Amicus Curiae Brief — Agostini v. Felton

— +

] Supreme Court us

(ii) (4 FILED |

Nos. 96-552 & 96-553 FEB 28 1997

IN THE 7 CLERK

Supreme Court of the United States

OCTOBER TERM, 1996

RACHEL AGOSTINI, ef ai.,

Petitioners,

and

CHANCELLOR OF THE BOARD OF EDUCATION OF THE

CITY OF NEW YORK, et al.,

Petitioners,

Vv.

BETTY-LOUISE FELTON, et ai.,

Respondents

On Writ of Certiorari To The

United States Court of Appeals

For The Second Circuit

BRIEF OF THE BECKET FUND FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

KEVIN J. HASSON*

Eric W. TREENE

ROMAN P. STORZER

THE BECKET FUND FOR

RELIGIOUS LIBERTY

2000 Pennsylvania Avenue

Suite 3200

Washington, D.C. 20006

*Counsel of Record (202) 955 0095

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

INTEREST OF AMICUS .......0000eeeeeeee

TABLE OF CONTENTS

ENTANGLEMENT ANALYSIS

SHOULD NOT BE USED AS A FREE-

STANDING “TEST” UNDER THE

ESTABLISHMENT CLAUSE .......

A. This Court Has Emphasized That All

Of Its Establishment Clause

Inquiries Are “Guidelines,” Not

“HEE” 066400096¢0606606000808

B. Entanglement Analysis Is Especially

Ilil-Suited To Serve As A Separate

Test Because It Assumes Its Own

SD pconsksetsbnensoness

AGUILAR'S ENTANGLEMENT

ANALYSIS IS PARTICULARLY

PROBLEMATIC ........-00e0e000:

A. Inhibition Of Religion Violates, If

Anything, The Free Exercise Clause,

Not The Establishment Clause ...

B. Taxpayer Plaintiffs Lack Standing

To Assert The Free Exercise Rights

Of Third Parties ...............

CONCLUGBION $3 cccccccccccccccccccccvcccce

10

10

TABLE OF AUTHORITIES

CASES

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

Allegheny County v. Greater Pittsburgh ACLU,

EY PE bn hrdd cic Eb nc beeo'ccnccece 5

Barghout v. Bureau of Kosher Meat and Food

Control, 66 F.3d 1337 (4th Cir. 1995) ......... 9

Board of Educ. of Kiryas Joel Village School

Dist. v. Grumet, 114 §. Ct. 2481 (1994) .... 2, 4,8

Bowen v. Kendrick, 487 U.S. 589 (1988) .......... &

Capital Square Rev. and Advisory Bd. v. Pinette,

ED occ ccsocnceccococcece 6

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 113 S. Ct. 2217 (1993) .........4.. 11

Everson v. Board of Educ., 330 U.S. 1 (1947) ....... 5

Felton v. Secretary, United States Department

of Education, 739 F.2d 48 (2d Cir. 1984) ...... 4

Flast v. Cohen, 392 U.S. 83 (1968) .............. 12

Hunt v. McNair, 413 U.S. 734 (1973) .........565. 6

Larkin v. Grendel's Den, 459 U.S. 116 (1982) .... 3,8

Lee v. Weisman, 505 U.S. 577 (1992) ..........45. 6

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

Lynch v. Donnelly, 464 U.S. 668 (1984) ......... 5,7

McGowan v. Maryland, 366 U.S. 420 (1961) .... 4,12

Meek v. Pettinger, 421 U.S. 359 (1975) ............ 5

Roemer v. Board of Public Works, 426 U.S. 736

| ee ei tb een ey shdcencecaee 6

Rosenberger v. Rectors and Visitors of University

of Virginia, 114 S. Ct. 2551 (1995) ........... 6

School District of Abington Township v. Schempp,

A PEED 66d ec Sbv dv code vecceceves &

Schundler v. ACLU, No. 95-5965, slip op. (3d Cir.

ES ee 2,9

Tilton v. Richardson, 403 U.S. 672 (1971) ....... 5-7

Valley Forge Christian College v. Americans United

for Separation of Church and State, 454 U.S.

SS ae 12

Walz v. Tax Commissioner, 397 U.S. 664 (1970) .. 5,7

Zobrest v. Catalina Foothills Sch. Dist.. 509 U.S. |

PE PEMA a bw Cheb e eve k bo Goce cckcceace, 6

IN THE

Supreme Court of the Huited States

OCTOBER TERM, 1996

Nos. 96-552 & 96-553

RACHEL AGOSTINI, ef ai.

Petitioners,

and

CHANCELLOR OF THE BOARD OF EDUCATION OF THE

CITY OF NEW YORK, ef ai.,

Petitioners,

v.

BETTY-LOUISE FELTON, ef ai.,

Respondents

On Writ of Certiorari To The

United States Court of Appeals

For The Second Circuit

BRIEF OF THE BECKET FUND FOR

RELIGIOUS LIBERTY AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICUS

Pursuant to Rule 37.3 of this Court, the Becket Fund for

in support of Petitioners.’ The Becket Fund is a bipartisan and

' All parties have consented to the filing of this brief. Letters of

consent from all parties have been filed simultaneously with this brief.

expression of all religious traditions. Our cases frequently

involve allegations of improper entanglement under Aguilar v.

Felton, 473 U.S. 402 (1985). For example, we are currently

preparing a petition for writ of certiorari in a case that will be

captioned Schundler v. ACLU. In that case, the Third Circuit

held, among other things, that a city’s policy of including a

broad array of religious elements—from a Hanukkah Menorah

to a Hindu parade—in its various cultural offerings, and

accompanying all such cultural efforts with a sign celebrating

diversity, was an unconstitutional entanglement under Aguilar.

Schundler v. ACLU, No. 95-5965, slip op. (3d Cir. Jan. 13,

1997).

Our present brief will address the utility of entanglement

analysis for the Court’s Establishment Clause jurisprudence.

Because of this focus we believe our brief will complement,

and not duplicate, the briefs of the parties and thus prove

helpful to the Court in its resolution of this case.

SUMMARY OF ARGUMENT

Justice O’Connor recently warned that while it “is always

appealing to look for a single test, a Grand Unified Theory that

would resolve all the cases that may arise under a particular

clause . . . . But the same constitutional principle may operate

very differently in different contexts.” Board of Educ. of

Kiryas Joel Village School Dist. v. Grumet, 114 S. Ct. 2481,

2498-99 (1994). The Court has often remarked

similarly—beginning in Lemon v. Kurtzman, 403 U.S. 602

(1971), itself, where the Court stressed that:

Judicial caveats against entanglement must recognize

that the line of separation, far from being a “wall,” is

a blurred, indistinct and variable barrier depending on

all the circumstances of a particular relationship.

Id. at 612.

This advice is particularly apt when it comes to

entanglement analysis, which too easily leads itself to

circularity—entanglement is “excessive” because it is improper,

and improper because it is “excessive.” The military chaplaincy

involves the government in a far greater number and complexity

of contacts with religious organizations than did the zoning

regulation in Larkin v. Grendel's Den, 459 U.S. 116 (1982).

Yet the military chaplaincy is not only constitutionally

permissible, it is probably constitutionally required. By

contrast, the zoning regulation in Larkin “enmesh{ed] churches

in the exercise of substantial government powers” and was

therefore held to be an establishment of religion. /d. at 126.

In short, which interactions between Church and State are

benign, and which are “excessive entanglements,” cannot be

determined reliably just from the extent of mutual contact. That

conclusion depends instead on the propriety of the

contact—which is itself the ultimate question in Establishment

Clause analysis.

Aguilar-style entanglement analysis is unworkable for

another reason. It requires inquiry into the Free Exercise rights

of third parties, which taxpayer plaintiffs have no standing to

raise.

The inhibition of religion is by definition not the

establishment of it. Inhibition is instead its opposite. But

Aguilar's finding of an unconstitutional establishment of

religion was based largely on the possibility that monitoring

Title I teachers would inhibit religious belief and practice.

This is problematic. The specter of “state inspectors

prowling the halls of parochial schools,” Felton v. Secretary,

United States Department of Education, 739 F.2d 48, 67 (2d

Cir. 1984), aff'd, Aguilar v. Felion, 473 U.S. 402 (1985), is

certainly ominous. However, it is ominous not to taxpayers, but

to those whose religious freedom is thereby threatened—the

parochial schools and the parents who choose to send their

children to them.

But individual parochial schools are free to refuse any or

all government aid which they feel is intrusive, or potentially

so. Moreover, both parochial schools and their students are

capable of enforcing their own Free Exercise rights should they

be infringed. Taxpayer plaintiffs do not have standing to try to

do it for them.

ARGUMENT

I. ENTANGLEMENT ANALYSIS SHOULD NOT BE

USED AS A FREE-STANDING “TEST” UNDER

THE ESTABLISHMENT CLAUSE.

‘A. The Court Has Emphasized That All Of Its

Establishment Clause Inquiries Are “Guidelines,”

Not “Tests.”

Justice O’ Connor recently warned that while it “is always

appealing to look for a single test, a Grand Unified Theory that

would resolve all the cases that may arise under a particular

clause .... But the same constitutional principle may operate

very differently in different contexts.” Board of Educ. of

Kiryas Joel Village School Dist. v. Grumet, 1148. Ct. 2481,

2498-99 (1994). Accordingly, she emphasized that “the

Establishment Clause, like the Free Speech Clause, cannot

easily be reduced to a single test. There are different categories

of Establishment Clause cases, which may call for different

approaches.” /d. at 2499.

The Court has often made a similar point. It has stressed

that “[iJn each case, the inquiry calls for line drawing; no fixed,

per se rule can be framed.” Lynch v. Donnelly, 464 U.S. 668,

678 (1984). See also Walz v. Tax Commissioner, 397 U.S. 664,

669 (1970) (“rigidity could well defeat the basic purpose” of the

Religion Clauses). Thus, the Court has refused to invalidate

mechanically every governmental action which somehow

involves religion. Instead,

the Court has scrutinized challenged legislation or

official conduct to determine whether, in reality, it

establishes a religion or religious faith, or tends to

do so.

Lynch v. Donnelly, 465 U.S. at 678 (emphasis added, citation

omitted). See also Allegheny County v. Greater Pittsburgh

ACLU, 492 U.S. 573, 591 (1989)(quoting Everson v. Board of

Educ., 330 U.S. 1, 15-16 (1947)).

To be sure, the Court has developed useful criteria to aid

in this determination. At the same time, however, the Court has

always emphasized that the utility of these criteria must be kept

in perspective. The criteria “must not be viewed as setting the

precise limits to the necessary constitutional inquiry, but serve

only as guidelines with which to identify instances in which the

objectives of the Establishment Clause have been impaired.”

Meek v. Pettinger, 421 U.S. 359 (1975)emphasis added,

citation omitted). This is true of the “principal evils” identified

in Walz: “sponsorship, financial support, and active

involvement «f the sovereign in religious activity.” 397 U.S. at

668. The Court has noted that their presence cannot be

measured with any “constitutional caliper.” See Tilton vy.

Richardson, 403 U.S. 672, 677 (1971).

It is likewise true of the three criteria collected in Lemon

v. Kurtzman, 403 U.S. 602, 612 (1971). In Lynch, the Court

reminded us that it is unwilling “to be confined to any single

test or criterion in this sensitive area. In two cases, the Court

has not even applied the Lemon ‘test.’” 465 J.S. at 679. Since

Lynch, the Court’s refusal to be shoe-horned into a unitary

approach to the Establishment Clause has been even more

pronounced. Indeed, in two recent Establishment Clause cases,

the Court has not cited Lemon. See Rosenberger v. Rectors and

Visitors of University of Virginia, 114 S. Ct. 2551 (1995);

Capital Square Rev. and Advisory Bd. v. Pinette, 115 S. Ct.

2440 (1995). The Court apparently found Lemon unhelpful in

deciding Lee v. Weisman, 505 U.S. 577 (1992). Even more

strikingly, the Court in Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993), noted that the Court of Appeals used the

Lemon analysis, but then did not itself mention Lemon

anywhere else in its opinion.

And where the Court has chosen to use the Lemon

criteria—even in Lemon _ itself—it has called for

circumspection. This is especially true in its use of

entanglement criterion:

Judicial caveats against entanglement must recognize

that the line of separation, far from being a “wall,” is

a blurred, indistinct and variable barrier depending on

all thé circumstances of a particular relationship.

Lemon, 403 U.S. at 614. See also Roemer v. Board of Public

Works, 426 U.S. 736, 766 (1976)\("[t]here is no exact science in

gauging the entanglement of church and state”); Hunt v.

McNair, 413 U.S. 734, 746 (1973)(“the degree of entanglement

arising from inspection of facilities . . . varies in large measure

with the extent to which religion permeates the institution”);

Tilton, 403 U.S. at 685 (various factors can “substantially

diminish the extent and the potential danger of the

entanglement”).

In sum, this Court has taught that the ultimate inquiry is

“whether, in reality, [the challenged conduct] establishes a

religion or religious faith or tends to do so.” Lynch, 465 U.S.

at 678. Comparing the conduct to the “principal evils” isolated

in Walz and to the three criteria set forth in Lemon may well be

helpful in discerning the answer. But,

[t}here are always risks in treating criteria discussed

by the Court from time to time as “tests” in any

limiting sense of that term. Constitutional

adjudication does not lend itself to the absolutes of

the physica! sciences or mathematics. The standards

should rather be viewed as guidelines with which to

identify instances in which the objectives of the

Religion Clauses have been impaired.

Tilton, 403 U.S. at 678 (emphasis added). The present case

provides the Court with an excellent opportunity to re-

emphasize that principle and thus clarify the proper role of

entanglement analysis in Establishment Clause cases.

B. Entanglement Analysis Is Especially [ll-Suited To

Serve As A Separate Test Because It Assumes Its

Own Conclusion.

It is not only desirable that entanglement analysis not be

regarded as a free-standing “test,” it is also logically preferable.

To do otherwise is to risk making a circular

argument—“entanglement” is “eXcessive” because it is

improper, and improper because it is excessive. Under this

Court’s cases, it is not the quantity of contacts between Church

and State that make for excessive entanglement; rather, it is the

quality of such contacts that matter. The military chaplaincy

involves the government in a far greater number and complexity

of contacts with religious organizations than did the zoning

regulation in Larkin v. Grendel's Den, 459 U.S. 116 (1982). So

do the various programs established by the Adolescent Family

Life Act (“AFLA”). See Bowen v. Kendrick, 487 U.S. 589

(1988). Yet the Kendrick Court upheld AFLA. And the

chaplaincy programs set up by the various branches of the

military are not only constitutionally permissible, they are

probably constitutionally required.” By contrast, the zoning

regulation in Larkin “enmesh{ed] churches in the exercise of

substantial government powers” and was therefore held to be an

establishment of religion. /d. at 126.

A casual observer would not say, in the colloquial sense of

the word, that the City of Cambridge and the church near

Grendel’s Den restaurant had become entangled with one

another. The only contact involved was the church filing a

written objection to the granting of a liquor license. Jd. at 118.

But this contact, however fleeting, “vest[ed] discretionary

governmental powers in [a] religious bod[y]”, id. at 123, and

thus was held to be an excessive entanglement. The same

casual observer would almost certainly say, again in the

colloquial sense of the word, that the military chaplaincy and

AFLA are both quite entangling. But they are not improperly

sO.

* See School District of Abington Township v. Schempp, 374 U.S.

203, 297 (1963)(Brennan, J., concurring); Jd. at 309 (Stewart, J.,

dissenting); Katcoff v. Marsh, 755 F.2d 223 (2d Cir. 1985 (holding that

chaplaincy is constitutionally required to effectuate free exercise rights of

service members and to preserve neutrality under the establishment

clause). Cf Kiryas Joel, 114 S. Ct. at 2492 (quoting Justice Brennan’s

statement in Abington that “[H]ostility, not neutrality, would characterize

the refusal to provide chaplains and places of worship for prisoners and

soldiers cut off by the State from all civilian opportunities for public

communion.” Abington, 374 U.S. at 299 (Brennan, J., concurring)).

eo

In short, which relationships between Church and State are

benign, and which are “excessive entanglements,” cannct

reliably be determined merely from the extent of mutual

contact. It depends instead on the propriety of the mutual

contact—which is itself the ultimate question in Establishment

Clause analysis. Accordingly, a court cannot reliably determine

that a certain “entanglement” is “excessive” until after it has

already decided, on some other basis, that the relationship is

improper.’ It is the substance of the contact between church

and state, and not some quantum of interactions, that is

determinative.

"Aguilar has found itself cited in support of some unusual results in

the lower courts. The Third Circuit recently cited Aguilar’s in striking

down a display of a menorah and a creche that were part of Jersey City’s

year-round celebration of ethnic, cultural, and religious heritage,

including such diverse events as Republic of India Day, Ramadan

Remembrance Day parade, an African American Art exhibit, a

Dominican Republic flag raising, and a St. Patrick's Day parade.

Schundler v. ACLU, No. 95-5965, slip op. (3d Cir. Jan 13, 1997). The

menorah and creche were accompanied, as were all of the city’s cultural

efforts, by a sign tying the display to a broader celebration of diversity.

The court of appeals, however, relying on Lemon and Aguilar, held that

Jersey City had, through its “overall plan to celebrate different religions

and cultures . . . pursued a quintessential type of government action that

‘fosters an excessive entanglement with religion.”* Schundler, Slip Op.

at 26 (quoting Lemon, 430 U.S. at 613). A petition for writ of certiorari

is currently being prepared by undersigned counsel.

Aguilar has likewise been cited in striking down regulations

governing the use of the term “kosher” in consumer marketing, Barghout

v. Bureau of Kosher Meat and Food Control, 66 F.3d 1337, 1340 (4th

Cir. 1995) (although “the ordinance violated the second prong of the

Lemon test . . . the principle defect of the ordinance lies in its creation of

excessive entanglement).” Cf Bonham v. District of Columbia Library

Admin. , 989 F 2d 1242 (D.C. Cir. 1993)\“to close the library on Easter . .

. the District would be forced to decide matters of ‘deep religious

significance,’ Aguilar v. Felton... .”).

9

This is not to say that the entanglement criterion is simply

a makeweight. It is not. Rather, it provides a valuable

perspective on the totality of the circumstances. As the Court

noted in Lemon, “involvement or entanglement between

governmeut and religion serves as a warning signal [in advance

of] where the ‘verge’ of the precipice lies.” Lemon, 403 U.S. at

624-25. A high degree of interaction between church and State

is a helpful clue in a court’s investigation. But it cannot be

pressed into service as a free-standing “test.”

Il. AGUILAR'S ENTANGLEMENT ANALYSIS IS

PARTICULARLY PROBLEMATIC.

Aguilar’s entanglement analysis is unworkable for another

reason. It requires inquiry into the Free Exercise rights of third

parties, which taxpayer plaintiffs have no Standing to raise.

A. Inhibition of Religion Violates, If Anything, The

Free Exercise Clause, Not The Establishment

Clause.

The inhibition of religion is by definition not the

establishment of it. Inhibition is instead its opposite. But

Aguilar’s finding of an unconstitutional establishment of

religion turned largely on the possibility that required

government monitoring of Title I teachers could lead to the

inhibition of religious belief and practice, or as the Court put it,

the “more than an imagined specter of governmental

‘secularization of a creed.” Aguilar, 473 U.S. at 414 (quoting

Lemon, 403 U.S. at 650). The Aguilar Court thus found an

Establishment Clause violation in large part because of the

threatened inhibition of religion.*

This is problematic. The specter of “state inspectors

prowling the halls of parochial schools,” Felton v. Secretary,

United States Department of Education, 739 F.2d 48, 67 (2d

Cir. 1984), aff'd, Aguilar vy. Felton, 473 U.S. 402 (1985), is

certainly ominous. However, it is Ominous not to taxpayers, but

to those whose religious freedom is thereby threatened—the

parochial schools and the parents who choose to send their

children to them. Had the monitoring hindered the religious

beliefs or practices of the schools at any time from the inception

of the program in 1966, they could have brought suit under the

Free Exercise Clause. As it is, neither the schools nor the

schoolchildren’s parents believe their religious liberty to be in

peril. In fact, both the schools and parent-intervenors have

defended the program from the beginning.

B. Taxpayer Plaintiffs Lack Standing To Assert The

Free Exercise Rights Of Third Parties.

Aguilar thus presents the unusual circumstance of taxpayer

plaintiffs bringing a challenge to a government program, and

prevailing, not because the challenged program established,

aided, preferred, or endorsed religion, but because it was said

to threaten the religious liberty of third parties— who could not

have disagreed more.

That result is in considerable tension with this Court’s

“While the Court noted in dicta in Church of the Lukumi Babalu Aye,

Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993), that “[ijn our

Establishment Clause cases we have often stated the principle that the

First Amendment forbids an official Purpose to disapprove of a particular

religion or of religion in general,” the Court has never found an

establishment based on disapproval—except in its entanglement analysis

a la Aguilar.

ee ee

established doctrine on standing. Interested would-be plaintiffs

cannot acquire standing by virtue of some “shared individuated

right to a government” that does not prohibit the free exercise

of religion. See Valley Forge Christian College v. Americans

United for Separation of Church and State, 454 U.S. 464, 482

(1982). Article III requires a real or threatened injury. /d at

472. Flast v. Cohen, 392 U.S. 83, 104 n.25 (1968), expressly

declined to decide whether an assertion of the free exercise

claims of third parties would be sufficient to confer taxpayer

standing. And in McGowan v. Maryland, 366 U.S. 420 (1961),

the Court rejected an attempt by plaintiffs to raise the free

exercise rights of third parties. In that case, the Court held that

appellants lacked standing because they

allege[d] only economic injury to themselves; they

[did] not allege any infringement of their own

religious freedom due to Sunday closing . . . .

McGowan, 366 U.S. at 429 (emphasis supplied).

So too here. Plaintiffs’ anxiety for what are best

characterized as the free exercise rights of nonpublic schools

and their students is misplaced. Individual parochial schools

are free to refuse any or all government aid which they feel is

intrusive. Moreover, both parochial schools and their students

are certainly capable of enforcing their own Free Exercise rights

should they be infringed. Taxpayer plaintiffs have no standing

to try and do it for them.

In short, entanglement analysis, in general, is ill-suited for

service as an Establishment Clause test, and Aguilar's version

of it particularly so.

CONCLUSION

For the foregoing reasons, the decision of the Court of

Appeals for the Second Circuit should be reversed, and Aguilar

v. Felton overruled

Respectfully submitted,

KEVIN J. HASSON*

ERIC W. TREENE

ROMAN P. STORZER

[HE BECKET FUND

FOR RELIGIOUS LIBERTY

2000 Pennsylvania Avenue

Suite 3200

Washington, D.C. 20006

Counsel for Amicus Curiae

*_ounsel of Record