Amicus Curiae Brief — Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-day Saints v. Amos

| Supreme: Court, U.S,

- FILED

5 JAN § 1987

Nos. 86-179 and 86-401 a

— ͥͤ . —

In THE

Supreme Court of the United States

OcTOBER TERM, 1986

THE CORPORATION OF THE PRESIDING BISHOP OF THE

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, et al.,

2 Appellants,

CHRISTINE J. Auos, et al.,

Appellees.

UNITED STATES OF AMERICA,

. Appellants,

CHRISTINE J. AMOS, et al.,

A ppellees.

On Appeal from the United States District Court

for the District of Utah

BRIEF OF THE

UNITED STATES CATHOLIC CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

JOHN A. LIEKWEG

Acting General Counsel

MARK E. Cnorxo

Assistant General Counsel

U.S. CATHOLIC CONFERENCE

1312 Massachusetts Ave., N.W.

Washington, D.C. 20005

(202) 659-6690

WWS - Eras Printing Co.. Inc. - 789-0096 - Wasnincron, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF AMICUS

SUMMARY OF ARGUMENT

THE ESTABLISHMENT CLAUSE IS NOT

VIOLATED UNLESS THE STATE, AND NOT

A PRIVATE PARTY, ACTS CLEARLY IN-

COMPATIBLY WITH THE CLAUSE’S PUR-

POSES AND INTENT. A STATUTE DE-

SIGNED TO AVOID INVOLVEMENT OF

THE STATE IN RELIGIOUS MATTERS IS

CONSISTENT WITH THE CLAUS

A. The Authentic Meaning of the Establish-

ment Clause, Revealed by History and Ex-

perience, Is to Protect Religious Liberty by

Denying to the State the Power to Prefer or

Impermissibly Advance Religion ,

B. Section 702 Avoids Involvement of the State

in Religious Matters. It Tolerates a Range

of Private Action and Does Not Itself Prefer

or Impermissibly Advance Religion

1. Section 702 Does Not Involve the Gov-

ernment in the Discharge Challenged

Here. Without Action by the Govern-

ment, There Is No Establishment Clause

2. Section 702 Does Not Impermissibly Pre-

fer or Advance Religion in Violation of

the Establishment Clause. It Insulates

Religion from Certain Governmental Reg-

10

18

11

TABLE OF AUTHORITIES

Adickes v. S. H. Kress & Co., 398 U.S. 144 (1970) 14

Aguilar v. Felton, — U.S. ——, 105 S.Ct. 3232

(1985) 2,12

Amos v. Corporation of the Presiding Bishop, 594

F. Supp. 791 (D. Utah 1984), on further appli-

cation for summary judgment, 618 F. Supp.

1013 (D. Utah 1985), jurisdiction postponed, 107

S.Ct. 396 (1986) (Nos. 86-179, 86-401) 3, 4, 11, 12, 13

Association of Data Processing Service Organiza-

tions v. Camp, 397 U.S. 150 (1970) 12

Bender v. Williamsport Area School District,.

U.S. 106 S.Ct. 1326 (18855 2. 12

Blum v. Yaretsky, 457 U.S. 991 (198222 14

Bowen v. Roy, —— US. ——, 106 S.Ct. 2147

(1986) ; 16

Committee for Public Education, etc. v. Nyquist,

413 U.S. 756 (1973) 17, 18

Estate of Thornton v. Caldor, 472 U.S. 703, 105

S.Ct. 2914 (1985) 13, 16

Evans v. Abney, 396 U.S. 435 (1970) 13, 14, 15

Fike v. United Methodist Children’s Home, 547

F. Supp. 286 (E. D. Va. 1982), aff'd, 709 F.2d

284 (4th Cir. 1983) — 13

Flag Brothers v. Brooks, 436 U.S. 149 (197890 4.14

Jackson v. Metropolitan Edison, 419 U.S. 345

(1974) — 14

Jones v. Alfred Mayer Co., 392 U.S. 409 (19665 6

King’s Garden v. FCC, 498 F.2d 51 (D.C. Cir.),

cert. denied, 419 U.S. 996 (1974) 11, 13

Larkin v. Grendel's Den, 459 U.S. 116 (19827 10

Larson v. Valente, 456 U.S. 228 (19882272777 12

Lemon v. Kurteman, 403 U.S. 602 (17) 11. 12

Lynch v. Donnelly, 465 U.S. 668 (1984) . 5, 10, 15

Martin v. Hunters Lessee, 14 U.S. (1 Wheat.) 304

(1816) — 3

Moose Ledge v. Irvis, 407 U.S. 163 (1,7% 4,14

Mueller v. Allen, 463 U.S. 388 (1983). 5, 9, 17

iii

TABLE OF AUTHORITIES—Continued

Page

N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S.

e . 17

Ohio Civil Rights Commission v. Dayton Christian

Schools, —— U.S. ——, 106 S.Ct. 2718 (1986)... 2,12

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393

EE EET Ae 17

Pierce v. Society of Sisters, 268 U.S. 510 (1925) 17

Reitman v. Mulkey, 387 U.S. 369 (1967) 11

Rendell-Baker v. Kohn, 457 U.S. 830 (1982) 4, 6, 14

Roemer v. Board of Public Works, 426 U.S. 736

r 15

School District of Abington Township v. Schempp,

rr . 7

School District of Grand Rapids v. Ball, —— U.S.

— 106 S.Ct. 3126 (1965) ................................ 2

Sherbert v. Verner, 374 U.S. 398 (1963) 16

Thomas v. Review Board, 450 U.S. 707 (1981) 16

Torcaso v. Watkins, 367 U.S. 488 (1961) 5, 8

United States v. Lee, 455 U.S. 252 (1982) 16

United States v. Petrillo, 332 U.S. 1 (1947) 4,13

United States v. Rodgers, 466 U.S. 475 (1984 13

Vermont Yankee Nuclear Power Corp. v. NRDC,

nr acererrnrnencsnenses 13

Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479

(1985) 1 9

Walz v. Tax Commission of New York, 397 U.S.

CC EEE passim

Wisconsin v. Yoder, 406 U.S. 205 (197277 5, 7

Witters v. Washington Dep’t of Services for the

Blind, —— U.S. ——, 106 S.Ct. 748 (1986) 5, 16, 17

CONSTITUTIONAL AND STATUTORY

PROVISIONS AND

LEGISLATIVE MATERIALS:

United States Constitution, amend. passim

United States Constitution, amend. 12232 6

42 U.S.C. § 1963 .................... 14

iv

TABLE OF AUTHORITIES—Continued

Page

Civil Rights Act of 1964, Title VII, as amended

r Oe 6

Section 702, 42 U.S.C. § 2000e-1 (197277 passim

Pub. L. No. 88-352, 78 Stat. 255 (Section 702)

— . — 6

Joint Explanatory Statement of Conference Man-

agers, reprinted in 1972 U.S. Code Cong. & Ad.

Eee ee ee ee 7

118 Cong. Ree. 4508 (1700 7,11

S. Rep. No. 376, 32d Cong., Ist Sess. (1853) 10

1 Annals of Congress (Gales & Seaton, eds. 1789) 8,9

Debates on the Adoption of the Federal Constitu-

tion (2d ed. J. Elliott ed. 1836)))))) 8

MISCELLANEOUS:

Corwin, The Supreme Court as National School

Board, 14 Law & Contemp. Probs. 3 (19499) 9

A. Stokes, Church and State in the United States

„„ —TT„TK„ͤ—C! . 9

L. Whipple, Our Ancient Liberties (Da Capo ed.

. — ——-— 9, 10

IN THE

Supreme Cuurt of the United States

OCTOBER TERM, 1986

Nos. 86-179 and 86-401

THE CORPORATION OF THE PRESIDING BISHOP OF THE

CHURCH OF JESUS CHRIST OF LATTER-DAY SAINTS, et al.,

8 Appellants,

CHRISTINE J. AMOS, et al.,

Appellees.

UNITED STATES OF AMERICA,

7 Appellants,

CHRISTINE J. AMOS, et al.,

Appellees.

On Appeal from the United States District Court

for the District of Utah

BRIEF OF THE

UNITED STATES CATHOLIC CONFERENCE

AS AMICUS CURIAE IN SUPPORT OF APPELLANTS

INTEREST OF AMICUS

The United States Catholic Conference (“Conference’’)

is a nonprofit corporation organized under the laws of

the District of Columbia. Its members are the active

Catholic Bishops in the United States. The Conference

advocates and promotes the pastoral teaching of the

Bishops in such diverse areas as education, family life,

health and hospitals, social welfare, immigrant aid, pov-

erty assistance, civil education, youth activities, and com-

munications. When permitted by court rules and practice,

the Conference files briefs as amicus curiae in litigation

of importance to the Catholic Church and its people in the

United States, particularly when the Religion Clauses of

the Constitution are implicated.

The Conference has a longstanding interest in the

proper interpretation of the Religion Clauses of the first

amendment. As amicus curiae in this Court, it has

stressed the importance of applying the Clauses consistent

with their generative history.“ In this case, the district

court ruled that a federal statute designed to mitigate

involvement by the government in religion was unconsti-

tutional under the Establishment Clause. Moreover, it in-

validated the provision as if the statute affirmatively au-

thorized action to advance religion in violation of the

Clause.

The district court’s ruling is not consistent with the

historical purposes of the Establishment Clause. The

statute insulates religious organizations from the regu-

latory machinery of the government in a limited area,

employment of its own members in its activities. The

Conference is concerned that, unless reversed, the district

court’s flawed Establishment Clause analysis will further

derogate the meaning and interpretation of the Clause

and lead to increased governmental involvement in the

affairs of religious organizations.

In the last three terms, the Conference has appeared as amicus

curiae in Ohio Civil Rights Comm'n v. Dayton Christian Schools,

106 S.Ct. 2718 (1986); Bender v. Williamsport Area School Dis-

trict, 106 S.Ct. 1326 (1986); Aguilar v. Felton, 105 S.Ct. 3232

(1985) ; and School District of Grand Rapids v. Ball, 105 S.Ct. 3126

(1985). The Conference extensively briefed the history of the

Establishment Clause in Mueller v. Allen, 463 U.S. 388 (1983), and

participated as amicus curiae in Walz v. Tar Commission, 397 U.S.

664 (1970), largely examining the historical treatment accorded

tax exemptions.

Through their counsel, the parties consent to the ap-

pearance of this amicus.

SUMMARY OF ARGUMENT

This Court has correctly insisted that the Establish-

ment Clause be construed “according to what history re-

veals was the contemporaneous understanding of its

guarantees.” Lynch v. Donnelly, 465 U.S. 668, 673

(1984) If routinely a part of judicial review, that con-

struction would substantially advance reasoned decision-

making, giving the Clause its “natural and intended

meaning. . . not in a sense unreasonably restricted or

enlarged.” Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.)

304, 326 (1816). In reviewing allegations that the Estab-

lishment Clause has been infringed, a court must deter-

mine the precise nature of the challenged action and

the degree to which the government is responsible for that

action. A court should invalidate the challenged action

only when it is convinced the government has taken

action that is clearly incompatible with the purposes and

intent of the Clause as revealed through history and

experience. In this case, the district court seriously erred

in its application and interpretation of the Clause. Amos

v. Corporation of the Presiding Bishop, 594 F. Supp. 791

(D. Utah 1984), on subsequent hearing, 618 F. Supp.

1013 (D. Utah 1985), jurisdiction postponed, 107 S8. Ct.

396 (1986) (Nos. 86-179, 86-401).

At issue in this case is the congressional judgment,

embodied in a provision of a federal employment statute,

that federal regulatory authority should not police re-

ligious organizations in the employment of their own

members in their activities. Section 702 of the Civil Rights

Act of 1964, as amended, 42 U.S.C. § 2000e-1 (“section

2 The Religion Clauses of the first amendment provide that “Con-

gress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof.

4

:

702”). The Church of Jesus Christ of Latter-Day

Church“) requires that its employees be or

members in good standing. Here, employees who

not or could not were discharged, and subsequen

the Church. The Church defended by interposing

emption provided in section 702. The district court

the provision unconstitutional as to one of the

asserting that it “authoriz[ed] . . . conduct

directly and immediately advance religious tenets

practices.” 594 F. Supp. at 825. Thus, Congress was

held to have authorized the discharge on discriminatory

religious grounds in contravention of the Establishment

Clause. This conclusion does not withstand scrutiny.

In section 702, Congress authorized or condoned noth-

ing; it simply declined to regulate a matter plainly within

its discretion. See United States v. Petrillo, 332 U.S. 1, 8

(1947). Whether private religious organizations take

actions that are discriminatory or not depends entirely on

choices made in specific factual situations, and not on

any generalized governmental action. When the Church

in this case favored its own members, resulting in the

discharge of the plaintiff employee, its actions did not

implicate any constitutional provision. See Rendell-Baker

v. Kohn, 457 U.S. 830, 837 (1982). Congress’s refusal to

regulate a particular private transaction does not sud-

denly transform that private action into governmental

action. Flagg Brothers v. Brooks, 436 U.S. 149, 164-165

(1978) ; Moose Lodge v. Irvis, 407 U.S. 163 (1972). In

the present case, the injury complained of (discharge)

resulted from the purely private choice of a private

employer. The statutory provision neither authorized nor

compelled that result; its effect is simply not to penalize a

private decision of a religious organization. Most cer-

tainly, this does not involve any violation of the Estab-

lishment Clause, as it is authentically construed.

History teaches that the Establishment Clause was in-

tended to deny to the new federal government the power

4245

1211711

to prefer any religion over others. The Clause buttresses

the Free Exercise Clause protections for religious liberty

by denying to the government a specific way in which

religious freedom had historically been infringed by action

of the government. Wisconsin v. Yoder, 406 U.S. 205, 214

(1972); Toreaso v. Watkins, 367 U.S. 488, 490 (1961).

Excessive state involvement in religious matters that

tends to burden liberty impairs freedom of belief and

practice. Such involvement is mitigated by the section

702 provision challenged here.

An absolutist approach to the Establishment Clause

that would invalidate any statute through which a re-

ligious group inay receive some benefit has been routinely

rejected. E.g., Lynch v. Donnelly, 465 U.S. at 678. In-

stead, this Court scrutinizes the challenged action to de-

termine whether, in fact, it tends to “establish” religion,

as that term is precisely understood. Jd. Looking at the

statute as a whole, any advancement of religion from

section 702 is incidental and indirect, resulting not from

governmental action but rather from “genuinely inde-

pendent and private choices.” Witters v. Washington

Dep’t of Services for the Blind. U.S. ——, 106 S.Ct.

748, 752 (1986) ; Mueller v. Allen, 463 U.S. 388, 399, 400

(1983) .

Moreover, in its Establishment Clause jurisprudence,

this Court recogr*zes that the power to tax, like the power

to regulate, can be an instrument of hostility toward

religion. E.g., Walz v. Tax Commission, 397 U.S. 664,

673 (1970). An exemption minimizes encroachment by

the state and promotes the “desired separation and insula-

tion of government from religion.” Jd. at 675. Rather

than violate the values embodied in the Establishment

Clause, section 702 mitigates that which history and ex-

perience reveal should be guarded against—excessive in-

volvement by the state in religion. The contrary judgment

of the district court should be reversed.

matter of national policy, Congress has regula‘ed the con-

duct of certain activities to eliminate discrimination based

tion 702, Congress avoided a policy that would compel

religious groups to accept non-members in their activities.

42 U.S. C. § 2000e-1;* Joint Explanatory Statement of

One example of forbidden private action is the thirteenth amend-

ment’s prohibition on slavery. Jones v. Alfred Mayer Co., 392 US.

409, 438-39 (1968).

* Prior to 1972, the religious exemption in Title VII of the Civil

Rights Act, 42 U.S.C. § 2000e-1 provided: “This subchapter shall

not apply .. . to a religious corporation, association, {educational

institution], or society with respect to the employment of individ-

uals of a particular religion to perform work connected with the

carrying on by such corporation, association, [educational institu-

tion], or society of its religious activities.” Pub. IL. No. 88-352,

78 Stat. 255, section 702 (1964). In 1972, the bracketed words were

added, and the italicized word was deleted.

7

Conference Managers, reprinted in 1972 U.S. Code Cong.

& Admin. News 2179, 2180; 118 Cong. Rec. 4503 (1972)

(remarks of Sen. Ervin).

Limiting federal regulation of religious organizations

ensures that government will avoid certain involvements

ulatory exemption, promotes “the desired insulation and

separation” of the state and religion. See Walz v. Tas

Commission, 397 U.S. at 675. Contrary to the district

court’s ruling, the Establishment Clause does not demand

ligious liberty. “(T]he Religion Clauses had specifically

and firmly fixed the right to free exercise of religious

beliefs, and buttressing this fundamental right was an

equally firm, even if less explicit, prohibition against the

establishment of any religion by government.” Wisconsin

v. Yoder, 406 U.S. at 214. The Establishment Clause

reflects the experience of its framers that officially pre-

ferred or established religion generates religious intoler-

ance and infringes personal liberty. E. g., School District

The concern of the Conference in this case is in rectifying the

erroneous construction of the Establishment Clause adopted by

the district court. It ‘akes no position on the facts underlying the

dispute at issue here.

of Abington Township v. Schempp, 274 U.S. 203, 221-22

(1963) ; Torcaso v. Watkins, 376 U.S. at 490.°

Responding to the express wishes of five States in their

resolutions of ratification,’ in the First Congress, James

Madison introduced this version of what became the Re-

ligion Clauses of the first amendment:

The civil rights of none shall be on account

of religious belief or worship, nor any national

religion be established, nor shall the full and equal

rights of conscience be in any manner, or on any

pretext, infringed.

As Madison explained, the “Congress should not establish

a religion, and enforce the legal observation of it by law,

nor compel men to worship God in any manner contrary

to their conscience.” 1 Annals of Congress 730 (Gales &

Seaton eds. 1789.“

The legislative debates evidenced little, if any, dis-

agreement with these objectives. The Religion Clauses

* As discussed in Torcaso v. Watkins, 367 U.S. 488, 490 (1961),

the colonists often created “the forme! or practical ‘establishment’

of particular faiths in most of the colonies, with consequent burdens

imposed on the free exercise of the faiths of non-favored believers.”

* New Hampshire, New York, North Carolina, Rhode Island and

Virginia specifically addressed the issue of religious freedom in

their ratifying acts. Four states (New Hampshire excepted) also

address: d the issue of a prohibition against an established religion,

in terms of preferring one religion over others. I Debates on the

Adoption of the Federal Constitution 328 (2d ed. J. Elliott ed.

1836) (New York), id. 334 (Rhode Island), III id. 659 (Virginia),

and IV id. 244 (North Carolina). However, many including Madison

believed that religion was not the province of the new government

and that the religious diversity of the new country made preference

politically untenable. III id. 330. See generally 1 Annals of Con-

gress 731 (Gales & Seaton eds, 1789).

Sec id. at 432-36. Madison also recited a popular fear that “one

sect might obtain a pre-eminence, or two combine together, and

establish a religion to which they would compel others to conform.”

Id. at 730-31.

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2

biting interference in personal reli-

special favor of the

thereby subverting others (Establishment

L. Whipple, Our Ancient Liberties, 66-68 (Da

Capo ed. 1972). A prohibition of laws infringing the

free exercise of religion would have been enough to man-

date tolerance. Tolerance, however, could have meant

that, although all could worship in peace, some religion

»The history of the debates and the legislative compromise is ex-

tensively set forth in the opinion of the Chief Justice in Wellace

v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 2510-2512 (1985) (Rebn-

quist, J., dissenting), and in the Conference's brief amicus .

in Mueller v. Allen, supra note 1, Amicus br. at 6-14, 22-84.

% Some participants in the debate expressed concerns about

whether the new government would be national or federal. Wallace

v. Jaffree, 106 S. Ct. at 2511. Moreover, others feared that the new

government might interfere with the autonomy of states in reli-

gious matters, no small matter to those that maintained “estab-

lished” churches. See Corwin, The Supreme Court as Wat ang!

School Board, 14 Law & Contemp. Probs. 3, 10 (1949).

„ Annals, supra note 7, at 730-31. It was no mere coincidence

that the leading actors in the House debates (except Madison) were

from states with some degree of established religion. In this regard,

Stokes argued that “respecting an establishment” was intended to

confine the new Congress's regulatory power over religion. I A.

Stokes, Church and State in the United States, 539-40. Stoke's

view, like that of the Conference, was that the Religion Clauses

were intended to offer protection for religion, not to be used as a

lever against religioa. Id. at 556.

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might still be preferred by the state. Hence, the framers

also denied to the new government the power of prefer-

ence (note 8, supra), and thereby required equal treat-

plained that the phrase ‘establishment of religion’. . .

isted in the mother country.” S. Rep. No. 376, 32d Cong.

Ist Sess. 1 (1853). It meant:

the

connexion [sie] with the state of a particular

religious society, by ‘ts endowment, at the public ex-

oy ny pt te - oy

Section 702 operates simply to restrict governmental

regulation of religious organizations in a limited area

involving the employment of their own mombers. In ex-

123 11215 . ANN 1127 11 1141 Hil ripe i r

iy 1110 f a i ! it f 1

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a * 111155 1125 171 a3 21 bes t f

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1140527 1 His ed fee

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In this case, employees of Church-operated activities

were discharged when they would not or could not be-

come members in good standing. Amos vr. C

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13

of the Presiding Bishop, 594 F. Supp. at 796. Focusing

on one employee discharge, the district court treated that

purely private action as if it were affirmatively author-

ized by Congress, in violation of the Establishment

Clause. Id. at 812, 821, 824. Fike v. United Methodist

Children’s Home, 547 F. Supp. 286, 291 (E.D. Va. 1982),

aff'd, 709 F.2d 284, 286 (4th Cir. 1983).

The Clause (as discussed above at pages 9-10) was

intended to protect religious liberty against government

encroachment. Section 702 does not threaten anyone’s

religious liberty through the action of the government.

Although the district court asserted that the plaintiff

employee’s liberty not to be a member of the Cnurch was

infringed, any infringement occcurred, if at all, from ac-

tions of the religious group and not from et ions of the

Congress. Congress did not compel or authorize the

church to act in any particular way; it simply declined

to penalize a range of choices made for purely private

reasons. Compare Estate of Thornton v. Caldor, 472 U.S.

703, 105 S.Ct. 2914, 2917 (1985), with section 702,

supra, note 4. Without some gove nmental action, there

can be no constitutional violation.“

16 As discussed below in argume t B.2, the only governmental

action involved here was in passi g section 702, a provision that

simply declined to extend Con- ress’s regulatory power into a

limited area of activity. Cong ess has the authority to regulate

or not as a matter of legislati e discretion. Absent plain constitu-

tional infirmity, a court may aot second-guess the wisdom or scope

of a permitted legislative choice. Vermont Yankee Nuclear Power

Corp. v. NRDC, 435 U.S. 18, 556-57 (1978). This is particularly

so in regulation of activities under the commerce clause. As stated

in United States v. Petrillo, 332 U.S. 1, 8 (1947): [It is not

within our province t, say that because Congress has prohibited

some practices withi its power to prohibit, it must prohibit all

within its power.” See United States v. Rodgers, 466 U.S. 475, 484

(1984); Evans v. Abney, 396 U.S. 435, 447 (1970). Thus, the

court of appeals in King’s Garden v. FCC, supra note 13, erred in

asserting that Congress must regulate equally in all directions once

it chooses to r-gulate in one.

14

An important analogy may be drawn to the decisions

of this Court on what constitutes “state action,” for the

purposes of establishing a claim for relief under 42 U.S.C.

§ 1983. “State action” is found in otherwise private ac-

tion only where the government has “exercised coercive

power or provided significant encouragement, overt or co-

vert.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982).

The receipt of significant government funding and the

existence of pervasive regulatory power are not enough

to convert private action into state action for liability

purposes. Rendell-Baker v. Kohn, 457 U.S. at 838, Jack-

son v. Metropolitan Edison, 419 U.S. 345, 351 357

(1974). Most importantly, when a statute merely toler-

ates a range of private actions, including the one com-

plained of, and does not directly involve the state in the

act itself, there is no “state action.” Flagg Brothers v.

Brooks, 436 U.S. at 164. See Moose Lodge v. Irvis, 407

U.S. at 173, 179.

In Flagg Brothers, one private party sued another

under 42 U.S.C. § 1983 to protest a sale of warehoused

goods permitted under the Uniform Commercial Code.

This Court rejected the argument that, by passing the

statute allowing the protested sale, the state was now

responsible for the actions of the private party. A failure

to prohibit certain acts does not amount to authorization

or encouragement for those actions. 436 8. at 165."

The private choice by Flagg Brothers to sell the ware-

housed goods was permited but not compelled by the stat-

ute. Id. Simply by making a permitted choice, a private

party does not insinuate the government into that activ-

ity, which then becomes subject to constitutional scrutiny.

Evans v. Abney, 396 U.S. 435, 445-46 (1970); see Moose

Lodge v. Irvis, 407 U.S. at 173, 179. The same conclu-

* Indeed, the Court stated even “acquiescence” is not enough to

convert private action into state action. Flagg Brothers v. Brooks,

436 U.S. 149, 164 (1978), citing Adickes v. S.H. Kress & Co., 298

U.S. 144, 168, 170-71. (1970).

15

sion applies to choices permitted under a statutory exemp-

tion.

Section 702 does not in any way involve the govern-

ment in making religious choices, much less discrimina-

tory choices. What it does is render certain private

choices not actionable under Title VII. The failure to pre-

clude all forms of private discrimination and provide a

federal remedy does not then convey the notion that the

government endorses or encourages discrimination. Evans

v. Abney, supra. In this case, the district court confused

a refusal to regulate with authorization of purely private

conduct. This Court should insist on direct government

action, at a minimum, before the Establishment Clause is

violated.

2. Section 702 Does Not Impermissibly Prefer or

Advance Religion in Violation of the Establish-

ment Clause. It Insulates Religion from Certain

Governmental Regulation.

In Lynch v. Donnelly, the Court reaffirmed that the

Establishment Clause should be interpreted “according to

what history reveals was the contemporaneous under-

standing of its guarantees.” 465 U.S. at 673. That his-

tory, recited above, reveals that the Clause was never in-

tended to demand “hermetic separation.” Roemer v.

Board of Public Works, 426 U.S. 736, 745-46 (1976)

(plurality). Merely because a statute arguably results

in some advancement of religion does not mean it must

automatically be invalidated. Lynch v. Donnelly, 465

U.S. at 678. Rather the legislation must be carefully

scrutinized “to determine whether, in reality, it estab-

lishes a religion or religious faith, or tends to do so.”

Id. (emphasis added).

What the Court has forbidden is government “sponsor-

ship, financial support, and active involvement” with

religion. Walz v. Tax Commission, 397 U.S. at 668. What

constitutes “sponsorship, support, or involvement” de-

pends on the facts of a particular case. Moreover, there

16

is a gray area” between the limits of the Establishment

Clause and the commands of the Free Exercise Clause,

what the Court has described as “room for play in the

joints productive of a benevolent neutrality which will

permit religious exercise to exist without sponsorship and

without interference.” Jd. at 669 (emphasis added).

Government may go further than that which is com-

manded by the Free Exercise Clause to accommodate re-

ligion without running afoul of the Establishment Clause.

Id. at 673.“ In this gray area, when the government only

allows for independent religious choices, there is no in-

validity under the Establishment Clause. See Thomas v.

Review Board, 450 U.S. 707, 727 (1981) (Rehnquist, J.,

dissenting) ; Sherbert v. Verner, 374 U.S. 398, 422, 423

(1963) (Harlan, J., dissenting).

Section 702 plainly passes constitutional muster when

the Establishment Clause is applied consistent with its

historical purposes (discussed at pages 9-10, supra).

It does not impermissibly prefer or advance any religion.

A religious organization will simply not be penalized for

choosing its own members in employment. The govern-

ment is not involved in the employment decision. Estate

of Thornton v. Caldor, supra. Simply because a statute

may result in some advancement of religion in a particu-

lar case does not cause invalidity. Such a rule would

defy “common sense and established precedent.” Witters

„. Washington Dep't of Services for the Blind, 106 S. Ct.

at 754 (Powell, J., concurring). A court is required to

decide whether, as a whole, the statute advances religion

or simply allows private parties to make individual

18 That Congress may choose whether to include or exempt per-

sons from a statute on religious grounds as an accommodation is

well-established. United States v. Lee, 455 U.S. 252, 261 (1982);

Bowen v. Roy, 106 S.Ct. 2147, 2158 (1986) (opinion of Burger,

C.J.). That choice does not violate the Establishment Clause. /d.

17

choices for religious or other reasons. Id. at 752, 753;

Mueller v. Allen, 463 U.S. at 397-400. Where advance-

ment of religion occurs, not because of any govern-

mentally authorized activity or sponsorship, but “only as

a result of the genuinely independent and private choices

. . „there is no invalidity under the Establishment

Clause. Witters v. Washington Dep't of Services for the

Blind, 106 S.Ct. at 752.

Finally, section 702 shrinks the area of potential gov-

ernmental conflict with religious groups, and is, there-

fore, within the range of actions permitted under this

Court’s decisions. The Court has recognized the power

to tax historically had been and could be used to suppress

religious activity. Walz v. Tax Commission, 397 U.S. at

673. For that reason, exemption from taxation was rou-

tinely provided for reliigous groups and would not, in

any event, violate the Establishment Clause. Id.; see

Committee on Public Education, ete. v. Nyquist, 413 U.S.

756, 793 (1973). Similarly, excessive regulation can have

the same suppressive effect on private activity. Pierce v.

Society of Sisters, 268 U.S. 510, 534 (1925); see Penn-

sylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)

(Holmes, J.). Provisions such as section 702 reduce this

possibility.

Thus, the Court has taken great pains to avoid govern-

mental regulation of religious organizations unless clearly

required by statute. N. L. R. B. v. Catholic Bishop of Chi-

cago, 440 U.S. 490, 501, 504 (1979). Here Congress

clearly and unambiguously provided that Title VII shall

not apply to certain limited actions of religious organiza-

tions. Although an exemption may indirectly benefit

religion in that it allows for unregulated private choices,

section 702 in no way provides any purposeful illegal sub-

sidy or support. See Committee on Public Education v.

Nyquist, supra. On the other hand, the narrow inter-

pretation of section 702 adopted by the district court

would lead to enlarged government involvement in re-

18

ligion, a result inconsistent with the Establishment Clause.

Id.; Walz v. Tax Commission, 397 U.S. at 675-76. An

exemption minimizes involvement and promotes “the de-

sired insulation and separation.” Id. at 675.

Section 702 provides, at most, only an indirect benefit

to religion. Any arguable “advancement” from the pro-

vision occurs when a religious organization chooses to

favor one of its members in employment. Narrowing sec-

tion 702, as the district court did, necessarily involves the

state in determining what are the religious activities of

religious organizations. This approach ignores the express

congressional intent to minimize government involvement

in religious matters, an intent wholly consistent with the

barriers intended by the Establishment Clause for the

preservation of religious liberty. As written by Congress,

section 702 does not pose the same threat to the authentic

purposes of the Clause as the district court’s interpreta-

tion. That interpretation should be rejected.

CONCLUSION

For the foregoing reasons, the judgment of the district

court should be reversed.

Respectfully submitted.

JOHN A. LIEKWEG

Acting General Counsel

MARK E. Cuorxo

Assistant General Counsel

U.S. CATHOLIC CONFERENCE

1312 Massachusetts Ave., N.W.

Washington, D.C. 20005

(202) 659-6690

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