# Amicus Curiae Brief — Board of Education of Monroe-Woodbury Central School District v. Grumet > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0462%3A21 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1994 - **Citation:** 510 U.S. 1107 ## Text 4 Supreme Court, UV.» | FILED ! (52 - F 2 (2.2) | €B 23 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 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 a | A | scat Nos. 93-517, 93-527, 93-539) orrice Gr The Cu" taal - — So i 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0462%3A21. Public record. Not legal advice.