Amicus Brief — Icicle Seafoods, Inc. v. Worthington

OCTOBER TERM, 1982

No. 82-195

MUELLER, et al.,

Petitioners

VS.

ALLEN, et al.,

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURTAE

AND BRIEF AMICUS CURIAE

OF THE BAPTIST JOINT COMMITTEE

ON PUBLIC AFFAIRS

JOHN W. BAKER

200 Maryland Ave.,N.E.

Washington, D.C. 20002

(202) 544-4226

Attorney for Amicus Curtae

rae” Se eee, Oe ee

cae ae Ae

3u the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-195

MUELLER, et al.,

Petitioners

vs.

ALLEN, et al.,

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ESGHTH CIRCUIT

MOTION FOR LEAVE TO FILE BRIEF

AMICUS CURIAE

The Baptist Joirt Committee on Public

Affairs respectfully moves this Court,

pursuant to Rule 36.3 of its Rules, for

leave to file the accompanying brief

amicus curiae in support of petitioners

in Mueller v. Allen, No. 82-195.

II

The consent of the parties to the

filing of the attached brief has been

sought by the moving party. Petitioners’

attorney did not respond to a request for

permission to file; respondents, as a

matter of policy, withheld their

consent. Amicus, accordingly, proceeds

under Rule 36.3.

The Baptist Joint Committee on Public

Affairs is composed of representatives

elected by eight national cooperating

Baptist conventions and conferences in

the United States. They are: American

Baptist Churches in the U.S.A.; Baptist

General Conference; National Baptist

Convention of America; National Baptist

Convention, U.S.A., Inc.; North American

Baptist Conference; Progressive National

Baptist Convention, Inc.; Seventh Day

Baptist General Conference; and Southern

Baptist Convention.

The Committee, in part, seeks to

III

apply the traditional Baptist concerns

for religious liberty and proper church-

state relations to public affairs. It is

the position of amicus that important

elements of the establishment clause of

the First Amendment are at risk in the

case at bar and that Baptist insights

will not be presented to the Court unless

this brief amicus curiae is considered by

this Court.

Therefore, amicus prays this Court

grant this motion and consider its

accompanying brief which gives the bases

and arguments’ for its support of

petitioners' position.

Respectfully submitted,

John W. Baker

200 Maryland Avenue, N.E.

Washington, D.C. 20002

Attorney for Amicus Curiae

i

QUESTION PRESENTED

May the State of Minnesota permit

$500.00 and $700.00 income tax deductions

for parents who pay tuition to elementary

and secondary schools when the benefits

flow overwhelmingly to parents who send

their children to sectarian nonpublic

schools without offending the "no

establishment" clause of the First

Amendment?

iii

TABLE OF CONTENTS

Page

Question i.

Table of gE Vv

Zatecess GE CRO Bemba. ccccecccceccese Sb

Constitutional and Statutory Provi-

sions BGs coecesseeceeeceeses

GuesStseR HSSSSRMBSSc cocccccoceedooceses

Statement of the 0

Summary of ALGUMOENE .ccccccccccccccccce

ss. of & @

ALTGUMONE co cccccccccececcecececccceeeoes

1. Minnesota Statutes §290.09

Subd. 22 does not reflect a

secular primary purpose and,

therefore, does not meet the

first test of constitutionality

outlined by this Court.........++- 10

2. Minnesota Statutes §290.09

Subd. 22 does not satisfy the

"primary effect" test......eseee++ 13

3. Minnesota Statutes §290.09

Subd. 22 engenders excessive

entanglement between government

ANG TeLIGION...ccceceeseesecsecees 16

4. Minnesota Statutes §290.09

Subd. 22, by providing indirect

public financial assistance to

sectarian elementary and second-

ary schools, involves the State

in a form of compulsory religion.. 24

iv

Table of Contents -- Continued Page

Dn coecceseeeeeeeeeeooeoeeeses 27

Certificate of Service.....sceceeseeeses 28

v

TABLE OF AUTHORITIES

CASES: Page

Board of Education v. Allen, 392

U.S. 236 TD eceessesoeeeoeoeses

Cantwell v. Connecticut, 310 U.S.

296 See eobecoeoesoboooooeeoooese

Committee for Public Education and

peligious piberty Vv. Nyquist,

* . Bpcceceecoece 13,

DiCenso v. Robinson, 403 U.S. 602

errr TTTTyT TTT.

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

Essex v. Wolman, 342 F.Supp. 399

S.D. Ohio 1972), aff'd, 409

U.S. 808 C2972) cocccces 9, 16, 17,

19, 20,

Everson v. Board of Education, 330

U.S. 1 (agree cena em rl

Kosydar v. Wolman, 353 F.Supp. 744

(S.D. Ohio 1972), aff'd sub nom

Grit v. Wolman, 413 U.S. 901

+ fp) PFPPPPTTTTrrrrrre+rrrrrrrrrrre

Lemon v. Kurtzman, 403 U.S. 602

TAOT ED coccccoccces 10, 13, 16, 19,

N.L.R.B. v. The Catholic Bier of

Chicago, . . s*eneeee

School District of Apingten Township

Vv. Cc Pp, eDe

(19 eee eeneeeeeeeeeeeeeneeetreane 9,

15

18

22

14

vi

Table of Authorities -- Continued Page

Walz v. Tax Commission, 397 U.S.

664 (1970)..... saeeccceseceecs 16, 22

STATUTES :

Minnesota Statutes §290.09

Subd. 22..cccccees eeeeeeeeeeese PASSim

CONSTITUTIONS :

United States Constitution

Amendment I.....eeeeeeeeeeeees passim

United States Constitution

Amendment rrr TT TTT 2, 3, 5

OTHER AUTHORITIES:

Jefferson, Thomas, Virginia Statute

of Religious Liberty, 1786....-+2. 25

O'Toole, Christopher, Fr., "Why

Catholic Schools?" National

Catholic Register, August 6,

, Pp. *enrineeneeneneneeneneeneneeeeeneeee 8

Williams, Roger, The Bloudy Tenent

of Persecution, 1644.......seseee+ 24

3n the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-195

MUELLER, et al.,

Petitioners

vs.

ALLEN, et al.,

Respondents

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EFGHTH CIRCUIT

BRIEF OF THE BAPTIST JOINT COMMITTEE

ON PUBLIC AFFAIRS AS AMICUS CURIAE

INTEREST OF THE AMICUS CURIAE

The Baptist Joint Committee on Public

Affairs consists of representatives

elected by each of eight cooperating

Baptist conventions in the United States:

American Baptist Churches in the U.S.A.;

2

Baptist General Conference; National

Baptist Convention of America; National

Baptist Convention, U.S.A., Inc.; North

American Baptist Conference; Progressive

National Baptist Convention, Inc.;

Seventh Day Baptist General Conference;

and Southern Baptist Convention. These

Baptist groups have nearly 30 million

members and reflect the traditional

Baptist concern for proper church-state

relations. The Baptist Joint Committee

has as one of its mandates the obligation

to respond ". . . whenever Baptist

principles are involved in, or are

jeopardized through, governmental action.

+ « +” Among Baptists, religious liberty

is a fundamental and sacred principle.

Religious liberty is also a fundamental

legal right protected by the First and

Fourteenth Amendments to the Constitution

of the United States. It is the opinion

of the Baptist Joint Committee on Public

3

Affairs that the principle of religious

liberty and the strictures of the First

Amendment have been infringed by §290.09,

Subd. 22 of the Minnesota Statutes and by

the decision of the United States Court

of Appeals for the Eighth Circuit in

Mueller v. Allen, _—_—s F.2G sé (1982),

which is now before this Court on a writ

of certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

U.S. Constitution, Amendment I:

Congress shall make no law

respecting an establishment of

religion, or prohibiting the free

exercise thereof; or abridging the

freedom of speech, or of the

press; or the right of the people

peaceably to assemble, and to pe-

tition the Government for a

redress of grievances.

U.S. Constitution, Amendment XIV, in

part:

+ « « hor shall any State deprive

any person of life, liberty, or

property, without due process of

4

law; nor deny to any person within

its jurisdiction the equal protec-

tion of the laws.

Minnesota Statutes §290.09 Subd. 22:

Subd. 22. Tuition and transporta-

tion expense. The amount he has

paid to others, not to exceed $500

for each dependent in grades K to

6 and $700 for each dependent in

grades 7 to 12, for tuition, text-

books and transportation of each

dependent in attending an elemen-

tary or secondary school situated

in Minnesota, North Dakota, South

Dakota, Iowa, or Wisconsin, where-

in a resident of this state may

legally fulfill the state's com-

pulsory attendance laws, which is

not operated for profit, and which

adheres to the provisions of the

Civil Rights Act of 1964 and chap-

ter 363. As used in this subdivi-

sion, “textbooks” shall mean and

include books and other instruc-

tional materials and equipment

used in elementary and secondary

schools in teaching only those

subjects legally and commonly

taught in public elementary and

secondary schools in this state

and shall not include instruction-

al books and materials used in the

teaching of religious tenets, doc-

trines or worship, the purpose of

which is to inculcate such tenets,

doctrines or worship, nor shall it

include such books or materials

for, or transportation to, extra-

curricular activities including

sporting events, musical or dra-

matic events, speech activities,

5

driver's education, or programs of

a similar nature.

QUESTION PRESENTED

The decision below raises a fundamen-

tal question about the meaning of the

clause in the First Amendment: “Congress

shall make no law respecting an estab-

lishment of religion . .. .-" That

clause was made applicable to the states

by the Fourteenth Amendment. Cantwell v.

Connecticut, 310 U.S. 296 (1940). The

question raised is: Did the U.S. Court

of Appeals for the Eighth Circuit err in

affirming the constitutionality of Minne-

sota Statutes §290.09 Subd. 22 which pro-

vides state income tax deductions to par-

ents of children in elementary and secon-

dary schools when an overwhelming propor-

tion of such tax benefits flows to par-

ents of children in sectarian nonpublic

schools?

STATEMENT OF THE CASE

The facts of this case are clearly

and fully stated in Petitioners' Brief on

the Merits. Amicus has nothing to add to

the facts as stated so, in the interest

of brevity, will adopt that statement as

its own.

SUMMARY OF ARGUMENT

The argument may be briefly summariz-

ed as follows:

1. The Minnesota Legislature, in

passing what is now Minnesota Statutes

§290.09 Subd. 22, knew or should have

known that the tax relief granted would

largely flow to parents of children

enrolled in sectarian elementary and

secondary schools and, for that reason,

4

its action did not reflect a secular

primary purpose.

2. Minnesota Statutes §290.09 Subd.

22 has the primary or principal effect of

advancing religion.

3. Minnesota Statutes §290.09 Subd.

22 results in an excessive entanglement

of the state with religion both adminis-

tratively and through the creation of

political divisiveness along sectarian

lines.

4. The tax deduction provision of

Minnesota Statutes §290.09 Subd. 22, by

providing public financial assistance to

sectarian parochial schools, constitutes

state involvement in compulsory religion.

ARGUMENT

Religious groups operate and control

elementary and secondary schools --

usually on aé_ financially sacrificial

8

basis -- for purely religious reasons.

In an article, “Why Catholic Schools?",

Father Christopher O'Toole, C.S.C.,

stated:

The purpose of the _ parochial

school is to permeate with the

Faith and the spirit of the

Gospels the total educative pro-

cess. In a parochial school the

teaching of religion, for example,

is not simply just another subject

to be learned and which is not

taught in the public schools. No,

the entire curriculum is to move

forward in an atmosphere of faith

in order to produce a pupil who

knows, at least in an elementary

way, how to relate all knowledge

to its ultimate source--God

himself. National Catholic

Register, August 6, 1972.

This religious reason for being was

noted by this Court in N.L.R.B. v. The

Catholic Bishop of Chicago , 440 U.S. 490

(1979). Father O'Toole's description of

the religious permeation of the curricu-

lum of Catholic parochial schools also

describes the religious permeation of the

curriculum of most Protestant schools --

many of which came into existence in part

9

as a result of the so-called prayer and

Bible decisions of this Court. Engel v.

Vitale, 370 U.S. 421 (1962); School

District of Abington Township v. Schempp,

374 U.S. 203 (1963). The court in Essex

v. Wolman, 342 F.Supp. 399 (S.D. Ohio

1972), aff'd, 409 U.S. 808 (1972) stated:

The basic purpose of denomina-

tional education is to foster and

maintain the teachings of a denom-

inational religion. The religious

aspect of the curriculum must be

the principal and dominant reason

for the existence of such schools.

This Court has declared, in numerous

cases, that the establishment clause of

the First Amendment forbids the state

either directly or indirectly to support

or advance religion. Petitioner has doc-

umented that of the Minnesota children

attending tuition charging nonpublic

schools in the 1979-1980 school year

95.44% attended schools considering them-

selves sectarian. For the 1978-1979

school year the figure was 96.29%. In

10

that year the parents of the 820,000 stu-

dents in both public and nonsectarian

private schools claimed $5.2 million in

deductions, an average of $6.35 per pu-

pil, while the parents of the approxi-

mately 85,000 students in sectarian non-

public schools deducted a total of ap-

proximately $12.57 million for an average

deduction of $147.81 per pupil. This

represents a ratio of 1:23. It is thus

evident that the overwhelming proportion

of state financial assistance flows to

parents of students in sectarian nonpub-

lic schools.

1. Minnesota Statutes §290.09 Subd.

22 does not reflect a secular primary

purpose and, therefore, does not meet the

first test of constitutionality outlined

by this Court in Lemon v. Kurtzman, 403

U.S. 602 (1971).

The difficulty of demonstrating that

a legislative body has other than a secu-

lar legislative purpose when it passes

acts dealing with education in church-

ll

operated and church-controlled elementary

and secondary schools without maintaining

a detailed, accurate legislative history

is granted. It is further granted that,

generally, legislative bodies make their

own determinations on the issue of con-

stitutionality of their acts and that the

courts should usually assume prima facie

constitutionality. However, Minnesota

Statutes §290.09 Subd. 22 must be consid-

ered an exception to the rule.

The Minnesota statute in question is

yet another in a long series of attempts

by state legislatures, under tremendous

pressures from sectarian lobbies, to as-

sist financially hard pressed sectarian

schools and avoid this Court's establish-

ment clause tests.

In tort law it is assumed that a per-

son intends the foreseeable results of

his action. In this case it becomes

evident that the legislators were able

12

clearly to foresee the results of their

action. It is, therefore, logical to

assume that in this non-tort situation

the legislators intended -- i.e. purposed

-- those results.

The legislature could not have been

oblivious to the fact that, with few ex-

ceptions, public elementary and secondary

schools do not charge tuition. It is

equally obvious that the elementary and

secondary schools which do charge tuition

are primarily nonpublic and that those

nonpublic schools are overwhelmingly sec-

tarian. The making of an inclusive class

of all parents of children enrolled in

elementary and secondary schools becomes

a farce and a subterfuge when one knows,

as the legislators did, that almost all

of those who would be able to profit from

a tax deduction under §290.09 Subd. 22

would be parents of children enrolled in

nonpublic sectarian schools.

13

Such transparent actions of a state

legislature cannot stand up to the close

judicial scrutiny required by the First

Amendment religion clauses. Whatever the

stated purpose, the evident purpose of

the Minnesota legislature was to make

indirect financial aid available to a

predominately sectarian group of elemen-

tary and secondary schools. That evident

purpose renders §290.09 Subd. 22 uncon-

stitutional. See Committee for Public

Education and Religious Liberty v.

Nyguist, 413 U.S. 756, 780 (1973).

2. Minnesota Statutes §290.09 Subd.

22 does not satisfy the “primary effect"

test also described in Lemon v. Kurtzman,

Supra.

The purpose which the Minnesota leg-

islature evidenced resulted in indirect

public financial aid to a class of

schools which is predominately sectar-

ian. As such, the tax deductions

provided serve to advance religion.

14

Because this is the principal or primary

effect of §290.09 Subd. 22, it is a clear

violation of the establishment clause.

The class of schools which charge

tuition and to which a taxpayer must pay

tuition in order to claim a tax deuuction

is overwhelmingly sectarian, the instruc-

tion in those sectarian schools is im-

pregnated with sectarian religion, and

the tax deduction is based on tuition

already paid. Parents of children in

predominantly sectarian schools are re-

warded by preferential tax treatment for

the sole reason that they have paid tui-

tion to a largely suspect class of non-

public institutions. This can only have

the principal or primary effect of aiding

religion. To claim that indirect aid is

not aid is specious reasoning and is con-

trary to the holdings of this Court.

{I}t is the use to which

public funds are put that is con-

trolling. .. . What may not be

15

do directly may not be done in-

ne

directl lest the Establishment

Clause as a mockery. Tempha-

Sis added] Abington v. Schempp,

Supra, at 230 (Beuglas, J., con-

curring).

It is correct that this Court did

permit aid to parents and students in

Everson v. Board of Education, 330 U.S. l

(1947) and Board of Education v. Allen,

392 U.S. 236 (1968), but in these cases

the class of students was broad and the

aid provided -- transportation and state-

approved textbooks -- was ideologically

neutral. In the case at bar the opposite

prevails. The class is predominantly

sectarian and the aid -- tuition assis-

tance -- is not ideologically neutral.

The effect, therefore, is an affront to

the establishment clause and cannot

stand.

The prohibition against establish-

ment of religion cannot be circum-

vented by a subsidy, bonus or re-

imbursement of expense to individ-

uals for receiving religious

instruction and _ indoctrination.

16

Everson supra at 24 (Jackson

Jee dissenting) . ;

3. Minnesota Statutes §290.09 Subd.

22 engenders excessive entanglement be-

tween government and religion.

This Court enunciated the doctrine of

excessive entanglement of government with

religion in Walz v. Tax Commission, 397

U.S. 664 at 674 (1970), to set some stan-

dards for constitutionally permissible

church-state interactions under the es-

tablishment clause. The doctrine was

elaborated in Lemon v. Kurtzman, supra,

as was the distinction between adminis-

trative and political entanglement. Ei-

ther excessive administrative or politi-

cal entanglement between the state and

religion will render a statute unconsti-

tutional. This Court in Essex v. Wolman,

supra, and Committee for Public Education

and Religious Liberty v. Nyquist, supra,

further emphasized the constitutional

necessity to avoid excessive entanglement

17

of government with religion. Section

290.09 Subd. 22 provides indirect public

financial assistance to sectarian elemen-

tary and secondary schools. Financial

assistance of this type must result in

excessive entanglement of government with

religion.

Essex v. Wolman, supra, stated that

the criteria for determining administra-

tive entanglement as a result of aid giv-

en to religious schools are: (1) the use

to which the aid is put, (2) the form in

which the aid is provided, (3) the person

or institutions to which the aid is di-

rected, and (4) the extent to which the

state must intervene to determine that

the aid is spent constitutionally -- i.e.

for secular purposes.

We have shown that tax deductions

were largely provided to parents of chil-

dren in sectarian schools -- which

overwhelmingly dominate tuition charging

18

schools in Minnesota -- and were tied to

tuition actually paid to them. The aid

was given in the form of tax deductions

which appear to be almost identical with

the type of indirect aid to sectarian

elementary and secondary schools declared

unconstitutional by a three judge court

in Kosydar v. Wolman, 353 F.Supp. 744

(S.D. Ohio 1972), aff'd sub nom Grit v.

Wolman, 413 U.S. 901 (1973). This Court

has held that the use of a conduit to

provide indirect financial assistance

does not cure the constitutional defects

of such assistance. Essex v. Wolman,

Supra. The first three Essex criteria

for determining excessive administrative

entanglement, when applied to Minnesota

Statutes §290.09 Subd. 22, show that this

Section does produce excessive adminis-

trative entanglement.

On its surface §290.09 Subd. 22

provides for less direct state

19

administrative intervention in sectarian

elementary and secondary schools than

have previously invalidated attempts to

aid such schools. However, if public

financial assistance is given either di-

rectly or indirectly for any purpose, it

is axiomatic that those who supply the

aid and those who receive it must be held

accountable. Basic canons of public pol-

icy and responsibility are involved.

It is this fourth Essex criteria for

excessive administrative entanglement

which presents the legislatures with a

dilemma from which they will find it dif-

ficult to extricate themselves either

legally or logically. In Lemon v.

Kurtzman, supra, and DiCenso v. Robinson,

403 U.S. 602 (1971), it was held that the

administrative rules established were

such that the government was excessively

entangled with religion. Ohio's

legislature then passed a tuition

20

reimbursement act which is analogous to

the act challenged in this case. In Ohio

a portion of tuition paid to an almost

identical class of schools was returned

to parents who had children enrolled in

those schools. No restrictions were set

by the state to guarantee that the reim-

bursed tuition money would be spent for

non-religious purposes. This lack of

administrative control was held to be a

defect by a three judge court in Essex v.

Wolman, supra:

The parent has voluntarily under-

taken an obligation to pay tuition

to a non-public school and the

school in return has agreed to

educate that child in an atmo-

sphere oriented, if not dominated,

by the teachings of a specific

religion. At the end of the

transaction, the parent has

applied for and received reim-

bursement from the State .. .

solely and specifically because he

has paid that sum to the denomina-

tional school. .. . Since the

parents in this scheme serve as

mere conduits of public Funds, the

Stat tains a respons °

a e ¢ moneys

thus prov a ch_ retain

21

their blic character throughout

the transaction, are used for con-

stitutionall rmisSible ends and

continue to = so used. [emphasis

added].

Thus, statutes providing financial

assistance to sectarian elementary and

secondary schools that are drafted to

prevent administrative entanglement are

in themselves constitutionally defective

because they do not then incorporate suf-

ficient administrative controls to insure

that the assistance is used for strictly

secular purposes.

+ « «+ amy general purpose aid,

lacking non-entangling'§ restric-

tions on use, constitutes an

almost r se violation of the

Betebiis ent Clause. Id., at fn.

Section 290.09 Subd. 22, we submit, is

defective in this sense also.

Minnesota Statutes §290.09 Subd. 22

fails to satisfy the established criteria

for avoiding excessive administrative

entanglement; the pclitical entanglement

22

which this section of the code generates

is an additional defect.

In a separate concurring opinion in

Walz v. Tax Commission, supra, Justice

Harlan emphasized that the Court must

look closely at legislation challenged as

giving rise to excessive entanglement

between government and religion to see if

that legislation avoids the "risk of po-

liticizing religion” and “political frag-

mentation on sectarian lines." 397 U.S.

at 695.

In Lemon v. Kurtzman, supra, the

Court, in addressing itself to the exces-

sive entanglement caused by political

division along religious lines said that

though ordinarily

+ « « political debate and divi-

sion, however vigorous or even

partisan, are normal and healthy

manifestations of our democratic

system of government .. . politi-

cal division along religious lines

was one of the principal evils

against which the First Amendment

was intended to protect. .. .

23

The potential divisiveness cf such

conflict is a threat to the normal

political process. ... To have

States or communities divide on

the issues presented by state aid

to parochial schools would tend to

confuse and obscure other issues

of great urgency. .. . Here we

are confronted with successive and

very likely permanent annual ap-

propriations which benefit rela-

tively few religious groups. Po-

litical fragmentation and divi-

siveness on religious lines are

thus likely to be intensified.

403 U.S. at 622-623.

While Minnesota Statutes §290.09

Subd. 22 does not involve annual appro-

priations, it almost guarantees that po-

litical fragmentacion and divisiveness on

religious lines will be intensified. The

amounts of money allowed to be deducted

from gross income for Minnesota tax pur-

poses are subject to annual review. If

this part of the Winnesota Statutes is

allowed by this Court to stand, demands

on the political system for increased aid

will intensify and divisive religious

confrontations would periodically ensue.

24

As we have said, the schools indi-

rectly given public financial assistance

are decisively sectarian. There is a

direct relationship between the degree to

which a class is sectarian and the degree

of entanglement that results. If a class

receiving public financial assistance is

decisively sectarian, it is essential

that the element of entanglement be

closely scrutinized. The statute

involved in the case at bar does not

stand that scrutiny. Inevitable politi-

cal entangle ent at an unconstitutional

level is manifest.

4. Minnesota Statutes §290.09 Subd.

22, by providing indirect public finan-

cial assistance to sectarian elementary

and secondary schools, involves the State

in a form of compulsory religion.

The principle of religious liberty

antedates the American republic and ab-

hors compulsory religion. Roger Williams

wrote: “Forced worship is a stinck [sic]

in the nostrils of God" (The _ Bloudy

25

Tenent of Persecution); and Thomas

Jefferson wrote in the Virginia Statute

of Religious Liberty: ". . . no man shall

be compelled to frequent or support any

religious worship, place or ministry

whatsoever, nor shall be enforced, re-

Strained, molested, or burthened in his

body or goods, nor shall otherwise suffer

on account of his religious opinions or

belief" (Sec. II). This is a part of the

philosophy bound up in the religion clau-

ses of the First Amendment.

The U.S. Court of Appeals for the

Eighth Circuit, in affirming the consti-

tutionality of §290.09 Subd. 22, gave its

approval to a scheme which permitted in-

direct public financial assistance to

sectarian elementary and secondary

schools. The statistics quoted above and

elaborated by Petitioners show that par-

ents of children enrolled in sectarian

schools received an overwhelming prepon-

26

derance of the tax deductions taken under

§290.09 Subd. 22. These schools teach

sectarian religion throughout their en-

tire academic curricula. The aid to sec-

tarian elementary and secondary schools

comes from tax deductions for tuition

already paid and constitutes funds which

are subject to state control. When pub-

lic funds, which are collected from all

taxpayers regardless of religious belief

or lack of religious belief, are used to

aid, either directly or indirectly, ele-

mentary or secondary schools which teach

religion, all taxpayers are compelled to

assist in the support of that teaching of

religion. State-cc ced financial sup-

port of religion is one of the oldest and

purest forms of the establishment of re-

ligion and is clearly at odds with the

establishment clause of the First Amend-

ment.

27

CONCLUS ION

The decision by the U.S. Court of

Appeals for the Eighth Circuit in the

instant case should be reversed.

Respectfully submitted,

John W. Baker

200 Maryland Avenue, N.E.

Washington, D.C. 20002

Attorney for Amicus Curiae

28

CERTIFICATE OF SERVICE

I, John W. Baker, certify that on

December 9, 1982 I mailed first class

postage paid three copies of the fore-

going Motion for Leave to File Brief

Amicus Curiae and Brief Amicus Curiae to

each of the following Attorneys of Record

in this case:

William I. Kampf

1320 North Central Life Tower

Town Square

St. Paul, MN 55101

Douglas C. Blomgren

Special Assistant Attorney General

515 Transportation Building

St. Paul, MN 55155

Timothy P. Quinn

430 Minnesota Building

St. Paul, MN 55101

John R. Kenefick

BRIGGS AND MORGAN

W-2200 First National Bank Bldg.

St. Paul, MN 55101

/s/

~~ JOHN W. BAKER

Baptist Joint Committee

on Public Affairs

200 Maryland Avenue, N.E.

Washington, D.C. 20002