Amicus Brief — California v. Grace Brethren Church

re

eal

Nos. 81-31, 81-228 and 81-455 [oie kane

me Court, U.S.

r «irtL ED

IN THE FEB 16 1982

Supreme Court of the United i aa

October Term, 1981 | CLERK

CALIFORNIA, et al.,

Appellants,

v.

GRACE BRETHREN CHURCH, et al.,

Appellees.

UNITED STATES, et al.,

Appellants,

v.

GRACE BRETHREN CHURCH, et al.,

Appellees.

GRACE BRETHREN CHURCH, et al.,

Cross-Appellants,

Vv.

UNITED STATES, et al.,

Cross-Appellees.

On Appeals from the United States District Court

for the Central District of California

BRIEF OF THE AMERICAN JEWISH CONGRESS,

AMICUS CURIAE

2

Natuan Z, DersHow1Tz

Attorney for the Amicus Curiae

American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 879-4500

Victoria B, E1cer

Marc D. Stern

Of Counsel

TABLE OF CONTENTS

TABLE OF CONTENTS.....scccccccccsccccecesed

TABLE OF AUTHORITIES......seeeseceeceeeedd

INTEREST OF THE AMICUS....cccececccccesecV

STATEMENT OF THE CASE... .esssscccsceseeel

ARGUMENT... .ccccccccccccccscccccsccssesesel

DISPARATE TREATMENT OF CHURCH

AFFILIATED RELIGIOUS SCHOOLS

AND RELIGIOUS SCHOOLS WITHOUT

CHURCH AFFILIATION VIOLATES

THE RELIGION CLAUSES OF THE

FIRST AMENDMENT

CONCLUSION... ccccsccccccccccccssccccessces dd

Federal once oyment Tax Act,

U.S.C. 9( ( Joocooccehs 3, 20

California Unemployment Ins. Code,

34.5(a) (West Supp. 1981)... ceeeel

Cases

Braunfeld v. Brown,

U.S. Tr dneeecsoonsoessedan

Christian Schools Association

v. Comm., 55 Camm. Ct. 555,

423 A.2d 1340 (Pa. 1980).......15, 17

Faployment. Division v. Archdiocese

Or. App. 4

600 P.2d 926 (1979)... cece. eeeeee22

tmp loynent Division v. Northwest

st cole, 31 Or. App.

201, 570 F.

CAPT TP cevssesesococecéocococescoahe 26

Gillette v. United States,

1 U.S. 437 |) ere |

Heffron v. International Societ

for Krishna Consciousness, Inc.,

101 Ss. +. 2559 (19 Pacoeecoesceoean

Matter of Commnit

v. Bates, 1 N.Y.2d 445, 154

N.Y.S.2d 15, 136 N.E.2d 488

C1956) cccoccccccccccccccecocccccevcda

- iii -

NLRB v. Bis Ford Central

3 F.2d 818

( 80), cert. denied,

101 5. Ct. 1698 TI96L)... 2.0 .++-25, 29

Ritter v. Mt. St. Mary's colds

F. Supp. (D. * a

cescocococccedee 1l

St. Martin Evangelical Lutheran

Church v. South , 101

Ss. ct. 4 ( enecooccoeete 27, 29

Division, S. Ct. (1981)....22

Walz v. Tax Commission, 397 U.S.

aeeeeeebeeeuceceooeseones 32

¥ Life v. Director

9, 176 Cal.

Rptr. 23 (a. Dist., 1981)......-17, 23

Other Authorities

Pfeffer & i

L. A. Stokes, Church &

State in the U.S. 419 (1964).......29

A.I. Schiff, The Jewish Day School

in America ( [Peery - 31

-iv-

Whelan, Church in the Internal

Revenue Code: The Definitional

ems , 45 Fordham L. Rev.

( (LPPTT TOTP TTT TTT TTT 29

Comment , Bringing Christian Schools

Within Scope the

Vnemp Loyment Compensat oe

Laws: Statutory Free Exercise

Issues, 25 Villanova L. Rev. 69

TUPPUAIDS ov ciccccocccctcesseccoctlle 21

- Y=

INTEREST OF THE AMICUS

This brief amicus curiae is

submitted with the consent of the parties

by the American Jewish Congress, a

membership organization of American Jews

founded in 1918 which seeks to protect the

religious, political and economic rights

of Jews and to pramote the principles of

democracy. The AJCongress is cammitted to

the great unitary freedoms secured by the

Establishment and Free Exercise Clauses of

the Constitution. Because this case

presents an important application of those

guarantees, the American Jewish Congress

is filing this brief.

STATEMENT OF THE CASE

A number of California churches,

church-operated schools and independent

religious schools brought suit to

challenge the coverage of their school

employees under the federal-state

unemployment compensation scheme. They

Claimed that the employees of the private

schools which they operated were excluded

from the system under the terms of the

Federal Unemployment Tax Act, 26 U.S.C. §

3309(b)(1) and parallel) state law.*

Section 3309(b) provides, in pertinent

part:

This section shall not apply to

service performed —

(1) in the employ of (A) a

church or convention or association

of churches, or (B) an organization

which is operated primarily for

religious purposes and which is

operated, supervised, controlled or

* Cal. Unemp. Ins. Code § 634.5(a) (West

Supp. 1981).

principally supported by a church

or convention or association of

Alternatively, they claimed that, if their

school employees were covered, that

coverage violated the Establishment and

Free Exercise Clauses of the First

Amendment and the Constitution's Equal

Protection guarantees.

The district court, after

determining that it had jurisdiction of

the case, ruled that schools that were

either part of the corporate structure of

a church (Category I schools) or directly

affiliated with a church (Category II

schools) were excluded fram coverage under

-3-

26 U.S.C. § 3309(b)(1). The court further

held that religious schools which were not

controlled by a church or by a conventim

or association of churches (Category III

schools) were not excluded from coverage

under the terms of the statute and that

their coverage did not violate the Free

Exercise rights of the schools, their

teachers, or the parents of children

attending the schools. The district court

rejected the plaintiffs' claim that the

required record keeping and state

supervision of that record keeping would

amount to excessive entanglement.

The court, however, ruled that the process

of determining entitlement to unemployment

compensation benefits for discharged

employees of those schools would give rise

-4-

to excessive entanglement. Accordingly,

it held that coverage of those schools'

employees was barred by the Constitutiam.

Having so concluded, the district

court found it unnecessary to rule on the

Category III schools' claim that the

extension of unemployment compensation tax

coverage to them arbitrarily discriminated

against religious schools without church

affiliation and in favor of religious

schools controlled and operated, directly

or indirectly, by institutionalized

religious sects or denominations, in

violation of the Equal Protection Clause.

Noting that the evidence demonstrated a

“basic similarity" between the independent

fundamentalist schools and the

church-controlled schools in the case, and

-5-

stating that those schools are “virtually

indistinguishable” in religious mission,

the court concluded:

By classifying schools according to

formal church affiliation, rather

than religious mission and

curriculum content, and by

subjecting non-church-affiliated

schools to a financial burden fran

which church-effiliated schools are

exempt, Congress and the California

legislature have accorded different

treatment to religious organiza-

tions which may well have equal

status under the First Amendment.

These appeals followed. The

federal parties argue on appeal, as they

did below, that the district court erred

in determining that it had jurisdiction of

the case. Nevertheless, they urge this

Court to reach the merits. Further, the

-6-

federal (and state) parties do not contest

the district court's ruling as to the

non-coverage of Category I schools,

recognizing that the correctness of that

ruling was established by this Court's

recent decision in St. Martin Evangelical

Lutheran Church v. South Dakota, 101 S. Ct.

2142 (1981). Nor do they appeal the ruling

holding Category II schools exempt. They,

and the state parties, do argue, however,

that the court below erred in concluding

that the statute's coverage of Category III

schools would result in excessive

church-state entanglement in violation of

the Establishment Clause.

The Category III schools, in their

cross~appeal, argue that the court below

erred in rejecting their Free Exercise

-J-

claims and their claim that, both the

eligibility determination process and

the administrative relationship between

religious schools and the state created by

the statutory scheme results in

unconstitutional entanglement with

religio. They continue to assert their

equal protection claim as well.

The court below ruled in essence

that religious schools that are part of

the corporate structure of a church

(Category I schools) and religious schools

that are directly affiliated with a church

-8-

(Category II schools) are exempted, by

statute, from the unemployment tax scheme.

Those rulings are not challenged here.

The court further held that religious

schools that are not affiliated with a

church (Category III schools) are within

the statute's coverage, but that, because

of excessive entanglement, that coverage

is unconstitutional. That holding is

challenged by the federal and state

parties.

The amicus takes no position on the

question whether the entanglement which

coverage gives rise to violates the

Establishment Clause. The amicus does

urge, however, that inclusion of Category

III schools is unconstitutional, without

regard to issues of excessive

-9-

entanglement, because disparate treatment

of religious schools solely based on their

affiliation or lack of affiliation with a

"church" violates the religion clauses of

the First Amendment. This disparate

treatment issue, not resolved by the court

below, was characterized by that: court as

a question of equal protection. The

amicus believes that both the equal

protection guarantees and the religion

clauses of the Constitution are

implicated, but that the issue is best

resolved by reference to the religim

clauses.

Undoubtedly, not all regulation of

the activities of religious institutions,

or of religious schools, is proscribed by

-10-

the religion clauses of the First

Amendment .

A system of government that makes

itself felt as pervasively as ours

could hardly be expected never to

cross paths with the church ...

[OJur State and Federal Governments

impose certain burdens upon, and

impart certain benefits to,

virtually all our activities, and

religious activity is not an

exception.

Roemer v. Board of Public Works, 426 U.S.

736, 745 (1976).

At the same time, the Free Exercise

and Establishment Clauses do operate to

place limits on the scope and nature of

state regulation of religious activities.

Under those clauses, "a hermetic

separation" of church and state may not be

required, id. at 746, but "scrupulous

neutrality by the State as among

-li-

religions" is, id. at 745.

Just as reasonable time, place, and

manner restrictions which serve

significant governmental interests and

which apply in an “even-handed,"

non-discriminatory fashion "to all alike"

may not offend the free speech guarantees

of the First Amendment, see Heffron v.

International Society for Krishna

Consciousness, Inc., 101 S. Ct. 2559

(1981), even-handed, non-discriminatory

regulation of certain operational aspects

of religious schools may, under some

circumstances, exist without offense to

the religion clauses. Conversely,

statutory obligations affecting the

-]2-

activities of religious schools which are

not evenhanded, which do not apply to all

alike, and which are discriminatory either

on their face or as applied are

forbidden.

This neutrality principle lies at

the very core of the First Amendment's

religious guarantees. "[RJeligious

gerrymanders," a clear violation of the

neutrality rule, cannot be tolerated.

Walz v. Tax Commission, 397 U.S. 664, 696

(1970) (opinion of Harlan, J.); Gillette

v. United States, 401 U.S. 437 (1971).

Quite simply, "[i]f the purpose or effect

of a law... is to discriminate

invidiously between religions, that law is

constitutionally invalid ...." Braunfeld

v. Brown, 366 U.S. 599, 607 (1961). The

-]3-

unemployment compensation law, as

construed, does just that.

The federal government concedes, as

it surely must, that the statute, as

construed, results in the disparate

treatment of Category III schools and

church-affiliated schools. Addressing the

issue as if it were merely one of equal

protection, it argues that that disparate

treatment is constitutional because there

is a rational basis for the statutory

classification.

The amicus contends that the

rational bases urged by the government in

support of the classificatio are

insufficient to save the statute. They

are not rational and, in any event, where

sensitive First Amendment rights are

-14-

concerned mere rationality is not enough.

More importantly, the distinctios

proposed by the government are truly

distinctions without a difference.

Separately incorporated Christian

schools, like those of plaintiffs here,

are no less religious in their beliefs,

teachings, practices, or operations, and

are no less an integral part of the

religious mission of the Christian faith,

than their church-affiliated counterparts.

See Cament, Bringing Christian Schools

Within the Scope of the Unemployment

Compensation Laws: Statutory and Free

Exercise Issues, 25 Villanova L. Rev. 64,

94 & n.201 (1979-80). By imposing

unemployment compensation obligations om

the first category of schools and not on

the second, the government has

discriminated impermissibly against the

former. Christian School Ass'n v. Cam.,

55 Camm. Ct. 555, 423 A.2d 1340 (Pa.

1980).

The government claims that the

legislative classification is rational and

has hypothesized several grounds which

purportedly justify it:

First, church-run schools are more

likely to have a strong and

specific religious orientation than

interdenominational schools or

those established and run by laity.

Second, the risk of

church-political entanglement is

greater when church-controlled

schools are involved. See Leman v.

=16-

Rurtaman, Supra 403 U.S. at

622-623; ttee for Public

Education and Religious Liberty v.

Nyquist, 413 U.S. 756, 794-798

(1973). Third, there is a greater

likelihood that employees of

church-controlled schools will be

provided with nam-governmental

assistance, through church relief

programs, for economic hardships

caused by unemployment. Finally,

the distinction is practical to

administer. It is relatively easy

to determine whether a particular

school is church-controlled, but may

be very difficult to determine

whether it is sufficiently

"religious" to qualify for exemptiom

as a Category III school.

None of these distinctions is valid.

First, there is no factual support

for the government's claim that church-run

schools are more likely to have a strong

religious mission than no-church

affiliated religious schools. Indeed, the

findings of the court below are to the

-]17-

contrary; the district judce found as a

fact that the schools are "virtually

indistinguishable" in religious missim.

Accord, Christian School Ass'n v. Com.,

supra, 55 Comm. Ct. at —_s,_ 423 A.2d at

1346-47.

As to the government's second

contention -- that the risk of

church-political entanglement is greater

when church-controlled schools are

involved — the proposition is true only

so long as the word "church" in the phrase

"“church-political entanglement" is read

narrowly to mean denomination or sect.

When "church" is read broadly to mean an

institution which carries out religious

functions, as it must, see, e.g., Young

-18-

Life Campaign v. Director, 122 Cal. App. 3d

559, 176 Cal. Rptr. 23 (3d Dist. 1981) the

government's claim is nonsensical .*

The government's third ground for

distinguishing between Category III and

church-affiliated schools is equally

flawed. The assertion that there is a

greater chance that employees of the

latter will be provided with

* The government may be suggesting that

the risk of political divisiveness along

religious lines is most acute when

church-controlled groups are involved; its

citations to Lemon and Nyquist support

this reading. To the extent that the

government is asserting that

non-affiliated religious schools have less

political clout or a smaller constituency

than the affiliated schools, the ground is

-]9-

nom-governmental assistance, "through church

relief programs," for economic hardship

incident to unemployment appears to be sheer

ipse dixit. Amicus knows of no data, and

the government cites none, which tend to

support that statement.

(con't)

patently invalid as a justification for

upholding the legislative classification.

Discrimination against the politically

powerless is less tolerable because it is

not likely to be corrected by the democratic

process, though it is surely more likely

than discrimination against the powerful.

Moreover, given the recent growth of

Christian schools — both church-affiliated

and independent - the government may be

seriously underestimating the political

strength of, and popular loyalty towards,

the non-affiliated schools.

Finally, the government's claim that

the statutory distinction is "practical to

administer" because it is easier to

determine whether a particular school is

church-controlled than whether it is

sufficiently religious to qualify for

exemption surely cannot save the

legislative classification. First, of

course, in order to qualify for exemptim

under Section 3309(b)(1)(B) a school must

demonstrate not only that it is operated,

supervised, controlled or principally

-21-

supported by a church or ... association

of churches", but also that it is

"operated primarily for religious

purposes." Thus, whether a particular

school is operated primarily for religious

purposes — the "more difficult" question

-- must be determined anyway in

ascertaining entitlement to exemption of

Category II schools. That inquiry is no

different with respect to Category II and

Category III schools.

In any event, we believe the

government is wrong in characterizing the

question of control as an easy one. In

some cases, it may be relatively simple to

ascertain whether a school is affiliated

with a church or whether it is not. See,

e.g., Employment Division v. Northwest

Christian College, 31 Or. App. 201, 570

P.2d 100 (1977); Employment Division v.

Archdiocese of Portland, 42 Or. App. 421,

600 P.2d 926 (1979). But the easy cases

are limited to those where "church" is

defined narrowly and in terms of

traditional preconceptions about

religion. This Court has recently written

that "[t]he determination of what is a

religious belief or practice is more often

than not a difficult and delicate task."

Thomas v. Review Board of the Indiana

Employment Security Division, 101 S. Ct.

1425, 1430 (1981). The determination of

what is a "church" is an equally sensitive

-23-

task. See generally, Young Life Campaign

v. Director of Employment, supra.

(Christian youth organization with no

official connection with any

denominational church body, which declined

to hold itself out as a church because

those whom it sought to reach reacted

negatively to traditional churches, which

used clergy ordained by traditional

churches, and which encouraged affiliation

with traditional churches was nonetheless

a church within the meaning of Cal. Unemp.

Ins. Code §634.5). See also Whelan,

-24-

Church in the Internal Revenue Code: The

Definitional Problems, 45 Fordham L. Rev.

885 (1977) [hereinafter Definitional

Problems] .*

* Indeed, the First Amendment may well

require that nm-affiliated sectarian

schools themselves be regarded as

"churches."

It could be argued that ... parents

who own, control, and principally

support e church constitute a

church. While the parents involved

in Christian schools may not all be

members of the same local

congregation of worshippers, they

tend to share common religious

goals and ideals, meet regularly,

and engage corporately in worship

and other religious activities.

Bringing Christian Schools Within the

Scope of the Unemployment Campensation

Laws, supra, at 94, n.198.

-25-

Even where traditional churches are

involved, given the variety of ways in

which church-affiliated religious schools

are organized and operated, a function of

the myriad ways in which different

churches, synagogues and congregations are

themselves organized, the question of

"control" is not necessarily an easy me.

Indeed, where religious organizations are

concerned, true "control" may be more a

matter of moral suasion and tradition,

than a function of corporate, legal

controls or financial strings. Cf. NIRB_

v. Bishop Ford Central High School, 623

F.2d 818, 824 (2d Cir. 1980), cert. denied,

101 S. Ct. 1698 (1981) (separately

incorporated Raman Catholic high school not

subject to jurisdiction of NLRB; "The

position of the Board that Ford Central is

-26-

a legal entity ‘separate and distinct from

the Church’ is ... irrelevant and in any

event not accurate. Ford Central is only

conditionally separated fram the diocese

and the condition imposed is continuing

allegiance and loyalty to the Church");

Employment Div. v. Northwest Christian

College, supra (theology school with

independent »oard under control of

Church); Ritter v. Mt. St. Mary's College,

495 F.Supp. 724 (D.Ma. 1980) ( independent

Catholic college).

But even if the government's

contentions were logical and factually

supportable, the fact remains that,

precisely because there is a "great

diversity in church structure and

=27=

organization among religious groups in

this country,” St. Martin Evangelical

Lutheran Church v. South Dakota, supra,

101 S. Ct. at 2142, n.12, the statutory

classification necessarily operates

capriciously and discriminatorily on the

basis of the beliefs and resulting

organizational structures of the various

religions.

.+.+ American churches have diverse,

complex and confused structures.

They are more like molecules than

atoms. Moreover, each church has a

double structure: one internal, in

its own ecclesiastical law, and the

other external, in American civil law.

In their own ecclesiastical law,

some of the American churches are

congregational in structure; others

are hierarchical ...

-28-

In the congregational churches, the

faith and internal religious law of

the denominations make each local

congregation autonomous. The

coordination of the various congre-

gations' activities is a matter of

voluntary agreement or "covenant."

Each local congregation is usually

a separate civil law corporation or

trust. The local congregations

establish still other civil law

corporations or trusts to carry m

the activities, such as the

maintenance of a seminary or the

propagation of the faith at home or

abroad, that they have agreed co

carry on in common ....

In the hierarchical churches ...

the faith and internal religious

law create a single church

authority with jurisdiction over

all the members and branches of the

church. Local congregations are

divisions, not autonomous units ...

Regardless of their congregational

and hierarchical structure, all of

the American churches employ a

multitude of civil law corporations

and trusts to carry on their

functions of worship, preaching,

educating, healing and otherwise

caring for the spiritual and

corporal needs of their own members

and of the general public. The

-29-

churches have created uncounted

thousands of civil law corpora-

tions and trusts for a variety of

legal, historical and

ecclesiastical reasons.

Definitional Problems, supra, at 903-4.

Given the structure of the Catholic

Church, most Catholic parochial schools

will undoubtedly be exempt from the

unemployment compensation scheme as it

stands. But cf. NLRB v. Bishop Ford

Central Catholic High School, supra. The

same may be true for the Lutheran schools

of this nation. See L. Pfeffer & A.

Stokes, Church & State in the U. S. 419

(1964); St. Martin Evangelical Lutheran

Church v. South Dakota, supra.

In contrast, most, but not all,

Jewish schools would be subject to the

unemployment laws, for the typical Jewish

day school is conducted under non-congre-

gational auspices.

-30-

In 1962, 86.3 percent of [such]

schools outside New York were nm-

congregational; 11.7 percent were

congregational; and 20 percent were

inter-congregational. In Greater

New York about 85 percent of the

schools are non-congregaticnal.

A. I. Schiff, The Jewish Day School in

America 100 (1966).

At least where the Jewish schools

are concerned, coverage or nam-coverage

will be particularly capricious since,

whether an individual religious school is

affiliated with a particular synagogue or

congregation or group of synagogues or

congregations, or whether it exists

without any such affiliation is largely a

matter of historical accident. An

individual school's corporate identity and

formal relationship with a synagogue or

-3l1-

association of synagogues is a function of

such factors as the personality and

affiliation of its founders, financial or

funding considerations, and space

availability. It has little or nothing to

do with the religious nature or function

of the schools. See generally, A. Schiff,

supra, passim (describing founding and

development of particular Jewish day

schools). Indeed, it is not unusual for

individual orthodox Jewish schools to have

spun off their own congregations (i.e.,

Synagogues). Under these circumstances,

the distinction between affiliated and

non-affiliated schools is truly

meaningless.

-32-

Religious groups "maintain schools

that plainly tend to assure future

adherents to a particular faith by having

control of their total education at an

early age. No religious body would deny

this is an affirmative if not dominant

policy of church schools." Walz v. Tax

Commission, 397 U.S. 664, 671 (1970).

That being the case, the distinction

between churches and church-related

schools is ultimately an unworkable and a

non~-productive one. "A church is more

than merely an edifice affording peopie

the opportunity to worship God." Matter

of Commmnity Synagogue v. Bates, 1 N.Y. 2d

445, 453, 154.N.Y.S. 2d 15,21,136 N.E. 2d

488, 493 (1956). Rather, it is a

community of persons carrying out a

-33-

perceived religious mission through a

variety of ministries, often including

educational ones.

Likewise, the distinction between

church-related religious schools and

non-affiliated religious schools is an

untenable one. Both are, in fact,

constitutionally indistinguishable fran

"churches" — both are indeed "churches"

— so both must be treated alike.

Disparate treatment is necessarily

irrational, arbitrary and capricious.

Because the statute's classifications

result in different treatment of religious

organizations which have “equal status"

under the Firt Amendment, the statute is

constitutionally infirm.

-34-

CONCLUS TON

For the reasons stated, this Court

should hold that neither the federal nor

state governments may distinguish, for

purpose of unemployment insurance

coverage, between those religious schools

which are church affiliated and those

which are not.

NATHAN Z. DERSHOWITZ

Attorney for the Amicus

Cur

— Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 879-4500

VICTORIA B. EIGER

MARC D. STERN

Of Counsel

February 1982