Amicus Curiae Brief — Rosenberger v. Rector and Visitors of Univ. of Va.

() RITED

' DEC 15 1994

No. 94-323 Die LE

IN THE

Supreme Court of the United States

OCTOBER TERM, 1994

RONALD W. ROSENBERGER, ef ai.,

Petitioners,

V.

THE RECTOR AND VISITORS OF THE

UNIVERSITY OF VIRGINIA, ef a/.,

Respondents,

On Writ of Certiorari to the United States

Court of Appeals For the Fourth Circuit

BRIEF OF THE AMERICAN CENTER FOR

LAW & JUSTICE AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

Keith A. Fournier Jay Alan Sekulow

1000 Regent University Dr. (Counsel of Record)

Virginia Beach, VA 23464 James Matthew Henderson, Sr.

(804) 579-2489 Kevin Eric Broyles

1000 Thos. Jefferson St. NW

Suite 520

Washington, D.C. 20007

(202) 337-2273

Attorneys for the American Center for Law & Justice

QUESTION PRESENTED

Whether Lemon v. Kurtzman and its progeny,

which foster discrimination against Religion

and religious adherents, contrary to the

principle of equality embodied in the Religion

Clauses, should be overruled?

TABLE OF CONTENTS

QUESTION PRESENTED ......................... i

TABLE OF AUTHORITIES ....................... ill

INTEREST OF AMICUS ..................0c0000e. l

THE HAPHAZARD AND UNPRINCIPLED

USE OF LEMON, EXCUSING

GOVERNMENT ANIMOSITY TOWARDS

RELIGION AND DISCRIMINATION

AGAINST RELIGIOUS CITIZENS, MUST

es MITTEE TT ee 3

In This Court, Inconsistent Reliance on the

Lemon Test Has Created a Confused First

Amendment Jurisprudence, While in Lower

Courts, Faithful Application of Lemon has

Created a Marketplace Hostile to Religion ....... 3

Because Lemon Has Proven Unworkable, That

Test, With Its Muddled Progeny, Should Now

be Overruled Or Clarified .................... 8

l. The Lemon Test Produces

Confusion, Not Neutrality ............. 10

(ii)

Il.

a. The Secular

CC

b. The Effects

EE EE

é. The Entangle-

TES ces eNencccsceces

2. Lemon and its Confusing

Progeny Should Be Overruled ..........

GOVERNMENT MAY NOT USE RELIGION

OR RELIGIOUS ADHERENCE AS A BASIS

OF CLASSIFICATION EXCEPT TO AVOID

INFRINGEMENT OF RELIGIOUS

eS aces eecebeeercececcss

The Founders Understood the Religion Clauses

to Compliment Each Other, Ensuring that

Religion or Religious Adherence is Pertinent

Only to Accommodation of Religious

oa

This Court's Decisions Judging Religious

Classifications, Other than Lemon and its

Inconsistent Progeny, Employ Equality of .

Freedom of Belief and Opinion as the

eee

'

CONCLUSION

1V

This Court Used the Equal

Protection Clause to Govern the

Analysis of Religious

Classifications in its Equal

Access Cases

As This Court has Retreated

From Lemon in Cases Directly

Challenging State Action Under

the Establishment Clause,

Various Opinions Have

Recognized Equality as the

Governing Principle of the

Religion Clauses

First Amendment Decisions

Preceding Lemon Recognized

Equality as the Governing

Principle of the Religion

WS 4656 ohnxbudaneuies cu

"3 8. SO 9S CCG CEB Oe ee

coou ae

soee ae

Cases:

Vv

TABLE OF AUTHORITIES

Page(s)

Abington School District v. Schempp,

ee keke eeb essen 9

Aguilar v. Felton,

Ee 18

Allegheny County v. Greater Pittsburgh ACLU,

ee 5,7

Board of Airport Comm'rs v. Jews for Jesus, Inc.,

ID. Sicctcccccccves 2,22

Board of Education v. Grumet,

114 S.Ct. 2481 (1994) .......... 4, passim

Board of Education v. Mergens,

496 U.S. 226 (1990) ........... 2,14,23-24

Bowen v. Kendrick,

IED os oc cosovcesececes 26

Bradfield v. Roberts,

ER 28

Cantwell v. Connecticut,

310 U.S. 296 (1940) ................ 21,22

Committee for Public Educ. & Religious Liberty v.

Nyquist,

re 18

Edwards v. Aguillard,

gS 10-12,18

Epperson v. Arkansas,

Es vos cccccccccccoece 29

Everson v. Board of Education, |

I IS cu becuceccccee 4, passim

vi

Harris v. City of Zion,

927 F.2d 1401 (7th Cir. 1991) ........... 7

Heffron v. ISKCON,

452 U.S. 640 (1981) .................. 22

Holy Trinity Church v. United States,

143 U.S. 457 (1892) ............... 14-15

ISKCON vy. Lee,

112 S. Ct. 2701 (1992) ................. 22

Keyishian v. Board of Regents,

385 U.S. 589 (1967) .................. 13

Lamb's Chapel v. School District,

WEG So dou sus cvccwees 2, passim

Larson v. Valente,

456 U.S. 228 (1982) ........... 4,12,25,26

Lee v. ISKCON,

112 S. Ct. 2709 (1992) ................ 22

Lee v. Weisman,

112 S.Ct. 2649 (1992) .....00. 4

Lemon v. Kurtzman,

403 U.S. 602 (1971) ............. i, passim

Levitt v. Committee for Public Educ. & Religious

Liberty,

S03 US. 472 (1973) .................. 18

Lovell v. City of Griffin,

303 U.S. 444 (1938) .......0000 23

Lynch v. Donnelly,

465 U.S. 668 (1984)................. 4.8

Vii

Page(s)

McCollum v. Board of Education,

i aoe oak ws ened 5

McDaniel v. Paty,

a 8, passim

McGowan v. Maryland,

PIED 6 cv ccc ccccescccses 12

Marsh v. Alabama,

NEED oS cc cscccesoccsees 22

Marsh v. Chambers,

SE PED co eccceccseccceces 4

Meek v. Pittenger,

EI 5 oo vcciccccccccves 18

Mueller v. Allen,

463 U.S. 388 (1983) ............. 3,19,26

Niemotko v. Maryland,

Ee 22

Police Dep't v. Mosley,

Ee 22

Rosenberger v. The Rector and Visitors of the

University of Virginia,

18 F.3d 269 (4th Cir. 1994) ...... 6, passim

School Dist. of Grand Rapids v. Ball,

ee 18

Sloan v. Lemon,

Te 18

Stone v. Graham,

ee 10

Vili ix

Page(s)

Tilton v. Richardson, Page(s)

a 18

Torcaso v. Watkins, MARK DEWOLFE HOWE, THE GARDEN AND THE

es 29 WILDERNESS (1965) ................-- 19

Wallace v. Jaffree, Fairman, Does the Fourteenth Amendment Incorporate

472 U.S. 38 (1985) ............. 5, passim the Bill of Rights?, The Original

Walz v. Tax Commission, Understanding, 2 STAN. L. REV. 5 (1949) . 19

397 U.S. 664 (1970) ............ 5,9,15,29 TRIBE, AMERICAN CONSTITUTIONAL LAW (2d. ed.

Widmar v. Vincent, Aas diceGbhnwanyas entpeeidness 21

454 U.S. 265 (1982) ............ 3, passim

Witters v. Wash. Dept. of Serv. for Blind,

i 26

Wolman v. Walter,

oR 18

Zobrest v. Catalina Foothills School District,

125 L.Ed.2d 1 (1993) ........... 3, passim

Zorach v. Clauson,

343 U.S. 306 (1952) ............... 8,9,15

Other Materials:

MADISON, A Memorial & Remonstrance Against

Religious Assessments, 1785, Reprinted at 330

U.S. 66 (1947) (App. to opinion of Rutledge, J.,

ES Pe 17,20

5 WRITINGS OF JAMES MADISON

(G. Hunt ed. 1904) ................... 25

CORD, SEPARATION OF CHURCH AND STATE,

a EES ee ee aro. ae 19

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1994

No. 94-329

RONALD W. ROSENBERGER, ef al.,

Petitioners,

THE RECTOR AND VISITORS OF THE

UNIVERSITY OF VIRGINIA, ef al.,

Respondents,

On Writ of Certiorari to the United States

Court of Appeals For the Fourth Circuit

BRIEF OF THE AMERICAN CENTER FOR

LAW & JUSTICE AS AMICUS CURIAE IN

SUPPORT OF PETITIONERS

INTEREST OF AMICUS *

The American Center for Law and Justice ("ACLJ") is a

national, nonprofit legal organization. The purpose of ACLJ is

to preserve, protect and promote religious liberty through

education, legal defense, legislative assistance, and related

activities. ACLJ attorneys specialize in advocacy of rights to

freedom of speech, freedom of conscience, and religious

* The parties in this case have consented, by a joint letter of consent

filed with the Clerk of Court, to the filing of this brief.

2

liberty. ACLJ's Chief Counsel has argued cases before this

Court dealing with issues related to this case. including

arguments on behalf of the church in Lamb's Chapel v. School

District, 113 S.Ct. 2141 (1993), the students in Board of

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

evangelists in Board of Airport Comm'rs v. Jews for Jesus, Inc.,

482 U.S. 569 (1987).

ACLJ files this brief in support of Petitioner because the state

of the law respecting the Religion Clauses of the Constitution

requires significant clarification. ACLJ supports the position

that private individuals and groups of individuals may not be

discriminated against on the basis of their religion, religious

adherence, or religious speech in the provision of any general

government benefit for which they are otherwise eligible.

ACLJ urges the Court to reverse the decisions below.

SUMMARY OF ARGUMENT

Never has this Court enshrined the analysis presented in

Lemon vy. Kurtzman, 403 U.S. 602 (1971), as a rigid test in

resolving Establishment Clause claims. This Court has

repeatedly sought to guard against religious classifications

which place religious individuals at an advantage or

disadvantage because of their religion. Unfortunately, despite

this Court's approach, lower federal courts have made the

Lemon test the sole means for winnowing out governmental

Establishments. One untoward result of rigid applications of

the vaguely understandable and easily manipulable Lemon test

is the absurd results which often are obtained thereby.

3

If the Lemon test has proven unworkable and unfaithful to the

purposes of the Religion Clauses, the Court should forthrightly

recognize this development. Another test exists, a test which

this Court has employed previously, which is more consistent

with the original purposes of the Religion Clauses. Other than

Lemon and its misguided and confusing progeny, this Court's

precedents have consistently adhered to a view that equality of

voluntary religious choices, whether of nonreligion or a

diversity of religious beliefs, is the better and intended

understanding of the First Amendment's Religion Clauses.

Among the partial applications of this test is the faithful and

sensible application of the "effects" prong of Lemon as

recognized by this Court in Widmar v. Vincent, 454 U.S. 263

(1981), Mueller v. Allen, 463 U.S. 388 (1983), and Zobrest v.

Catalina Foothills School District, 113 S.Ct. 2462 (1993).

In the case at bar, Respondents suggest that the Establishment

Clause justifies denial of a generally available benefit to

religious groups and individuals because of their religious

activity. This distorted view of "neutrality" is a direct result of

the aberration Lemon has become on this Court's Establishment

Clause jurisprudence. This Court now has the opportunity to

restore the principle of equality to the Religion Clauses.

I. THE HAPHAZARD AND UNPRINCIPLED USE

OF LEMON, EXCUSING GOVERNMENT

ANIMOSITY TOWARDS RELIGION AND

DISCRIMINATION AGAINST RELIGIOUS

CITIZENS, MUST END

A. In This Court, Inconsistent Reliance on the

4

Lemon Test Has Created a Confused First

Amendment Jurisprudence, While in Lower

Courts, Faithful Application of Lemon has

Created a Marketplace Hostile to Religion

“Rather than mechanically invalidating all government

conduct . . . that confer[s] benefits or give[s] special

recognition to religion--as an absolutist approach would

dictate--the Court has scrutinized challenged . . . official

conduct to determine whether, in reality, it established a

religion or religious faith, or tends to do so." Lynch y.

Donnelly, 465 U.S. 668, 678 (1984) (emphasis added).

Since Everson v. Board of Education, 330 U.S. | (1947), this

Court has grappled frequently with governmental activity

within the sphere of the religious. In recent years, the test most

consistently utilized to judge alleged violations of the

Establishment Clause has been the so-called Lemon test, set

forth in Lemon vy. Kurtzman, 403 U.S. 602 (1971). This Court,

however, has applied the Lemon test only haphazardly; in a

growing number of cases, the Court resolved Establishment

Clause claims without any substantive discussion of the Lemon

test Or any apparent application of the test in the decision.'

Five current Justices have expressed their discomfort with one

aspect or another of the Lemon test. See Grumet, 114 S.Ct. at

2498-2500 (O'Connor, J., concurring in part and concurring in

1 See e.g., Board of Education v. Grumet, 114 S.Ct. 2481 (1994): see

also Zobrest v. Catalina Foothills School District, 125 L.Ed. 2d | (1993);

Lee v. Weisman, 112 S.Ct. 2649 (1992); Marsh v. Chambers, 463 U.S.

783 (1983); Larson v. Valente, 456 U.S. 228 ( 1982) (Lemon not useful in

analyzing instances of patent discrimination against a church).

5

the judgment); Lamb's Chapel, 113 S.Ct. at 2149-50 (Scalia, J.,

together with Thomas, J., concurring in the judgment);

Allegheny County v. Greater Pittsburgh ACLU, 492 U.S. 573,

655-57 (1989) (Kennedy, J., together with Rehnquist, C.J.,

White J., and Scalia, J., concurring in part and dissenting in

part); Wallace v. Jaffree, 472 U.S. 38, 107-113 (1985)

(Rehnquist, J., dissenting).

Members of this Court have warned of the dangers inherent

in a jurisprudence without sound historical and traditional

grounding, resting too gingerly on catchy phrases and neat

tests. Justice Reed, in McCollum v. Board of Education, 333

U.S. 203 (1948), noted that a "rule of law should not be drawn

from a figure of speech." /d. at 247 (Reed, J., dissenting).

Chief Justice Burger, a year prior to penning the Lemon test

explained that

[t]he considerable internal inconsistency in the opinions

of the Court derives from what, in retrospect, may have

been too sweeping utterances on aspects of these

clauses that seemed clear in relation to the particular

cases but have limited meaning as general principles.

Walz v. Tax Commission, 397 U.S. 664, 668 (1970). Even

while introducing the test, the Chief Justice warned that the

Court should not "engage in a legalistic minuet in which

precise rules and forms must govern." Lemon, 403 U.S. at 614.

Despite these protestations, courts bound to respect this Court

and to comply with its precedenis have fallen victim to the

melodic soothing of Lemon's simplicity, hypnotically adopting

6

and enthusiastically applying the Lemon test as the sole and

controlling criterion for Establishment Clause jurisprudence.

In the case before the Court, the fourth circuit's decision is

representative of the inconsistency and utter disarray

application of Lemon produces in lower courts.

The fourth circuit minimized the university's provision of in-

kind support and "sustenance of religion in [several] incidental

respects [which did] not . . . inhibit religion," Rosenberger v.

The Rector and Visitors of the University of Virginia, 18 F.3d

269, 285 (4th Cir. 1994) (Pet. App. 34a), but then held that use

of "public funds to support a publication so clearly engaged in

the propagation of particular religious doctrines would

constitute a patent Establishment Clause violation." Jd (Pet.

App. 35a). Rejecting the argument that religion is inhibited,

the court relied on the university's other extensive support, but

failed to explain why that was not also a "patent" violation of

the same clause.

While internal inconsistency of the decision below is

unsurprising, if not entirely expected, the fourth circuit took

Lemon where few enterprising courts have gone before. The

court held that the university had "penalize[d] exercise of

constitutional rights by withholding from [the religious

students] an otherwise discretionary benefit." Jd at 281 (Pet.

App. 25a). This "creates an uneven playing field on which the

advantage is tilted towards .. . wholly secular modes of

expression." Jd. (Pet. App. 26a) (emphasis added). After

finding such discrimination unconstitutional under the Free

Speech Clause, the court then used Lemon to nullify its own

conclusion. Miraculously, the "uneven playing field" decried

7

in part one, was transformed into "neutrality" under Lemon in

part two. /d. at 284-85 (Pet. App. 37a). Under the fourth

circuit's analysis, Lemon is read to consume not only the

Establishment Clause, but the entire First Amendment.’

The results in lower courts reflect the breadth of cloudy

confusion that plagues those courts which reflexively apply the

Lemon test in every sort of Establishment Clause case.

Although some of the decisions seem amusing, they all bear the

scent of that "relentless extirpation of all contact between

government and religion,” which does not accurately or

adequately reflect "the history or the purpose of the

Establishment Clause." Allegheny County, 492 U.S. at 657

(Kennedy, J., concurring in part and dissenting in part).

As Judge Easterbrook noted recently, “Lemon has lost its tang

[.]" Harris v. City of Zion, 927 F.2d 1401, 1419, 1424 (7th Cir.

1991) (Easterbrook, J., dissenting). Whether through inherent

defect, mechanistic overuse, or a wringing approach that

guarantees caustically antireligious results, the mere selection

of the Lemon test is now a signal of a court's intention to

overturn challenged government practices and policies. This

case presents this Court with the prospect, not merely of

adjusting the error of the lower courts in the instant case, but to

2 The fourth circuit completes its slight of hand with the dictum that

the Free Exercise Clause would also support the conclusions reached

under its Free Speech analysis. /d. at 283 n.31 (Pet. App. 30a-3 la n.31).

Sadly, the Equal Protection Clause appears to be Lemon's next victim. See

id. at 287-88 (Pet. App. 57a-58a). One can only guess what other

liberties Lemon, in the hands of inferior courts, will jeopardize for

religious citizens.

8

check and clarify the general confusion of the judiciary which

attends the litigation of Establishment Clause claims.

B. Because Lemon Has Proven Unworkable,

That Test, With Its Muddled Progeny,

Should Now be Overruled Or Clarified

The Religion Clauses preclude the government from

discriminating against citizens because of their religion. In

Zorach v. Clauson, 343 U.S. 306 (1952), this Court discussed

the impermissibility of governmental hostility toward religion:

To hold that [government] may not [accommodate

religion} would be to find in the Constitution a

requirement that the government show a callous

indifference to religious groups. That would be

preferring those who believe in no religion over those

who do believe.

Id. at 314. See also Lynch, 465 U.S. at 673.

In McDaniel v. Paty, 435 U.S. 618 (1978), Justice Brennan

wrote that the provision there, which barred clergy from

serving as state legislators, violated the Establishment Clause

because it manifested "patent hostility toward, not neutrality

respecting, religion . . . and, in sum, has a primary effect which

inhibits religion." id at 636 (Brennan, J., together with

Marshall, J., concurring in the judgment).

The religious heritage of the American peopie also dictates

9

that government not be hostile to religion. In Zorach, this

Court noted:

We are a religious people whose institutions presuppose

a Supreme Being. We guarantee the freedom to

worship as one chooses. We make room for as wide a

variety of beliefs and creeds as the spiritual needs of

man deem necessary.

343 U.S. at 313-314. See also Walz v. Tax Comm'n, 397 U.S.

664, 676-77 (1970) (few concepts are "more deeply embodied

in the fabric of our national life, beginning with pre-

Revolutionary colonial times, than for the government to

exercise at the very least this kind of benevolent neutrality

toward churches and religious exercise generally . . .").

Hostility toward religion robs American democratic

institutions of a major source of the values which inform them.

The American political tradition presupposes a government

which does not seek to shape its people's values, but rather is

itself shaped by them. Thus, religion has traditionally played

a central role in the development of public virtue.

Neither government nor this Court can or should ignore

the significance of the fact that . . . many of our legal,

political and personal values derive historically from

religious teachings.

Abington School District v. Schemop, 374 U.S. 203, 306 (1963)

(Goldberg, J., together with Harlan, J., concurring).

10

Despite its opinions eschewing any appearance of hostility to

religion, this Court's First Amendment jurisprudence readily

lends itself to the fomenting of such hostility. Lemon's shallow

roots in our history of religious freedom, and the ease with

which its prongs may be used to bump religious expression and

liberty into a second-class status in the marketplace of ideas,

have brought about the very confusion and hostility sought to

be avoided.

1. The Lemon Test Produces Confusion,

Not Neutrality

a. The Secular Purpose Prong

Lemon's first prong requires a secular purpose for all

government action. Lemon at 612-13. This Court treats the

secular purpose prerequisite as meaning any secular purpose.

See e.g., Wallace v. Jaffree, 472 U.S. 38, 56 (1985) ("a statute

must be invalidated if it is entirely motivated by a purpose to

advance religion"). Although this Court has only used the

purpose prong to defeat government action three times since

Lemon, in Edwards v. Aguillard, 482 U.S. 578, 585-89 (1987),

Jaffree at 56, and Stone v. Graham, 449 U.S. 39, 40-41 (1980),

it poses a significant threat of confusing lower courts and

abusing religious liberty.

Even when religious exemptions are provided on a

nondiscriminatory basis, the purpose of the legislature is to

remove burdens on religious freedom; thus, the government's

action "advances" the cause of religion. The secular purpose

prong induces tension between the Religion Clauses, failing to

™ 2 DOT AE Ae OOO GI: Aires mo

MON” NC ON SERS RMR 0 Ban

take account of the fact that “intentional advancement of

religion is sometimes required by the Free Exercise Clause."

Edwards at 627 (Scalia, J., together with Rehnquist, C.J.,

dissenting) (citations omitted); see also Grumet, 114 S.Ct. at

2498 (O'Connor, J., concurring in part and concurring in the

judgment) (attributing the unconstitutional attempt at

accommodation to prior Supreme Court rulings). As Justice

O'Connor explained, "[i}t is disingenuous to look for a purely

secular purpose when the manifest objective of a statute is to

facilitate the free exercise of religion by lifting a government-

imposed burden." Jaffree at 83 (O'Connor, J., concurring).

This case demonstrates the extent to which the purpose prong

may be manipulated. The fourth circuit deferred to the

university's conclusion that the funding of religious activities

would not further its "educational mission," 18 F.3d at 284

(Pet. App. 33a), despite the fact that religious discussion and

education is part of the university's academic curriculum. /d.

Under this application of the purpose prong, the government is

allowed to define religion out of the marketplace of ideas. This

discriminatory subterfuge was upheld as advancing the "secular

purpose” of avoiding "an establishment of religion at the

institution." /d Thus, the Establishment Clause is not

offended because the "purpose" is to avoid offending the

Establishment Clause. /d. at 284 (Pet. App. 33a-34a). Under

the fourth circuit's interpretation of Lemon, the purpose prong

not only directly contradicts this Court's warnings against

religious hostility, it becomes circular as the maze of logic

grows longer.

Not only has the purpose prong "made such a maze of the

12

Establishment Clause that even the most conscientious

governmental officials can only guess what motives might be

held unconstitutional," Edwards, 482 U.S. at 636 (Scalia, J.,

together with Rehnquist, C.J., dissenting), but "discerning the

subjective motivation of those enacting the statute, is to be

honest, almost always an impossible task." Jd. Lemon thus fails

to heed the warning "that determining the subjective intent of

legislators is a perilous enterprise." /d. at 638.

b. The Effects Prong

The second prong of the Lemon test requires that "the

principal or primary effect [of government action] must be one

that neither advances nor inhibits religion." Lemon at 612.

Since Lemon, this Court has only once struck down government

action as "inhibiting" religion. Larson v. Valente, 456 U.S. 228

(1982). This is not surprising, as faithful application of the

effects prong is impossible without absolute equality. As

Justice Frankfurter explained:

Religious beliefs pervade, and religious institutions

have traditionally regulated virtually all human activity

. State codes and the dictates of faith touch the

same activities. Both aim at human good, and in their

respective views of what is good for man they may

concur or they may conflict. No constitutional

command which leaves religion free can avoid this

quality of interplay.

McGowan v. Maryland, 366 U.S. 420, 461-62 (1961)

(Frankfurter, J., with Harlan, J., concurring in the judgment).

13

Clearly, every government action will, in some respect, either

"advance" or "inuibit" a subject which pervades "virtually all

human activity." Thus, similar to the purpose prong, the effect

prong is unworkable as a model for distinguishing between

those government actions which advance religion only (i.e., an

establishment of religion), and those actions advancing

religious freedom (i.e., an accommodation of religion).

Of more fundamental concern, prohibiting government action

which has the effect of advancing religion readily permits

discrimination against religion in the provision of government

benefits. In the case before the Court, the university takes

fourteen dollars per semester from every full-time student for

student activities. 18 F.3d at 270 (Pet. App. 2a). The funds are

used to support a "wide variety of student organizations,

activities, and publications," id., as long as they are not, inter

alia, political or religious. /d at 271 (Pet. App. 3a).

Amazingly, the fourth circuit held that this discrimination does

not "inhibit" religion. /d. at 283 (Pet. App. 34a).

In the economic marketplace, the notion that taxation without

equal subsidization would not "inhibit" the nonsubsidized

competitor is bad economic theory. In the marketplace of

ideas, the theory is no more legitimate. As Justice Brennan has

explained, "(t]he Nation's future depends upon leaders trained

through wide exposure to that robust exchange of ideas which

discovers truth ‘out of a multitude of tongues,’ (rather) than

through any kind of authoritative selection." Keyishian v.

Board of Regents, 385 U.S. 589, 603 (1967). Here, the

selective provision of general funds is at the heart of the

university's "authoritative selection” process. The illogic of the

14

conclusion that this does not "inhibit" religion is astounding.’

This Court has clearly held that "[t]he Establishment Clause

does not license government to treat religion and those who

teach or practice it, simply by virtue of their status as such, as

subversive of American ideals and therefore subject to unique

disabilities." Board of Education v. Mergens, 496 U.S. 226,

248 (1990) (citation omitted). Yet, Lemon's effect prong

clearly gives lower courts license to deny Religion or religious

people equality in the provision of general government

benefits; this Court must then revoke this license piecemeal as

it creates more confusion with each sidestep of Lemon. See,

e.g., Lamb's Chapel v. Center Moriches School Dist., 113 S.Ct.

2141, 2148 (1993); Zobrest v. School District, 125 L.Ed. 1, 10

(1993). The language of Lemon lives on and its inherent

confusion reigns in lower courts that torturously misapply it to

the detriment of Religion and religious adherents.

c. The Entanglement Prong

The third and most tangled web of the Lemon test prohibits

3 The fourth circuit's astonishing conclusion that the university would

be advancing religion by treating religious groups equally, 18 F.3d at 283

(Pet. App. 35a), is further evidence of Lemon's invitation to the bizarre. It

is as if the university and the lower courts believe religious adherents do

not need to be treated equally to compete on par with other philosophical

and scientific views in the quest to prove their religious tenets and ideas

are the"truth" Justice Brennan wrote about. Religious citizens must have

some hidden fountain of wealth that never runs dry; but, from the public

fountain, all nonreligious citizens and groups may drink and the

government even draws the water. Perhaps the Commonwealth of

Virginia believes in a miraculous Divinity after all.

15

"excessive entanglement" between government and religion.

Lemon at 613. As noted above, preventing all entanglement of

religion and government is impossible; it is, equally, unwise.

As Justice Brewer explained in Holy Trinity Church v. United

States, 143 U.S. 457 (1892), "[e]very constitution of every one

of the . . . States contains language which . . . recognizes a

profound reverence for religion and an assumption that its

influence in all human affairs is essential to the well being of

the community .... [T]Jhey affirm and reaffirm that this is a

religious nation." /d. at 468, 470. See also Zorach, 343 U.S. at

306 ("We are a religious people whose institutions presuppose

a Supreme Being ..."). Recently, recognizing this tradition,

Justice Scalia wrote that "those who adopted our Constitution

... believed that the public virtues inculcated by religion are a

public good .... Unsurprisingly then, indifference to ‘religion

in general’ is not what our cases, both old and recent, demand."

Lamb's Chapel, 113 S.Ct. at 2151 (Scalia, J., together with

Thomas, J., concurring in the judgment) (emphasis in original)

(citations omitted). Thus, some entanglement of the civil and

religious is not only inevitable, but quite welcome.

The qualifier "excessive" does not save Lemon's third prong

from absurd and confusing results. Indeed, even before Lemon,

this Court had recognized the paradox inherent in asking

government to maneuver one way or the other to avoid

"excessive entanglement” with religion. See Walz, 397 U.S. at

674 (acknowledging that elimination of tax exemptions for

religious organizations would tend to expand, not contract

government involvement with religion). In Widmar v. Vincent,

454 U.S. 263 (1982), this Court noted that to exclude all

religious groups from a privilege granted to others would risk

16

greater entanglement as

the University would need to determine which words

and activities fall within "religious worship and

religious teaching." This alone could prove "an

impossible task in an age where many various beliefs

meet the constitutional definition of religion."

Id. at 272 n.11 (citation omitted). Entanglement, then, can

mean any number of things and leaves government in the same

incurable position as the other two prongs; stuck with an

"insoluble paradox." Wallace v. Jafjree, 472 U.S. 38, 109

(1985) (Rehnquist, J., dissenting); Lemon at 668 (White, J.

concurring in part and dissenting in part).

Like the effects prong, entanglement readily allows

discrimination against religious citizens. In the case at bar,

while the fourth circuit held that the refusal to grant a general

benefit to religious organizations is justified by the

entanglement prong of Lemon, it found no problem in granting

those benefits to such "cultural organizations" as the Muslim

Students Association and the Jewish Law Students Association.

18 F.3d at 287 (Pet. App. 41a). Curiouser and curiouser, the

fourth circuit's entanglement analysis largely rested on the

potential for political divisiveness related to religious belief

and practice’... ." /d. at 285 (Pet. App. 37a). The court must

fear that "'facilitating discussion which fosters an atmosphere

of sensitivity to and tolerance of Christian viewpoints," /d. at

272 (Pet. App. 5a) (quoting Wide Awake Productions’ Con-

stitution), is somehow a call to arms. The fourth circuit failed

to explain how the Jewish and Muslim students are trusted to

17

live in peace and harmony while treating religious students

equally is believed to be the first step toward Holy war. The

fact that Ronald Rosenberger has been in litigation with the

university for over four years because of discrimination against

religion and religious students, not because of its funding,

provides the final and most emphatic example of another

Lemon "insoluble paradox."

2. Lemon and its Confusing Progeny

Should Be Overruled

4 Perhaps the court believed that Jews and Muslims have a milder

history of “divisiveness.” Of course, such a distinction between the

“political divisiveness" of religion and the "cultural divisiveness" between

Jews and Muslims is not only practical fantasy, it is historical nonsense.

The Commonwealth of Virginia has come full circle after two

centuries. This Court has noted that James Madison's views “accurately

reflect[] the spirit and purpose of the Religion Clauses of the First

Amendment,” McDaniel, 435 U.S. at 624. Madison's Remonstrance

condemns the very discrimination the university here seeks to justify:

[T]he bill violates that equality which ought to be the basis of

every law, and which is more indispensable, in proportion as the

validity or expediency of any law is more liable to be

impeached. If “all men are by nature equally free and

independent," all men are to be considered as entering into

Society on equal conditions; as relinquishing no more, and

therefore no less, one than another, of their natural rights... .

As the Bill violates equality by subjecting some to peculiar

burdens; so it violates the same principle, by granting to others

peculiar exemptions.

Madison, A Memorial and Remonstrance Against Religious Assessments,

1785, reprinted in Everson v. Board of Educ., 330 U.S. 1, 66 (1947)

(App. to opinion of Rutledge, J., dissenting).

18

Lemon has produced results in lower courts at odds with the

neutrality required by the Constitution's text and history.

Lemon's progeny have also sanctioned varying degrees of

hostility to religion, placing religious adherents at a

disadvantage with regard to other citizens.* This Court now has

"the proper case . . . [to] bring [its] Establishment Clause

jurisprudence back to . . . the proper track--government

impartiality, not animosity, towards religion." Grumet, 114

S.Ct. at 2498 (O'Connor, J., concurring in part and concurring

in the judgment); see also id. at 2505 (Kennedy, J., concurring

in the judgment); id. at 2515 (Scalia, J., together with

Rehnquist, C.J., and Thomas, J., dissenting).

Il. GOVERNMENT MAY NOT USE RELIGION OR

RELIGIOUS ADHERENCE AS A BASIS OF

CLASSIFICATION EXCEPT TO AVOID

INFRINGEMENT OF RELIGIOUS FREEDOM

In McDaniel v. Paty, 435 U.S. 618 (1978), Justice Brennan

presented an interpretation of the Religion Clauses, gleaned

from this Court's precedents, which is faithful to the historical

understanding and proper harmony of the First Amendment:

Beyond the[] limited situations in which government

5 See, e.g., Edwards v. Aguillard, 482 U.S. 578 (1987); School Dist. of

Grand Rapids v. Ball, 473 U.S. 373 (1985); Aguilar v. Felton, 473 U.S.

402 (1985); Wolman v. Walter, 433 U.S. 229 (1977); Meek v. Pittenger,

421 U.S. 349 (1975); Levitt v. Committee for Public Educ. & Religious

Liberty, 413 U.S. 472 (1973); Committee for Public Educ. & Religious

Liberty v. Nyquist, 413 U.S. 756 (1973); Sloan v. Lemon, 413 U.S. 825

(1973); Tilton v. Richardson, 403 U.S. 672 (1971).

19

may take cognizance of religion for purposes of

accommodating our traditions of religious liberty,

government may not use religion as a basis of

classification for the imposition of duties, penalties,

privileges or benefits.

Id. at 639 (Brennan, J., concurring) (footnote omitted). This

principle of equality of religious exercise should replace Lemon

as guiding "[t]he general nature of [the Court's] inquiry in this

area...." Mueller v. Allen, 463 U.S. 388, 394 (1983).

A. The Founders Understood the Religion

Clauses to Compliment Each Other,

Ensuring that Religion or Religious

Adherence is Pertinent Only to

Accommodation of Religious Freedom

A proper understanding of the First Amendment views it as

a political compromise among several colonies worried about

the power of a centralized government encroaching on local

beliefs.° This fear of centralization forced a compromise

among various founding colonial views. As this Court

correctly noted in Everson, "[n]o one locality and no one group

throughout the Colonies can rightly be given entire credit for

having aroused the sentiment that culminated in adoption of the

Bill of Rights’ provisions embracing religious liberty." 330 U.S.

6 See CORD, SEPARATION OF CHURCH AND STATE 14-15 (1982);

MARK DEWOLFE HOWE, THE GARDEN AND THE WILDERNESS 3, 22,

172 (1965); see generally Fairman, Does the Fourteenth Amendment

Incorporate the Bill of Rights? The Original Understanding, 2 STAN. L.

REV. 5 (1949).

20

at 11. The views of Virginia's leaders should be relevant only

as they respect this equality. Madison believed that

equality [] ought to be the basis of every law.... If

“all men are by nature equally free and independent,"

all men are to be considered as entering into Society on

equal conditions; as relinquishing no more, and

therefore retaining no less, one than another, of their

natural rights. Above all are they to be considered as

retaining an "equal title to the free exercise of Religion

according to the dictates of conscience."

Memorial and Remonstrance, reprinted in Everson, 330 U.S. at

66 (App. to opinion of Rutledge, J., dissenting) (emphasis in

original) (footnotes omitted). Madison's ideal government was

best supported by protecting every citizen in the

enjoyment of his Religion with the same equal hand

which protects his person and his property, by neither

invading the equal rights of any Sect, nor suffering any

Sect to invade those of another.

Id. at 68. He took these views of equality with him when he

led the debate over the Bill of Rights.’

7 As then Associate Justice Rehnquist noted in Wallace v. Jaffree, 472

U.S. 38 (1985), Madison's first proposal for the Religion Clauses read:

The civil rights of none shall be abridged on account of religious

belief or worship, nor shall any national religion be established,

nor shall the full and equal rights of conscience be in any

manner, or on any pretext, infringed.

21

Thus, the Founders understood the Religion Clauses to be

mutually supportive, Cantwell v. Connecticut, 310 U.S. 296,

303 (1940), prohibiting certain government action which would

infringe the equally protected liberty to make one's own

decisions regarding Religion.”

Even if incorporation is viewed as removing the specific

federalism limitation on the amendment, it should not change

the content of its substantive limitations. This Court should

look to the understanding of the relationship between the

Religion Clauses as understood by the Founders to clarify its

jurisprudence in this area. A study of opinions other than

Lemon and its aberrant progeny, demonstrates that this Court

has frequently done just that.

B. This Court's Decisions Judging Religious

Classifications, Other than Lemon and its

Inconsistent Progeny, Employ Equality of

Freedom of Belief and Opinion as the

Governing Principle

1. This Court Used the Equal Protection

Clause to Govern the Analysis of

Religious Classifications in its Equal

Access Cases

Id. at 94 (Rehnquist, J., dissenting) (citation omitted) (emphasis added);

see generally id at 92-100.

8 See TRIBE, AMERICAN CONSTITUTIONAL LAW §14-2, 1156-

57 (2d. ed. 1988).

22

This Court has clearly held that "under the Equal Protection

Clause, not to mention the First Amendment itself, government

may not grant the use of a forum to people whose views it finds

acceptable, but deny use to those wishing to express less

favored or more controversial views ...." Police Dep't v.

Mosley, 408 U.S. 92, 95-96 (1972) (citations omitted). This

equal protection analysis applies with equal force to religious

speech. In Widmar v. Vincent, 454 U.S. 263 (1982), this Court

held that granting student religious groups equal access to

university facilities would not violate the Establishment Clause.

Id. at 270-76. Accordingly , this Court found "novel" the

argument that religious worship, as opposed to speech about

religion, is not subject to the same equal protection guaranteed

by the First and Fourteenth Amendments. /d. at 269 n.6.

Indeed, this Court has consistently upheld protection for

religious speech in a wide variety of contexts, with no

suggestion that the religious content of that speech in any way

limits the full force of First Amendment guarantees.’

While finding that equal protection must be afforded religious

9 See, e.g., ISKCON v. Lee, 112 S. Ct. 2701 (1992) (upholding ban on

solicitation at airport terminals); Lee v. ISKCON, 112 S. Ct. 2709 (1992)

(per curiam) (distribution of religious literature in airport terminals);

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569 (1987)

(distribution of religious literature in airport terminals); Heffron v.

ISKCON, 452 U.S. 640 (1981) (upholding limitation on solicitation at

state fairgrounds); Niemotko v. Maryland, 340 U.S. 268 (1951) (religious

speech in public park); Marsh v. Alabama, 326 U.S. 501 (1946)

(distribution of religious literature in co:npany town); Cantwell v.

Connecticut, 310 U.S. 296 (1940) {street preaching); Lovell v. City of

Griffin, 303 U.S. 444 (1938) (distribution of religious literature in public

places).

23

speech, this Court has consistently hidden Lemon's paradoxical

logic under a bushel of common sense. The focus has changed

from looking for effects that "advance" religion, looking

instead to whether the effect of the challenged government

action is to foster religious uniformity or otherwise interfere

with voluntary choices on matters of religion. Thus, in

Widmar, the issue under the "effects" test was not "whether the

creation of a religious forum would violate the Establishment

Clause,” but rather whether a "University [which] ha[d] opened

its facilities for use by student groups . . . [could] exclude

groups because of the content of their speech." Widmar at 273.

The Court was then "unpersuaded that the primary effect of the

public forum, open to all forms of discourse, would be to

advance religion." /d. In Board of Education v. Mergens, 496

U.S. 226 (1990), this Court held that equal access by high

school students to school facilities for religious purposes was

fully compatible with the Establishment Clause. Justice

O'Connor emphasized that when the government treats

religious groups equally

the message is one of neutrality rather than

endorsement; if a State refused to let religious groups

use facilities open to others, then it would demonstrate

not neutrality but hostility toward religion.

Id. at 248. Widmar and Mergens render completely untenable

any suggestion that speech by private parties, in government

facilities available for use by a variety of outside organizations,

could somehow trigger a violation of the Establishment Clause.

Lamb's Chapel v. Center Moriches School Dist., 113 S.Ct. 2141

(1993), was the third-time charm of equality for religious

\

24

access. There, this Court held that denying access to even non-

public forums solely on the basis of the religious perspective of

speech was unconstitutional viewpoint-based discrimination.

Id. at 2147. Leaping over Lemon in a single bound, the Court

had "no more trouble than did the Widmar Court in disposing

of the claimed defense on the ground that the posited fears of

an Establishment Clause violation are unfounded." Lamb's

Chapel at 2148. Ata minimum, these cases clearly hold that

the First Amendment precludes any governmental effort to

single out and censor--or otherwise burden--the speech of

private parties solely because that speech is religious.

2. As This Court has Retreated From

Lemon in Cases Directly Challenging

State Action Under the Establishment

Clause, Various Opinions Have

Recognized Equality as _ the

Governing Principle of the Religion

Clauses

This Court's precedents, which place Religion and religious

adherents on an equal level for First Amendment purposes, are

not confined to the Speech Clause. Beginning with McDaniel,

this Court began to sidestep Lemon's constraints when

addressing religious liberty issues. In finding that Tennessee

could not condition the service in its state legislature on the

surrender of the right to exercise religious activity, the plurality

saw the state as "punishing a religious profession with the

privation of a civil right." McDaniel, 435 U.S. at 626 (quoting

5 Wnitings of James Madison 288 (G. Hunt ed. 1904)). Justice

Brennan explained, "[rJeligionists no less than members of any

25

other group enjoy the full measure of protection afforded

speech, association, and political activity generally. The

Establishment Clause . . . may not be used as a sword to justify

repression of religion or its adherents from any aspect of public

life." Jd at 640-641 (Brennan, J., concurring) (footnote

omitted). Wishing to be more explicit about the equality basis

for the Court's decision, Justice White suggested that the state

law should be found “unconstitutional under the Equal

Protection Clause of the Fourteenth Amendment.” /d. at 643

(White, J., concurring in the judgment).

As this Court has turned to an equality reasoning under the

Religion Clauses, the focus has been on the "benefit" of an

enactment as it relates to comparable benefits made generally

available. Larson v. Valente, 456 U.S. 228 (1982), provided

the starting point for bridging the gap of equality from the

Speech Clause to the Establishment Clause. Citing Widmar,

this Court subjected a statute to strict scrutiny because it

imposed greater administrative burdens on religious groups

soliciting more than fifty percent of their funds from

nonmembers than other religious groups. Larson at 247.

Finding the statute a violation of the Establishment Clause,

Justice Brennan explained:

Madison once noted: "Security for civil rights must be

the same as that for religious rights. It consists in the

one case in the multiplicity of interests and in the other

in the multiplicity of sects." Madison's vision--freedom

for all religion being guaranteed by free competition

between religions--naturally assumed that every

denomination would be equally at liberty to exercise

26

and propagate its beliefs.

Id. at 245 (footnote omitted). In Mueller v. Allen, 463 U.S. 388

(1983), this Court completed this half of the bridge from

Widmar, recognizing equality between Religion and

nonreligion. Mueller involved a state statute providing tax

deductions for school expenses for parents of children attending

public and private schools. Consistent with Widmar and

Larson, this Court, in finding the statute did not violate the

Establishment Clause, noted that "'[t}he provision of benefits to

so broad a spectrum of groups is an important index of secular

effect."" Mueller at 397 (citation omitted). See also Bowen v.

Kendrick, 487 U.S. 589, 609 (1988); Witters v. Wash. Dept. of

Ser. for Blind, 474 U.S. 481, 487 (1986). Chief Justice

Rehnquist summarized this neutrality concept in Zobrest v.

School District, 125 L.Ed. 1 (1993):

[W]e have consistently held that government programs

that neutrally provide benefits to a broad class of

citizens defined without reference to religion are not

readily subject to an Establishment Clause challenge

just because sectarian institutions may also receive an

attenuated financial benefit.

Id. at 10 (citing Bowen, Widmar, Mueller, and Witters)

(citations omitted).

In this Court's latest Establishment Clause case, every Justice

agreed with this principle of equality. See Board of Education

v. Grumet, 114 S.Ct. 2481, 2487 (1994) (plurality opinion of

Souter, J., together with Blackmun, Stevens, and Ginsburg, JJ.);

27

at 2497 (O'Connor, J., concurring in part and concurring in the

judgment); at 2504 (Kennedy, J., concurring in the judgment);

at 2508 (Scalia, J., together with Rehnquist, C.J., and Thomas,

J., dissenting). As Justice Kennedy explained:

{T]he Establishment clause forbids the government to

use religion as a line-drawing criterion. in this respect,

the Establishment Clause mirrors the Equal Protection

Clause. Just as the government may not segregate

people on account of their race, so too it may not

segregate on the basis of religion. The danger of stigma

and stirred animosities is no less acute for religious

line-drawing than for racial.

Id. at 2504 (Kennedy, J., concurring in the judgment).

Here, the university seeks to justify religious segregation by

drawing a fine distinction between provision of equal access

and equal provision of general subsidies. Yet, this strange

notion of "neutrality" is out of step with this Court's pe a back

toward equality after Lemon.'® The logical next step for

religious equality is to extend the equal protection to all forms

of generally available government assistance, so as to

completely bridge the gap between the Establishment Clause

and the rest of the First Amendment. This does not require a

10 The university hopes to save its strained logic by relying on Lemon

and a long list of its aberrant offspring. Respondent's Brief in Opposition

at 19. At base, the university's long list of citations supporting its

understanding of “neutrality” is simply a convenient compilation of this

Court's departures from the equality principle which steadily began after

1971. We have our own list supra note 5.

28

novel construction project; Lemon has, in fact, smoldered,

slowly spreading to consume planks of equality that this Court

had laid throughout its dealings with the Religion Clauses.

a First Amendment Decisions

Preceding Lemon Recognized

Equality as the Governing Principle

of the Religion Clause.

This Court consistently adhered to the equality principle for

Religion and religious adherents, prior to Lemon. In 1899, this

Court upheld an agreement between the Commissioners of the

District of Columbia and a religiously affiliated hospital

whereby the Federal Government would pay for the

construction of a building on the hospital grounds. Bradfield v.

Roberts, 175 U.S. 291 (1899). Without proof the hospital

discriminated on the basis of religion or otherwise operated

inconsistent with the aid, its religious affiliation was found

"wholly immaterial." /d. at 298. A commitment to equality

continued in this Court's opinions addressing the Establishment

Clause. In Everson, Justice Douglas wrote that government

cannot exclude individual Catholics, Lutherans,

Mohammedans, Baptists, Jews, Methodists, Non-

believers, Presbyterians, or the members of any other

faith, because of their faith, or lack of it, from receiving

the benefits of public welfare legislation .... [w]e

must be careful, in protecting . . . against state-

established churches, to be sure that we do not

inadvertently prohibit [the state] from extending its

general state law benefits to all its citizens without

29

religious belief.

330 U.S. at 16 (emphasis in original).

In referring to the First Amendment's required religious

voluntarism, which protects the freedom to choose a religion

or none at all, Justice Harlan has explained that

[nJeutrality in its application requires an equal

protection mode of analysis. The Court must survey

meticulously the circumstances of government

categories to eliminate, as it were, religious

gerrymanders.

Walz, 397 U.S. at 696 (Harlan, J., concurring) (emphasis

added); see also Epperson v. Arkansas, 393 U.S. 97, 104

(1968) (First Amendment "mandates government neutrality

between religion and religion, and between religion and

nonreligion"); Torcaso v. Watkins, 367 U.S. 488, 495 (1961)

(footnote omitted) (government cannot "pass laws or impose

requirements which aid all religions as against non-believers,

and [] can[not] aid those religions based on a belief in the

existence of God as against those religions founded on different

beliefs"). As these opinions demonstrate, long before Lemon

soured this Court's Religion Clause jurisprudence, equality was

the guiding principle.

Viewing the First Amendment through the lens of equality

returns the Religion Clauses back to what they were originally

meant to be, two sides of the same coin used to purchase liberty

of religious voluntarism. This is the view of religious liberty

30

envisioned by the Framers, respected by this Court's Religion

Clause cases before Lemon, and nurtured in various Speech,

Establishment, and Free Exercise cases since McDaniel.

CONCLUSION

For the foregoing reasons, the Court should reverse the

decisions of the lower courts in this case, adopting the

"equality" (or "neutrality") analysis employed consistently

before Lemon and sporadically thereafter.

Respectfully submitted,

Keith A. Fournier Jay Alan Sekulow

1000 Regent University Dr. (Counsel of Record)

Virginia Beach, VA 23464 James Matthew Henderson, Sr.

(804) 579-2489 Kevin Eric Broyles

1000 Thos. Jefferson St. NW

Suite 520

Washington, D.C. 20007

(202) 337-2273

Attorneys for the American Center

for Law & Justice

December 15, 1994.