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

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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 W. HAWK,

Respondents.

On Writ of Certiorari to the

New York Court of Appeals

BRIEF AMICUS CURIAE OF THE GENERAL

COUNCIL ON FINANCE AND ADMINISTRATION

OF THE UNITED METHODIST CHURCH

IN SUPPORT OF RESPONDENTS

SAMUEL W. WITWER, JR. Craic R. HoskINs

Counsel of Record General Counsel

JAMES B. DYKEHOUSE GENERAL COUNCIL ON FINANCE

DANIEL G. Musca AND ADMINISTRATION OF THE

WITWER, BURLAGE, POLTROCK UNITED METHODIST CHURCH

& GIAMPIETRO 1200 Davis Street

125 South Wacker Drive Evanston, Illinois 60201

Suite 2700 (708) 869-3345

Chicago, Illinois 60606

(312) 332-6000

Midwest Law Printing Co., Chicago 60611, (312) 321-0220

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TABLE OF CONTENTS

I. INTEREST OF THE AMICUS CURIAE ..

Il. SUMMARY OF ARGUMENT ...........

i SEE SMa Shue Sekseddscdvecececes

A. The Decision Below Should Be Affirmed

To Remedy A Patent Violation Of The

Establishment Clause ...............

B. The Lemon Rule Is Constitutionally Cor-

rect And Must Be Preserved ........

1.

Lemon Accurately Expresses The

Essential Message Of The Establish-

Ne ids ctl cekcesncies

Lemon Principles, Though Complex

As Applied, Are Still Workable And

Widely Understood ..............

Lemon’s Requirement Of Neutrality

Is Not Inhospitable To Religion ....

Overruling or Reformulating Lemon

Could Leave A Void Or Create Af-

firmatively Harmful Results .....

See GE Shien heise end aieeddecsevc

PAGE

10

12

14

17

ii

TABLE OF AUTHORITIES

Cases PAGE

Allegheny County v. ACLU, 492 U.S. 573 (1989)... 9, 11

Bowen v. Kendrick, Secretary of Human Health

and Services, 487 U.S. 589 (1989) .......... 13

Corporation of Presiding Bishop of the Church of

Jesus Christ of Latter-Day Saints v. Amos, 483

US. SBT (1067) ....ccccccescceuuuneeeee 8, 13

Edwards v. Aguillard, 482 U.S. 578 (1987).... 6

Employment Division, Department of Human Re-

sources v. Smith, 494 U.S. 872 (1990) ...... 15

Griggs v. Duke Power Co., 401 U.S. 424 (1971) .. 15

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

Joel Village School District, et al., 81 N.Y. 2d

\) SO 14

Hobbie v. Unemployment Appeals Commission of .

Florida, 480 U.S. 136 (1987) ............... 13

Lamb’s Chapel, et al. v. Center Moriches,

US. _.., 118 S.Ct. SiG) Ce sc acaue eens 9, 13

Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982). = 6, 7

Lee v. Weisman, 505 U.S. ___, 112 S.Ct. 2649, 120

L.Ed3d 667 (1000) ...cccccccucsesdeueeee 2,13

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

McCollum v. Board of Education, 333 U.S. 203

(SR 6

Roemer v. Maryland Public Works, 426 U.S. 736

(IDFR)... ccccsncccccecesseteu ee enennnEEE 13

fe

Thomas v. Review Board of Indiana Employment

Security Division, 450 U.S. 707 (1981) ...... |

Walz v. Tax Commission of the City of New York,

TE EE ccc cccecccoscceccccecs 7

Watson v. Fort Worth, 487 U.S. 977 (1988) .... 15

West Virginia Board of Education v. Barnette, 319

EEE i)

Wisconsin v. Yoder, 406 U.S. 205 (1972) ....... 12

Wolman v. Walter, 433 U.S. 229 (1977) ........ 13

Statutory Provisions

New York Laws of 1989, Chapter 74% ........ passim

Religious Freedom Restoration Act of 1993, 42

U.S.C. 2000 bb et seg. (1993).............. 12

Miscellaneous

Book of Discipline, United Methodist Church (1992) . 3

Book of Resolutions, United Methodist Church

DEED E eu teseccorecsccccccececcece 4

Laycock, ‘“Non-Coercive Support for Religion:

Another False Claim About the Establishment

Clause”’, 26 Val. U. L. Rev. 37 (1991) ..... 10

Madison, Detached Memoranda (1832)......... 16

Yearbook of American Churches, pp. 195-196 (1970) . 12

Yearbook of American and Canadian Churches,

cree e rs seecesecceesecceces 12

Nos. 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 W. HAWK,

Respondents.

New York Court of Appeals

BRIEF AMICUS CURIAE OF THE GENERAL

COUNCIL ON FINANCE AND ADMINISTRATION

OF THE UNITED METHODIST CHURCH

IN SUPPORT OF RESPONDENTS

I. INTEREST OF AMICUS CURIAE

The GENERAL COUNCIL ON FINANCE AND AD-

MINISTRATION OF THE UNITED METHODIST CHURCH

(“GCFA” or “Amicus’’) an Illinois non-profit corporation,

is ‘' e central fiscal agency of the denomination and has

among its responsibilities the safeguarding of legal in-

terests of the United Methodist Church, an international

-_

protestant religious denomination with approximately 9.7

million members and 42,500 local churches.’

For the reasons hereinafter stated, GCFA submits that

New York’s Chapter 748 amounts to an extraordinary gov-

ernmental endorsement of a religious sect and thus, repre-

sents a classic affront to the Establishment Clause. GCF A’s

concerns, however, go beyond the four corners of the case

below. Although this Court as recently as 1992? declined

invitations to overrule or qualify the tripartite test of

Lemon v. Kurtzman, 403 U.S. 602 (1971), which has served

as the central sign-post of Establishment Clause juris-

prudence for 23 years, there is a growing perception that

such a step may now be imminent. Indeed, several reli-

gious amici view this case_as a fulcrum for change and

have urged such a course. With due respect to those

fellow communions, GCFA submits that abandonment or

erosion of Lemon would be an error which ultimately

would work against the interests of all religious faiths—

interests which the First Amendment was created to pro-

tect. It thus urges that the decision o: the New York

Court of Appeals be affirmed; also, that this Court deciine,

once again, to overrule or modify Lemon.

GCF A’s position that the interests of religion are best

served by adherence to the Lemon principles stems from

United Methodist tenets and traditions. Since Revolu-

tionary times, these have included a keen distrust of ex-

cessive ties between church and state, even where the

same are portrayed as benign or accommodative in their

purpose.

! Filed with this brief amicus curiae are the consents of counsel

for the parties pursuant to the Rules of the Court.

2 Lee v. Weisman, 505 U.S. ___, 120 L.Ed.2d 467, 480 (1992).

ilies

Paragraph 74 of the Book of Discipline of the United

Methodist Church (1992), which contains the constitution,

social principles and basic legislation of United Methodism

as expressed by its highest judicatory, the General Confer-

ence, states, in pertinent part:

“We believe that the state should not attempt to

control the Church, nor should the Church seek to

dominate the state. ‘Separation of church and state’

means no organic union of the two, but does permit

interaction. The Church should continually exert a

strong ethical influence upon the state, supporting

policies and programs deemed to be just and com-

passionate and opposing policies and programs which

are not.”

sz

“{In respect to education] . . . we endorse public

policies which ensure access and choice and which do

not create unconstitutional entanglements between

Church and state. The state should not use its au-

thority to inculcate particular religious beliefs (in-

cluding atheism) nor should it require prayer or wor-

ship in the public schools, but should leave students

free to practice their own religious convictions.”

The Book of Discipline of the United Methodist Church

at sub-pars. B, D.

While United Methodism does not maintain a system

of parochial schools, various units of the denomination

own, sponsor or maintain religious affiliations with a large

number of educational institutions, including schools of

theology, colleges and universities, junior colleges and

secondary or preparatory schools. Numerous local entities,

at their discretion, operate their own nursery, elementary

and primary education facilities.

The denomination’s involvement in these educational

programs at all levels does not, however, mean that there

is ambivalence regarding financial aid issues and the proper

role of government:

—

elie

“(United Methodists] . . . do not support the ex-

pansion or the strengthening of private schools with

public funds. Furthermore, we oppose the establish-

ment or strengthening of private schools that jeop-

ardize the public school system or thwart valid public

policy.

“We specifically oppose tuition tax credits or any

other mechanism which directly or indirectly allows

government funds to support religious schools at the

primary or secondary levels. Persons of one particular

‘aith should be free to use their own funds to strengthen

the belief system of their particular religious group.

But they should not expect all taxpayers, including

those who adhere to other religious belief systems,

to provide funds to teach religious views with which

they do not agree... .”

The Book of Resolutions of the United Methodist Church

(1992) at 469.

Il. SUMMARY OF ARGUMENT

Chapter 748, in essence, was a legislative decision ceding

administrative and political authority over a school district

to a religious group. Few measures can be imagined which

would so frontally conflict with the Establishment Clause.

The Court below properly applied Lemon analysis in con-

cluding that the wall of separation of church and state

had been breached. Such a conclusion is reinforced by

cases of this Court condemning arrangements whereby

governmental power is delegated to churches. The deci-

sion below must be affirmed.

A second issue of far-reaching importance is this: whether

Lemon will be reformulated or overruled. Although criti-

cism of Lemon seems to be in vogue among a number

of judges, parties, amici and commentators, the chorus of

= =

requests to cast aside this long-standing rule in favor of

some other approach must be resisted. Lemon is a faithful

statement of the core of the Establishment Clause. While

it is unsurprising that courts have encountered difficulties

in applying the rule in a profusion of constantly shifting

factual situations, this does not render the rule bad law

or deserving of replacement. Overall, this Court’s vigilant

upholding of the Establishment Clause through use of the

Lemon protocols has served this nation—and religious

institutions—quite well. As our founding fathers wisely

foresaw, the best policy is one which rigorously curbs

governmental power over religion and religious power

over government as well.

Ill. ARGUMENT

A. The Decision Below Should Be Affirmed To Remedy

A Patent Violation Of The Establishment Clause.

The decision of the New York Court of Appeals was

correct, both in its utilization of the Lemon test and in

its conclusion that the legislature’s action was a clear-cut

violation of the Establishment Clause. The dominant pur-

pose of Chapter 748 in carving out a public school district

coterminous with—and controlled by—the Satmar Hasidic

enclave was to submit to the latter’s long standing demand—

engendered by the customs and precepts of their religion—

that they remain separate from the larger society. Thus,

the legislation offended the first prong of Lemon which

insists that ‘‘a secular purpose”’ be present.

Likewise, by granting the Satmar a public school district

of their own, subject to the control of their religious au-

thorities, Chapter 748 violated Lemon’s second prong,

which insists that a measure not have the “primary ef-

fect” of advancing religion. This Court has traditionally

otilins

maintained a higher level of scrutiny in applying the sec-

ond prong of the Lemon test where, as here, the govern-

ment’s accommodations to a religious sect relate to the edu-

cation of children. Edwards v. Aguillard, 482 U.S. 578, 96

L.Ed.2d 510, 519, 107 S.Ct. 2573 (1987); McCollum v. Board

of Education, 333 U.S. 203, 227, 231, 92 L.Ed. 649, 69 S.Ct.

461 (1948). While the potential for excessive governmental

entanglement with religion (Lemon’s third prong) is also

present, this factor was not relied upon by the court below,

nor need it be examined here to warrant affirmance.

What GCFA finds truly startling about Chapter 748 is

the fact that it actually goes so far as to turn over the

reins of government to a religious society. This was appar-

ently done by governmental officials to secure peace after

a period of rancor and litigation over the Satmar com-

munity’s insistence that already available public services

for its disabled children be specially provided in a Satmar-

controlled separate environment. That background, how-

ever, does not alter the significance of what was done:

allowing a church to exercise governmental powers for

its own ends.

While affirmance of the decision below is amply justified

on the basis of Lemon analysis alone, the transfer-of-

powers aspect of this case brings it within the scope of

other decisions of this Court which pointedly condemn

such a practice. In Larkin v. Grendel’s Den, Inc., 459

U.S. 116, 74 L.Ed.2d 297 (1982), this Court struck down

a Massachusetts statute delegating to churches the gov-

ernmental power to veto applications for liquor licenses

in close proximity to religious facilities. After applying the

Lemon analysis, the Court determined that this was an

unconstitutional fusion of governmental and religious func-

tions, saying:

_ a

“(The statute] . . . substitutes the unilateral and

absolute power of a church for the reasoned decision-

making of a public legislative body. . . . The chal-

lenged statute thus enmeshes churches in the pro-

cesses of government and creates the danger of ‘po-

litical fragmentation and divisiveness on religious

lines,’ [citation omitted]. Ordinary human experience

and a long line of cases teach that few entanglements

could be more offensive to the spirit of the Constitu-

tion.”

459 U.S. at 127 (emphasis added).

To the same effect, see Walz v. Tax Commissioner of

the City of New York, 397 U.S. 604, 668, 25 L.Ed.2d 697

(1970) (Establishment Clause prohibits “sponsorship, finan-

cial support, and active involvement of the sovereign in

religious activity’’.)

Finally, Petitioners seek to portray the State’s ceding

of secular authority in Chapter 748 as a constitutionally

permissible accommodation of religion. (Pet. Br. at 40)

There are at least two flaws in this position: First, it is

inconsistent with other positions taken in the same brief.

Petitioners have repeatedly denied that the Satmar’s re-

quest for a separate educational program was a function

of the group’s religious beliefs and practices, characteriz-

ing the request as an outgrowth of “cultural’’ traditions

(Pet. Br. at 4, n.1 and 29). If this is so, there is no occa-

sion for invoking a religious accommodation as Petitioners

do later in their brief (Jd. at 40).

The second flaw is that Petitioners misapprehend the

scope of those accommodations which this Court, on oc-

casion, has sanctioned as mandatory under the Free Exer-

cise Clause or as incidental, and thus permissible, under

the Establishment Clause. Heretofore, it has been settled

-

that governmental accommodation, to be constitutional,

must lift an identifiable burden on religious practice ini-

tially imposed by the government itself. See, e.g., Thomas

v. Review Board of Indiana Employment Security Divi-

sion, 450 U.S. 707 (1981). Thus, such permissible accom-

modations normally take the form of an exemption from

laws of general applicability. E.g., Corporation of Presid-

ing Bishops of the Church of Latter-Day Saints v. Amos,

483 U.S. 327 (1987). This burden-lifting characteristic of

true accommodations cannot reasonably be equated with

Chapter 748, whose whole purpose was to structure a spe-

cial schoo! district and affirmatively grant governmental

power to a religious society.

B. The Lemon Rule Is Constitutionally Correct And Must

Be Preserved.

An even larger question surrounding this case is

whether Lemon will be permitted to remain intact. GCFA

asserts that it should, and indeed it must, because only

Lemon, among all the rules formulated by this Court to-

date in the religious area, fully mirrors and upholds al!

the core principles of the Establishment Clause. Contrary

to the assertions of some amici, the Court’s interpreta-

tion of that clause, as construed in tandem with the Free

Exercise Clause, has not been hostile to religion. Fairly

viewed, it has been protective of religion and religious

organizations have an interest in ensuring that the Court’s

interpretation of the Clause is rigorously upheld. The

temptation by some amici to loosen or do away with the

strictures of Lemon is not without its dangers: such a

course might bring short-term advantages in the form of

enhanced governmental “accommodations” but in the long-

term and as more fully set forth below, it could lead to

unwelcome consequences.

=

1. Lemon Accurately Expresses The Essential Message

Of The Establishment Clause.

Given the frequency of denunciations leveled at the

Lemon rule in recent years, it would be instructive at

the outset to closely compare the Lemon test with the

actual language of the Establishment Clause. Presumably,

such a comparison would reveal how it is that Lemon,

according to its critics, has strayed so far off course. Such

an inspection yields no such result. The Clause is terse,

yet eloquent in its simplicity: “Congress shall make no

law respecting an establishment of religion . . .” If this

language means anything, it is that the role of govern-

ment in our system is to make laws about predominant-

ly secular matters—not religious ones. See Allegheny

County v. ACLU, 492 U.S. 573, 610 (1989) (Constitution

mandates that “government remain secular, rather than

affiliate itself with religious beliefs and institutions’’). As

Justice Jackson put it in West Virginia Board of Educa-

tion v. Barnette, 319 U.S. 624, 638 (1943):

“The very purpose of a Bill of Rights was to with-

draw certain subjects from the vicissitudes of political

controversy, to place them beyond the reach of ma-

jorities and officials and to establish them as legal

principles to be applied by the courts.”’

Religion was one of these subjects; in fact, it was the

first one specified in the Bill of Rights. A comparison of

the three Lemon elements with the constitutional lan-

3 See, for example, assailment of the New York Court’s use of

Lemon as “Orwellian” and “deeply flawed” (Joint Br. of Chris-

tian Legal Society et al. at 2, 5). In his concurring opinion in

Lamb’s Chapel v. Center Moriches, 508 U.S. ___, 124 L.Ed.2d

352, 365 (1993), Justice Scalia has likened Lemon to a“. . . ghoul

in a late-night horror movie that repeatedly sits up in its _—

and shuffles abroad, after being repeatedly killed and buried .. .

[and] stalks our Establishment Clause jurisprudence once again,

frightening the little children and school attorneys... .”

~10—

guage hardly supports the thesis that Lemon has strayed.

To the contrary, Lemon is not only harmonious with the

constitutional mandate—it is the very embodiment of it.

If legislating in the religious realm is forbidden, surely

it logically follows that Lemon would begin with a re-

quirement that “a secular legislative purpose” be pres-

ent. 403 U.S. at 612. Nor should it come as any surprise,

under the second prong of the Lemon test, that the “prin-

ciple or primary effect neither advances nor inhibits relli-

gion.”’ Jd. Finally, the third prong of the test’s preclu-

sion of “excessive government entanglement with religion”

is hardly antithetical to the Establishment Clause’s basic

command. 403 U.S. at 613. In sum, Lemon is faithful to

the Constitution. It would be impossible to conjure up a

comprehensive test which more faithfully captures and im-

plements the intent of the Framers.

2. Lemon Principles, Though Complex As Applied, Are

Still Workable And Widely Understood.

No constitutional doctrine as thoughtfully fashioned as

Lemon should be casually discarded. As Chief Justice

Burger observed in announcing the Lemon test, it rep-

resents ‘“‘the cumulative criteria developed by the court

over many years.”’ Lemon, 403 U.S. at 612. Perhaps be-

cause Lemon represents a distillation of the composite

wisdom of several generations of distinguished justices,

the rule is far better understood and commands more

respect among bench, bar and public officials than some

commentators are willing to acknowledge. Lemon, in fact,

is “a convenient formulation of the ‘cumulative criteria

developed by the court over many years,’ ”’ and is but ‘“‘an

elaboration of the fundamental rule that government be

neutral with respect to religion.” Laycock, “Non-Coercive”’

Support For Religion: Another False Claim About The

Establishment Clause, 26 Val. U. L. Rev. 37, 53-54 (1991).

= =

At a time when many simplistic, single-purpose rules

are being proposed to take Lemon’s place, it is also rele-

vant to consider that Lemon has the virtue of being com-

prehensive and resilient in its operation. History has

shown that the range of situations which threaten en-

croachment on the Establishment Clause is almost bound-

less. Lemon can be adapted to all such situations, whether

subtle or extreme. Single-subject tests lack that advan-

tage. As Justice O’Connor stated in Allegheny County v.

ACLU, 492 U.S. 573 (1989):

“An Establishment Clause standard that prohibits

only ‘coercive’ practices or overt efforts at govern-

ment proselytization [citations omitted] but fails to

take account of numerous more subtle ways that gov-

ernment can show favoritism to particular beliefs or

convey a message of its approval to others, would

not, in my view, adequately protect the religious

liberty or respect the religious diversity of the mem-

bers of our pluralistic political community.”

492 U.S. at 627-628 (O’Connor, J., concurring).

Subtle distinctions, leading to judicial frustration and

even occasional contradictions, have indeed occurred under

Lemon, but this is to be expected with any important rule

that comes into play in a vast proliferation of cases.

GCFA suggests these drawbacks are relatively small com-

pared to the implications of operating without Lemon or

under a hastily constructed substitute. In short, Lemon

should be retained because (1) it is a correct statement

of the law; and (2) its main features (nuances of applica-

tion notwithstanding) are widely understood and followed.4

* For example, the Westlaw databases reflect that to-date, 745

federal cases have discussed or cited Lemon; in addition, 368 state

appellate decisions have adverted to the rule. From a stare decisis

perspective alone, predictability and protection of generated ex-

pectations are at stake in this case. Sound policy counsels =

the elimination of a rule so deeply entrenched in our jurispru

—~12—

3. Lemon's Requirement Of Neutrality Is Not Inhos-

pitable To Religion.

Neither is Lemon hostile to religion, as some have as-

serted (e.g., S. Baptist Amicus Br. at 11). In fact, Lemon

and its progeny, construed in conjunction with Free Exer-

cise jurisprudence, have provided an environment in which

religion can and does flourish.5 An examination of the cur-

rent legal climate negates such claims of “secularism” and

“animosity.” First, there is already in place a body of

Free Exercise jurisprudence which collectively constitutes

a strong barrier against state burdens and encroachments

upon religious practice. See Sherbert v. Verner, 374 U.S.

398 (1963); and Wisconsin v. Yoder, 406 U.S. 205, 215

(1972) (“Only those [state] interests of the highest order

and those not otherwise served can overbalance legitimate

claims to the free exercise of religion’’). Most recently,

this barrier was reaffirmed and significantly strengthened

by passage of the Religious Freedom Restoration Act of

1993 (“RFRA”), 42 U.S.C. 2000 bb et seg. (1993) (“‘com-

pelling interest’’ must be demonstrated before government

can substantially burden religious practice; private right

of action is conferred).

Second, contrary to the claims of some, Lemon does not

prevent reasonable accommodations. Both the so-called

‘‘mandatory”’ accommodations dictated by the Free Ex-

ercise Clause and the incidental accommodations which do

5 According to successive editions of the Yearbook of American

Churches, church membership in those communions affiliated with

the National Council of Churches in the United States during the

Lemon era (1972 to-date) has increased from 42,763,297 to

48,925,442, or ig nee 14.5%. Yearbook of American Churches,

pp. 195-196 (1970); Yearbook of American and Canadian Churches,

pp. 261-63 (1993).

=_™

not rise to the level of “primarily advancing’ religion

(Lemon’s second prong) are permissible.®

This amicus believes that only those who fail to appreci-

ate the importance to all—including churches—of govern-

mental neutrality would flirt with changing the essentially

benign constitutional standards which now exist and which

accord churches ample room to carry out their missions.

Churches need to be reminded that the principles em-

bodied in Lemon are not anti-religious; to the contrary,

they guarantee religious independence and vitality by guard-

ing against “‘state-created orthodoxy.” Lee v. Weisman,

supra, 112 S.Ct. at 2658.

6 See e.g., Bowen v. Kendrick, 487 U.S. 589, 101 L.Ed.2d 520,

108 S. ct 2562 (1988) (Adolescent Family Life Act, which allowed

funding for religious entities to provide range of family counsel-

ing services, deemed not violative of the Establishment Cause);

Lamb's Chapel v. Center Moriches, 508 U.S. __., 113 8.Ct. 2141

(1993) (church had right to exhibit religious film on public school’s

after school hours); Wolman v. Walter, 433 U.S. 229, 247,

1977) (considerations of safet ty, distance, and the uacy of accom-

modations could justify a public school’s provision of remedial ser-

vices in mobile units located on neutral sites near parochial school’s

remises); Roemer v. Maryland Public Works, 426 U.S. 736, 49

.Ed.2d 179, 96 S.Ct. (1976) (annual subsidies to qualifying

and universities, including religiously affiliated institutions,

did not violate the Establishment Clause); Hobbie v. Unem

ment Appeals Com’n of Florida, 480 U.S. 136, 94 L.Ed.2d 1

107 S.Ct. yA (state’s accommodation of individual's reli

preferences Ss arding of unemployment benefits to individual

despite re by indivichoal to work on her Sabbath deemed not

to violate Establishment Clause); Corporation of Presiding Bishop

of the Church o of Jesus Christ of Latter-Day Saints v. Amos, 483

U.S. 327, 97 L.Ed. 2d 273, 107 S.Ct. 2862 (1987) (federal law exempt-

ing religious institutions from ban on religious discrimination in

employment held not to violate the Establishment Clause).

—14—

4. Overruling Or Reformulating Lemon Could Leave A

Void Or Even Create Affirmatively Harmful Results.

The prospect of altering Lemon or replacing it with

some untested new formula is most disturbing to GCF A.

It is submitted that none of the various substitute rules

which have been brought forward would fill the void left

by an overruled Lemon. As noted earlier, narrow tests

like the proposed “‘coercion’’ standard are too limited

to cover the myriad ways in which the First Amendment

might be encroached upon. This deficiency also applies to

the “strict scrutiny” approach suggested by Chief Justice

Kaye in her concurrence in the decision below at 81 N.Y.

2d 518, 532 et seg. While such a standard is superficially

appealing, it does not explain why Lemon analysis, alone,

fails to suffice. Nor does it discuss the implications of the

vacuum which would be left if “strict scrutiny” fully dis-

placed, instead of merely supplemented, Lemon.

Petitioners have made an outright bid for deletion of

Lemon’s “secular purpose” and “primary effect’ tests

“ .. to the extent that they imply that a legislature may

not enact laws that remove impediments to religious ob-

servers’ equal access to secular governmental benefits’’

(Pet. Br. at 45). This is pernicious, but not very much

more so than the approaches advanced by certain religious

amici. For instance, the Southern Baptist Convention, et

al., have argued that Lemon “feeds confusion” (Br. at 15)

and would have this Court replace Lemon’s three prongs

with a new test containing no fewer than four prongs and

seven subprongs. The confusion likely to be engendered

by an abrupt departure from Lemon and attempts to

follow such a new rule is self-evident.

Likewise, while Professor McConnell and his colleagues

in their joint amicus brief on behalf of the Christian Legal

==

Society, the National Association of Evangelicals, et al.,

present an earnest and well-argued effort to soften or

qualify the second (“primary effect’’) test of Lemon (Br.

at 3-6), this approach, too, has a downside. By de-empha-

sizing “effects” and allowing challenged actions to pass

muster despite their actual impact, so long as they are

“formally neutral toward religion (or “religion-blind’’)”’

(Jd. at 5), those amici overlook the fact that laws facially

“neutral” toward religion can actually operate to advance

the latter as surely as laws openly and avowedly intended

to accomplish such a result.

This Court’s teachings concerning job discrimination and

civil rights provide a useful illustration of the defect. For a

period of time, employers practicing certain forms of discrim-

ination could avoid accountability by cloaking their actions

in “facially neutral employment practices.” In Griggs v.

Duke Power Co., 401 U.S. 424 (1971), the Court, in craft-

ing what has become known as the “disparate impact doc-

trine” held that a plaintiff need not show intentional dis-

crimination in order to establish a violation. Rather, where

a facially neutral practice, even if adopted without pro-

hibited intent, has an adverse impact on a protected group,

this effect is indistinguishable from an intentional discrimi-

natory practice. To the same effect, see Watson v. Fort

Worth, 487 U.S. 977, 990 (1988). The same rationale ap-

plies here where the issue is governmental dispensation

of benefits to religion. A “facial neutrality” requirement

may not be adequate because a seemingly neutral enact-

ment may indeed mask even flagrant advancements of re-

ligion when its true effects are properly considered.’

7 In our view, the case of Em t Division v. Smith, 494

U.S. 872, 188 L.Ed.2d 876 (1990), erroneously opted for a formal

neutrality rationale, the result being a disparate and adverse im-

pact on established religious practice. This approach sparked the

enactment of RFRA, the intent of which was to correct this error.

==

In conclusion, it is appropriate to ask what would re-

place Lemon, if it were overruled or key parts of the rule

removed:

(a) If the Court should delete Test 1, the requirement

of “a secular purpose,” is this to be taken as meaning

that laws may now have a religious purpose?

(b) If the Court should delete Test 2, dealing with “pri-

mary effect,” is this to be taken as meaning that laws

operating to confer major advantages upon religion are

now permitted?

(c) Similar questions would surround deletion of the

third Lemon prohibition of “entanglement.”

Clearly, Lemon is best left alone. Organized religion

should not succumb to the short-term lure of a more bene-

ficent, accommodating government. Instead, it should be

mindful of its long-term stake in preserving the splendid

balance which has been struck through interaction of the

Free Exercise and Establishment Clauses and the Lemon

case. While tinkering with Lemon may not bring about

sudden and dramatic changes, it could lead to an insidious

encroachment process culminating in the eventual union of

civil and ecclesiastical forces. Madison spoke of this as the

“silent accumulations and encroachments of ecclesiastical

bodies” on the newly emerging democratic government.

Madison, Detached Memoranda (1832). Much more recent-

ly, Chief Justice Burger described the dangers of such

a gradual, incremental process in the following terms:

“A law ‘respecting’ the . . . establishment of reli-

gion, is not always easily identifiable as one violative

of the Clause. A given law might not establish a state

religion but nevertheless be one ‘respecting’ that end

in the sense of being a step that could lead to such

establishment and hence offend the First Amend-

ment.”

Lemon, 403 U.S. at 612 (emphasis added).

IV. CONCLUSION

For the reasons stated above, the decision of the New

York Court of Appeals should be affirmed. In addition,

the Court should decline to overrule or modify the Lemon

doctrine.

Dated: Chicago, Illinois

February 23, 1994

Respectfully submitted,

SAMUEL W. Witwer, Jr. Craic R. Hoskins

Counsel of Record General Counsel

JAMES B. DyKEHOUSE GENERAL COUNCIL ON FINANCE

DaniEL G. Musca AND ADMINISTRATION OF THE

WITWER, BuRLAGE, PoLTROCK UNITED METHODIST CHURCH

& GIAMPIETRO 1200 Davis Street

125 South Wacker Drive Evanston, Illinois 60201

Suite 2700 (708) 869-3345

Chi , Illinois 60606

(312) 332-6000