2014)

Any person who violates ... subsection (d) of Section 401 [of this

Act] within 1,000feet ofthe real property comprising any church,synagogue,

or other building, structure, or place used primarily for religious worship

... is guilty ofa Class 1 felony,the fine for which shall notexceed $250,000.

-2-

STATEMENT OF THE CASE

Material Facts

The State charged Jafaria Newton with two counts of unlawful delivery of less

than one gram ofcocaine.(C.12,16)The information alleged thatthe unlawful deliveries

occurred within 1,000feet ofFirst Christian Church,in violation of§ 407(b)(2).(C. 10,14)

Following a jury trial, Newton was found guilty. (Vol. IX, R. 133-34) The trial court

sentenced him to eight years in prison.(Supp. Vol. IV, R. 14-15)

On January 1,2015,Detective Jared Bierbaum performed a controlled buy,and

Newton was arrested.(Supp.Vol. III, R. 12 29)Bierbaum's direct examination is the

only testimony relevant to the issue presented.(Supp. Vol. III, R. 92-168) Bierbaum

stated that he was employed "with the Bloomington Police Department Vice Unit,..

. going on [his] third year as ...a vice detective."(Supp. Vol. III, R.93). Prior to joining

the Vice Unit,he stated that he"was a patrol officer on second shift with the Bloomington

Police Department."(Supp. Vol. III, R. 93)

Detective Bierbaum stated that he was "familiar" with First Christian Church,

located at 610 Roosevelt Street.(Supp.Vol. III, R.159)He identified People's Exhibit#3

as"a 1,000-foot buffer map generated by Bloomington Police Department to show where

410 North Roosevelt,"the location ofthe controlled buy,was"in relation to any churches

or schools within 1,000feet ofthat location."(Supp.Vol.III, R.159;see also Vol.XI,People

Ex.# 3) He identified 410 North Roosevelt within the 1,000-foot buffer map, and First

Christian Church "maybe a block, a block and a half straight south."(Supp. Vol. III,

R. 161)

As part of Detective Bierbaum's testimony, the following colloquy occurred:

"[The State]: Okay. Now in both your professional and personal

experience,have you had occasion to drive past or walk past or see the First

Christian Church?

[Bierbaum]: Yes.

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[The State]:Now back on December 22nd,wasthis property a church?

[Bierbaum]: Yes.

[The State]: How do you know that it was a church?

[Bierbaum]: It had signs out for—signage for a church, as well as

cars coming and going. I didn't go to church on that day, but I didn't park

in the parking lot during this investigation because a lot ofthe cars[were]

coming and going.And unfortunately,we often get our own police department

[called] on us for suspicious activity if we park in business parking lots

when people are coming and going.So since the cars were coming and going

from that church at that time, I didn't make it a practice to park in that

parking lot.

[The State]: On January 1st,to your knowledge,was that property

still operating as a church?

[Bierbaum]:Asfar as I could tell. Again,I didn't go to church there

that day,but I did see vehicles coming and goingfrom the parking lot. And

again,I parked very close to thatchurch but notin that parking lot.It would

have been an ideal place,but not with the cars coming and going from there.

[The StateJ: Now to your knowledge,present day,is it still operating

as a church today?

[Bierbaum]: As far as I know."(Supp. Vol. III, R. 161-62)

Detective Bierbaum also testified that he measured the distance from the buy

location to First Christian Church using "a measuring wheel."(Supp. Vol. III, R. 163)

The distance measured was "518 feet and 7 inches."(Supp. Vol. III, R. 167) Bierbaum

also identified People's Exhibit# 2-3 as depicting"a sign out to the front ofthe church."

(Supp. Vol. III, R. 167; see also Vol XI, People's Ex.# 2-3)The sign is a stone monolith

'(Vol.XI,People's Ex#2-3)Bierbaum

with carved letters spelling:"First Christian Church:

stated that he took the measurement to First Christian Church and the picture in People's

Ex # 2-3 "earlier" in 2015 when Newton's trial was held.(Supp. Vol. III, R. 163) The

jury found Newton guilty of"the offense of unlawful delivery of a controlled substance

within one thousand feet of a church."(Vol. IX, R. 134)

Appellate Procedural History

On appeal, Newton argued that the State failed to prove the unlawful delivery

occurred within 1,000 feet of a church.Pet. App.23a. The Fourth District ofthe Illinois

Appellate Court disagreed and affirmed his conviction. Pet. App. 28a. The court held

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"that,after viewing the evidence in the light mostfavorable to the prosecution,a rational

trier offact could reasonably infer that,ifthe building houses a religious organization

that has "church"in its name,then it is a church within the meaning of the applicable

statute. Pet. App. 27a. The court ruled that "all a police officer has to do is refer to the

building by a proper name with the term `church'in it ...and that proves, beyond a

reasonable doubt,that the building was used primarily for religious worship on the date

ofthe offense."Pet.App.27a.The courtthen noted:"Bierbaum testified thatin his personal

experience, as well as his professional experience as a Bloomington police officer, the

First Christian Church . ..was operating as a church on .. .January 1, 2015."

Pet. App. 27a. Thus, the court found that "a rational trier of fact could have believed

Bierbaum's testimony that he was familiar with the neighborhood and thatthe building

housing the First Christian Church ...was in use as a church on the dates of the drug

offense." Pet. App. 27a.

Newton filed a petition for leave to appeal to the Illinois Supreme Court, which

the court granted. Pet. App. 4a-5a. The court affirmed the judgment of the appellate

court. Pet. App. 3a. The court ruled that "under the plain reading of the statute, for a

location to fall within the ambit ofthe statute,it must be property thatis used primarily

for religious worship."Pet.App.6a.Butthe courtfound that"the legislature has already

determined that a church or a synagogue meets that requirement." Pet. App. 6a. The

courtreasoned thatthe"legislature recognized thatit would not be possible to specifically

list all places used primarily for religious worship,"as such the legislature used"a general

catchall" phrase to identify"all other buildings" with the statutory attribute.Pet.App.6a.

Thus,the Illinois Supreme Court ruled that incases where "the trier offact [is]

presented with a property that has the classic,iconic characteristics ofachurch,"it"may

make reasonable inferences that flow from the facts presented and apply [its] common

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knowledge regarding a church to find that it is what it purports to be." Pet. App. 7a.

The court reasoned thatit would be"redundant,""under the plain reading ofthe statute,"

to require the State to "prove that the enhancing locality was a church `used primarily

for religious worship."' Pet. App. 7a. The court also ruled that for "other particular

structures" alleged to be places of worship,"the State may need to provide additional

evidence in those cases to determine how the particular structure is being used."

Pet. App.7a. Applying its ruling,the court held that the building was a place ofreligious

worship because of:(1)the"signage with the name ofa church";(2)Bierbaum's testimony

that it was "operating as a church"; and (3) evidence that the building was occupied

and maintained. Pet. App. 8a. The court also held that the "State need not disprove

or rule out" the possibility that the building "might have been converted into another

use or might be abandoned." Pet. App. 9a.

Justice Burke,joined by Justice Neville, dissented.Pet.App.9a,16a.The dissent

concluded that"the majority is reading into the statute a rebuttable presumption ofthe

existence of an element of the offense." Pet. App. 12a. The dissent found that the

presumption relieved the State ofits burden of proof beyond a reasonable doubt under

the Due Process Clause,as well as infringed"on the right to trial byjury on that element

and [placed] undue pressure on a defendant to waive his right to remain silent."

Pet. App.12a.The dissent stated thatthe particular presumption was problematic because

the "majority never defines what it means by the `classic, iconic characteristics' of a

church."Pet. App. 12a-13a.

The dissent also concluded that"the majority's reading ofthe statute means[that]

if the offense occurs within 1000 feet of an `other building,' such as an Islamic mosque

or Hindu temple, with the `traditional' appearance and signage correlated with these

structures,the State is required to provide additional evidence thatthe building is primarily

used for religious worship." Pet. App. 13a-14a. The dissent found that this possibility

"raises obvious concerns that it violates the establishment clauses of both the first

amendment to the United States Constitution and the Illinois Constitution."

Pet.App.13a-14a.The dissent reaffirmed thatthe legislature's secular purpose in enacting

the statute was"to protect vulnerable populations from drug trafficking and its related

evils."Pet.App.14a-15a(citingPeople v. Falbe,189Ill.2d 635,645-48(2000)(upholding

Section 407(b)(2) place of worship enhancement under "the tripartite test established

in Lemon v. Kurtzman, 403 U.S. 602(1971)"). The dissent found that "these concerns

are not present unless the building was active and in use as a place of worship on the

date ofthe offense." Pet. App. 15a. Accordingly,the dissent concluded that whether the

building has "`the traditional characteristics of a church'does not further the purpose

of the statute." Pet. App. 15a.

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REASONS FOR GRANTING CERTIORARI

The State cannot circumvent or manipulate the prosecution's burden ofproofwith

conclusive or mandatory presumptions. Such actions would violate the Due Process

Clause—and even affect a defendant's right to trial by a fair and impartial jury. Yet

§ 407(b)(2)creates precisely the type of manipulation this Court hasrepeatedly invalidated.

Despite this Court's precedents,the Illinois Supreme Court has read § 407(b)(2)

to presume that any structures with "traditional,iconic"characteristics ofchurches and

synagogues are places ofworship. Exacerbating the improper manipulation,thejudgment

gave no indication as to what constitutes said characteristics.The vagueness aside,jurors

are precluded from considering alternative scenarios once presented with the specified

evidence.

The due process problem is clear. But beyond the burden-shifting effects of§ 407(b)(2),

there is also an Establishment Clause issue at play.Jurors are legally compelled to accept

the judicial edict that structures with "traditional, iconic characteristics" of churches

and synagogues are places of religious worship. Further highlighting this problem is

that this presumption only extends to churches and synagogues—not Hindu temples

nor Muslim mosques. The presumption also does not apply to non-traditional places

of worship within the preferred religions.

That such a presumption departs from the guarantee of neutrality and violates

the prohibition against religious endorsement or coercion is obvious. But the societal

effects are grave.Prosecutors could pick and choose when to seek the enhancement entirely

on the presumption or their own understanding of what are the "traditional" features

of Christianity and Judaism.Law enforcement would follow suit by setting up controlledbuys where the "traditional"features could easily be determined. This discretion would

lower the intended protection for other places of worship, diverting drug trafficking to

these places.That cannot be in accord with the neutral treatment ofreligion guaranteed

under the Establishment Clause.

For these reasons, as further developed below, this Court's review is needed to

determine whether such a presumption violates the Due Process Clause and whether

it violates the Establishment Clause.

I. The presumption in § 407(b)(2), as construed by the Illinois

Supreme Court, is mandatory and does not comport with the

requirements of the Due Process Clause.

This case involves "constitutional protections of surpassing importance: the

proscription of any deprivation of liberty without `due process of law,'[as well as] the

guarantee that`in all criminal prosecutions,the accused shall enjoy the right to a speedy

and public trial, by an impartialjury."'Apprendi v. New Jersey,530 U.S.466,475(2000)

(citing U.S. CONST. amend XIV, § 1; U.S. CONST. amend VI). The Due Process Clause

requires proof beyond a reasonable doubt before an accused may properly be convicted

for an offense. In re Winship, 397 U.S. 358, 364(1970). The accused is also entitled to

a trial by a fair and impartial jury. Apprendi, 530 U.S. at 47Cr77. Together, these

guarantees require the prosecution to submit each material fact to the jury with proof

beyond a reasonable doubt.Id. This requirementis equally fundamental where the fact

at issue "increases the penalty for a crime beyond the prescribed statutory maximum."

Id. at 490.

As early as this Court's decision in Tot v. United States,this Court hasinvalidated

under the Due Process Clause a statute that"leaves thejury free to act on[a] presumption

alone once the specified facts are proved." 319 U.S. 463, 469 (1943). Since then, this

Court has repeatedly reaffirmed thatthe Clause "prohibits the State from using evidentiary

presumptions ...that have the effect of relieving the State of its burden of persuasion

beyond a reasonable doubt of every essential element of a crime." Francis v. Franklin,

471 U.S. 307, 313(1985)(citing Sandstrom v. Montana,442 U.S. 510,52 524(1979);

Patterson v. New York,432 U.S. 197,210,215(1977); Mullaney u. Wilbur,421 U.S.684,

69 701 (1975); Morissette v. United States, 342 U.S. 246, 274-275(1952)). If the law

makes the fact at issue essentialto the crime,the prosecution must overcome its burden

of proof as to that fact. Patterson, 432 U.S. at 215.

Any mandatory presumption that manipulates this burden is impermissible,

regardless ofwhether itis rebuttable or conclusive.Franklin,471 U.S.at 313.For example,

in Mullaney u. Wilbur,this Court explicitly held unconstitutional amandatory rebuttable

presumption that shifted the burden ofpersuasion on intent to the defendant.421 U.S.at

698-701.The key inquiry is whether the presumption underminesthe jury's"responsibility

at trial, based on evidence adduced by the State, to find the ultimate facts beyond a

reasonable doubt:' Cty. Court of Ulster Cty., N.Y. v. Allen, 442 U.S. 140, 156 (1979).

Ifreasonable jurors.could understand the presumption as directing them to find a material

fact merely from specified facts,then the Due Process Clause is violated. Franklin,471

U.S.at 325;Sandstrom,442 U.S.at 515-16,520-24(citingMorissette,342 U.S.at 274-75

(1952)).

Section 407(b)(2)is thus unconstitutional underthe Due Process Clause.It enhances

the penalty for an unlawful delivery ofcontrolled substancesfrom a Class 2 to a Class 1

felony when the delivery occurs "within 1,000 feet of the real property comprising any

church, synagogue, or other building, structure, or place used primarily for religious

worship." 720 ILLS 570/407(b)(2)(2014). Under the statute's plain reading, for the

enhancement to apply,the location"must be property thatis used primarily for religious

-10-

worship." Pet. App. 6a. But § 407(b)(2), as construed by the Illinois Supreme Court,

presumes that buildings with the"classic,iconic characteristics"ofchurches or synagogues

are used primarily for religious worship. Pet. App. 7a. Under this new construction, if

a building has said characteristics,the State does not need to present additional evidence

on the actual primary function ofthe building. Pet. App.7a.Additional evidence is only

required ifthe building"lacks the traditional characteristics"ofchurches orsynagogues.

Pet. App. 7a-8a. The Illinois Supreme Court's reading of § 407(b)(2)"leaves the jury

free to act on [this] presumption alone once the" State has established that a building

has "classic, iconic characteristics" of a church or synagogue. Pet. App. 7a-8a.

This Court has yet to determine the standard for assessing statutory presumptions

that are mandatory. See Allen, 442 U.S. at 169(Powell, J., dissenting)("As the Court

notes, the presumptions thus far reviewed by the Court have not shifted the burden of

persuasion....").But this Court has consistently invalidated mandatory presumptions

submitted tojurors as instructions.Franklin,471 U.S.at313(reviewing whether challenged

jury instructions shifted the burden by creating a mandatory presumption);Sandstrom,

442 U.S. at 514(same).Unlike for instructions, mandatory statutory presumptions are

incurable. The law requires that the presumption be applied, and commands jurors to

follow it. There is no legal basis by which defendants may submit alternatives. This case

presents this scenario and is the best vehicle for this Court to reaffirm that all

presumptions, whether in an instruction or read into the statute itself, are

unconstitutionalifthey could be interpreted as a command to find an essential element

from predicate facts.

The presumption read into § 407(b)(2)has dire consequences for Illinois defendants

because it applies to other drug offenses protecting the real property ofplaces ofreligious

-11-

worship.The Illinois Supreme Court"is,ofcourse,the final authority on the legal weight

to be given a presumption under" Illinois law,"but it is not the final authority on" that

presumption's effect on jury deliberations. Sandstrom,442 U.S. at 51f~17. Nor is it the

final authority of the presumption's validity; that authority lies with this Court. Id.

Following thejudgment below,jurors must acceptthat buildings with "iconic,traditional

characteristics"associated with churches or synagogues are places ofworship,regardless

oftheir individual beliefs or knowledge.This presumption violates the Due Process Clause.

Franklin, 471 U.S. at 325; Sandstrom, 442 U.S. at 51

16; Tot, 319 U.S. at 469.

II.The legislature's policy determination creating the presumption

in § 407(b)(2), as construed by the Illinois Supreme Court,favors

traditional Jewish and Christian places of worship over others,

violating the Establishment Clause.

"A proper respect for ...the Establishment Clause Q compels the State to pursue

a course of`neutrality'toward religion," Comm.ForPub.Ed. &Religious Liberty u. Nyquist,

413 U.S. 756, 792-93 (1973), "favoring neither one religion over others nor religious

adherents collectively over nonadherents." Bd. of Educ. ofKiryas Joel Vill. Sch. Dist.

u. Grumet,512 U.S.687,699(1994)(citing Epperson v.Arkansas,393U.S.97,104(1968)).

But"there is no simple and clear measure which by precise application can readily and

invariably demark the permissible from the impermissible," when faced with statutes

challenged under the Clause. Van Orden u. Perry, 545 U.S.677,698(2005)(Breyer,J.,

concurring in the judgment).Despite this difficulty, this Court has sought to exact such

precision. County ofAllegheny v. ACLUGreaterPittsburgh Chapter,492 U.S. 573, 591

(1989).

In Lemon u. Kurtzman,403 U.S.602(1993), this Court first announced the now

often-repeated three-part test. 403 U.S. at 612-613. Under this test, a state action is

invalid where it:(1)lacks a secular purpose;(2)has the primary effect ofendorsing religion;

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or(3)creates excessive entanglement between State and Church.Id.In the yearsfollowing

Lemon,this Court has sought to refine this test, applying it with some consistency to

invalidate amoment-of-silence statute, Wallace v. Jaffree,472 U.S.38,60(1985);a statute

requiring the teaching of"creationism,"Edwards v.Aguillard,482 U.S.578,593(1987);

as well as a tax exemption program for religious periodicals. Tex. Monthly,Inc. v. Bullock,

489 U.S. 1, 17(1989). In each case this Court has "paid particularly close attention to

whether the challenged governmental practice either has the purpose or effect of`endorsing'

religion." County of Allegheny, 492 U.S. at 592.

In County ofAllegheny,this Court explained that the key inquiry in ferreting out

endorsement of religion is whether the State appears "to take a position on questions

ofreligious belief or `[to make]adherence to a religion relevant in any way to a person's

standing in the political community."' County of Allegheny, 492 U.S. at 592(quoting

Lynch v. Donnelly,465 U.S.668,687(1984)(O'Connor,J., concurring)). But this Court

has not consistently applied this testin cases raising Establishment Clause challenges.

See Van Orden,545 U.S. at 685-86 (listing post-Lemon cases where this Court did not

apply the endorsement test).

Not surprisingly then,the endorsementtest has recently fallen under attack from

members of this Court. As early as Edwards v. Aguillard, Justice Scalia found it too

flexible and lacking "any principled rationale." Aguillard, 482 U.S. at 640(Scalia, J.,

dissenting)(internal quotation marks omitted).Justice Thomas also found it problematic

and "incapable of consistent application." Van Orden, 545 U.S. at 697 (Thomas, J.,

concurring).In Town ofGreece,this Court plotted a new course focusing on whether the

challenged state action"fits within[a]tradition long followed in"our politicalinstitutions.

Town of Greece, N.Y. u. Galloway, 572 U.S. 565, 577 (2014). In conjunction with this

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inquiry, both Justices Scalia and Thomas have advocated for a narrower test by which

a state action would be invalidated only if it creates "`coercion of religious orthodoxy

[or] of financial support by force oflaw and threat of penalty."'Id. at 608(quoting Lee

v. Weisman, 505 U.S. 577, 640(1992)(Scalia, J., dissenting)).

In short,this"Court's Establishment Clausejurisprudence is in disarray."Rowan

County,N.C. v. Lund,138 S.Ct.2564,2564(2018)(Thomas,J., dissenting). The process

for determining which test applies is "somewhat murky," Freethought Soc. of Greater

Phila. u. Chester County,334 F.3d 247,256(3d Cir.2003),leavinglower courts to struggle

to glean "an appropriate standard" when applying this Court's"Establishment Clause

precedent."Bauchman v. W.High Sch.,132 F.3d 542,551(lOth Cir.1997). The problem

is that this Court's precedent has moved toward finding an applicable test rather than

upholding the Establishment Clause's central purpose that the State be neutral in its

standards when venturing in the realm ofreligion. Uan Orden,545 U.S. at 700(Breyer,

J., concurring in the judgment)(finding"no test"can "substitute for the exercise oflegal

judgment"). This case presents the best vehicle by which this Court can reaffirm this

purpose. Not surprisingly though,this case also presents a rare instance where the state

action violates the Establishment Clause regardless of which test is applied.

A.This case presents the best vehicle to reaffirm that

the central inquiry in any Establishment Clause

challenge is to uphold neutral treatment ofreligions.

Again,the central purpose ofthe Establishment Clause is to ensure"governmental

neutrality in matters of religion." Gillette v. United States, 401 U.S. 437, 449 (1971).

Thus, the State must follow "neutral criteria and evenhanded policies" in extending

"benefits" to its citizens. Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819,

839(1995). This is to say that the State "may not aid, foster, or promote one religion

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or religious theory against another or even against the militant opposite." Epperson,

393 U.S. at 104. Likewise, the State may not "place its official stamp of approval" on

religious norms,doctrine,or the like.Lee,505 U.S.at603(1992)(Blackmun,J.,concurring)

(citing Engel v. Vitale,370 U.S.421,429(1962)). Even"subtle departuresfrom neutrality'

are forbidden. Gillette, 401 U.S. at 452. Whenever the State enacts policy affecting the

public, the requirements must be applicable to all religions without any hint that the

State "puts its imprimatur on a particular religion." Lee, 505 U.S. at 606(Blackmun,

J.concurring). Under these principles,the standard ofprooffora § 407(b)(2)enhancement

violates the Establishment Clause.

Here,§ 407(b)(2)creates a zone of protection around places of worship "through

harsher punishmentfor drug traffickers who commitcertain offenses within close proximity

'said places.Falbe,189Ill.2d 635,647(200)Butthe protection is not enforced through

off

"neutral criteria" nor with"evenhanded policies."Rosenberger,515 U.S.at839.The Illinois

Supreme Court held that certain places are shielded from drug trafficking, simply by

virtue oftheir architecture.Pet.App.6a-7a. With § 407(b)(2),the legislature preselected

two types of structures, whereas for other structures the State "may need to provide

additional evidence ... to determine how the particular structure is being used."

Pet. App. 6a-7a.

The departure from neutrality is not subtle; it is blatant. The Illinois Supreme

Court has read a legislative imprimatur on structures with "the iconic, traditional

characteristics" associated with churches and synagogues as places ofreligious worship.

Pet. App. 6a. Conversely, the Illinois Supreme Court said nothing about places with

"iconic,traditional characteristics" ofother religions. Pet. App.6a-7a. Accordingly,for

"an Islamic mosque or Hindu temple, with the `traditional' appearance and signage

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correlated with these structures, the State is required to provide additional evidence

that the building is primarily used for religious worship." Pet. App. 13a-14a.(Burke,

J., dissenting). This resultis at odds with the principle ofneutrality because it"expressly

discriminates against otherwise"vulnerable segments ofour society byimposing a higher

threshold for access to public protection "solely because of their religious character."

Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017).

The standard of proof here amounts to "an unusual and special legislative Act"

conferring special protections"according to religious affiliation." See Grumet,512 U.S.687,

699(1994)(invalidating a state law that created a new school districtfor a single religious

community).Ifthe State cannot"apply a more generouslegal test to secular(recipients]

than religious ones," Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n, 138

S. Ct.1719,1737(2018),it cannot apply a more generous standard ofprooffor one religion

over others. See Larson v. Valente, 456 U.S. 228, 244 (1982)("The clearest command

ofthe Establishment Clause is that one religious denomination cannot be officially preferred

over another.")."That is anything but the neutral treatment of religion." Masterpiece

Cakeshop, Ltd., 138 S. Ct. at 1737.

B.Regardless of which test is applied,the standard of

proof fora § 407(b)(2) enhancement violates the

Establishment Clause.

Justice Breyer hascautioned against applying"tests designed to measure `neutrality'

alone...." Van Orden,545 U.S. at 699(Breyer,J., concurring in thejudgment). He also

found "this Court's other tests"incapable ofexplaining"tolerance"for certain practices

that on their surface suggest Establishment Clause violations. Id. Similarly, Justice

Thomas found that sometimes this Court focuses "on whether a reasonable observer

would think that a government practice endorses religion; other times" it focuses "on

whether [the] practice is supported by ...history and tradition." Rowan County, N.C.,

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138 S.Ct.at 2564(Thomas,J., dissenting).This criticism is because Establishment Clause

challenges often lay in "difficult borderline case[s]." Van Orden,545 U.S. at 700(Breyer,

J., concurring in the judgment). However,this is not such a case; regardless of whether

the endorsement or coercion test is applied, § 407(b)(2) violates the Clause.

Under the endorsement test,the State is precluded"`from conveying or attempting

to convey a message that religion or a particular religious beliefisfavored or preferred."'

County of.Allegheny, 492 U.S. at 593(quoting Wallace, 472 U.S. at 70 (O'Connor, J.

concurring in judgment)).The standard of prooffora § 407(b)(2) enhancement violates

this prohibition in two ways. First, it conveys to nonadherents of Christian or Jewish

faiths that their places of worship are valued less than those of Christian or Jewish'

worshipers.As the dissent noted,"an Islamic mosque or Hindu temple with the `traditional'

appearance and signage correlated with these structures" must still be proven to function

as a place of worship.Pet.App.13a-14a.The Illinois Supreme Court placed a legislative

"stamp ofapproval"on Christian churches and Jewish synagogues as places of worship,

requiring immediate protection without additional evidence. Pet. App. 6a. This is an

endorsement ofreligion because it demonstrates a preference for two particular designs

ofreligious places of worship. See Aguillard,482 U.S. 578,589-94(1987)(invalidating

a law mandating the teaching of creationism if evolution was taught); see also Town

ofGreece,N.Y.,572 U.S.at616(Kagan,J., dissenting)("[O]ur public institutions belong

no less to the Buddhist or Hindu than to the Methodist or Episcopalian... .").

And second,the endorsement has a more subtle effectthatis no less unconstitutional.

Adherents ofsmaller, poorer religious groups or lesser organized churches are notcovered

by the favored status given to "iconic, traditional" churches or synagogues. Adherents

of Catholicism or other such religions with resources capable of obtaining the required

"iconic,traditional characteristics" are entitled toimmediate protection without additional

-17-

evidence. Nonadherents ofthese churches are-given a clear message of"disapproval[for]

their individual religious choices,"in violation ofthe Establishment Clause.See Larson,

456 U.S. at 244(1982)("The clearest command ofthe Establishment Clause is that one

religious denomination cannot be officially preferred over another.").

Under the coercion test,§ 407(b)(2)is unconstitutional because the State has placed

its "power, prestige and financial support ...behind" a particular religious norm. See

Engel, 370 U.S. at 431. "It is beyond dispute that, at a minimum, the Constitution

guarantees that government may not... act in a way which establishes a state religion

or religious faith, or tends to do so." Lee, 505 U.S. at 587. Similarly, the "coercion that

was a hallmark ofhistorical establishments ofreligion was coercion ofreligious orthodoxy

and of financial support by force of law and threat of penalty." Id. at 640 (Scalia, J.,

dissenting).Thus,an Establishment Clause violation would occur where the State's coercive

force "exists in an environment" full "of legal compulsion." Id. at 641-44 (Scalia, J.,

dissenting).

Following the judgment below, the judicial edict is that jurors must accept that

buildings with "iconic,traditional characteristics"ofchurches orsynagogues are places

of worship.Pet. App.8a-9a.Jurors cannot now rely on their personal beliefthat a place

of worship depends on its function or occupancy and are legally compelled to accept the

judicial edict. Pet.App.9a.This"legal compulsion"is precisely the type ofcoercion which

is a "hallmark of historical establishments of religion"that violates the Establishment

Clause. Lee, 505 U.S. at 641-44 (Scalia, J., dissenting).

CONCLUSION

Therefore, this Court should grant a writ of certiorari to review the judgment

of the Illinois Supreme Court.

Respectfully submitted,

Y

EN C~

AR,DC '~+'' ~. 6192852

Deputy Defender

Office of the State Appellate Defender

Fifth Judicial District

909 Water Tower Circle

Mt. Vernon,IL 62864

(618) 244-3466

5thDistrictC~;osad.state.il.us

COUNSEL OF RECORD FOR PETITIONER

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