Amicus Curiae Brief — Zobrest v. Catalina Foothills School Dist.

| Bupreme Court, U.S

FILED

No. 92-94 AUG 10 i992

In The fon OF THE CLERKS

Supreme Court of the United States

October Term, 1992

r

LARRY ZOBREST, SANDRA ZOBREST,

husband and wife; JAMES ZOBREST, a minor,

by LARRY AND SANDRA ZOBREST, his parents,

Petitioners,

CATALINA FOOTHILLS SCHOOL DISTRICT,

Respondent.

°

BRIEF AMICI CURIAE OF THE CHRISTIAN LEGAL

SOCIETY, THE CHURCH OF JESUS CHRIST OF

LATTER-DAY SAINTS, THE FIRST LIBERTY

INSTITUTE, THE LUTHERAN CHURCH-MISSOURI

SYNOD, THE NATIONAL ASSOCIATION OF

EVANGELICALS AND THE NATIONAL COUNCIL

OF CHURCHES OF CHRIST IN THE USA, IN

SUPPORT OF A PETITION FOR WRIT OF

CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE NINTH CIRCUIT

e

Douctas Laycock RicHAarp F. DUNCAN

727 East 26th Street P.O. Box 67134

Austin, TX 78705-3299 Lincoln, NE 68583

(512) 471-3275 (402) 472-6044

Steven T. McFartanp MicHae, W. McConne tt *

Brapiey P. Jacos 1111 East 60th Street

CENTER FOR Law & Chicago, IL 60603

Revicious Freepom (312) 702-3306

CHRISTIAN LEGAL Society

4208 Evergreen Lane

Suite 222

Annandale, VA 22003

(703) 642-1970

* Counsel of Record

COCKLE LAW &ARIEF PRINTING CO_ (0D) 225-4964

OR CALL COLLECT (2) 342.2831

TABLE OF CONTENTS

Page

ee Se SE soo boxe vicvccccsdscenecss i

INTERESTS OF AMICI CURIAE.......... er enatens 1

REASONS FOR GRANTING THE WRIT........... I

I. Summary of Argument ..................... » 5

Il. The Court Should Decide Whether the District's

Policy Violates the Free Exercise Clause....... 3

A. The District’s Policy Expressly Discrimi-

nates Against Religion.................... 3

B. The District’s Policy Violates the Parents’

Hybrid Right to Free Exercise in the Context

of Directing The Religious Education of

PT Ee voerdee éecwks ceddacctocdens 7

Ill. The Decision Below Elevates the Establishment

Clause Over the Rest of the First Amendment,

and Thus Conflicts with Decisions of this Court,

the Court of Appeals for the Seventh Circuit,

ss cdsieededneedeees ceded enee 11

i ccscnenehsCadsweddweecdsasendernawne 18

Ss atentescconyeeess aneiareebeegenanes. Al

TABLE OF AUTHORITIES

Page

Cases:

Arkansas Writers’ Project v. Ragland, 481 US. 221

4 I 10

Board of Education v. Everson, 330 U.S. 1 (1947)....-.. 2

Board of Education v. Mergens, 496 U.S. 226 (1990)

Merritt t—<i—sOS 3, 13, 14

Committee for Public Education v. Nyquist, 413 U.S.

i 14

Corporation of the Presiding Bishop v. Amos, 483 U.S.

SEF (IDGZ).. cc ccccccccnsecseneesh ee an nan 14

Doe v. Small, 964 F.2d 611 (7th Cir. 1992)...... 3, 12, 13

Employment Division v. Smith, 494 U.S. 872 (1990) .. passim

Frazee v. Illinois Dept. of Employment Security, 489

US. 629 (1900) .....5.050000800000me eee 6

Goodall By Goodall v. Stafford County School Board,

930 F.2d 363 (4th Cir. 1991), cert. denied, 60 -

US.L.W. 3251 (US. Oct. 7, HORE). . cess 13

Griswold v. Connecticut, 381 U.S. 479 (1965)........... 8

Hobbie v. Unemployment Appeals Commission, 480

US. 136 (1967)... cccccsvccsssusenennnene 6

Meyer v. Nebraska, 262 U.S. 390 (1923).............4.. 8

Mueller v. Allen, 463 U.S. 388 (1983)............... 2, 15

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449

(1DSS) .. nc cccvcccseccescesssnuanenee 1]

Pierse v. Society of Sisters, 268 U.S. 510 (1925)....7, 8, 9

iii

TABLE OF AUTHORITIES - Continued

R.A.V. v. City of St. Paul, No. 90-7675 (June 22,

aaa sencccscnccscccccscces: 10

Roberts v. United States jaycees, 468 U.S. 609 (1983) .... 10

School Dist. of oo yeoenedl v. Jememetd 374

U.S. 203 (1963). ——

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

Simon & Schuster, Inc. v. New York State Crime

Victims Bd., 112 S. Ct. 501 (1991)............... —

Stone v. Graham, 449 U.S. 39 (1981).............. —

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)...... 10

Thomas v. Review Board, Indiana Employment Secu-

rity Div., 450 U.S. 707 (1981)...... 2.000.000... 6, 18

Widmar v. Vincent, 454 U.S. 263 (1981)..... 3, 10, 13, 14

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

Witters v. Washington Department of Services for the

Blind, 474 USs* EE

Orner AuTHoriries:

Declaration of Independence, 1 Stat. 1 (1776) . aca

La b. Formal, Substantive, and Disag ed

uty siity Toward Religion, 39 DePaul L. Rev. 993

EC CCCE RS UG scescecocccaccccccceces: 15

]. Madison, A Memorial and Remonstrance (1785) ...... 2

McConnell and Posner, An Economic Approach to

Issues of Religious Freedom, 56 U.Chi.L.Rev. 1

EEE EE 6, 16

Tribe, Laurence, Constitutional Law, Sec. 14-4 (2d

INTERESTS OF AMICI CURIAE

The particular statements of interest of the amici cur-

ae are included in Appendix A. The letters from the

parties consenting to the filing of this brief have been

filed with the Clerk pursuant to Rule 36.2.

°

REASONS FOR GRANTING THE WRIT

I. Summary of Argument

Although the Petition primarily presents a Question

framed in terms of the Establishment Clause of the First

Amendment, amici wish to point out that the case in fact

presents intertwined questions under both the Free Exer-

cise and the Establishment provisions of the Religion

Clause, and the relationship between the two. The court

below held that for the school district to provide a sign

language interpreter to a student in a religious school

would violate the Establishment Clause, that to refuse

such an interpreter would burden the rights of the stu-

dent and his parents under the Free Exercise Clause, and

that this prima facie violation of the Free Exercise Clause

was justified by the school district's compelling interest

in avoiding a violation of the Establishment Clause. In

other words, the Establishment Clause means the oppo-

site of the Free Exercise Clause, and the Establishment

Clause predominates where there is a conflict. The pur-

pose of this brief is to explain why the effect of the

decision below is to violate petitioner's Free Exercise

rights, and to urge this Court to adopt a construction of

the Establishment Clause that makes the two components

of the Religion Clause of the First Amendment harmo-

nious and internally consistent. Recognition of the

1

complementarity of the two provisions of the Religion

Clause is indispensable to the fulfillment of its singular

purpose: protection of the Divinely-conferred, inalienable

right to religious exercise. See Declaration of Independence,

1 Stat. 1 (1776); |. Madison, A Memorial and Remonstrance

(1785), para. 1, reprinted at 330 US. 1, 64 (1947).

Petitioners have primarily presented the Establish-

ment Clause question to this Court. That question

deserves review by this Court, because it is fundamental

to the meaning of the Establishment Clause, because it is

important to the administration of a federal statute, and

because the decision below appears to conflict with this

Court's decisions in Witters v. Washington Dept. of Services

for the Blind, 474 U.S. 481 (1986), Mueller v. Allen, 463 U.S.

388 (1983), and Board of Education v. Everson, 330 US. 1

(1947).

These amici believe that the Establishment Clause

question cannot be separated from the Free Exercise

Clause question, and certainly not from the question

about the relationship between the two clauses. See Peti-

tion for Certiorari at 9-10 and note 9, arguing that the

judgment below inhibits religion in violation of the Estab-

lishment Clause and expressly discriminates against reli-

gion in apparent conflict with this Court's decision in

Employment Division v. Smith, 494 U.S. 872 (1990). Smith is

not cited below, perhaps because briefing was completed

before Smith was decided. Petition at 4.

Assuming that there were some plausibility to the

lower courts’ fear of an Establishment Clause violation,

the ultimate question would be whether avoidance of an

Establishment Clause violation justifies a Free Exercise

Clause violation. If the conflict were truly unavoidable, it

would be equally logical to hold that avoidance of the

Free Exercise Clause violation justifies the Establishment

Clause violation. The decision below appears to assume,

without analysis, that the Establishment Clause is a

trump card that overrides other First Amendment rights.

That holding conflicts with the decision en banc in Doe v.

Small, 964 F.2d 611 (7th Cir. 1992), and is in tension with

this Court's decisions in Board of Education v. Mergens, 496

U.S. 226 (1990), and Widmar v. Vincent, 454 U.S. 263

(1981).

In this case, as in Mergens and Widmar, the Court

must construe each clause of the First Amendment in

light of the others. When a court finds a direct conflict

between the clauses, as in the court below, that is a strong

warning that one of the clauses has been misinterpreted.

this Court must consider the Establishment issue in light

of the Free Exercise issue and the larger issue of the

relationship between the two components of the Religion

Clause. Given the importance of these questions, and the

significant impact on the religious liberty of all disabled

children and their parents, amici believe that this Court

should grant review.

Il. The Court Should Decide Whether the District's

Policy Violates the Free Exercise Clause.

A. The District's Policy Expressly Discriminates

Against Religion.

Respondent is candid about its decision to discrimi-

nate against religion - it admits that if James Zobrest's

parents “enrolled him in a non-sectarian private school or

public school” it would provide a sign language inter-

preter for him. Zobrest v. Catalina Foothills School Dist., 963

F.2d 1190, 1192 n.1 (9th Cir. 1992), Pet. App. A5n.1. In its

decision below, the Ninth Circuit correctly concluded that

this discriminatory policy imposes a burden on Peti-

tioners’ free exercise of religion. Id. at 1196, Pet. App. at

Al4. Yet the court was singularly unconcerned about the

legal implications of a burden on petitioner's constitu-

tional rights. It simpiy elevated Establishment consider-

ations over Free Exercise rights, without serious analysis

of the latter.

It is important at the outset to make clear that these

amici are not suggesting that the district would be uncon-

stitutionally discriminating against religion if it paid for

interpreters in public school but refused to pay for inter-

preters at any private school. In that case, the distinction

would be between public and private, which is a pre-

sumptively legitimate basis for distinction. The distinc:

tion here is between schools with secular educational

content (whether public or private) and schools with reli-

gious educational content. That distinction - a discrimina-

tion against religion and in favor of the secular - is not

permissible.

In Employment Division v. Smith, 494 U.S. 872 (1990),

this Court held that although religiously-motivated

behavior may be burdened by a “neutral law of general

applicability”, id. at 879, governmental action is subject to

the compelling interest test if it overtly discriminates

against religion or otherwise falls short of neutrality or

general applicability.

In three separate formulations, each approaching the

problem from a slightly different perspective, this Court

in Smith insisted on neutrality and general applicability.

First, Smith says a law is unconstitutional if it singles out

religion for discriminatory treatment. The Court noted

that government may not “impose special disabilities on

the basis of religious views or religious status.” Id. at 677.

Further, it is unconstitutional for a state to prohibit or

otherwise burden certain “acts or abstentions only when

they are engaged in for religious reasons, or only because

of the religious belief that they display.” Id. By its own

admission, Respondent is guilty of this forbidden reli-

gious discrimination. Although it provides sign language

interpreters to hearing-impaired students in public

schools and in private nonreligious schools, it has refused to

provide an interpreter to James Zobrest for one reason

only ~ because his parents have chosen to enroll him ina

private religious school. Under Smith, such overt reli-

gious discrimination is unconstitutional.

Second, a government policy is subject to strict scru-

tiny under Smith if it is “specifically directed

at... religious practice.” Id. at 878. For example, a tax on

persons who regularly attend church would violate the

Free Exercise Clause under this approach, because it is

directed at religious practice and therefore is not gener-

ally applicable. Id. The policy at issue here is economi-

cally equivalent to a tax on attending church: the school

district imposes a financial forfeiture on those who attend

religious schools. The district provides a benefit to dis-

abled children attending private secular schools-but with-

holds that benefit from children attending private

religious schools. Both the hypothetical tax and the actual

forfeiture of benefits are economic penalties “specifically

directed” at religious practice. Imposing the tax would

discourage church attendance; withholding the benefit

will discourage enrollment in religious schools. See

McConnell & Posner, An Economic Approach to Issues of

Religious Freedom, 56 U.Chi.L.Rev. 1, 5 (1989). Under

Smith, these specifically directed economic penalties on

religious practices violate the Free Exercise Clause.

Third, Smith holds that if a governmental benefit

depends upon the actor’s motives, religious motives must

be included among the motives that qualify for the bene-

fit. 494 U.S. at 884. This was the Court's rationale for

reaffirming the line of unemployment compensation

cases beginning with Sherbert v. Verner, 374 U.S. 398

(1963).! The states in those cases had accepted some

reasons for quitting employment, but had denied benefits

to persons who had quit for religious reasons. Similarly,

Respondent in this case provides an interpreter to stu-

dents whose families have chosen public education or

private nonreligious education, but denies the same bene-

fit to religiously motivated families who choose religious

schools for their children. As in Sherbert, this policy

“forces [Petitioners] to choose between following the pre-

cepts of [their] religion and forfeiting benefits, on the one

hand, and abandoning one of the precepts of [their] reli-

gion in order [to obtain generally available benefits], on

' Accord, Frazee v. Illinois Dept. of Employment Security, 489

U.S. 829 (1989); Hobbie v. Unemployment Appeals Commission,

480 U.S. 136 (1987); Thomas v. Review Board, Indiana Employment

Security Div., 450 U.S. 707 (1981).

the other hand.” 374 U.S. at 404. Under Smith, this gov-

ernmental scheme lacks religious neutrality and thus is

unconstitutional.

The three formulations are mutually reinforcing ele-

ments of the requirement in Smith that government be

neutral toward religion. A government policy is invalid if

it overtly discriminates against religion, if it is “speci-

fically directed” at religious practices, or if it treats reli-

gious reasons for acting less favorably than secular

reasons for acting. The Respondent's discriminatory pol-

icy in this case violates all three formulations of neu-

trality.

B. The District’s Policy Violates the Parents’

Hybrid Right to Free Exercise in the Context of

Directing the Religious Education of Their

Children.

In Smith this Court recognized another class of Free

Exercise claims that continue to be reviewed under the

compelling interest test. The Court referred to these cases

as “hybrid” cases involving “not the Free Exercise Clause

alone, but the Free Exercise Clause in conjunction with

other constitutional protections.” 494 U.S. at 881. Smith

says that hybrid claims will be recognized in at least three

circumstances: when a Free Exercise claim is linked to a

claim based upon the right of parents to direct the educa-

tion of their children as recognized in Pierce v. Society of

Sisters, 268 U.S. 510 (1925) and Wisconsin v. Yoder, 406 U.S.

205 (1972); when a Free Exercise claim is linked to a Free

Speech or Free Press claim; when a Free Exercise claim is

linked with a freedom of association claim. Smith, 494

U.S. at 881-82. If a Free Exercise claim is combined with a

claim arising out of any one of these three categories, the

litigant has a hybrid claim and is entitled to strict scru-

tiny of government actions that burden it. /d.

It is clear that if any Free Exercise claim is a hybrid,

Petitioners’ claim must be one. Their Free Exercise claim

is reinforced by: 1) a parental rights claim, 2) the Free

Speech claim that the State may not “contract the spec-

trum of available knowledge”? by restricting educational

alternatives such as private religious education, and 3)

the freedom to choose the classmates and teachers with

whom Petitioner James Zobrest will associate during

instructional time. Petitioners’ claim is a cord of at least

four strands, and should be entitled, as a Smith-hybrid, to

the protection of the compelling interest test.

In Pierce v. Society of Sisters, this Court struck down

an Oregon law that required most children between the

ages of eight and sixteen to attend public school. 268 U.S.

at 530-31. The Court held that the Oregon legislation

unreasonably interfered “with the liberty of parents and

guardians to direct the upbringing and education of chil-

dren under their control.” Id. at 534-35. The unanimous

opinion of the Court in Pierce recognized this parental

right to choose either public cr private education for their

children as a fundamental liberty protected by the Due

Process Clause of the Fourteenth Amendment. Id. at 535.

See also Meyer v. Nebraska, 262 U.S. 390 (1923). The leading

modern case recognizing this parental right is Wisconsin

v. Yoder, in which the Court noted that the “primary role

2 Griswold v. Connecticut, 381 U.S. 479, 482 (1965).

of the parents in the upbringing of their children is now

established beyond debate as an enduring American tradi-

tion.” 406 U.S. at 232.

Smith reaffirmed both Pierce and Yoder and cited them as

examples of hybrid cases in which a Free Exercise claim is

linked to a parental rights claim. 494 U.S. at 881. The instant

case is a perfect example of this type of Smith-hybrid. Peti-

tioners’ Free Exercise claim is inextricably intertwined with

their claim to direct the education of their children by choos-

ing a private religious school. Respondent's policy of grant-

ing sign language interpreters to hearing-impaired children

attending public schools or private nonreligious schools,

while denying an interpreter to families choosing private

religious education, violates Petitioners’ hybrid constitu-

tional claim and must be reviewed under strict scrutiny.

Petitioner’s hybrid claim is reinforced by free speech

and association interests. The sole basis for distinguish-

ing between the school he chose to attend and other

private schools, in which he would have received the

assistance of a state-funded interpreter, was the content

and viewpoint of the speech that takes place at the

school. A private school devoted to progressive politics,

feminism, militarism, or Afrocentrism would have been

approved; a school infused by religious values was not

approved. This is a plain instance of discrimination on

the basis of the content of speech - indeed, even of the

viewpoint of speech. Petitioner’s school covered the same

subjects as schools that would have been approved, but it

did so from a different perspective.? This Court has

* Even religion is deemed to be an appropriate subject for

secular curriculum so long as it is presented from the

(Continued on following page)

10

condemned such content discrimination in the strongest

of terms. See R.A.V. v. City of St. Paul, No. 90-7675 (June

22, 1992); Simon & Schuster, Inc. v. New York State Crime

Victims Bd., 112 S. Ct. 501, 508 (1991). This Court has

condemned content-based discrimination of speech even

when the speech is religious (see Widmar v. Vincent, 454

U.S. 263 (1981)) and even when the issue is the grant or

denial of subsidies, rather than the administration of

regulation. Arkansas Writers’ Project v. Ragland, 481 U.S.

221, 230 (1987); Texas Monthly, Inc. v. Bullock, 489 U.S. 1

(1989). Widmar upheld neutral access to governmental

facilities and resources by non-government speakers. This

Court has the same opportunity in the instant case to

clarify the complementarity between Establishment and

Free Exercise principles in the context of a program pro-

viding similar indirect facilitation (equal access to sign

language interpreters) of private religious speech.

The instant case also presents the scenario, envi-

sioned by Smith, “in which a challenge on freedom of

association grounds would likewise be reinforced by Free

Exercise Clause concerns.” 494 U.S. at 882. As this Court

noted in Roberts v. United States Jaycees, 468 U.S. 609

(1984):

An individual’s freedom to speak, to worship,

and to petition the government for the redress

of grievances could not be vigorously protected

from interference by the State unless a correla-

tive freedom to engage in group effort toward

those ends were not also guaranteed. . .

(Continued from previous page)

viewpoint of a dispassionate outsider rather than a believer.

Stone v. Graham, 449 U.S. 39, 42 (1980); School Dist. of Abington

Township v. Schempp, 374 U.S. 203, 225 (1963).

1]

According protection to collective effort on

behalf of shared goals is especially important in

preserving political and cultural diversity and in

shielding dissident expression from suppression

by the majority.

Id. at 622. See also NAACP v. Alabama ex rel. Patterson, 357

U.S. 449 (1958). By singling out disabled children attend-

ing private religious schools for discriminatory denial of

benefits, Respondent has infringed Petitioners’ hybrid

claim. Therefore, Respondent's policy is subject to com-

pelling interest analysis under Smith.

Ill. The Decision Below Elevates the Establishment

Clause Over the Rest of the First Amendment, and

Thus Conflicts with Decisions of this Court, the

Court of Appeals for the Seventh Circuit, and the

Congress.

The court of appeals held that the district's policy

burdens Petitioner's free exercise rights and that the pol-

icy can be justified only by a compelling interest. 963 F.2d

1196-97, Pet. App. A13-A15. It found such an interest in

the desire to avoid a violation of the Establishment

Clause. Id., Pet. App. at Al4-A15. This holding is

announced in a single conclusory paragraph.

If we accept the court of appeals’ reasoning up to the

beginning of that paragraph, a question of exquisite diffi-

culty is presented. The court of appeals held that provid-

ing the sign language interpreter prima facie violates the

Establishment Clause, and that withholding the inter-

preter prima facie violates the Free Exercise Clause. What

to do in the face of this conflict?

12

The court of appeals simply picked its favorite

clause, and announced that one clause justified a viola-

tion of the other. But the court could, with equal logic,

have announced that the other clause justified a violation

of the first. See Laurence Tribe, Constitutional Law, Sec.

14-4, at p. 1168 (2d ed. 1988) [arguing that actions “argua-

bly compelled” by the Free Exercise clause “are not for-

bidden by the (E)stablishment (C)lause”]. The court of

appeals apparently assumed that the Establishment

Clause is a trump, and that it overrides the rest of the

First Amendment.

As it happens, the Seventh Circuit was simul-

taneously considering a similar issue involving an alleged

conflict between the Establishment Clause and the Free

Speech Clause. Doe v. Small, 964 F.2d 611 (7th Cir. 1992).

That court accepted the district court’s unappealed judg-

ment that a city had violated the Establishment Clause by

endorsing a display of religious paintings in the city

park. /d. at 617. But it held that this assumed Establish-

ment Clause violation did not justify an injunction over-

riding the free speech rights of a private association that

wanted to display the paintings in its own name.

Judge Easterbrook’s concurring opinion captured the

essence of the issue most succinctly. Id. at 629-30. We

draw on his analysis, substituting the facts of this case for

the facts of his. This analysis focuses on the relationship

among two rules developed by this Court under the First

Amendment and a third one added by the Court below:

Rule 1: Under the Establishment Clause, govern-

ment may not act in a way which has the primary effect

of advancing religion.

13

Rule 2: Under the Free Exercise Clause, government

may not single out religion for discriminatory treatment

or burden a hybrid claim linking free exercise to another

constitutional interest.

Rule 3: (the Ninth Circuit’s rule here): To avoid

violating Rule 1, government may violate Rule 2.

As Judge Easterbrook stated when discussing this

problem in Doe v. Small, “the Constitution neither creates

nor tolerates Rule 3.” 964 F.2d at 629. (Easterbrook, J.

concurring).

The Seventh Circuit and the Ninth Circuit could not

be further apart on this issue. The Ninth Circuit appears

to believe that the constitution grants a position of abso-

lute priority to the Establishment Clause which justifies a

violation of the Free Exercise Clause. Zobrest, 963 F.2d at

1196-97, Pet. App. A14-A15. See also Goodall By Goodall v.

Stafford County School Board, 930 F.2d 363, 370 (4th Cir.

1991). In Doe v. Small, however, the Seventh Circuit, citing

Wid mar v. Vincent, 454 U.S. 263 (1981), held that the state’s

obligation to avoid an Establishment Clause violation

does not justify restricting the Free Exercise and Free

Speech rights of private litigants. 964 F.2d at 618-19. This

Court should resolve the split among the circuits by

granting Petitioner’s prayer in this case and rejecting the

Ninth Circuit’s rule of absolute preeminence for the

Establishment Clause.

This Court addressed similar claims of conflict

between the Establishment Clause and religious speech in

Board of Education v. Mergens, 496 U.S. 226 (1990), and

Widmar v. Vincent, 454 U.S. 263 (1981). This Court did not

indulge the Ninth Circuit’s assumption that one clause of

14

the First Amendment trumps the others. Rather, in

Widmar it construed the clauses in light of each other, and

held that government satisfies the First Amendment

when it treats religion with neutrality, neither discrimi-

nating in favor of religion or against religion. Mergens

and Widmar hold that there is no violation of the Estab-

lishment Clause when religious speech is given equal

access to a public forum, and Widmar expressly rejects the

claim that a more hostile interpretation of a state estab-

lishment clause can be a compelling interest that justifies

a violation of the Free Speech Clause. 454 U.S. at 275-76.

This Court has also addressed alleged conflicts

between the Establishment and the Free Exercise compo-

nents of the Religion Clause. The Court rejected the claim

that the Establishment Clause precludes exemptions for

religiously motivated conduct, Employment Division v.

Smith, 494 U.S. 872, 890 (1990); Corporation of the Presiding

Bishop v. Amos, 483 U.S. 327 (1987), even though Smith

interprets the Free Exercise Clause not to require such

exemptions.

These cases suggest the proper line of analysis here.

Neither of the components of the Religion Clause is a

trump card. Instead, the interests on both sides must be

weighed with a view toward minimizing governmental

impact on private religious choices. In other words, as

this Court held in Committee for Public Education v. Ny-

quist, 413 U.S. 756, 788 (1973), the state must “maintain an

attitude of ‘neutrality’, neither ‘advancing’ nor ‘inhibi-

ting’ religion.” See also id. at 792-93 (“A proper respect for

both the Free Exercise and the Establishment Clauses

compels the State to pursue a course of ‘neutrality’

toward religion.”)

15

A conflict between the Establishment and the Free

Exercise provisions is best avoided by holding that gov-

ernment assistance provided on an equal basis to all

disabled students (including disabled students enrolled

in private religious schools) does not violate the Estab-

lishment Clause. The Establishment Clause issue is ade-

quately set forth in the Petition for Certiorari, and we will

not review the whole argument here. We would emphas-

ize two points. First, the Establishment Clause issue is

virtually indistinguishable from Witters v. Washington

Dept. of Services for the Blind, 474 U.S. 481 (1986). The

biggest difference between the cases makes this one even

simpler: Witters sought religious training for employment

as a minister, but Petitioner here received education in

secular subjects that satisfied the state’s compulsory edu-

cation requirements. Second, in Witters and Mueller v.

Allen, 463 U.S. 388 (1983), this Court relied on the fact

that direction of public funds to a religious school

depended wholly on the private choices of individual

students and their parents. That is also true here. The

state’s check might have gone directly to the interpreter

instead of to the parents, as the court of appeals empha-

sized, 963 F.2d at 1195, but that is an irrelevant formality.

The important point is that the state does not choose the

school. Petitioners’ choice of a religious school was

wholly private.

But even if this Court concludes that such even-

handed aid advances religion, it is our position that the

advancement is incidental, at most de minimis, and is

outweighed significantly by Petitioners’ free exercise

interest. See Laycock, Formal, Substantive, and Disaggre-

gated Neutrality Toward Religion, 39 DePaul L. Rev. 993,

16

1011-18 (1990). Because the Congress has determined that

all hearing-impaired students (of whatever faith and

whether they attend public or private school) are entitled

to an interpreter, it is impossible for the government aid

to influence anyone’s private choices concerning religion.

The aid merely eliminates the cost of the interpreter as a

factor in choosing where to attend school. It reduces the

effect of disability as a constraint on free choice. How-

ever, Respondent's decision to deny interpreters to chil-

dren attending private religious schools, while providing

interpreters to children attending public or private non-

religious schools, sharply discourages religion in viola-

tion of the Free Exercise Clause. See McConnell & Posner,

supra, 56 U.Chi.L.Rev. at 5 (observing that religious

behavior contracts when government subsidizes substi-

tute activities).

To summarize our analysis, by providing interpreters

only to children attending nonreligious schools, the dis-

trict has created a substantial disincentive for parents to

choose religious education for hearing-impaired children.

However, extending benefits to all hearing-impaired chil-

dren has, at most, a de minimis effect on the religious

choices of parents. It follows, therefore, that the Free

Exercise burden in the instant case outweighs the Estab-

lishment Clause interest, and that the district is without a

compelling justification for its discriminatory policy.

Even assuming arguendo that Respondent has a com-

pelling interest in avoiding a mistaken perception of a

symbolic endorsement of religion, it has not narrowly

tailored its policy to achieve that interest without unnec-

essarily burdening Petitioners’ constitutional rights. For

17

example, Respondent could eliminate any mistaken per-

ception of endorsement by disclaimer and by explaining

our society's commitment to equal educational oppor-

tunity and religious tolerance to students and parents

through announcements, memoranda, and posted

notices. Therefore, there was no need to adopt the more

restrictive alternative of denying much needed assistance

to handicapped students enrolled in private religious

schools. The Ninth Circuit's cavalier attitude toward this

Court's least restrictive means test is yet another reason

why this case merits review.

Finally, respondent's asserted compelling interest

also contradicts and frustrates the clear policy of Con-

gress to assure the educational reeds of all handicapped

children, including specifically handicapped children

“who are enrolled in private elementary and secondary

schools.” 20 U.S.C. §§ 1400 (Pet. App. A37), 1413(a){4)(A)

(Pet. App. A51); 34 C.F.R. §§ 300.341(b) (Pet. App. A97),

300.347 (Pet. App. A102), 300.348 (Pet. App. A103),

300.401-300.480 (Pet. App. A103-A105); and 34 C.FR.

§§ 76.650-76.662 (Pet. App. A67-A71). The Ninth Circuit

was far too quick to usurp the prerogatives of coequal

branches of the national government by brushing aside

these carefully formulated policies of Congress and their

implementation by the Executive Branch.

¢

18

CONCLUSION

For many years, the jurisprudence of the Religion

Clause has been plagued by a “tension” between the

interpretation of its two components. See Thomas v. Review

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

This case is a textbook example. The court of appeals and

the State of Arizona seek to protect the “separation

between church and state” by discriminating against a

deaf boy on account of his family’s religious choices,

thereby creating a clear conflict with the Free Exercise

Clause. This makes nonsense of the work of the framers,

which was to provide a coherent and comprehensive

protection for religious freedom against the dangers of

both a hostile state and an established church. This case

presents an ideal opportunity for this Court to resolve the

“tension” between the clauses and restore the First

Amendment to a consistent and harmonious whole.

For all of the foregoing reasons, amici urge the Court

to grant the Petition.

Respectfully submitted,

Douctas Laycock RicHarp F. DuNCcAN

727 East 26th Street P.O. Box 67134

Austin, TX 78705-3299 Lincoln, NE 68583

(512) 471-3275 (402) 472-6044

Steven T. McFartanp MicHae, W. McConne i”

Braptey P. Jacos 1111 East 60th Street

CreNTER FOR Law & Chicago, IL 60603

Revicious Freepom (312) 702-3306

4208 Evergreen Lane

Suite 222

Annandale, VA 22003

(703) 642-1070

*Counsel of Record

Al

APPENDIX A

The Christian Legal Society is a nonprofit profes-

sional association, founded in 1961, with a present mem-

bership of 4,500 Christian judges, attorneys, law

professors and law students. Concerned about our First

Freedom, it founded the Center for Law & Religious

Freedom in 1975 to protect and promote the religious

liberty of all persons through advocacy and education.

Both in this Court and in state and federal courts

throughout the country the Center has advocated for the

free exercise of religion as a fundamental and inalienable.

human right, and it has vigorously opposed govern-

mental discrimination or preference on the basis of reli-

gion.

The Christian Life Commission is the moral concerns

and public policy agency for the Southern Baptist Con-

vention, the nation’s largest Protestant denomination,

with over 15 million members in nearly 38,000 local

churches. The Christian Life Commission also has an

assignment from the Convention to address matters of

religious liberty.

The Church of Jesus Christ of Latter-Day Saints (“the

LDS Church”) is an unincorporated religious association

headquartered in Salt Lake City, Utah. Church member-

ship exceeds 7 million with more than 17,000 congrega-

tions located throughout the world. Firmly embedded in

the tradition and teachings of the LDS Church are the

concepts of religious freedom and toleration: “We claim

the privilege of worshiping Almighty God according to

the dictates of our own conscience, and allow all men the

same privilege, let them worship how, where, or what

A2

they may.” Article of Faith No. 11, The Church of Jesus

Christ of Latter-Day Saints.

First Liberty Institute [FLI] at George Mason Univer-

sity is a non-profit educational institute established to

promote principles of religious liberty and civic respon-

sibilities in American education. In the spirit of the Wil-

liamsburg Charter, FLI affirms and encourages the civic

framework of religious liberty - rights, responsibilities,

and respect - as common core values essential for good

citizenship. FLI works to secure the strongest possible

protection for religious liberty, our nation’s first liberty

undergirding all other rights and freedoms guaranteed by

the Bill of Rights.

The Lutheran Church-Missouri Synod is the second

largest Lutheran denomination in North America and the

eleventh largest Protestant body in the United States. It

has approximately 6,200 member congregations which, in

turn, have approximately 2,600,000 individual members.

The congregations of the Synod operate approximately

1,000 elementary and secondary schools situated in most

of the states of the United States. The Synod, on behalf on

its congregations, schools, and individual members, is

concerned with situations in which individuals’ freedom

to exercise their religious preference and parents’ rights

to direct the religious upbringing and education of their

children are infringed, such as in the instant case.

The National Association of Evangelicals [NAE] is a

nonprofit association of evangelical Christian denomina-

tions, churches, organizations, institutions and individ-

uals. It includes some 45,000 churches from 74

A3

denominations and serves a constituency of approx-

imately 15 million people. NAE is committed to defend-

ing religious freedom as a precious gift of God and a vital

component of the American heritage.

The National Council of the Churches of Christ in the

USA is a community of communions composed of thirty-

two national religious bodies, Protestant and Eastern

Orthodox, having an aggregate membership of more than

40 million adherents in the United States. It is governed

by a board of some 260 members selected by its member

communions in proportion to their size and support of

the Council. The Council does not claim to speak for all of

its adherents but seeks to carry out the wishes of their

representatives as expressed in the polices they adopt

through the General Board.

Among these policies was a historic resolution “On

Federal Aid to Education” that helped to shape the

“church-state settlement” that made possible the enact-

ment of the Elementary and Secondary Education Act of

1965. It endorsed the “child-benefit” theory underlying

Everson v. Board of Education (1977), thus permitting cer-

tain kinds of aid to flow to children attending parochial

schools. That Act was amended in committee to incorpo-

rate certain restrictions designed to insure that the aid

benefitted children rather than the schools they attended.

Those amendments were informally referred to by mem-

bers of Congress as the “Flemming Amendments”

because they were suggested by the President of the

NCC, Arthur C. Flemming, in testimony based on this

resolution.

A4

The limitations in the resolution, designed to keep

the “child-benefit” concept from being completely open-

ended, were as follows:

1. That benefits intended for all children be

determined and administered by public

agencies . .

2. That such benefits intended for all children

not be conveyed in such a way that religious

institutions acquire property or the services

of personnel thereby.

3. That such benefits not be used directly or

indirectly for the inculcation of religion or

the teaching of sectarian doctrine; and

4. That there be no discrimination by race, reli-

gion, class or natural origin in the distribu-

tion of such benefits.

The relief sought in this brief would seem to meet

these criteria, with the possible exception of No. 3, which

would stipulate that the sign-language interpreters sup-

plied by the public school district not be involved in the

teaching of religion.