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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1993
- **Citation:** 509 U.S. 1

## Text

| 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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0332%3A05. Public record. Not legal advice.