Amicus Curiae Brief — Witters v. Washington Department of Services for the Blind

Office - Supreme Court, US$

FILEDN

1985

No. 84-1070

ALBXANVER (. STEVAS

CLERK

IN THE

Supreme Court of the United States

October Term, 1984

LARRY WITTERS,

Petitioner,

V.

STATE OF WASHINGTON

DEPARTMENT OF SERVICES FOR THE BLIND,

Respondent.

On Writ of Certiorari to the Supreme Court of Washington

BRIEF AMICUS CURIAE OF THE

AMERICAN JEWISH CONGRESS

Marc D. Srern

Counsel of Record

Lois C. WaLpMAN

Ronautp A. Krauss

AMERICAN JEWISH CONGRESS

15 East 84th Street

New York, New York 10028

(212) 879-4500

TABLE OF CONTENTS

Table of Authorities

Interest of the Amicus

Facts

Summary of Argument

Argument

I. This Case Solidly Implicates

Establishment Clause Values

II. In the Circumstances of This

Case, The Payments Witters Seeks

Do Not Establish Religion

A. Washington's Vocational

Rehabilitation Statute and

Its Application to This Case

Lack a Religious Purpose

B. The Challenged Statute,

Either on its Face or as

Applied, Does Not Have the

Effect of Advancing Religion

III. Free Exercise

IV. The Free Exercise Issue Need

Not Be Reached

Conclusion

vi

14

14

18

30

41

42

TABLE OF AUTHORITIES

Cases:

Americans United v. Blanton,

433 F. Supp. 97 (M.D. Tenn.),

(3 judge court) aff'd, 434 U.S.

Din a. hk 6 6 «6 «6 6«€ © «© ee eo ce 48

Americans United v. Bubb, 379

F. Supp. 872 (D. Kan. 1974) ..... 24

Bender v. Williamsport Area School

District, 741 F.2d 538 (3d Cir.

1984), cert. granted, 53 U.S.L.W.

UZ se he Ee « 6 6 6« «€ «© «© «© OF

Bd. of Educ. v. Allen, 392 U.S. 236

(~~~ ThE cs « «¢ « «6 ¢ « «© e 9

Bob Jones University v. U.S., 103

S.Ct. 2017 (1985) . 2. 2. 2 © © © © © e 9S

Cantwell v. Connecticut, 310 U.S. 296

(1940). 7 > .* . . . . * i = * .* 2 . o 31

D'Errico v. Lesmeister, 570

we ue Bee Giemebe 1963). . - « « « 24

Durham v. McLeod, 192 So.2d 202 (S.C.

(1972), aff'd, 413 U.S. 902 (1973). . 23

Engel v. Vitale, 370 U.S. 421 (1962). 8, 9

Everson v. Bd. of Educ., 330 U.S. 1

(1947). 2. 2 2 © © © © ow ew ew «8 9, 13, 27,

34, 35

F.C.C. v. Pacifica Foundation, 438

DUE "2. « « 6 «© ¢ « o ec e 44

Flast v. Cohen, 392 U.S. 83 (1968)... 8

Gomillion v. Lightfoot, 364 U.S.

eee ae. ot eg ig eg pg « OE

Hunt v. McNair, 413 U.S. 734 (1973) .. 13

Lane v. Wilson, 307 U.S. 268 (1939) .. 18

Larkin v. Grendel's Den, 459 U.S.

pe i a aa a

Lemon v. Kurtzman, 403 U.S. 602

i. | Pl Ea a oe a P

Luetkemeyer v. Kaufmann, 364

F. Supp. 376 (Mo.), aff'd,

a ae ee eee os 6 «ee oe we OS

Lynch v. Donnelly, 104 S.Ct. 1355

(aed 6 + « wie ane -« 0 © Be BB. B8e 166

18, 28

Marsh v. Chambers, 103 S.ct. 3330

SOG a ae

McDaniel v. Paty, 435 U.S. 618

| Sa a a ee 7) Mey

Meek v. Pittenger, 421 U.S. 349

fio > ara a a ae ae a ee ee ee

Minnick v. California Dep't of

Corrections, 452 U.S. 105

(1981). >. . . . . * . 7 . . . . . 7 . 41

Moore v. Charlotte-Mecklenburg Bd.

Oe Deen, GOS Uclbe GF ChEPElc wc eo ew ew 4!

Mueller v. Allen, 103 S.Ct. 3062

inant: « ¢ s+ « «2 ¢ « « ¢-e os aes ae 2s

Y > ae

- iii -

Norwood v. Harrison, 413 U.S. 455

(1973). ° . ° e ° ° ° ° ° e e ° ° 336 40

NYCTA v. Beazer, 440 U.S. 568 (1979). . 41

PEARL v. Nyquist, 413 U.S. 756

Tee 6 « 6 6s 6s « 2.6 6 « Be B32 86;

Rescue Army v. Municipal Court, 331

Dee eee Ge 6 6 & &€ OS ee ee ee |

Reynolds v. U.S., 98 U.S. 145 (1878). . 10

Sacks v. Ga., 401 U.S. 144 (1971) ... 41

School District of Abington Twshp.

v. Schempp, 374 U.S. 203, 305

(1963). _ @ . * * eo oe 7 oe 7 e ee eo a Ve 30

Sherbert v. Verner, 374 U.S. 398

tn + £6 Ss + & + * 6 62 oe 6 ee 6

BBe Bae 330

35

Thomas v. Rev. Bd., 450 U.S. 707

[ones & a 6 & 6 & 6 ew Bee Be eee 29, MM.

33, 34, 35

Tilton v. Richardson, 403 U.S. 672

eeenee & b- 06 & 6 eS ere ee ee el «CD

Tony and Susan Alamo Foundation v.

Secretary of Labor, 105 S.Ct. 1953

(1985). . oe oe @ . oe oe J * — oe _ — oe oe 15

Walz v. Tax Comm'n, 397 U.S. 664

en ce “koe se 6 ote & « © ote Oe 39

W. E. B. Dubois Clubs of America v.

Clark, 389 U.S. 309 (1967). ..... 41

Ww. Va. Bd. of Educ. v. Barnette, 319

* ie Bo Pa eee

Wheeler v. Barrera, 417 U.S. 402

(1974). e o o o _ o J _ o a oo _ o

Widmar v. Vincent, 454 U.S. 263

(1981). _ oe oe * * s* — a oe o 21, 22,

Wisconsin v. Yoder, 406 U.S. 205

(1972). ° ° . . . 6 ° . . . . 10, 20,

Wolman v. Essex, 342 F. Supp. 399

(S.D. Ohio), aff'd, 409 U.S. 808

ts + 6.4 + hoe 6 6 ee ewe we oe GB

Wolman v. Walter, 433 U.S. 229

(1977). ° ° * . ° . « . ° ° ° . ° o 8,

Zorach v. Clauson, 343 U.S. 306

(1952). o * oe a — — J o o e eo J eo Las

Other Authorities:

C. J. Antieau, P. M. Marks, & T. C.

Burke, Religion Under the State

Constitutions 23 ne « «¢.¢ «

Gianella, Religious Liberty,

Nonestablishment and Doctrinal

Development: Part I. The Religious

Liberty Guarantee, 80 Harv. L. Rev.

Ce Bey eee ee ee

W. G. Katz, Religion and American

Constitutions 22 (1964)

J. Madison, Memorial and

Remonstrance Against Religious

Assessments, Appendix to

Everson v. Bd. of Educ.,

7a wae See 6s et ee ll

18

38

31

23

26

20

32

40

27

- Veo

Statutes:

Rev. C. Wash. § 74.16.181 (1985)...

Washington State Constitution, Art. IX,

§ 4 . . > * . _ . * . . . . . . 7 .

Washington State Constitution, Art. I

§ bw . 7 . . . . . > . o . . . . *.

Interest of the Amicus

The American Jewish Congress is an

organization of American Jews, founded in

1918, dedicated to the protection of the

religious, political, civil and economic

liberties of all Americans, but particularly

those of American Jews. No liberty enjoyed

by Americans is more important to American

Jews than religious liberty. For this

reason, the American Jewish Congress has

filed many briefs in this Court and else-

where in cases raising religious liberty

issues.

The principle of non-establishment,

enshrined in the First Amendment, is an

indispensable element of religious liberty.

Hence, AJCongress has repeatedly urged that

the Establishment Clause be given a generous

construction. It has appeared repeatedly

before this Court urging the invalidation of

statutes intended to provide subsidies for

religious education. But the Establishment

Clause, more so perhaps than other

- vii -

constitutional principles, must not be

expanded indefinitely, for to do so inevi-

tably leads to clashes with that other

guarantee of religious liberty, the Free

Exercise Clause.

After careful study, AJCongress

believes that the Supreme Court of

Washington has interpreted the Establishment

Clause too expansively in this case. It is

filing this brief both to express those

views, and to propose an analysis of this

case which leaves intact this Court's

Establishment Clause jurisprudence.

The brief is filed with the consent

of the parties.

FACTS

The facts of this case are simple.

Petitioner Larry Witters, who is blind, has

been found eligible for vocational rehabili-

tation under a Washington statute, Rev. C.

Wash. § 74.16.181 (1985), providing for

funding to blind persons “so that they can

be trained to engage in gainful employment

and become self-supporting" (Decision of

Office of Hearings, Washington Department of

Social and Health Services, App. F-2).

Witters' application was denied by

the Washington State Department of Social

and Health Services* (hereafter

"Department") on the sole ground that he

intended to use the funds to pay for

ministerial training at a school of

theology. The Department found that

payments under these circumstances would

* The Department has since been renamed the

Department of Services for the Blind, Brief

in Opposition to the Petition for a Writ of

Certiorari at l, n.l.

violate the Washington State Constitution,

Art. IX, § 4; Art. I, § ll. (App. F-2].

That decision was in turn upheld by both an

administrative law judge, [App. E-l], and

the trial court [App. C-l and D-1].

The Washington Supreme Court refused

to pass on the state constitutional issues

[App. A-2]. Instead, it held that granting

Witters' request would violate the Estab-

lishment Clause of the First Amendment to

the United States Constitution. It also

held that Witters' Free Exercise Clause

rights were not violated by the denial of

benefits on the sole ground that he wished

to use them at a school of theology [App.

1A-2]). One judge dissented [App. B-l].

This Court granted certiorari, 53

U.S.L.W. 3702 (1985).

Summary of Argument

1. Both the Establishment and Free

Exercise Clauses are indispensible for the

protection of religious liberty, and they

must be understood as part of a whole, so

that one does not dominate the other, and

distort the American notion of religious

liberty.

2. Non-establishment, as manifest

particularly in the prohibition on financial

aid to religious institutions, is an

essential element of religious liberty. So

is the guarantee of free exercise which

protects not only the right to believe but

the right to practice one's faith without

penalty.

3. Where these principles clash, as

will happen not infrequently in a 20th

century government, the Court should balance

the interests protected by each Clause to |

determine which of the two religion clauses

is more strongly ifplicated.

4. Because the Establishment Clause

was drafted, in large part, to prevent

government from taxing citizens to support

churches, any direct payment to a church or

religious educational institution raises

Establishment Clause concerns. Since

payment of Witters' tuition is such a

payment, it follows that the Establishment

Clause is solidly implicated in this case.

5. Nevertheless the significance of

that fact is mitigated by several factors

which gain significance in light of current

conditions.

a) Only those practices which

substantially advance religion are

unconstitutional. In comparison with other

practices upheld or invalidated by this

Court, Witters' case falls on the

permissible side, particularly since it does

not enhance the role of religion vis-a-vis

other social forces.

b) The benefit conferred on Witters

is available for a “broad spectrum" of

vocational programs, and only as the result

of private choice. There is thus little

risk that any of the four dangers the

Establishment Clause was designed to

forestall will occur. There is here no

i. evidence (or even

likelihood) of religious coercion;

ii. likelihood that religious

institutions will become overly dependent on

government because available funds may be

used in a wide variety of institutions,

solely as the result of independent choices

of a non-self-selecting class.

iii. parallel to the use of the

taxing power for the regular support of

churches which was the historical motivation

for the Establishment Clause.

iv. hint that granting Witter's

request will make religion “relevant to

one's standing in the political community."

6. The Free Exercise Clause is

applicable to a wide variety of cases. It

has been held to require government to allow

religious individuals to participate in

social welfare programs where only their

religious beliefs stand in the way of

eligibility. The Clause, whether or not

requiring the state to pay Witters' tuition,

does create “room in the joints" for such

payment.

7. Given the weakness of the

Establishment Clause claim in this case, the

Free Exercise Clause pulls this case over

the line. There is, however, no need for

the Court to now determine whether the Free

Exercise Clause mandates that Witters be

allowed to participate in the vocational

rehabilitation program, for constitutional

questions should not be decided absent

strict necessity to do so.

Argument

The sometimes conflicting demands of

the Establishment and Free Exercise Clauses,

particularly as applied to the varied

activities of the modern state, have forced

this court to struggle:

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to find a neutral course between the

two Religion Clauses, both of which

are cast in absolute terms, and

either of which, if expanded to a

logical extreme, would tend to clash

with the other.

Walz v. Tax Comm'n, supra, 397 U.S. 664, 668

(1970). See also Thomas v. Review Board,

450 U.S. 707, 720-22 (1981) (Rehnquist, J.,

dissenting).

This neutral course requires that

neither clause may be sacrificed entirely in

favor of the other. Each must be understood

and applied with reference to the other,

always with an eye towards achieving the

ultimate goal of the clauses viewed as a

whole: the protection of religious liberty

in a pluralistic society, School District of

Abington Twshp. v. Schempp, 374 U.S. 203,

305 (1963) (Goldberg, J., concurring).

Such religious liberty, as understood

in both federal and state constitutional

law, mandates that religion be a voluntary

enterprise, without government sanction or

support, Larkin v. Grendel's Den, 459 U.S.

116 (1982); Engel v. Vitale, 370 U.S. 421

(1962); Everson v. Bd. of Educ., 330 U.S. l

(1947). This means stringent restrictions

on governmental assistance to religious

institutions. See, e.g., Mueller v. Allen,

103 S.Ct. 3062 (1983); Flast v. Cohen, 392

U.S. 83 (1968); Everson v. Bd. of Educ., 330

U.S. 1, 16 (1947).*

The decisions of this Court, see,

e.g., Wolman v. Walter, 433 U.S. 229 (1977),

PEARL v. Nyquist, 4:3 U.S. 756 (1973); Lemon

v. Kurtzman, 403 U.S. 602 (1971) reflect

this understanding.

The prohibition on financial aid to

religious institutions is not merely

* All but a few state constitutions mirror

this understanding, and embody rigorous and

explicit restrictions on aid to religious

education. See C. J. Antieau, P. M. Marks,

& T. C. Burke, Religion under the State

Constitutions 23 C1365)

"technical," or ancillary to other, more

significant, purposes of the religion

clauses. It is, rather, at the very core of

that Amendment. "({Fljlor the men who wrote

the Religion Clauses of the First Amendment

the ‘establishment' of a religion connoted

sponsorship, financial support and active

involvement of the sovereign in religious

activity," Walz v. Tax Comm'n, supra, 397

U.S. at 668.

Government assistance not only

unfairly compels persons to support churches

not of their own choosing, Everson v. Bd. of

Educ., supra, 330 U.S. at 12-13, but also

poses significant risks to the independence

and autonomy of religious institutions,

Lynch v. Donnelly, 104 S.Ct. 1355, 1366

(1984) (O'Connor, J., concurring); Lemon v.

Kurtzman, supra, 403 U.S. at 620, the

political and religious neutrality of

government, Engel v. Vitale, supra, and

threatens to make religion relevant to one's

« 36 =

standing in the political community, Lynch

v. Donnelly, supra, 104 S.Ct. at 1366

(O'Connor, J., concurring).

Just as the Establishment Clause

protects against governmental support for

religion, so the Free Exercise Clause

protects against unnecessary government

interference with religion. Particularly

with the growth of the welfare and

regulatory state, religious liberty, as

guaranteed by the Free Exercise Clause, has

come to mean more than the right to hold and

teach beliefs at variance with those cf the

majority, cf. Reynolds v. U.S., 98 U.S. 145

(1878).

It guarantees, for example, that

individuals will not be penalized by

government for putting those beliefs into

practice, Thomas v. Rev. bd., supra,

Wisconsin v. Yoder, 406 U.S. 205 (1972);

Sherbert v. Verner, 374 U.S. 398 (1963),

even if, as in Thomas and Sherbert, the

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result is what might argvably be termed an

indirect subsidy of religion.

In view of these now well settled

principles in cases such as this, both free

exercise and non-estabdlishment values are

implicated. The single-minded application

or either one leads to diametrically

opposite conclusions wholly at variance with

the constitutional policy of not showing

“partiality to any one group” and of

allowing religious groups to “flourish

according to the zeal of its adherents and

the appeal of its dogma," Zorach v. Clauson,

343 U.S. 306, 313 (1952).

One could, of course, simply label

this an Establishment or Free Exercise

Clause case, and decide it accordingly.

Such an approach is both simple minded and

sterile. It fails to acknowledge the

existence of the sometimes competitive

nature of the values which safeguard

religious liberty.

» 13 «

The courts must therefore determine

which of the two religion clauses is more

strongly implicated here -- a process which

in our view calls for a balancing approach

sensitive to each clause.

On the narrow facts of this case,

that balance tios in favor of a finding that

the Establishment Clause would not be

violated if Witters' application were

granted. Since the only basis for denying

Witters' application was the federal

Constitution's Establishment Clause, this

conclusion is sufficient to dispose of this

case at this time.

I. This Case Solidly Implicates

Establishment Clause Values

The history of the Establishment

Clause begins with challenges to the

authority of government to utilize its

taxing power to raise funds for the support

of religious institutions, PEARL v. Nyquist,

supra; Lemon v. Kurtzman, supra. "(A state]

cannot consistently with the ‘estab’ 1shment

# 13 «

of religion' clause of the First Amendment

contribute tax raised funds to the support

of an institution which teaches the tenets

and faith of any church." Everson v. Bd. of

Educ., supra, 330 U.S. at 16.

Inland Empire School of the Bible,

which Witters attended as a candidate for

ordination, and for which he sought funds

under the Washington statute, is no doubt

such an institution. Petitioner himself

describes it as “a private religious

institution." [Petition for Certiorari at

6).

Aid to a “pervasively sectarian

institution" such as Inland Empire is

ordinarily impermissible, Mueller v. Allen,

supra, 103 S.Ct. at 3069; Hunt v. McNair,

413 U.S. 734, 743 (1973); Tilton v.

Richardson, 403 U.S. 672 (1971);

particularly where it takes the form of an

undifferentiated grant tc the institution

which can be used at the institution's

discretion.

- 14 - S

Viewed solely in terms of the

institution's budget, there is little to

distinguish general operating subsidies,

paid directly to the institution, and the

state's agreement to pay the tuition of one

or many students. Under the principles

discussed above, the judgment of the Supreme

Court of Washington is therefore

understandable. There can be no question

that the governmental expenditures that

Witters seeks, and the state resists,

solidly implicate traditional Establishment

Clause concerns.

II. In the Circumstances of This

Case, The Payments Witters Seeks

Do Not Establish Religion

A. Washington's Vocational Rehabilitation

Statute and Its Application to This

Case Lack a Religious Purpose

This case, however, should not be

disposed of so mechanically. Several

significant factors mitigate the

constitutional significance of government

payments to the Inland Empire School of the

Bible. We analyze these in light of the

yy

oe 16 «

three part test first laid down in Lemon v.

Kurtzman, supra, and restated most recently

in Tony and Susan Alamo Foundation v.

Secretary of Labor, 105 S.Ct. 1953, 1964

n.30, (1985).

These tests should not be applied

here in the abstract, but must be judged in

light of overall societal conditions, Lynch

v. Donnelly, supra.

The Washington state legislature and

its Department of Services for the Blind

have only the remotest and most indirect

connection with the fact that Witters would

be paying his seminary tuition with state

funds. Washington's program was not created

with the purpose of aiding religion. The

vocational rehabilitation program embodied

in Wash. Rev. Code § 74.16.181 (1985) cannot

plausibly be treated as if it were intended

to subsidize religion, or, as if it were

even reasonably foreseeable that it would do

so. Its secular purpose is self-evident and

e 16 «

beyond challenge -- aiding those blind

persons with the potential to be

self-sufficient.

This rehabilitative goal is a valid

secular purpose. And because rehabilitation

cannot take place without the assistance of

the person to be rehabilitated, the state

must enlist his support to achieve its end.

Of necessity, this requires that the state

defer to all reasonable career goals. fThus,

this is not a case where a more secular

means is available to carry out the state's

secular purposes, Lynch v. Donnelly, supra,

104 S.Ct. at 1372 n.4 (Brennan, J.,

dissenting).

This is also not a case, such as that

hypothesized by the Chief Justice, dissent-

ing in part in PEARL v. Nyquist, supra, 413

U.S. at 801-02, where an ostensibly secular

statute is merely a subterfuge for fundirg

churches or religious education. It is not

even a case like Mueller v. Allen, supra.

« $9 «

There, statistical evidence suggested not

only that the legislative purpose of a

tuition tax deduction was to encourage

parochial school attendance, but that the

overwhelming bulk of the benefits of the

deduction flowed directly or indirectly to

religious institutions. Nevertheless, this

Court held -- AJCongress thinks incorrectly

-- that these factors were irrelevant to

constitutional analysis.

No more persuasive on this record is

the argument that a decision by the Depart-

ment to grant Witters' application has such

a religious purpose. As far as appears, it

matters not at all to the Department whether

Witters receives vocational training in law,

theology or baking. Of course, if there

were proof that the Department routinely

urged the visually handicapped to use their

benefits to attend seminaries, a different,

and far easier, case would be presented.

This, however, does not appear to be that

case.

e 36 «

B. The Challenged Statute, Either on its

Face or as Applied, Does Not Have the Effect

of Advancing Religion

When viewed from Witters'

perspective, granting his application has

the effect of advancing religion. Absent

these funds, Witters may be unable to attend

school. Granting him these tax-raised funds

thus enables him to obtain a religious

education, a state of affairs ordinarily

proscribed by the Constitution. *

* This effect cannot, and should not, be

ignored by the Court. If the fact that

religion is benefitted becomes irrelevant as

a matter of law -- as broad and unfortunate

dicta in both Lynch v. Donnelly, supra, 104

S.Ct. at 1363, and Mueller v. Allen, supra,

103 S.Ct. at 3069-70 suggest -- then almost

any statute which does not explicitly call

for aid to pervasively religious institv-

tions will pass constitutional muster, no

matter how it in fact operates. That would

be a departure from this Court's settled

rule that the Constitution "“nullifies

sophisticated as well as simple-minded"

schemes to circumvent its guarantees, cf.

Gomillion v. Lightfoot, 364 U.S. 339, 342

(1960), citing, Lane v. Wilson, 307 U.S.

268, 275 (1939); Meek v. Pittenger, supra,

421 U.S. at 374-75 (Brennan, J., concurring

in part, and dissenting in part). It would

also undermine a direct holding in the

parochial school aid context that a statute

constitutional on its face may violate the

Establishment Clause as applied, Wheeler v.

Barrera, 417 U.S. 402 (1974).

@ 19 «

Religious education is an integral

part of the mission of every church and is

for Establishment Clause purposes no less

religious than prayer or Bible reading, as

this Court has repeacedly held, e.g., PEARL

v. Nyquist, supra; Lemon v. Kurtzman, supra,

Bd. of Educ. v. Allen, 392 U.S. 236 (1968).

However, this Court's decisions make

clear that not every incidental benefit to

religion is sufficient to amount to a

constitutional violation, PEARL v. Nyquist,

supra, at 783, n.39. If an unconstitutional

"effect" were to be equated with the simple

and unvarnished fact that a government

action facilitates religious practice or

observance, then, as Justice Rehnquist

argued in Thomas v. Rev. Bd, supra, 450 U.S.

at 720-22, all accommodation of religion

would be unconstitutional.

Just as not every accommodation

purportedly made under the Free Exercise

Clause can escape condemnation as an

—

establishment by talismanic invocation of

the Free Exercise Clause, Wisconsin v.

Yoder, supra, 406 U.S. at 220-21, so, too,

not every practice which in fact aids

religion is unconstitutional, Zorach v.

Clauson, 343 U.S. 306 (1952). Some simply

have too remote an impact on both religion

and society to rise to the level of an

establishment.

This Court's decisions embody

objective criteria for judging whether the

effect of a particular statute or practice

has the direct and immediate effect of

advancing religion. Under these standards,

enabling Witters to pursue the career of his

choice would have only on a de minimis

impact on religion and society.

First and foremost among this Court's

criteria is the availability of the benefit

for a wide variety of vocational and

educational purposes. This Court has twice

noted in its recent cases that the

- 21-

“provision of benefits to so broad a

spectrum of groups is an important index of

secular effect," Widmar v. Vincent, 454 U.S.

263, 274 (1981); Mueller v. Allen, supra,

103 S.Ct. at 3068, if only because a statute

which submerges religion into a larger group

of beneficiaries sends an entirely different

message about religion's role in society

than one that singles out religion

explicitly for special treatment.

The Washington vocational

rehabilitation statute under which Witters

seeks assistance provides that persons

eligible for assistance under the statute

may use the funds for a wide variety of

vocational or educational programs.

Religion is aided only as and if individuals

seek to use it for religious training. As

far as appears on the record, Witters is the

only person in Washington to have ever

«» 22 «

sought to do so;* it cannot therefore be

said that the benefits to religion as a

social institution are anything but "remote"

and “incidental" Mueller v. Allen, supra,

103 S.Ct. at 3069.

Further, here, the state has no

interest in, and has apparently not urged,

the blind to use their benefits for

religious education. Religion as a whole is

not advanced under this program. The state

has merely agreed to provide the blind, who

would otherwise be at risk of becoming

charges on society, the means to become

self-sufficient. That in this case funds go

to a seminary is no more chargeable to the

state than if a church were the winner of a

state-run lottery.

This Court has invoked the principle

that religion is not impermissibly advanced

* Cf. Widmar v. Vincent, supra, 454 U.S. at

275 (noting absence of proof that religious

speakers would dominate limited public

forum).

» 23 «

when benefits go to a broad spectrum of

groups (and pursuant to individual choices)

in upholding state student loan schemes

under which those attending even pervasively

sectarian institutions are eligible for

loans, Americans United v. Blanton, 433 F.

Supp. 97 (M.D. Tenn.), aff'd, 434 U.S. 803

(1977); Durham v. McLeod, 182 So.2d 202

(S.C. 1972), aff'd, 413 U.S. 902 (1973).

These results were explained in PEARL v.

Nyquist, supra, 413 U.S. at 782, n.38:

[we] need not decide whether the

significantly religious character of

the statute's beneficiaries might

differentiate the present cases from

a case involving some form of public

assistance (e.g., scholarships) made

available generally without regard to

the sectarian-nonsectarian, or

public-nonpublic nature of the insti-

tution benefited. See Wolman v.

Essex, 342 F. Supp. 399, 412-413

(S.D. Ohio), aff'd, 409 U.S. 808

(1972). Thus, our decision today

does not compel, as appellees have

contended, the conclusion that the

educational assistance provisions of

the "G. I. Bill,” 38 U.S.C. § 1651,

impermissibly advance religion in

violation of the Establishment

oe 94 «

Clause. See also n. 32, supra.*

Those decisions are controlling here.

The effect of advancing religion is

further diluted because the aid is

“available only as a result of numerous

private random choices," Mueller v. Allen,

supra, 103 S.Ct. at 3069.**

These principles are not just post

hoc rationalizations of a pre-ordained

result. Rather, properly applied, they can

assist a court in determining whether a

particular practice poses the dangers the

Establishment Clause was designed to

forestall. Those dangers as applied to this

case are four-fold:

* However, Americans United v. Bubb, 379 F.

Supp. 872 (D. Kan. 1974) and D'Errico v.

Lesmeister, 570 F. Supp. 158 (D.N.D. 1983),

held that students at pervasively sectarian

colleges could not participate in student

loan programs in view of the Establishment

Clause.

** To be sure, it is not alone determina-

tive, PEARL v. Nyquist, supra, 413 U.S. at

782, n.38.

- 25 -

1) Non-coercion, so that persons not

be pressured into participation in religious

practices by government. Witters was not

coerced into using his vocational funds for

theological training. This is clearly not a

coercion case. Marsh v. Chambers, 103 S.Ct.

3330, 3335 (1983).

2) Structural separation, so that

religion and government not become too

dependent on one another. Where the state

designs a program intended to subsidize

religious institutions, there is a

substantial risk that that institution will

become addicted to government funding for

continued financial support. A symbiotic

relationship inhospitable to religious

liberty and governmeni.al neutrality is the

likely result, Larkin v. Grendel's Den,

supra.* For the reasors stated above, this

* The likelihood of dependence on govern-

ment is here further reduced by the fact

that only a limited class of persons -- who

have almost no controi over their own eligi-

bility, and no independent incentive to

become eligible -- is eligible for the aid.

» 26 «

is not a case where this is a likely

possibility.

This is not a case -- as Mueller v.

Allen was -- where the foreseeable impact of

a statute or practice is to provide sums

that in absolute terms are sufficiently

significant as to induce dependence on

government, and to make it likely that

government will in effect gain control, cf.

Wolman v. Walter, 433 U.S. 229, 256 (1977)

(Brennan, J., concurring and dissenting)

(sheer size of aid to parcchial schools

makes such aid programs suspect). Nor is it

a program which provides funds on such a

regular periodic basis that the religious

institution can come to rely on such funds

in budgeting.

3) The unfairness of using the

taxing power to support religion, for it is

unjust to use government's taxing power to

compel a person to support a religious faith

other than his own. Allowing the state to

o 29 «

pay the costs of Witters' theological

training in one sense does just that.

Madison's Remonstrance, perhaps the

most eloquent expression of opposition to

such taxes, was written to counter a tax

levied for the support of ministers of the

gospel, Everson v. Bd. of Educ., supra.

There is, therefore, a close parallel

between the taxes Madison objected to in the

Remonstrance and aid to parochial school

schemes. For this reason, the Court has

properly invalidated most such legislation.

There is, however, simply no parallel

between such a use of tax funds and paying

for Witters' vocational rehabilitation even

though it entails paying for advanced

theology training.

4) A breach of governmental

neutrality, in Justice O"Connor's phrase,

makes “adherence to a religion relevant in

any way to a person's standing in the

political community," or would "foster the

» 26 «

creation of political constituencies defined

along religious lines," Lynch v. Donnelly,

supra, 104 S.Ct. at 1366; Larkin v.

Grendel's Den, supra.

That fear is particularly relevant

where government sponsors a religious

exercise, as in the case of school prayer or

religious symbols, or, perhaps, delivers

social services exclusively through

sectarian social service agencies. It has

no relevance here.

Neither Witters or anyone else gains

or loses social standing by allowing the

state to pay his tuition at Inland Empire.

Nor would such a decision create any

realistic likelihood that political

constituencies will divide along religious

lines. Allowing Witters to participate

would not require other blind citizens to

identify with some religion in order to

participate in a government funded program.

= 29 <-

In sum, while the payment of tuition

to a theological seminary does have the

effect of advancing religion, the impact of

that payment is greatly attenuated in this

case. Still, were this case to be

evaluated solely in terms of the

Establishment Clause, it would be a close

case, perhaps tilting in favor of an

affirmance.*

* The final branch of the tripartite test

for determining whether a practice violates

the Establishment Clause is whether the

statute or practice unduly entangles

government with religion.

There is nothing in this record arguably to

suggest that the grant Witters seeks in fact

did create any political controversy.

Because the funds for Witters' grant come

from a lump sum appropriation to the State

Department of Services for the Blind, there

is no likelihood that the legislature will

annually become embroiled in a dispute over

particular uses of these funds, Mueller yv.

Allen, supra, 103 S.Ct. at 3071, n.1ll.

Moreover, there is nothing in either the

statute or the record which would indicate

any greater need for supervision than in the

case of college student loan programs,

which, as noted, have been upheld by this

Court.

—

III. Free Exercise

Had the Founding Fathers determined

to protect religious liberty only by

including a prohibition on religious

establishments in the Bill of Rights, this

would be a difficult and close case,

notwithstanding the existence of factors

which tend to mitigate the "establishing"

effect. The political concerns which gave

rise to the First Amendment were not so

limited.

The Founders apparently recognized

that non-establishment could not alone

guarantee religious liberty. Taken as the

sole guarantor of religious liberty it would

“partake not simply of that noninterference

and noninvolvement with the religious which

the Constitution commands, but of a

brooding and pervasive devotion to the

secular and a passive, or even active,

hostility to the religious," School Dist. of

Abington Twshp. v. Schempp, supra, 374 U.S.

at 306 (Goldberg, J., concurring).

Bethewres

» 31 <-

Government cannot interfere with

religious liberty by outlawing a particular

belief or by punishing persons merely for

holding or expressing those beliefs. Such

actions are absolutely foreclosed by the

Free Exercise Clause, Sherbert v. Verner,

supra, 374 U.S. at 402; W. Va. Bd. of Educ.

v. Barnette, 319 U.S. 624, 642 (1943);

Cantwell v. Connecticut, 310 U.S. 296

(1940).

Religious liberty is also denied when

government compels persons to act in

violation of their religious values,

Wisconsin v. Yoder, 406 U.S. 205 (1972).

Religious liberty is also denied, under this

Court's cases, if government denies

participation in its social welfare programs

to otherwise eligible persons who are unable

to participate because of their religious

practices, Thomas v. Rev. Bd., supra;

Sherbert v. Verner, supra, notwithstanding

the fact that government does not directly

regulate religious practice as such.

» 32 -

The constitutiona’? values represented

by these different strands of free exercise

doctrine reflect an attitude of hospitality

towards religion. They embody society's

recognition that it ought not -- indeed

cannot properly -- interfere with deeply

held beliefs, absent the most compelling

justification. See Gianella, Religious

Liberty, Nonestablishment and Doctrinai

Development: Part I. The Religious Liberty

Guarantee, 80 Harv. L. Rev. 1381, 1411-14

(1967). The Free Exercise Clause is the

constitutional policy which more than any

other recognizes the worth of the individual

and the sacredness of individual conscience,

of the right to march to one's own drummer,

to make judgments about ultimate values.

Religious commitments vary in

intensity. How a person choses to manifest

his religious faith is protected from

government interference by the Free Exercise

Clause. t is not the role of government to

= 33 «-

evaluate or regulate the validity or extent

of one's religious commitment, Thomas v.

Rev. Bd., supra, 450 U.S. at 715-16.

McDaniel v. Paty, 435 U.S. 618

(1978), recognizes that the call to act as a

minister is protected from unjustified state

interference by the Free Exercise Clause.

Tennessee ... acknowledges the right

of its adult citizens generally to

seek and hold office as legislators

or delegates to the state

constitutional convention.... Yet

under the clergy disqualification

provision, McDaniel cannot exercise

both rights simultaneously because

the State has conditioned the

exercise of one on the surrender of

the other.... In so doing,

Tennessee has encroached upon

McDaniel's right to the free exercise

of religion. "[{T]o condition the

availability of benefits [including

access tc the ballot] upon this

appellant's willingness to violate a

cardinal principle of [his] religious

faith [by surrendering his

religiously impelled ministry]

effectively penalizes the free

exercise of [his] constitutional

liberties." Sherbert v. Verner, 374

U.S. 398, 406 (1963).

435 U.S. at 626.

The parallels between this case and

McDaniel (as well as to Sherbert and Thomas)

- 34 -

are obvious. The Free Exercise Clause was

implicated in those cases because the First

Amendment "does not require the state to be

[the] adversary [of religion]. State power

is no more to be used so as to handicap

religions, than it is to favor them,"

Everson v. Bd. of Educ., supra, 330 U.S. at

18.

When “individual Catholics ... or

the members of any other faith, because of

their faith, or lack of it, ... [are denied

receipt of] the benefits of public welfare

legislation," Thomas v. Rev. Bd., supra, 450

U.S. at 716, quoting, Everson v. Bd. of

Educ., supra, 330 U.S. at 16 (1947)

(emphasis deleted), the Free Exercise Clause

is implicated.

The denial of vocati’ al rehabilita-

tion benefits to Witters, based solely on

the fact that he has chosen to attend

theological seminary, touches epee the

values protected by the Free Exercise Clause

tht pel EAN pee Pei gg 2

= 3§ -

just as surely as did Tennessee's

restriction on public office holding by

ministers.

Without regard to whether the Free

Exercise Clause is sufficient of its own

force to require a state to make vocational

training funds available for eligible

persons seeking to pursue a religious

career,* it is sufficient to counterbalance

* This Court has repeatedly rejected free

exercise claims that the state must fund

otherwise eligible religious institutions if

there is no constitutional bar to such

funding under the Establishment Clause, Bob

Jones University v. U. S., 103 S.Ct. 2017

(1983); Norwood v. Harrison, 413 U.S. 455

(1973); Luetkemeyer v. Kaufmann, 364 F.

Supp. 376 (Mo.), aff'd , 419 U.S. 888

(1974); Everson v. Bd. of Educ., supra.

Whether this case is closer to cases such as

Thomas v. Rev. Bd., supra, or Sherbert v.

Verner, supra, is a _ifficult question.

Indeed in Everson v. Bd. of Educ., supra,

the Court's opinion contains language both

suggesting that the state cannot deny funds

to a religious institution simply because it

is such, 330 U.S. at 16, and other language

suggesting that it has discretion not to

fund such institution, Id. The Court need

not resolve this issue in this case for

reasons we explain below.

e 36 <-

the relatively minimal “establishment" which

results when a state does so. As noted

above, this is at best a weak sstablishment

Clause case on the merits. Whatever little

strength there was in the establishment

argument is more than outweighed by the free

exercise value to be vindicated by not

obstructing Witters' efforts to become

ordained.

The balancing approach urged here is

not appropriate for every case. In some

cases, a challenged practice is clearly

contrary to the purposes of one or the other

clauses. Thus, the prohibition on direct,

unrestricted aid to churches or parochial

schools is so central to the Establishment

Clause as to call for no inquiry under the

Free Exercise Clause, much less any

balancing process.

Requiring states to allow Sabbath

observers to participate in unemployment

insurance programs even if they turn down

- 37 «-

work on their Sabbath, or excusing the Amish

from some portion of the compulsory

education laws, pose no threat whatsoever to

Establishment Clause values. There, too, no

balancing is called for.

On the other hand, in McDaniel v.

Paty, supra, where Tennessee defended a

provision excluding clergymen from public

office on the ground that the exclusion was

necessary to preserve the separation of

church and state, this Court, after finding

that this prohibition violated the Free

Exercise rights of clergymen, turned to

Tennessee's Establishment Clause argument.

It rejected Tennessee's argument not

because it found that the Establishment

Clause was not a defense to a free exercise

claim, but because there was simply no

adequate factual basis for the Establishment

Clause claim:

Tennessee has failed to demonstrate

that its views of the dangers of

clergy participation in the political

« 36 «-

process have not lost whatever

validity they may once have enjoyed.

The essence of the rationale

underlying the Tennessee restriction

on ministers is that if elected to

public office they will necessarily

exercise their powers and influence

to promote the interests of one sect

or thwart the interests of another,

thus pitting one against the others,

contrary to the anti-establishment

principle with its command of

neutrality. ... [T]he American

experience provides no persuasive

support for [that] fear....

(citations and footnote omitted)

435 U.S. at 628-29.

Had there been a factual predicate for the

state's claim, the Court would have been

forced to engage in a balancing process.

A similar process was undertaken by

this Court in Widmar v. Vincent, supra,

where the Free Speech and Establishment

Clauses came into conflict. The Court there

determined that college students' free

speech rights had been violated by a rule

barring student religious clubs from using

empty classrooms for its meetings, a right

conferred on other student groups. It then

« 39 -

assessed the significance of the

university's claim that allowing the clubs

to meet would place it in the position of

establishing religion. Again, this Court

found that the Establishment Clause

arguments were not sufficiently strong on

the record before it to justify the denial

of free speech. Following a similar

analysis, but on a different factual record,

the Third Circuit reached an opposite result

in the high school setting, Bender v.

Williamsport Area School District, 741 F.2d

538 (3d Cir. 1984), cert. granted, 53

U.S.L.W. 3585 (1985).

The balancing method of analysis is

consistent with this Court's description of

its First Amendment decisions, under which

"short of [governmentally established

religion or governmental interference with

religion] there is room for play in the

joints...." Walz v. Tax Comm'n, supra, 397

U.S. at 669. Even more to the point is

» 46 «

Professor Wilber Katz' statement that the

First Amendment insures "a secular state --

but a secular state which does not give

preference to secularism and is actively

concerned for religious freedom," W. G.

Katz, Religion and American Constitutions 22

(1964).

The balance in this case tips

decidedly in favor of Witters. This is a

marginal claim under the Establishment

Clause. Although the Free Exercise Clause

may not mandate that Witters be declared

eligible for participation in such programs,

it surely implies that “the transcendent

value of free religious exercise in our

constitutional scheme leaves room for "play

in the joints .. [for] cautiously delineated

secular ... assistance...." Norwood v.

Harrison, supra, 413 U.S. at 469. This is a

case in which that value should at least

allow the state the option of paying for

Witters' vocational training as a minister.

- 41 -

IV. The Free Exercise Issue

Need Not Be Reached

The Washington Supreme Court held

that the Establishment Clause was a bar to

Witters' participation in the state's voca-

tional rehabilitation program. That judg-

ment, as we have shown, is erroneous.

Should this Court agree, Witters' applica-

tion will be granted unless and until the

state constitution is held to bar it.

Only if the Washington courts so hold

will there be any need for this Court to

reach the federal Free Exercise Clause issue

raised by petitioner. In view of the rule

confining constitutional decisions to cases

of "strict necessity," this Court should not

now pass on this issue, Rescue Army v. Muni-

Cipal Court, 331 U.S. 549, 568 (1947).*

* Accord, Minnick v. California Dep't. of

Corrections, 452 U.S. 105 (1981); NYCTA v.

Beazer, 440 U S. 568 (1979); F.C.C. Vv.

Pacifica Foundation, 438 U.S. 726 (1978);

Moore v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 47 (1971); Sacks v. Ga., 401 U.S.

144 (1971); W. E. B. Dubois Clubs of America

v. Clark, 389 U.S. 309 (1967).

@ 42 «

Conclusion

The judgment should be reversed and

remanded to the state court for further

proceedings.

June,

1985

Respectfully submitted,

Marc D. Stern

Counsel of Record

Lois C. Waldman

Ronaid A. Krauss

American Jewish Congress

15 East 84th Street

New York, New York 10028

(212) 879-4500