Amicus Curiae Brief — Board of Education of Monroe-Woodbury Central School District v. Grumet

on o> = Sven, U3.

jm e ( } FILED

No. 93-517, 93-527, 93-539 JAN 2 1 1994

In The

Supreme Court of the United States

October Term, 1993

+

BOARD OF EDUCATION OF THE KIRYAS JOEL

VILLAGE SCHOOL DISTRICT, et al.,

Petitioners,

LOUIS GRUMET AND ALBERT HAWK,

Respondents.

+

On Writ Of Certiorari To The

New York Court Of Appeals

+

BRIEF OF THE

SOUTHERN BAPTIST CONVENTION

CHRISTIAN LIFE COMMISSION

AS AMICUS CURIAE SUPPORTING PETITIONERS

¢

Micuaet K. WHITEHEAD

(Counsel of Record)

General Counsel

Southern Baptist Convention

Christian Life Commission

400 North Capitol Street,

N.W., #594

Washington, D.C. 20001

202-638-3223

FAX 347-3658

Attorney for Amicus Curiae

January 21, 1994

-———

——

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

‘BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

INTEREST OF THE AMICUS CURIAE............. 1

DEALmmemres OF THE CAGE.......ccccccccccccccss 2

SUMMARY OF ARGUMENT. ............0.scceee0. 6

ARGUMENT:

I.

Il.

III.

THE PRINCIPLE OF ACCOMMODATION

SHARPENS THE FOCUS UPON RELIGIOUS

LIBERTY AS THE GOAL OF THE RELIGION

CLAUSES, MAINTAINING BENEVOLENT

NEUTRALITY BETWEEN GOVERNMENT

i cl cthn cece besdgeeneteks-0ose 0.

THE LEMON TEST BLURS THE FOCUS ON

RELIGIOUS LIBERTY, FIXATING INSTEAD ON

SECULARISM, PRODUCING HOSTILE

RESULTS FOR RELIGIOUS ACCOMMODA-

A. The Lemon Test fixates on secularism, not

CE oS oec0csesednsesecuseceee«

B. The Lemon Test fosters hostility, not neu-

PE AOR AES SUCKER SR OwNSSNeeereccesvesees

C. The Lemon Test fuels religious prejudice, not

respect for religious pluralism ............

D. The Lemon Test feeds confusion, not clear

EE EE LY ae ee

A REVISED TEST SHOULD ENCOURAGE

GOVERNMENT OFFICIALS TO SHOW

ACCOMMODATING NEUTRALITY TOWARD

PRIVATE RELIGIOUS CHOICES, INDEPEN-

DENTLY DERIVED, WHICH ARE NEITHER

INDUCED, COERCED OR SUBSIDIZED BY

cs ctauibasnbbidesverteguesivcsce.

12

15

ii

TABLE OF CONTENTS - Continued

Page

A. The Creation of a Village District is a neu-

tral accommodation of independent reli-

Gious CHOICES. ......ccccccccecescessesenes 18

B. Chapter 748 does not induce, coerce or dis-

tort religious choices of adherence or non-

BGNETERCE .. 0. scccccccccnccesseeuseueenes 19

C. Mistaken beliefs about endorsement should be

corrected by disclaimers, rather than capitulat-

ing to them by repeal of the law........... 20

D. Lemon’s obsession to purge religious inten-

tions and effects invites excessive entangle-

MTT) UUUUC™~—~— 21

CONCLUSION .....ccccccovcscccseesteneeneeeneeee 22

TABLE OF AUTHORITIES

Page

Cases:

Abington School District v. Schempp, 374 U.S. 203,

etree re eceesecesesesteccccsececces 12

Aguilar v. Felton, 473 U.S. 402 (1985) ............6055. 5

Board of Education v. Wieder, 72 N.Y. 2d 174, 531

cea sescscccctcccccccccccccees 3

Corporation of Presiding Bishops v. Amos, 483 U.S.

EEC Bebb essecesececcccecccecccesees 9

County of Allegheny v. A.C.L.U., 109 S.Ct. 3086

UCP e Pree eneceescesedeccescccccccccecs 15

Gillette v. United States, 401 U.S. 437 (1971)........... )

Grand Rapids School District v. Ball, 473 U.S. 373

PCR EEC Eeebetecetccccesccccecoscccces 19

Grumet, et al., v. Board of Education of Kiryas Joel

Village School District, 81 N.Y.2d 518, 618 N.E.2d

CED so cocccctesecccsccccecces 4

Hobbie v. Unemployment Appeals Comm'n, 480 U.S.

eink eedacnsesseceeccccceccces: 7

Lamb's Chapel v. Center Moriches School District, 113

ee eee bekeeeceeccescccescceccoss 16

Lee v. Weisman, 112 S.Ct. 2649 (1992)................ 10

Lemon v. Kurtzman, 403 U.S. 602 (1971).......... passim

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

Marsh v. Chambers, 463 U.S. 783 (1983) ............... )

McDaniel v. Paty, 435 U.S. 618 (1978)..............5.. 8

—— v. Westside Community Schools, 110 S.Ct.

UPPER CEECECGbESCeccoccccocecccecoeecess 9

iv

TABLE OF AUTHORITIES - Continued

Page

Sherbert v. Verner, 374 U.S. 399 (1963) ............... 10

Stone v. Graham, 449 U.S. 39 (1980).................. 15

Texas Monthly v. Bullock, 489 U.S. 1 (1989)........... 16

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

Trans World Airlines v. Hardison, 432 U.S. 63 (1977) ..... )

Wallace v. Jaffree, 472 U.S. 38 (1983) .............005. 16

Walz v. Tax Commission, 397 U.S. 664 (1970)....... 9, 10

Widmar v. Vincent, 454 U.S. 263 (1981)......... 9, 20, 21

Wisconsin v. Yoder, 406 U.S. 205 (1972)............. 9,14

Wolman v. Walter, 433 U.S. 229 (1977) ............... 19

Zobrest v. Catalina Foothills School District, 113 S.Ct.

> Bee Cee OF GIs cose ccnccccccdcccocccec 15

Zorach v. Clauson, 343 U.S. 306 (1952) ................ 8

MISCELLANEOUS:

M. McConnell, Accommodation of Religion, Sur.

Cows Ban, 89GB, @. BGR... nc. cccccccccssccccces 6, 17

M. McConnell, Coercion: The Lost Element of Estab-

lishment, 27 Wm. & Mary L. Rev. 933 (1986)........ 7

No. 93-517, 93-527, 93-539

.

In The

Supreme Court of the United States

October Term, 1993

+

BOARD OF EDUCATION OF THE KIRYAS JOEL

VILLAGE SCHOOL DISTRICT, et al.,

Petitioners,

LOUIS GRUMET AND ALBERT HAWK,

Respondents.

+

On Writ Of Certiorari To The

New York Court Of Appeals

+

BRIEF OF THE

SOUTHERN BAPTIST CONVENTION

CHRISTIAN LIFE COMMISSION

AS AMICUS CURIAE SUPPORTING PETITIONERS

¢

This brief is being filed with the written consent of

counsel for both the petitioners and the respondents,

which consents have been filed with the Clerk of the

Court.

INTEREST OF THE AMICUS CURIAE

The Southern Baptist Convention is the nation’s larg-

est Protestant denomination, with over 15.4 million mem-

bers in over 38,400 local churches. The Christian Life

Commission is the public policy agency of the Conven-

tion and is assigned to address religious liberty and other

public policy issues. Amicus produces publications and

seminars to educate Southern Baptists about ethical and

moral issues in daily Christian life, and to advocate

responsible Christian citizenship as part of biblical deci-

sion-making. Amicus also seeks to bring biblical princi-

ples and Southern Baptist convictions to bear upon public

policy debates before courts, legislatures and policy-mak-

ing bodies. Amicus frequently files briefs as amicus curiae

in important religious liberty litigation, such as this case.

Southern Baptists are deeply interested in and

affected by both free exercise and establishment issues,

and desire to see the Court develop a workable test which

will safeguard the interests behind both clauses.

S

STATEMENT OF THE CASE

Amicus adopts the statement of facts in the peti-

tioner’s brief. The following facts are summarized as

most important to our arguments.

In 1989, the New York State legislature passed Chap-

ter 748, entitled “AN ACT to establish a separate school

district in and for the village of Kiryas Joel, Orange

county”.! On July 24, 1989, Governor Mario Cuomo

1 Chapter 748 of the Laws of 1989 provides:

§ 1. The territory of the village of Kiryas Joel in the town of

Monroe, Orange county, on the date when this act shall take

effect, shall be and hereby is constituted a separate school dis-

trict, and shall be known as the Kiryas Joel village school district

signed the law, stating his conclusion that it is facially

constitutional, while also urging the school district to

“take pains to avoid conduct that violates the separation

of church and state because then a constitutional problem

would arise in the application of the law. The village

officials acknowledge this responsibility.” 1 R. 111.

The law is not challenged as applied, or for any

conduct by the school which violates church-state separa-

tion. Rather, it is challenged as facially unconstitutional

as an establishment of religion. Still, it is relevant to note

some facts about the nature and function of the school

that was created.

Since July 1, 1990, the Kiryas Joel Village School

District has operated a totally secular special education

school for approximately 200 disabled children who are

part-time or full-time students. The disabilities of the

students include “mental retardation, deafness, speech

and language impairments, emotional disorders, learning

disabilities, Down’s Syndrome, spina bifida and cerebral

palsy.” Board of Education v. Wieder, 72 N.Y. 2d 174, 179,

. 531 N.Y.S.2d 889, 891 (1988). The public school building is

secular in design and furnishing. The curriculum is secu-

lar, covering reading, writing, arithmetic, music and

and shall have and enjoy all the powers and duties of a union

free school district under the provisions of the education law.

§ 2. Such district shall be under the control of a board of educa-

tion, which shall be composed of from five to nine members

elected by the qualified voters of the village of Kiryas Joel, said

members to serve for terms not exceeding five years.

§ 3. This act shall take effect on the first day of July next

succeeding the date on which it shall have become a law.

physical education, all without religious content. The fac-

ulty is secular, including a superintendent who served for

20 years in the New York City public school system, and

who is not Hasidic. The teachers and therapists are eth-

nically and religiously diverse, none living in the village.

Nothing about the manner of operation of the school has

violated Governor Cuomo’s warning about church-state

separation.

Respondents, who are officers of the New York State

School Boards Association, filed suit, claiming that Chap-

ter 748 is unconstitutional on its face because it allegedly

“establishes religion” in violation of the First Amend-

ment of the United States Constitution, and the New York

State Constitution. The New York trial judge held that the

statute violated all three prongs of Lemon v. Kurtzman, 403

U.S. 602 (1971), as well as the New York Constitution. The

Appellate Division, Third Department, affirmed, 2-1,

holding that the second prong of Lemon was violated

because the primary effect of the law was to advance

religion. The court said that “religion played a role in the

dispute,” over many years of controversy and litigation.

Therefore, the solution of creating a school district coter-

minous with the village had created “a symbolic union

between church and state” that “is significantly likely to

be perceived by adherents of the Satmarer Hasidim as an

endorsement, and by nonadherents as a disapproval of

their individual religious beliefs.” The New York Court of

Appeals affirmed the holding as to the second prong of

the Lemon test.

The residents of the village are members of a reli-

gious order known as Satmar Hasidic Jews, devoutly

religious people who believe in maintaining an insular

community where religious ritual is scrupulously fol-

lowed. Yiddish is frequently spoken, and distinctive reli-

gious attire is the norm. Television is excluded. Generally,

children receive their education in private-schools, sepa-

rated as to gender, rather than in public schools.

The village is a municipal corporation. The citizens of

the village have voluntarily chosen to live in the geo-

graphic proximity to each other so as to facilitate the

exercise of their shared religious beliefs and preserve

their unique culture and way of life. (Pet. App., p.3)

The village was formerly part of the surrounding

Monroe-Woodbury school district. At one stage Hasidim

parents tried sending their disabled children to the Mon-

roe-Woodbury special education school, but their chil-

dren suffered emotional trauma from being teased and

ridiculed for their differences of dress and customs by the

other students. Parents then withdrew their handicapped

children until the new school district was created, permit-

ting a special education school wi ‘in the Village commu-

nity, where Hasidim would be the norm.

Other plans had been tried. Under one plan, public

school teachers came onto private school premises to

teach the disabled children. Aguilar v. Felton, 473 U.S. 402

(1985), prohibited a similar arrangement, so this plan was

stopped. Another plan set aside several public school

classrooms for Satmar children only, but this plan was

also judicially invalidated under the Lemon test. Finally

the state legislature, the governor, the schools, and the

parents discovered the idea of Chapter 748, creating a

new school district within the village, which satisfied

everyone — except for the school boards association

leaders. They complained that the plan appeared to be

public funding of a private religious school. Further,

since only Hasidic Jews lived in the Village, the new

school district would be controlled by an exclusively

Hasidic school board.

No one is excluded from residing in the village

because of religion or race, and no resident children are

excluded from attending the public school based on reli-

gion or race. The testimony of superintendent Benardo is

that the KJV district has provided bilingual and bicultural

services to non-Hasidic students whose primary language

is Yiddish and whose school district of residence could

not offer such services. It has also begun an assessment of

providing services to a few Spanish-speaking children

who reside in Kiryas Joel. Benardo Aff. 8-9. Nonetheless,

respondents contend that the purpose of the statute was

to accommodate the separationist religious doctrine of

the Hasidim, and that such accommodation has the

unlawful effect of endorsing religion by creating a sym-

bolic union between the state and the religious commu-

nity.

SUMMARY OF ARGUMENT

Chapter 748 does not violate the Establishment

Clause, because it accommodates the independently-

derived religious practices of the community and its stu-

dent population. It does not interfere with the religious

liberty of non-adherents by forcing them to participate in

religious practice or to subsidize religious teaching. It

does not favor one form of religious belief over another. It

does not use the government's taxing or spending power

to induce, coerce or distort individual religious choice, or

to interfere with the religious autonomy of a religious

institution.

ARGUMENT

I. THE PRINCIPLE OF ACCOMMODATION

SHARPENS THE FOCUS UPON RELIGIOUS LIB-

ERTY AS THE GOAL OF THE RELIGION

CLAUSES, MAINTAINING BENEVOLENT NEU-

TRALITY BETWEEN GOVERNMENT AND RELI-

GION.

There is widespread agreement that the Establish-

ment Clause and the Free Exercise Clause have as their

common ultimate goal the protection of religious liberty.?

Professor Michael McConnell, University of Chicago Law

School, in his article, Coercion: The Lost Element of Estab-

lishment, 27 Wm. & Mary L. Rev. 933 (1986) makes clear

that the primary good of the religion clauses is freedom

of religious choice, and the primary evil is government

interference with religious choice in a manner which

induces, coerces or distorts the free choices of religiously-

based conscience. Religious liberty includes both individ-

ual choice of religious belief and practice, and autonomy

of religious organizations from government interference.

In Hobbie v. Unemployment Appeals Comm'n, 480 U.S.

136, 144-145 (1987), this Court said: “the government may

2 M. McConnell, Accommodation of Religion, Sur. Court Rev.

1985, p.1-59.

(and sometimes must) accommodate religious prac-

tices . . . without violating the Establishment Clause.”

The principle of accommodation is rooted in the logic

of the text of the First Amendment. Obviously, the prohi-

bition on establishment must be interpreted in some man-

ner that is logically consistent with government's

obligation not to prohibit the free exercise of religion. The

concept of accommodation with benevolent neutrality

serves this end.

The first modern case to define the concept was

Zorach v. Clauson, 343 U.S. 306, 313-14, (1952), involving a

public school program of “released time” in which stu-

dents were permitted to leave school premises during the

day to attend religious instruction off campus. The Court

said:

“When the state encourages religious instruction

or cooperates with religious authorities by

adjusting the schedule events to sectarian needs,

it follows the best of our traditions. For it then

respects the religious nature of our people and

accommodates the public service to their spiri-

tual needs.”

In McDaniel v. Paty, 435 U.S. 618 (1978), the Court

struck down a state law which sought to bar clergymen

from elective public office. Justice Brennan explained:

“government [may] take religion into account . . . to

exempt, when possible, from generally applicable gov-

ernment regulation individuals whose religious beliefs

and practices would otherwise thereby be infringed, or to

create without state involvement an atmosphere in which

voluntary religious exercise may flourish.” 435 U.S. at

639.

Permissible accommodations allow government to

take religion into account to remove obstacles to a reli-

gious practice or belief that was adopted independently

of any government action, and that pre-existed govern-

ment involvement. Impermissible accommodations create

an incentive, inducement or coercion to adopt religious

practices or beliefs favored by the government. The prin-

ciple of accommodation has been frequently discussed by

most justices in many of the religion cases over the past

three decades.*

3 See Corporation of Presiding Bishops v. Amos, 483 U.S. 327

(1987) (upholding Title VII’s exemption for religious organiza-

tions from employment discrimination law.) Gillette v. United

States, 401 U.S. 437 (1971) (upholding religious conscientious

objection from military service.) Walz v. Tax Commission, 397 U.S.

664 (1970) (upholding exemption of religious organizations

from real estate taxes.) Trans World Airlines v. Hardison, 432 U.S.

63 (1977) (upholding statutory requirement that employer pro-

vide reasonable accommodation for employees’ religious prac-

tice under Title VII of the Civil Rights Act.) Wisconsin v. Yoder,

406 U.S. 205 (1972). (exemption of Amish parents and their

secondary-aged students from mandatory school attendance

laws, was required by free exercise, and did not violate estab-

lishment clause.) Widmar v. Vincent, 454 U.S. 263 (1981) (state

university must allow college student group equal access to

open forum, and this does not violate establishment clause.)

Mergens v. Westside Community Schools, 110 S.Ct. 2356 (1990)

(federal Equal Access Act, extending Widmar equal access prin-

ciple to secondary school Bible clubs, etc., does not violate

establishment clause.) Marsh v. Chambers, 463 U.S. 783, 812

(1983) (Brennan, J., dissenting) (distinguishing between official

legislative prayers and prayers that would “accommodat(e]

individual religious interests.”) Thomas v. Review Board, 450 U.S.

707, 727 (1981) (Rehnquist, J., dissenting) (“governmental assis-

tance which does not have the effect of ‘inducing’ religious

belief, but instead merely ‘accommodates’ or implements an

10

In Walz v. Tax Commission, 397 U.S. 664 (1970), Chief

Justice Warren Burger, the author of Lemon, held that real

estate tax exemptions for religious organizations did not

violate the Establishment Clause. He described the rela-

tion of free exercise and establishment clause concerns

this way:

“The course of constitutional neutrality in this

area cannot be an absolutely straight line; rigid-

ity could well defeat the basic purpose of these

provisions, which is to insure that no religion be

sponsored or favored, none commanded and

none inhibited. The general principle deducible

from the First Amendment and all that has been

said by the Court is this: we will not tolerate

either governmentally established religion or

governmental interference with religion. Short

of those expressly proscribed governmental acts

there is room for play in the joints productive of

a benevolent neutrality which will permit reli-

gious exercise to exist without sponsorship or

interference.” [emphasis added] (at 397 U.S. at

669)

It is this principle which your amicus urges this Court to

restore to its proper and fundamental place in Religion

Clause jurisprudence.

independent religious choice does not permissibly involve the

government in religious choices, and therefore does not violate

the Establishment Clause.”) Sherbert v. Verner, 374 U.S. 399

(1963) (free exercise requires religious exemption in unemploy-

ment compensation law, and this does not violate establishment

clause.) Lee v. Weisman, 112 S.Ct. 2649 (1992) (Souter, J., concur-

ring that commencement prayer violated the establishment

clause as state-sponsored religious worship: “accommodation

must lift a discernible burden on the free exercise of religion.”)

11

Il. THE LEMON TEST BLURS THE FOCUS ON RELI-

GIOUS LIBERTY, FIXATING INSTEAD ON SECU-

LARISM, PRODUCING HOSTILE RESULTS FOR

RELIGIOUS ACCOMMODATION.

A. The Lemon Test fixates on secularism, not reli-

gious liberty.

The very formulation of the Lemon test seems to

obscure the value of religious liberty. According to Lemon,

first, every legislative purpose must be secular. Second,

the primary effect must be secular, neither advancing nor

inhibiting religion. Third, government must avoid exces-

sive entanglement with religion.

By asking, as the threshold question, whether a reli-

gious accommodation has a secular purpose and secular

effects, the Lemon test has virtually predetermined the

outcome against religion. Thus, the test promotes, secu-

larism, not religious liberty. If secular is understood to

mean non-religious, then religious accommodations by

government will be presumed to be illegal. There is noth-

ing in this test that would encourag public officials to

presume that accommodations of religion may foster reli-

gious liberty, and therefore may be lawful.

B. The Lemon Test fosters hostility, not neutrality.

Insisting on a secularizing purpose, and permitting

only secular effects makes the test inherently hostile to

religious liberty. The Lemon test does not adequately

address permissible accommodations, or provide clear

guidance to officials and courts who must draw lines

between permissible accommodations of religion and

12

impermissible benefits to religion. When Lemon is

applied, courts often strike down benevolently neutral

actions by public bodies trying to show tolerance of all

elements of America’s pluvalistic society.

The courts below, applying Lemon, hold that the pub-

lic institution whose goal is to teach good citizenship and

tolerance cannot itself tolerate religious diversity among

patrons and students, for fear that this might have the

“primary effect” of advancing or endorsing a religion that

is contrary to the secular dogma of conformity.

Many parents and teachers have retreated from pub-

lic schools, in part because they refuse to accept the

“absolutely secular” model. They perceive, as Justice

Goldberg warned, a “brooding and pervasive devotion to

the secular, and a passive, and even active, hostility to the

religious.”4

C. The Lemon Test fuels religious prejudice, not

respect for religious pluralism.

The instant case is a good example of how Lemon

takes the focus off of religious liberty and puts it on

secular objectives, producing hostile results. Lemon looks

at a secular law creating a secular school, and suspects

that the lawmakers’ purpose was not sufficiently secular,

since religious persons benefited. Such myopia sees Gov-

ernor Cuomo and the New York legislature intending to

4 Abington School District v. Schempp, 374 U.S. 203, 306

(1963).

13

establish Hasidic Judaism as a government-favored reli-

gion. Lemon either overlooks or declares illegitimate the

intention to provide the special educational services to

disabled children, while accommodating the pre-existing

Hasidic convictions as much as reasonably possible.

Lemon next focuses on secular effects, regardless of

the intentions of lawmakers. Here, Lemon demands that

the “primary effect” of the law “neither advances or

inhibits religion.” The lower courts said the special edu-

cation services were already being provided at a public

school outside the Village, so Chapter 748 did not have

the primary effect of providing special education ser-

vices, but rather the effect of catering to the separatist

religious doctrine of the Hasidim, allowing them to dic-

tate that a school must be located within their village.

The Hasidim did not dictate anything. Lawmakers

made a deliberate and thoughtful compromise decision

about the best possible way to accommodate the state's

interest in education and the Hasidim’s interest in protec-

tion of their disabled children. Lemon strains to see who

got the better end of the bargain, the state or religious

parents, and if religious people were satisfied with the

plan, it must be illegal.

Respondents’ greatest fear seems to be that Chapter

748 will advance the petitioners’ “insular” or “separatist”

religious tenets.5 They say “accommodation [of Satmar

5 Most Southern Baptists do not share the particular reli-

gious beliefs or practices of the petitioners at issue in this case.

Many Baptists and other Christians embrace the biblical princi-

ple that a follower of Jesus Christ should be “separated” from

14

separatist beliefs] would contravene the basic purpose of

our system of public education to prepare students for

citizenship in a heterogeneous democratic society

because the state wov'< be directly involved in promot-

ing separatism rather .han pluralism.” R. Br. p. 22.

Respondents express their conviction about the impor-

tance of secular, heterogeneous pluralism with almost

religious fervor, as if it were the official religion of public

education. Since petitioners don’t want their children to

be conformed into the homogeneous mold of the sur-

rounding community, respondents seem to treat peti-

tioners like heretics, or worse - “segregationists.”

Respondents strain credulity to connect this religious

community to racial “segregationists” practicing “gerry-

mandering.” Their hostility toward the religion of peti-

tioners is transparent, and appalling, but is fostered by

the Lemon test’s “search and destroy” mindset against

religious accommodations in public life.

Wisconsin v. Yoder, 403 U.S. 205 (1973) has many par-

allels with this case. The religious beliefs of Amish par-

ents regarding separatism in education and culture were

accommodated by exempting the parents’ children from

the world, and should resist the world’s pressures to conform to

the surrounding culture. Christians are exhorted to be “in the

world” without being “of the world.” In Second Corinthians

6:14-17, the Apostle Paul repeats the Old Testament command,

“ ‘Therefore, come out from them and be separate,’ says the

Lord.” See also John 17:14-17 and Romans 12:2. Baptists would

interpret and practice the principle of separation much differ-

ently than the Hasidim, but readily defend the religious liberty

of the Hasidim to practice their religion without government

interference.

15

the mandatory public school attendance laws. Here the

state of New York has voluntarily made such an accom-

modation. In neither case is there improper “endorse-

ment.”

Also relevant is the case from last term, Zobrest v.

Catalina Foothills School District, 113 S.Ct. 2462, 125

L.Ed.2d 1 (1993), in which a state-paid interpreter could

be furnished to a deaf student at a private religious

school, without establishing religion, because the aid was

a specific application of an overall policy “that neutrally

provide[s] benefits to a broad class of citizens defined

without reference to religion.” (at page 2466). Similarly,

Chapter 748 is a specific application or adaptation of the

school districting laws to provide benefits to disabled

children, a class defined without reference to religion.

D. The Lemon Test feeds confusion, not clear direc-

tion

Consistency has not been a hallmark of the Lemon

test. It has been used to prohibit the display of a poster

listing the Ten Commandments in Kentucky classrooms,

Stone v. Graham, 449 U.S. 39 (1980). Yet, in Lynch v. Don-

nelly, 465 U.S. 668 (1984), Chief Justice Rehnquist

observed that “The very chamber in which oral argu-

ments on this case were heard is decorated with a notable

and permanent - not seasonal — symbol of religion: Moses

with the Ten Commandments.” 465 U.S. at 677. In Lynch,

the Court side-stepped Lemon and upheld a nativity scene

display by the city of Pawtucket, Rhode Island. But in

County of Allegheny v. A.C.L.U., 109 S.Ct. 3086 (1989), the

Court upheld a government display including a menorah,

16

while prohibiting a government display of a creche, citing

Lemon as the basis for both holdings.

A majority of the members of this Court have crit-

icized the Lemon test for both theoretical and practical

problems. See Lamb’s Chapel v. Center Moriches School Dis-

trict, 113 S.Ct. 2141 (1993) (Scalia, J., concurring in the

judgment) (collecting cases at 2149-50)). The inconsistent

holdings confuse public officials about what the law is

and how to apply it. Mixed signals cause collisions at the

intersection of Church and State. Clearer signals might

reduce collisions and tensions at this important intersec-

tion.

Ill. A REVISED TEST SHOULD ENCOURAGE GOV-

ERNMENT OFFICIALS TO SHOW ACCOM-

MODATING NEUTRALITY TOWARD PRIVATE

RELIGIOUS CHOICES, INDEPENDENTLY

DERIVED, WHICH ARE NEITHER INDUCED,

COERCED OR SUBSIDIZED BY THE STATE.

Your amicus joins the petitioners and other amici

who urge the Court to use this case as the vehicle to

reformulate an Establishment Clause test which will

guide public officials in upholding government accom-

modations of religion, while “determin[ing] when accom-

modation slides over into promotion, and neutrality into

favoritism.” Texas Monthly v. Bullock, 489 U.S. 1, 40 (1989)

(Scalia, J., dissenting). As Justice O'Connor stated in her

concurring opinion in the moment of silence case, Wallace

v. Jaffree, 472 U.S. 38, 105 S.Ct. at 2504, (1983), “the chal-

lenge posed by [the accommodation argument] is how to

17

define the proper Establishment Clause limits on volun-

tary government efforts to facilitate the free exercise of

religion.”

A new Establishment Clause test should have as its

goal the promotion of religious liberty, including the pro-

tection of both individual choice and institutional auton-

omy from government coercion and interference. A test

based on these principles, would include the following:5

I. Does the state action allow or accommodate indepen-

dent religious choice? Religious choice is independent if:

A. The religious practice or belief pre-existed the

state action, or

B. The religious practice is adopted through private,

family, church or community influences, and

C. The state action does not provide preferential

treatment for a particular religious practice or belief,

which has the demonstrable effect of inducing, coercing

or distorting religious choice.

II. Does the state action interfere with the religious lib-

erty of non-adherents by inducing or coercing them to

alter their religious practice?

III. Does the state action go beyond accommodation and

show favoritism toward one religious choice which

would not be shown to other religious or non-religious

choices?

> See article by M. McConnell, Accommodation, pages 35-39.

18

IV. Does the state action use the taxing and spending

power of government to provide some financial incen-

tive, benefit or penalty to a particular religious activity

which is not given to other religious or non-religious

alternatives?

A. Is the demonstrable effect to induce, coerce or

distort:

1.) religious choice by individuals or

2.) the religious autonomy of a religious institu-

tion?

B. Is the demonstrable effect to directly subsidize

religious worship, teaching, and indoctrination?

A. The Creation of a Village District is a neutral

accommodation of independent religious choice.

The creation of the KJV district is a neutral accom-

modation of the independent choices of the Satmar Hasi-

dim. Their beliefs and cultural practices derive from

ancient tradition, and surely pre-exist the state action in

dispute in this case.

The state is not involved in the religious aspects of

the Hasidim community other than to acknowledge their

concerns about the educational environment for their

special needs children, which reasons happen, in this

instance, to be religiously based. If the reasons were

purely psychological or cultural, the state would have

acted the same. Chapter 748 accommodates religious

needs in the same way the state would have responded to

similar psychological needs of children of other religions

or no religion. |

19

B. Chapter 748 does not induce, coerce or distort

religious choices of adherence or non-adher-

ence.

The Court of Appeals held that Chapter 748 is unlaw-

ful because, on its face, the law violates the second prong

of Lemon, i.e., it has the primary effect of advancing

religion. The court analyzes whether the effect of the law

is to “endorse” religion, using a term favored by Justice

O’Connor. The court also refers to the symbolic impact or

the message of endorsement implied by “a close identi-

fication of the responsibilities of government and religion

(See Grand Rapids School District v. Ball, 473 U.S. 373,

389” . . . (1985)). (601 N.Y.S.2d 61 at 66).

The issue has already been decided by this Court in

Wolman v. Walter, 433 U.S. 229 (1977). The Court consid-

ered various types of “state aid to pupils in church-

related elementary and secondary schools” (at page 232)

and found that “providing therapeutic and remedial ser-

vices at a neutral site off the premises of the non-public

school will not have the impermissible effect of advanc-

ing religion” (at 248). “The premises” means that reli-

gious premises caused the apparent endorsement of

religion. If the premises are state-owned and controlled,

there is no violation simply because the pupils or their

parents retain religious convictions.

The proposed accommodation test takes a different

approach to the same concerns raised in the various tests

for “endorsement” or “coercion” or “symbolic union.”

Under this approach, the state action is examined with an

eye to inducements, coercion or pressure to change or

distort one’s religious practices to suit the state. By this

20

test, the state action is benevolently neutral. No one

should feel like a “second class citizen” who is not Sat-

mar, and no one should feel that the Satmar religion is

favored because of the secular nature of the special edu-

cation school which is created. Everyone should feel

grateful that the state will work hard to accommodate

even minority religions, in the field of special education

especially.

C. Mistaken beliefs about endorsement should be

corrected by disclaimers, rather than capitulat-

ing to them by repeal of the law.

If someone mistakenly believes that the State is

endorsing the religion of Hasidic Judaism by this law, the

correct solution to that problem is an explanation, not the

voiding of the law. In numerous prior cases where there

was concern about apparent endorsement of religion by

government, the court has held that the solution was not

to penalize the religious person, but to have a govern-

ment official make an announcement disclaiming

endorsement to those who may misunderstand. For

example, airport official soften post signs or play

recorded announcements in a terminal area, disclaiming

state endorsement of religious or political leafleteers. In

Widmar v. Vincent, 454 U.S. 263 (1981), the Court cited the

use of a disclaimer in the university student handbook to

dispel the appearance of state endorsement of the student

groups which used the student union.© Widmar, supra.

6 Widmar v. Vincent, 454 U.S. 236, 276, n.15 (1981).

ba oO Me i _

aia

21

D. Lemon’s obsession to purge religious inten-

tions and effects invites excessive entangle-

ment.

The respondents object to the state accommodating

the educational concerns of parents if those concerns are

religiously based, even if the parents and the state may

articulate the trauma being experienced by Hasidic chil-

dren in purely secular, psychological, or educational

terms. Lemon's neutrality-turned-hostility threatens to

push courts and officials into excessive entanglement, the

very concern of the third prong of Lemon. If the state,

through its political branches, finds legitimate educa-

tional reasons to pass a particular education law, courts

should not scrutinize the words and motives of religious

parents in this manner to see if law is “secular” enough to

be legal.

In Widmar v. Vincent, 454 U.S. 263 (1981), Justice

White based his dissent in part on a distinction between

religious speech, which he said was protected in school

buildings, and religious worship, which he said was not

protected. (White, J., dissenting at pages 283-86) The

majority disagreed, noting that this distinction would

entangle officials and courts in the scrutiny of words,

motives and religious significance by religious groups, to

discern what words were mere speech, and what words

were religious worship. Widmar, supra, at 269-70, note 6;

272 note 11.

22

CONCLUSION

The Establishment Clause may reasonably be inter-

preted to require the “separation” of the institutions “of

Church and State,” but it does not require the separation

of religious persons or principles from the State. The

metaphorical “wall of separation between church and

state” was never intended to become a wall of separation

between handicapped children and the public help they

so desperately need.

Religious persons have a fundamental right to partic-

ipate in government, to bring their religiously-informed

principles to bear upon policy-making, and to share in

public services to which they contribute tax dollars. If the

Establishment Clause prohibited government from

expressing benevolent regard for religion, then the Free

Exercise Clause would have been the first violation of the

Establishment Clause. The Free Exercise Clause is clearly

official action affirming the inherent value and good of

religious liberty, so that its free exercise is to be among

the First Freedoms to be protected in our Bill of Rights.

Relentless secularism also violates the Establishment

Clause. The State is to be religiously pluralistic — not

secular, in order to accommodate religious liberty, that

private religious choices may flourish. This Court can

advance this value by refocusing upon freedom of reli-

gious choice as the touchstone of the Religion Clauses, by

upholding accommodations of religion which demon-

strate benevolent neutrality, so long as taxing and spend-

ing powers are not used to coerce, induce or distort

individual choice or interfere with autonomy of religious

organizations.

23

This Court is now presented with a compelling

opportunity, root out the malevolent secularism which

has infected the Lemon progeny, and to replace it with

benevolent neutrality, and thereby to restore an Establish-

ment Clause doctrine which will promote religious lib-

erty rather than obliterate it.

The judgment of the New York Court of Appeals

should be reversed.

Respectfully submitted,

MicHAEL K. WHITEHEAD

(Counsel of Record)

General Counsel

Christian Life Commission

400 North Capitol Street, N.W.

Washington, D.C. 20001

202-638-3223

Fax 347-3658

Attorney for Amicus Curiae

January 21, 1994