# Amicus Curiae Brief — Agostini v. Felton

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0024%3A25

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1997
- **Citation:** 520 U.S. 1141

## Text

— +
] 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0024%3A25. Public record. Not legal advice.