Amicus Curiae Brief — Mitchell v. Helms

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No. 98-1648

In The

Supreme Court of the United States

GUY MITCHELL, et al.,

Petitioners,

vs.

MARY L. HELMS, et al.,

Respondents.

On Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

BRIEF AMICI CURIAE OF CHRISTIAN LEGAL

SOCIETY AND NATIONAL ASSOCIATION OF

EVANGELICALS IN SUPPORT OF PETITIONERS

Cart H. Esseck Steven T. McFartanp*

Professor of Law Samuet B. Casey

213 John K. Hulston Hall Cureristian Lecat Society

Missouri & Conley Avenues CentER FOR LAW AND

Columbia, MO 6521! Reuicious Freepom

(573) 882-3035 4208 Evergreen Lane,

Suite 222

Annandale, VA 22003

(703) 642-1070

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-2831

TABLE OF CONTENTS

The Theory Of No-Aid rationism Is No

Longer Plausible; Indeed, In Its Modern Set-

ting The Theory Is Hostile To Individual Reli-

gious Cho

No-Aid Separationism Requires Intentional

Discrimination Against Religious Schools, A

Violation Of Both The Free h And Free

Exercise Clauses; Arguments t The Estab-

lishment Clause Overrides The Free Speech

And Free Exercise Clauses Make No Sense ..

Distinguishing Between Pervasively and Non-

Pervasively Sectarian Providers Is Inconsistent

With This Court’s Case Law Elsewhere 16

Entanglement Analysis Masks What Is Prop-

erly An Inquiry Concerning Governmental

Intrusion Into Inherently Religious Matters... 25

Conclusion

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton, 521 U.S. 203 (1997) ....... 3, 4, 16, 25

Aguilar v. Felton, 473 U.S. 402 (1985) ............. 16, 25

Barron v. Mayor and City Council of Baltimore, 32

U.S. (7 Pet.) 263 (1633) ... .ickcscccavessusnseesnine 15

Basich v. Board of Pensions, 540 N.W.2d 82 (Minn.

Ct. App. 1995) ....ss00c08ses en epeeeen umn 20

Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496

U.S. 296 (1990) . 00 s0ccheveasheabencenene eel 8, 29

Bob Jones Univ. v. United States, 461 U.S. 574

(1983)... ....6.ccc0¢eenhee sine eee eee nnn 18, 29

Bowen v. Kendrick, 487 U.S. 589 (1988)............ 28, 29

Cantwell v. Connecticut, 310 U.S. 296 (1940).......... 18

Capitol Square Review & Advisory Bd. v. Pinette, 515

US. 753 (1O0B)... os sin cicndevavg bee cue eee 8, 9, 11

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

S06 US. 520 (1998)... xcsectvccvkcemeenaneeeaee 7, 11

City of Boerne v. Flores, 521 U.S. 507 (1997).......... 22

Committee for Pub. Educ. v. Regan, 444 U.S. 646

(1960)... 0... 0000000000 60 0emelyis ale eeeennmnnennnnnn 4, 27

Corporation of Presiding Bishop v. Amos, 483 U.S.

S27 (19B7) .. .. accsincnvnvtabawmntenneee ane 18, 27

County of Allegheny v. Greater Pittsburgh ACLU, 492

U.S. S73 (2908) . «:.4.0s00800b0s cae eee 24

Downs v. Roman Catholic Archbishop, 683 A.2d 808

(Md. Ct. Spec. App. 1996)... «.s<csvcsvaunbubenseias 19

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 30

iii

TABLE OF AUTHORITIES - Continued

Page

EEOC v. Catholic Univ. of Am., 83 F.3d 455 (D.C.

DP Cii nbs eueeEUEabedsbbnsvisedecedcacececes 20

Employment Div. v. Smith, 494 U.S. 872 (1990)..7, 21, 23

Engel v. Vitale, 370 U.S. 421 (1962) .................. 29

Epperson v. Arkansas, 393 U.S. 97 (1968) ............. 30

Farley v. Wisconsin Evangelical Lutheran Synod, 821

RES EUs BOOED vs cevescvscerecccces 19

Farrington v. Tokushige, 273 U.S. 284 (1927).......... 11

Gabriel v. Immanuel Evangelical Lutheran Church,

Inc., 640 N.E.2d 681 (Ill. App. Ct. 1994)........... 19

Geraci v. Eckankar, 526 N.W.2d 391 (Minn. Ct. App.

EEE ES EE 20

Gibson v. Brewer, 952 S.W.2d 239 (Mo. 1997)......... 19

Grand Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985) .... 16

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ....... 12

Hernandez v. Commissioner, 490 U.S. 680 (1989)....... 28

Himaka v. Buddhist Churches of Am., 917 F. Supp.

eee te coh adeduvessésvccese 20

Hunt v. McNair, 413 U.S. 734 (1973)............044.. 28

In re Pleasant Glade Assembly of God, 991 S.W.2d 85

PUES Va hasedesscvccescciciccascees 19

Jones v. Wolf, 443 U.S. 595 (1979). .... 2.0.0... 6 6c c nee 29

Kedroff v. St. Nicholas Cathedral, 344 U.S. 94 (1952).... 19

Kiryas Joel Bd. of Educ. v. Grumet, 512 U.S. 687

ES ORES SOFT OTT T TTT ET TRE EET TETT TEE 2

TABLE OF AUTHORITIES - Continued

Page

Klagsbrun v. Va'ad Harabonim of Greater Monsey,

1999 WL 427338 (D.N.J. 1999)... 0.2.0 cccceeeenes 19

Korean Presbyterian Church v. Lee, 880 P.2d 565

(Wash. Ce. Amp. BODE) . 0. cc ccccsccccscseccvssecscs 19

Kreshik v. St. Nicholas Cathedral, 363 U.S. 190 (1960) i

Lamb's Chapel v. Center Moriches Union Free Sch.

Diet., SED DZ. TOG CORTE ois ci wwc ce sdivedecedetcoess 8

Lee v. Weisman, 505 U.S. 577 (1992). ..............55. 29

Legal Tender Cases, 79 U.S. 457 (1870).............4.. 14

Lemon v. Kurtzman, 403 U.S. 602 (1971)........... 16, 25

L.L.N. v. Clauder, 563 N.W.2d 434 (Wis. 1997)........ 19

Lyng v. Northwest Indian Cemetery Protective Ass'n,

GED. UES, Ge CRs, obs ns cdtekddesedeavatoeds: 21, 23

Maryland & Va. Churches of God v. Church at Sharps-

a eR rere cr ree 18

McCollum v. Board of Educ., 333 U.S. 203 (1948)...... 29

McDaniel v. Paty, 435 U.S. GOS Coen aes Si kdcccacees 7

McEnroy v. St. Meinrad School of Theology, 1999 WL

GOEPCE Gent. Raw. TOGOP oc cccnsseccccsccvvcsuceess 20

Meek v. Pittenger, 421 U.S. 349 (1975)... ... 2.6... eee 3

Meyer v. Nebraska, 262 U.S. 390 (1923)............5.. 12

Mueller v. Allen, 463 U.S. 388 (1983)............... 2, 27

New York v. Cathedral Academy, 434 U.S. 125 (1977) .... 16

NLRB v. Catholic Bishop, 440 U.S. 490 (1979)......... 28

TABLE OF AUTHORITIES - Continued

Page

Pearson v. Church of God, 458 S.E.2d 68 (S.C. Ct.

BRD. THGGD be ccnvscvcvudscusuesedbbbnavesecsstess 20

Peter v. Wedl, 155 F.3d 992 (8th Cir. 1998)........... 12

Pierce v. Society of Sisters, 268 U.S. 510 (1925)..... 12, 26

erian Church v. Hull Memorial Presbyterian

Crmsch, SB US. 440 (1969) 2.2. ccccsccncccccccccecs 18

Roemer v. Board of Pub. Works, 426 U.S. 736 (1976) ..17, 28

Rosenberger v. Rector and Visitors of Univ. of Va., 515

ee ET cn cnividd oinetteninth onns éhncan 2, 3, 8, 18

Rusk v. Espinosa, 456 U.S. 951 (1982) ................ 27

School Dist. of Abington Tsp. v. Schempp, 374 U.S.

Se Aas dak kad cals Uas cer we th datcecthes ovens 29

Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S.

Goes Cin sndddcetedecisdadoviesndcudvetestia 18, 27

Sherbert v. Verner, 374 U.S. 398 (1963) ................ 7

Simon & Shuster, Inc. v. Crime Victims Bd., 502 U.S.

Ey dna acc pend tke desunadichie san uae dake 7

St. Martin Evangelical Lutheran Church v. South

eis Se: CR ee wepaseas 28

Stone v. Graham, 449 U.S. 39 (1980)..............055. 29

Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989)...... 29

Thomas v. Review Bd., 450 U.S. 707 (1981)......... 22, 23

Tidman v. Salvation Army, 1998 WL 391765 (Tenn.

CR A THOU « cn cctvnctodedcésesbtbeedosasdeces 19

Tilton v. Richardson, 403 U.S. 672 (1971) ........... 2, 28

TABLE OF AUTHORITIES — Continued

Page

Tony & Susan Alamo Found. v. Secretary of Labor,

GE GAB. Fe Ge oe hac Kcadcdcncdacsocaneessner 25, 28

United States v. Ballard, 322 U.S. 78 (1944)........... 20

United States v. Balsys, 524 U.S. 666, 118 S. Ct. 2218

GESUED sccnccvcdcavcngedesuacssesced tee saniestenest 14

United States v. Lee, 455 U.S. 252 (1982) .......... 21, 24

Valley Forge Christian College v. Americans United,

GES UT. GIO Ga oc vices vetvecdvevcusebach tence 10

Van Osdol v. Vogt, 908 P.2d 1122 (Colo. 1996)........ 20

Wallace v. Jaffree, 472 U.S. 38 (1985) ...........6000-. 29

Walz v. Tax Comm'n, 397 U.S. 664 (1970).......... 18, 27

Watson v. Jones, 80 U.S. (13 Wall.) 679 (1871)........ 19

Welsh v. United States, 398 U.S. 333 (1970)........... 10

Widmar v. Vincent, 454 U.S. 263 (1981)....2, 8, 9, 18, 29

Witters v. Washington Dep't of Servs. for the Blind,

SS We Ge I 08 viv cniénndocnsc00ssssesebesesan 2

Wolman v. Walter, 433 U.S. 229 (1977) ................ 3

CONSTITUTIONAL PROVISIONS AND STATUTES

1 ANNALS OF Conc. 454 (J. Gales ed. 1789)........... 14

5 THe Founpers’ Constrrution 40-41 (Philip B. Kur-

land & Ralph Lerner eds. 1987)...............545. 14

Elementary and Secondary Education Act of 1965, _

ch. 2, tit. lL, as amended, 20 U.S.C. §§ 7301-7373

GUI. BECUe ocawe wesc odecnsccndesnsbsunabons passim

Ca Coed, GI Bivc ccc civics cecvsivvectasens passim

Equal Access Act, 20 U.S.C. §§ 4071-74 (1996)........ 8

vii

TABLE OF AUTHORITIES - Continued

Page

Orner AUTHORITIES

Thomas C., Religion Clause Anti-Theories, 72

SNES Rg. UL. GU MOUs nhs ccc ecececeteccncx 3

Clancy, William, ae as a Source of Tension, in

RELIGION AND THE Free Society (1958) .............. 17

Dumbauld, Edward, Tue Bru or Ricuts AND Wuart

FN RET REE Rs 4a are 14

Esbeck, Carl H., A Constitutional Case for Govern-

mental Cooperation with Faith-Based Social Service

Providers, 46 Emory L.J. 1 (1997) ................. 3, 5

Esbeck, Carl H., The Establishment Clause as a

Structural Restraint on Governmental Power, 84

Seen Es BU B IED sian has dik iene ccs cidis 10, 13, 27

—— John H., What's Next After Separationism?,

46 Rae AaP GOMOD eden Waly dbeneed coccdweussess 3

Giannella, Donald A., Religious Liberty, Non-

establishment, And Doctrinal Development: Part II.

The Nonestablishment Principle, 81 Harv. L. Rev.

Pee Os 0 a hdc ncdus ceksewpgnccebedehevesnce reece 6

Glenn, Charles L., THe Amasicuous Emsrace: Gov-

ERNMENT AND FaitH-Basep SCHOOLS AND SOCIAL

Acencies (Princeton Univ. Press, forthcoming

SOPEa ro sg Puc chasboe datudeenaesnenpsBedsveceedes 11

Hunter, James Davison, Cucrure Wars: THe Srruc-

cit TO Derine America (1991)................00005- 21

Laycock, Douglas, Continuity and Change in the

reat to Religious Liberty: The Reformation Era

and the Late tieth Century, 80 Minn. L. Rev.

vill

TABLE OF AUTHORITIES — Continued

Page

Laycock, Douglas, Formal, Substantive, and Disag-

gregated Neutrality Toward Religion, 39 DePaut L.

as, SED CHEE vwvccdncweddemeddestieasscvehes ov secs 5

Laycock, Douglas, “Nonpreferential” Aid to Reli-

gion: A False Claim About Original Intent, 27 Wm.

& Diam L. Baw. Gib Coben cts cccvsaseccssvccosnss 5

Laycock, Douglas, The Underlying Unity of Separa-

tion and Neutrality, 46 Emory L.J. 43 (1997)....3, 4, 5

Levy, Leonard W., The Establishment Clause, in

How Does rue ConstrruTion Prorect ReuGious

Freepom? (Robert A. Goldwin & Art Kaufman

te SED ccivdicccskhabudd<deceswicsskheweedetaen 14

Levy, Leonard W., THe Estasuisiment Ciause: Reu-

GION AND THE First AMENDMENT (1986).............-. 14

Lupu, Ira C., To Control Faction and Protect Liberty:

A General Theory of the Religion Clauses, 7 J.

Contemp. Lecat Issues 357 (1996) .............-5006: 3

McCarthy, Rockne, Donald Oppewal, et al., Soci-

oty, Drama G& Boreas CIGSED . . occ cccccccccccesevesns 5

Meiklejohn, Alexander, Educational Cooperation

Between Church and State, 14 Law & Contemp.

Pmaee. GE TIPE) «cc cccccsccavecsvecwnccer ces ceaeive 13

Monsma, Stephen V., WHen Sacrep & SecuLar Mix:

Revicgious Nonprorrtr OrGANIZATIONS & Pustic

ane CIS a uiv'k 6 os Sob 06-60 debs Cased Coe erictencess 11

Nord, Warren A., Reuicion & AMERICAN EDUCATION:

RerHinkinGc A Narionat Dicemma (1995)............. 5

a — —

TABLE OF AUTHORITIES - Continued

Page

Paulsen, Michael S., A Funny Thing Happened on

the Way to the Limited Public en Gnandin-

tional Conditions on “Equal Access” for Religious

U.C. Davis L. Rev. 653

Stackhouse, Max L., Religion, Rights, and the Con-

stitution, in AN UNserriep ArENA: RELIGION AND

THE Bit or Richts (Ronald C. White, Jr. & Albr-

ight G. Zimmerman eds. 1990)

INTEREST OF AMICI CURIAE!

The interest of each amicus curiae is set forth in the

Appendix to this brief. Letters from the parties consent-

ing to the filing of this brief have been filed with the

Clerk of the Court pursuant to Rule 37.3.

SUMMARY OF ARGUMENT

The principle of neutrality that undergirds Establish-

ment Clause analysis requires (i) that a general educa-

tional funding program have a secular purpose and (ii)

that the benefits be available to all schools without regard

to religion. Indeed, religious practices and religious

expression are prohibited by the Free Exercise and Free

Speech Clauses, respectively, as bases for disqualifying

schools that seek to participate in the educational pro-

gram.

ARGUMENT

I. «he Theory Of No-Aid Separationism Is No Longer

Plausible; Indeed, In Its Modern Setting The Theory

Is Hostile To Individual Religious Choice.

Chapter 2 of Title I of the 1965 Elementary and Sec-

ondary Education Act, as amended, 20 U.S.C.

§§ 7301-7373 (Supp. 1998), permits the lending of educa-

tional materials and equipment to primary and secondary

schools without regard to the religious or secular charac-

ter of the schools. Respondents, who urge upon this

Court a rule of no-aid separationism,? maintain that such

' No counsel for either party authored this brief in whole or

in part. No person or organization, other than amicus Christian

Legal Society, has made a monetary contribution to the

preparation or submission of this brief.

2 As used in this brief, the term “no-aid separationism”

refers to a theory opposing all forms of aid to religious

organizations. Over the years - and notwithstanding their

religiously neutral assistance is violative of the Establish-

ment Clause. The dispute over Chapter 2 assistance is

part of a much larger clash between no-aid separationism

and the principle of neutrality, namely: whether the bene-

fits of a general governmental program, secular in pur-

pose, to benefit K-12 schools, institutions of higher

education, or social welfare providers must be denied to

“pervasively sectarian” organizations.*

Since Widmar v. Vincent,‘ the general trajectory of this

Court's Establishment Clause decisions has been away

from no-aid separationism and toward neutrality.° The

vigorous advocacy to the contrary - those holding to this no-aid

theory have had to accept aid to religious organizations that are

not “pervasively sectarian” (see, e.g., Tilton v. Richardson, 403 U.S.

672 (1971)), as well as forms of indirect aid to religious education

(see, e.g., Witters v. Washington Dep't of Servs. for the Blind, 474 U.S.

481 (1986), and Mueller v. Allen, 463 U.S. 388 (1983)).

3 There is no conflict between no-aid separationism and the

neutrality principle over whether the Establishment Clause

prohibits a special tax or user fee earmarked for a religious

purpose. It does. Justice Thomas in Rosenberger noted that history

indicates the Founders intended the Establishment Clause to

prevent earmarked taxes for the support of religion. Rosenberger

v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 853-55 (1995)

(Thomas, J., concurring); see also Kiryas Joel Bd. of Educ. v. Grumet,

512 U.S. 687 (1994) (holding, inter alia, that government may not

enact a law that extends a benefit to a single religious sect as

opposed to all groups, religious and secular). What is disputed is

whether monies collected by general taxation and eppropriated

to support a comprehensive educational program, one that does

not discriminate against the participation of faith-based

educational providers, is violative of the Establishment Clause.

4 454 U.S. 263 (1981) (striking down a state university's

discriminatory restrictions on student religious groups meeting

in classrooms and other campus buildings as violative of the Free

Speech Clause and not required by the Establishment Clause).

5 Discussed elsewhere is the Court’s movement away from

no-aid separationism and, however cautiously, in the direction of

—

Court’s most recent holdings addressing the matter are

Agostini v. Felton® and Rosenberger v. Rector and Visitors of

the University of Virginia.? Although the Agostini and

Rosenberger majorities did not embrace the neutrality

principle without qualification, the law today is far closer

to neutrality than to the no-aid separationism of the 1970s

and mid-1980s.* The Agostini Court, for example, was no

longer willing to assume that direct assistance would be

neutrality. See Thomas C. Berg, Religion Clause Anti-Theories, 72

Notre Dame L. Rev. 693, 703-07 (1997); Carl H. Esbeck, A

Constitutional Case for Governmental Cooperation with Faith-Based

Social Service Providers, 46 Emory L.J. 1, 20-39 (1997); John H.

Garvey, What's Next After Separationism?, 46 Emory L.J. 75 (1997);

Douglas Laycock, The Underlying Unity of Separation and

Neutrality, 46 Emory L.J. 43 (1997); Douglas Laycock, Continuity

and Change in the Threat to Religious Liberty: The Reformation Era

and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1089-94

(1996); Ira C. Lupu, To Control Faction and Protect Liberty: A

General Theory of the Religion Clauses, 7 J. Contemp. Lecat Issues

357, 364-66, 369, 371-73 (1996); Michael S. Paulsen, A Funny Thing

Happened on the Way to the Limited Public Forum: Unconstitutional

Conditions on “Equal Access” for Religious Speakers and Groups, 29

U.C. Davis L. Rev. 653, 710-17 (1996).

® 521 U.S. 203 (1997) (upholding federal education program

where government employees deliver remedial services to

students at the campus of the students’ primary or secondary

school, including religious schools deemed “pervasively

sectarian”).

7 515 U.S. 819 (1995) (holding university’s denial of funding

for printing of student newspaper because of paper's religious

viewpoint was discrimination violative of Free Speech Clause

and not required by the Establishment Clause).

* Two of these older no-aid cases are under reconsideration

here: Wolman v. Walter, 433 U.S. 229 (1977) (plurality opinion in

part) (disallowing loan of instructional materials and

transportation for field trips at religious schools), and Meek v.

Pittenger, 421 U.S. 349 (1975) (plurality opinion in part)

(disallowing loan of instructional materials and the provision of

therapeutic services at religious schools).

diverted to the indoctrination of religion by authorities at

Roman Catholic K-12 schools.? Agostini upheld direct

assistance to “pervasively sectarian” schools provided

that the funding program was religiously neutral. Addi-

tionally, because the aid was conveyed directly to the

religious school, the Agostini Court required sufficient

regulatory controls so that government officials could be

assured that the assistance was not diverted to religious

indoctrination.'° In Agostini, the Court found sufficient

safeguards in the form of the aid (government employees

providing remedial educational services) and in the

administrative oversight that attended delivery of the

aid. The law has never been that direct funding of “per-

vasively sectarian” providers is per se violative of the

Establishment Clause. That would be a rule of form over

substance, and this Court long ago rejected such formal-

ism.!!

The neutrality principle is not an alternative to sep-

aration.'? Amici hold to church/state separation and its

codification in the Establishment Clause. Neutrality,

rather, is an application of what the separation of church

and state was meant to be.’ A correction to the distortion

% 521 U.S. at 226, 234-35.

10 521 U.S. at 223-35.

1! Committee for Pub. Educ. v. Regan, 444 U.S. 646 (1980),

upheld direct cash payments to religious K-12 schools to defray

the cost of state-mandated testing, explaining:

We decline to embrace a formalistic dichotomy that

bears so little relationship either to common sense or

the realities of school finance. None of our cases

requires us to invalidate these reimbursements simply

because they involve [direct] payments in cash.

Id. at 658.

12 Laycock, Underlying Unity, supra note 4, at 46-47.

' The neutrality principle must not be confused with

nonpreferentialism. The theory of nonpreferentialism argues for

the constitutionality of a governmental education program that

wrought by the no-aid theory, the neutrality principle is

rooted in the minimization of the government's influence

over individual religious choice.'4

Two hundred years ago, when the Republic was

small and most activity that comprised civil society took

place in the nongovernmental sector, no-aid separation-

ism was a plausible ordering of American society. In the

decades immediately following the Nation’s founding,

religious organizations were deeply involved in educa-

tion (as well as health care and charitable activities) and

at the same time largely avoided contact with govern-

ment (federal, state and local). For government to have

eschewed involvement with religious organizations was

not a matter of indifference, discrimination, or hostility.

Rather, because America’s post-colonial governments

likewise had little to do with secular education, it was a

matter of equal treatment to have little to do with reli-

gious schooling. Government largely left the matter of

education to the independent sector.'5 Government was

small (perceived as the “night watchman” state) and most

allows for the funding of all religious schools on an equal basis.

The theory of nonpreferentialism is not concerned with equal

treatment as among secular and religious schools. The neutrality

principle, on the other hand, requires equal treatment as among

all schools, whether secular or religious and whether

government-operated or independent. Concerning problems

with nonpreferentialism, see Douglas Laycock, “Nonpreferential”

Aid to Religion: A False Claim About Original Intent, 27 We. & Mary

L. Rev. 875 (1988).

4 Laycock, Underlying Unity, supra note 4, at 45-46; Douglas

Laycock, Formal, Substantive, and Disaggregated Neutrality Toward

Religion, 39 DePaut L. Rev. 993 (1990); see Esbeck, supra note 4, at

26.

5 See generally Rockne McCarthy, Donald Oppewal, et al.,

Society, State, & ScHoors 79-86 (1981); Warren A. Nord, ReuiGion

& AMERICAN EpucaTion: RetHINKING A Nationat DirtemMa 63-66

(1995).

organized education was both religiously oriented and

privately funded.

This Eighteenth Century arrangement can continue

to be applied to conditions at the end of the Twentieth

Century only by clinging to the myth that the modern

nation-state exercises limited control over the resources

available for devotion to the educational needs of Ameri-

cans.’ Holding to this myth, no-aid separationists insist

it is fair to ask religious citizens both to support their

faith-based schools via sacrificial tuition payments and to

pay taxes for the support of secular schools (both govern-

ment-operated and independent nonsectarian) now

receiving substantial government aid.

Reality, of course, is that the modern “affirmative” —

state, with its high taxes and pervasive regulation, has a

near monopoly over the resources available for educa-

tional spending. With the advent of the welfare/regula-

tory state in the middle third of this century, to continue

enforcing a no-aid rule has the effect of confining reli-

gious education to ever smaller enclaves of private life. If

schools operated by faith-based organizations are to par-

ticipate along with secular schools in meaningfully serv-

ing civil society, they are put to a cruel choice. No-aid

separationism demands that religious schools either secu-

larize and thereby qualify for aid, or the schools close

their doors to all but the well off for lack of funding.

Thus, in its present-day impact, the theory of no-aid

separationism is hostile toward faith-based schools. The

‘© See Donald A. Giannella, Religious Liberty, Nonestablish-

ment, And Doctrinal Development: Part Il. The Nonestablishment

Principle, 81 Harv. L. Rev. 513, 522-26 (1968). Professor Giannella

alludes to a most apt illustration. Consider a church in a Marxist

state. There is no privately-held real estate, all land being owned

by the state. Needing to expand, a church requests a plot of land

on which to build a new house of worship. The state refuses

citing the separationist prohibition on state aid to religion. Given

the state’s monopoly on real estate, the state’s denial of aid is

hardly neutral toward religion. Id. at 522-23.

changed circumstances work such unfairness that denial

of equal treatment is no longer a plausible ordering of

church/state relations. The absence of evenhandedness

not only suffocates pedagogical and religious pluralism

by creating a monolithic, secular-dominated structure for

the delivery of educational services, but also viciously

eliminates a fuller range of school choices (including

faith-centered choices) for Americans of poor and modest

means.

Il. No-Aid Separationism Requires Intentional Dis-

crimination Against Religious Schools, A Violation

Of Both The Free Speech And Free Exercise

Clauses; Arguments That The Establishment Clause

Overrides The Free Speech And Free Exercise

Clauses Make No Sense.

The exclusion of “pervasively sectarian” K-12 schools

from Chapter 2 eligibility simply because of how they

express and practice what they believe, is discriminatory

on the bases of religious speech and religious exercise.

Such intentional discrimination is prima facie violative of

the Free Speech’? and Free Exercise'® Clauses. No-aid

17 Simon & Schuster, Inc. v. Crime Victims Bd., 502 U.S. 105, 117

(1991) (holding that intentional, content-based discrimination

regardiny speech is subject to strict scrutiny and will be struck

down regardless of the absence of censorial motive).

8 Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.

520 (1993) (holding city ordinance regulating ritual sacrifice of

animals was intentionally discriminatory); Employment Div. v.

Smith, 494 U.S. 872, 884 (1990) (stating that Sherbert v. Verner, 374

U.S. 398 (1963), is still the law insofar as Sherbert held that

whenever government makes individualized determinations,

officials must not purposefully discriminate against claims of

religious exemption); McDaniel v. Paty, 435 U.S. 618 (1978)

(striking down a law disqualifying clergy from holding public

office).

separationists concede the overt discrimination that fol-

lows from their theory. They insist, however, such dis-

crimination is required by the Establishment Clause.

Accordingly, no-aid separationists posit a conflict-

between-the-clauses internal to the First Amendment,

with the Establishment Clau«< werriding free speech and

free exercise rights. The neu ality principle, however,

sensibly posits that these three clauses be read in har-

mony.

During the 1980s and 1990s, in an unbroken line of

victories for freedom of speech, the Supreme Court held

that religious expression by individuals and religious

organizations was entitled to the same high protection

accorded nonreligious expression (e.g., speech of politi-

cal, artistic, or educational content).'? No-aid separation-

ists, who lost the judgment in these cases, framed their

contention as a clash of two First Amendment clauses: a

right under the Free Speech Clause to freedom of reli-

gious expression without discrimination versus an Estab-

lishment Clause right to a government that does not aid

religion (the aid taking the form of the use of government

property to convey a religious message). With the issue so

framed, no-aid separationists invited this Court to “bal-

ance” the conflicting clauses, hoping to tip the scale in

the direction of their bias for a naked public square, that

1% Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819

(1995) (finding viewpoint discrimination in university's denial of

printing costs for student-initiated religious publication); Capitol

Square Review & Advisory Bd. v. Pinette, 515 U.S. 753 (1995)

(finding content-based discrimination against religious speech in

public forum not justified by Establishment Clause); Lamb's

Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993)

(finding viewpoint discrimination); Widmar v. Vincent, 454 U.S.

263 (1981) (finding content discrimination); see Bd. of Educ. of

Westside Comm. Schools v. Mergens, 496 U.S. 226 (1990) (upholding

Equal Access Act, 20 U.S.C. §§ 4071-74 (1996), legislation that

prohibits discrimination against religious speech at secondary

schools).

is, a marketplace of ideas denuded of all religion. They

lost. However, as no-aid separationists had urged, this

Court did frame the issue in such a way that Establish-

ment Clause compliance could, in theory at least, supply

a “compelling interest” for overriding the Free Speech

Clause.

Capitol Square Review & Advisory Board v. Pinette? is a

recent illustration of the Supreme Court's framing of the

issue in a manner that creates this “tension” between the

Free Speech and Establishment Clauses. In Pinette, the

State of Ohio created a public forum in a park by allow-

ing citizens to erect temporary displays symbolizing each

group’s message. But when the Ku Klux Klan sought

permission to erect a Latin cross during Christmas, state

officials balked. The Klan then sued for impairment of its

free speech rights and ultimately won.

The Pinette Court held that on these facts the Estab-

lishment Clause was not violated by the presence of the

Latin cross in the park. Accordingly, the state was

ordered to permit the religious display on the same basis

as all other citizen displays allowed in the park. How-

ever, in the course of holding that private religious

speech was protected by the Free Speech Clause from

content and viewpoint discrimination, the Court indi-

cated that on different facts the Establishment Clause

could require suppressing the private speech.?' With all

due respect, this makes no sense. There is nothing in the

text of the First Amendment that suggests that whenever

these clauses “collide” the Establishment Clause is of

higher constitutional value and thus supersedes the Free

20 515 U.S. 753 (1995).

21 Id. at 761-62; see also Widmar v. Vincent, 454 U.S. 263, 270

(1981).

Speech Clause.2? One could just as arbitrarily assume

that, in the event of conflict, the Free Speech Clause

preempts the Establishment Clause. What the Court

ought to conclude from this apparent conflict-in-the-

clauses is that there has been an error in the construction

of one or both clauses.**

The Free Exercise Clause cuts a somewhat different

channel** than the Free Speech Clause at issue in Widmar

22 See Valley Forge Christian College v. Americans United, 454

U.S. 464, 484 (1982) (“[W]Je know of no principled basis on which

to create a hierarchy of constitutional values . . . to invoke the

judicial power of the United States.”).

3 The clauses-in-conflict problem goes away when the

Establishment Clause is understood not as a personal individual

right, but as a structural restraint on government power. If the

speaker is private rather than governmental, then the Free Speech

Clause supplies a right of equal access to the forum and the

expression cannot be suppressed simply because its content is

religious. There is never any “tension” with the Establishment

Clause, real or apparent, for that clause is a restraint on

government rather than private actors. Hence, the sole task in

cases like Pinette is to determine whether the speaker is private or

governmental. If private, then the Establishment Clause is

irrelevant because the clause does not restrain private actors. If

the speaker is governmental, then the individual-rights

orientation of the Free Speech Clause is irrelevant because the

government has no free-speech rights. One First Amendment

clause never need be “balanced” against the other. See Carl H.

Esbeck, The Establishment Clause as a Structural Restraint on

Governmental Power, 84 lowa L. Rev. 1, 84-86 (1998).

*4 The Free Exercise Clause has an independent reach of its

own, namely, the protection of actions that are consistent with

one’s declarations of faith. This point was succinctly stated by

Justice White in Welsh v. United States, 398 U.S. 333 (1970)

(plurality opinion):

It cannot be ignored that the First Amendment itself

contains a religious classification. The Amendment

protects belief and speech, but as a general

and Pinette. The Free Exercise Clause prohibits inten-

tional discrimination against religion, as well as against

particular religious beliefs and practices.*5 Yet the “per-

vasively sectarian” test necessarily causes state educa-

tional bureaucracies, who administer Chapter 2, to

discriminate against the religious beliefs and practices of

schools dubbed “pervasively sectarian.” Such discrimina-

tion puts tremendous pressure on faith-based educational

providers to compromise their spirituality to prevent los-

ing opportunities for grants.26 The current system makes

comprehensive government funding programs relentless

engines of secularization. This reduces the variety of

school offerings in America, destroying innovation and

educational pluralism.”” The secularization will, over

proposition, the free speech provisions stop short of

immunizing conduct from official regulation. The Free

Exercise Clause, however, has a deeper cut: it protects

conduct as well a religious belief and speech.

Id. at 372 (White, J., dissenting).

25 See cases cited supra note 17. The Free Exercise Clause

prohibits more than just intentional discrimination on the basis of

religion or religious denomination. The clause also prohibits

intentional discrimination on the basis of a religious

practice (see Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,

508 U.S. 520 (1993), striking down a municipal ordinance that

discriminated against the practice of the religious slaughter of

animals), such as the faith-based practices at religious schools

singled-out for unfavorable treatment by the “pervasively

sectarian” test.

2° See Charles L. Glenn, Tue Amsicuous Emprace:

GOVERNMENT AND FarrH-sasep SCHOOLS AND SocIAL AGENCIES

(Princeton Univ. Press, forthcoming 1999); Stephen V. Monsma,

Wuen Sacrep & Secutar Mpc ReuGious Nonrrorrr ORGANIZATIONS

& Pusuic Money 109-46 (1996).

27 Long ago this Court recognized that instrumental to

American liberty was the ready availability of a richly plural

educational system, one responsive to parents and guardians. See

Farrington v. Tokushige, 273 U.S. 284 (1927) (invalidating

time, render some providers willing to water down their

programs, causing them to become little different from

the sometimes ineffectual state-operated schools. Such a

rule of law can only add to America’s much heralded

crisis in K-12 education.

Conceding, as they must, that intentional discrimina-

tion is prima facie violative of the Free Exercise Clause,

no-aid separationists respond by putting the Free Exer-

cise Clause at war with the Establishment Clause when

they seek to deny “pervasively sectarian” providers the

same eligibility as all other educational providers. They

do so, once again, by arguing clauses-in-conflict and that

no-establishment should override free exercise.2* The

argument would have our Nation's founding generation

drafting a constitutional amendment that is internally

contradictory. This imagined conflict is brought about by

conceptualizing the Establishment Clause as securing a

overbearing regulations imposed on independent, nonsectarian

schools); Pierce v. Society of Sisters, 268 U.S. 510 (1925)

(invalidating state law requiring attendance at government

schools); Meyer v. Nebraska, 262 U.S. 390 (1923) (invalidating

statute forbidding the teaching of foreign languages in

elementary schools, both government-operated and

independent).

** For examples in the circuit courts of appeal of having to

deal with this clauses-in-conflict argument, see Peter v. Wedl, 155

F.3d 992, 996-97 (8th Cir. 1998) (affirming lower court's ruling

that both Free Exercise and Free Speech Clauses are violated by

Minnesota regulation that provided aid to special education

students unless the student was enrolled in a religious school; the

regulation was purposefully discriminatory on the basis of

religion and not required by the Establishment Clause); Hartmann

v. Stone, 68 F.3d 973 (6th Cir. 1995) (striking down, as violative of

the Free Exercise Clause, a U.S. Army regulation that extended

benefits to secular day-care centers but discriminated against

faith-based centers chosen by the parents; the government's

discrimination was found not required by the Establishment

Clause).

right to freedom from religion, and the Free Exercise

Clause doubtlessly secures some right to exercise reli-

gion. With the issue so framed, then of course the two

rights will be on a collision course.?* The resulting “con-

flict,” no-aid separationists propose, is to be relieved by

tipping the “balance” in the direction of their view of the

Establishment Clause. Having the two clauses pull in

opposite directions leaves broad discretion to the courts

to “balance” one against the other and thereby having to

choose between them. Again, this makes no sense. It is

neither consistent with the First Amendment's text (nei-

ther clause states it has primacy over the other), nor are

such conflicts intrinsic to the Religion Clauses and

thereby logically unavoidable.

There is no “tension” between the First Amendment

Religion Clauses. Neither the Establishment Clause nor

the Free Exercise Clause (indeed, none of the clauses of

the Bill of Rights) vested new powers in Congress.*!

29 Professor Meiklejohn notes the analytical difficulty when

a single constitutional clause is invoked to do service as both

protecting personal religious liberty and affording a freedom

from religion.

{[A]ll discussions of the First Amendment are

tormented by the fact that the term “freedom of

religion” must be used to cover “freedom of

nonreligion” as well. Such a paradoxical usage cannot

fail to cause serious difficulties, both theoretical and

practical.

Alexander Meiklejohn, Educational Cooperation Between Church

and State, 14 Law & Contemp. Proes. 61, 71 (1949).

%© See Esbeck, supra note 22, at 11-12, 97-104 (differentiating

the Free Exercise Clause from the Establishment Clause).

*' In a speech before the House of Representatives

introducing his draft of the proposed amendments, James

Madison described their purpose as follows: “the great object in

view is to limit and qualify the powers of Government, by

excepting out of the grant of power those cases in which the

Rather, each provision of the Bill of Rights was to act as a

“negative” on powers that might otherwise have been

implied from the 1787 Constitution. The Bill of Rights

was passed by the First Congress (and sent to the states

for ratification) in order to assuage the fears of the Anti-

federalists. They sought to negate power that might oth-

erwise be implied from the more open-ended delegations

in the original Constitution and used by Congress to

Government ought not to ac. or to act only in a particular mode.”

1 ANNALS oF Conc. 454 (Joseph Gales ed., 1789). In Legal Tender

Cases, 79 U.S. 457 (1870), the Supreme Court observed:

The preamble to the [congressional] resolution

submitting [the Bill of Rights to the states] for adoption

recited that the “conventions of a number of the states

had, at the time of their adopting the Constitution,

expressed a desire, in order to prevent misconstruction

or abuse of [federal] powers, that further declaratory

and restrictive clauses should be added.” . . . Most of

[the proposed] amendments are denials of power

which had not been expressly granted, and which

cannot be said to have been necessary and proper for

carrying into execution any other powers. Such, for

example, is the prohibition of any laws respecting the

establishment of religion, prohibiting the free exercise

thereof, or abridging the freedom of speech or of the

press.

Id. at 535. The preamble in it entirety is reproduced at 5 Tue

Founpers’ Constitution 40-41 (Philip B. Kurland & Ralph Lerner

eds., 1987). See also United States v. Balsys, 524 U.S. 666, 118 S. Ct.

2218, 2223-24 (1998) (stating that the received understanding of

the Bill of Rights is that it was instituted to restrict the powers of

the national government); Edward Dumbauld, Tue Brit Or Ricuts

Anp Wuat It Means Tovay 105 (1957) (same); Leonard W. Levy,

THe EstasuisHMENT CLAuse: RELIGION AND THE First AMENDMENT 84

(1986) (same); Leonard W. Levy, The Establishment Clause, in How

Does THE ConstITUuTION Protect Reticious Freepom? 69, 83, 89-90

(Robert A. Goldwin & Art Kaufman eds., 1987) (same).

interfere with personal liberties.*? It is logically impossi-

ble for two clauses to conflict if both are “carve-outs” of

power.

The Establishment Clause, understood as embodying

the neutrality principle, eliminates these ersatz “con-

flicts” among the clauses of the First Amendment. By not

intentionally discriminating against faith-specific expres-

sion, the Free Speech Clause is no longer in “tension”

with the no-establishment principle. Similarly, when edu-

cational program funding is available without regard to

specific religious practices of “pervasively sectarian”

schools, the Free Exercise Clause is no longer in “tension”

with the Establishment Clause. Achieving juridical har-

mony among these three clauses is, without more, a

strong commendation for the neutrality principle.

32 See Barron v. Mayor and City Council of Baltimore, 32 U.S. (7

Pet.) 243, 250 (1833) (observing that a principal source of

opposition to adoption of the original Constitution was the fear

that national powers might be exercised in a manner impairing

liberty, thus leading to a proposed Bill of Rights limiting the

powers of the national government).

33 Although the Religion Clauses cannot conflict, they can

overlap. Thus, a single incident can properly give rise to

meritorious claims under both the Free Exercise Clause and the

Establishment Clause. To illustrate, assume a public school

adopted a regulation requiring that the Lord’s Prayer be recited

by students at the beginning of each classroom day. A third-grade

Islamic student, along with all others, is compelled to recite the

prayer. As a Muslim, the student has suffered a personal religious

harm for which the Free Exercise Clause gives individuated

relief. The student could also claim under the Establishment

Clause, leading to injunctive relief against continued school-wide

enforcement of the prayer regulation.

III. Distinguishing Between Pervasively And Non-Per-

vasively Sectarian Providers Is Inconsistent With

This Court’s Case Law Elsewhere.

No-aid separationists acknowledge that this Court's

cases permit direct funding of faith-based educational

providers, but only so long as the schools are not dubbed

“pervasively sectarian.”** The New Orleans, Louisiana,

schools receiving Chapter 2 aid are so labeled. The daunt-

ing task of screening out “pervasively sectarian” schools

from those that are only “faith-affiliated” means that state

officials will have to apply a religious test to all faith-

affiliated schools, culling those eventually determined to

be “too religious.” Merely to draw the “too religious”

versus “secular enough” distinction, however, requires

state educational bureaucracies - and ultimately the

courts — to probe into the nature and practices of all faith-

affiliated schools and to attribute religious meaning to

their religious beliefs, words, and actions. Such inquiries

by civil magistrates into the religious significance of

tenets and religious observances violates the most funda-

mental aim of church/state separation which is to keep

these two centers of authority, God and Caesar,

“4 The “pervasively sectarian” test first surfaced in Lemon v.

Kurtzman, 403 U.S. 602, 614-22 (1971). The last two cases where

the Court struck down governmental aid using the test are Grand

Rapids Sch. Dist. v. Ball, 473 U.S. 373 (1985), and Aguilar v. Felton,

473 U.S. 402 (1985). However, Ball was recently discredited and

partly overruled in Agostini, and Aguilar was overruled in its

entirety. 521 U.S. at 226-35. Therefore, the last occasion the Court

used the “pervasively sectarian” test to invalidate a law was New

York v. Cathedral Academy, 434 U.S. 125 (1977). That means that the

period of dominance of the “pervasively sectarian” test is a mere

six years (1971 to 1977), and that period is now over twenty-two

years past.

so to speak, within their respective spheres of compe-

tence.35 |

To be “pervasively sectarian,” explained an earlier

Supreme Court, means that a faith-affiliated provider's

“secular activities cannot be separated from [its] sectarian

ones.”* This, of course, just rephrases the question. Now

the test requires officials to ask what is secular and what

is “sectarian” about each specific school, and when are

the two so blended that the secular alone cannot be

separately funded. Further complicating the matter, this

inquiry is to operate in the context of a wide variety of

government-supported educational services (preschools,

primary schools, secondary schools, vocational schools,

and colleges) and in the face of a broad and complex

diversity of pedagogy employed by these educational

providers.

35 William Clancy aptly frames the constitutional settlement

embodied in the Establishment Clause this way:

[T]he “wall of separation” metaphor is an unfortunate

and inexact description of the American Church-State

situation. What we have constitutionally is not a

“wall” but a logical distinction between two orders of

competence. Caesar recognizes that he is only Caesar

and forswears any attempt to demand what is God's.

(Surely this is one of history’s more encouraging

examples of secular modesty.) The State realistically

admits that there are severe limits on its authority and

leaves the churches free to perform their work in

society. "

William Clancy, Religion as a Source of Tension, in RELIGION AND THE

Free Society 23, 27-28 (1958).

36 Roemer v. Board of Pub. Works, 426 U.S. 736, 755 (1976)

(plurality opinion).

This Court, in other contexts, has refused to permit

state bureaucracies to probe into the religious meaning

of an organization’s religious words, practices, and

events.” A parallel concern over limiting the

actions of government to matters within its power is

behind the Supreme Court’s determination that it

lacks subject matter jurisdiction over disputes

internal to an ecclesiastical organization. This

37 See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S.

819, 844-45 (1995) (cautioning a state university to avoid having

to distinguish between evangelism, on the one hand, and the

expression of ideas merely approved by a given religion);

Corporation of Presiding Bishop v. Amos, 483 U.S. 327, 336 (1987)

(recognizing a problem when government attempts to divine

which ecclesiastical appointments are sufficiently related to the

“core” of a religious organization to merit exemption from

statutory duties); id. at 344-45 (Brennan, J., concurring) (same);

Bob Jones Univ. v. United States, 461 U.S. 574, 604 n.30 (1983)

(avoiding potentially entangling inquiry into religious practice is

desirable); Widmar v. Vincent, 454 U.S. 263, 269-70 n.6, 272 n.11

(1981) (inquiries into significance of religious words or events are

to be avoided); Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970) (it is

desirable to avoid entanglement that would follow should tax

authorities evaluate the temporal worth of religious social

welfare programs); Cantwell v. Connecticut, 310 U.S. 296, 305-07

(1940) (petty officials are not to be given discretion to determine

what is a legitimate “religion” for purposes of issuing permit).

%* Concerning disputes over doctrine, ecclesiastical polity,

the selection or promotion of clerics, and dismissal from church

membership, the Supreme Court has said that civil courts are

essentially without subject matter jurisdiction. See, e.g., Serbian E.

Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-24 (1976) (civil

courts may not probe into church polity); Maryland & Va.

Churches of God v. Church at Sharpsburg, 396 U.S. 367, 368 (1970)

(per curiam) (avoid doctrinal disputes); Presbyterian Church v. Hull

Memorial Presbyterian Church, 393 U.S. 440, 451 (1969) (civil courts

forbidden to interpret and weigh church doctrine); Kreshik v. St.

Nicholas Cathedral, 363 U.S. 190, 191 (1960) (per curiam) (First

Amendment prevents judiciary, as well as legislature, from

* - —

———————— a

jurisdictional bar to deciding intrachurch issues is

not limited to conflicts implicating ownership of

church real estate. The bar on judicial power

extends as well to all civil and criminal litigation

whenever a dispute turns on matters that are inherently

religious, including torts,*° contracts,” civil

interfering in ecclesiastical governance of Russian Orthodox

Church); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 119 (1952)

(First Amendment prevents legislature from interfering in

ecclesiastical governance of Russian Orthodox Church); Watson v.

Jones, 80 U.S. (13 Wall.) 679, 725-33 (1872) (rejecting implied trust

rule because of its departure-from-doctrine inquiry).

3° See, e.g., Klagsbrun v. Va'ad Harabonim of Greater Monsey,

1999 WL 427338 (D.N.J. 1999) (subject-matter jurisdiction

dismissal of libel and slander claim filed against church

adjudicatory); Farley v. Wisconsin Evangelical Lutheran Synod, 821

F. Supp. 1286 (D. Minn. 1993) (dismissing defamation action

against church where the offensive statements arose out of

church controversy); Downs v. Roman Catholic Archbishop, 683

A.2d 808, 810-12 (Md. Ct. Spec. App. 1996) (holding that trial

court lacked subject-matter jurisdiction over defamation claim

against church hierarchy); Gibson v. Brewer, 952 S.W.2d 239 (Mo.

1997) (dismissing claim against Roman Catholic Diocese for

negligent supervision of priest); Tidman v. Salvation Army, 1998

WL 391765 (Tenn. Ct. App. 1998) (dismissing privacy and

outrageous conduct tort claims brought by former employee of

faith-based organization discharged for having extramarital

affair); In re Pleasant Glade Assembly of God, 991 S.W.2d 85 (Tx. Ct.

App. 1998) (subject-matter dismissal of negligence claims by

parishioner brought against church and youth pastor); Korean

Presbyterian Church v. Lee, 880 P.2d 565 (Wash. Ct. App. 1994)

(holding that ecclesiastical abstention doctrine precluded

recovery for tort of outrage); L.L.N. v. Clauder, 563 N.W.2d 434,

440-41 (Wis. 1997) (holding that the First Amendment prohibited

negligent supervision claim).

# See, e.g., Gabriel v. Immanuel Evangelical Lutheran Church,

Inc., 640 N.E.2d 681 (Ill. App. Ct. 1994) (holding that breach of

contract complaint was properly dismissed on First Amendment

grounds since the matter of whether to employ plaintiff as a

rights employment legislation *' and criminal

fraud.#

Judge-made classifications along the lines of “per-

vasively” and non-pervasively sectarian are no less haz-

ardous to administer, for the inevitable result is that

theologically liberal providers of educational service's will

be deemed “secular enough” and thus acceptable recip-

ients of Chapter 2 assistance, whereas theologically con-

servative providers of educational services will be found

parochial school teacher was an ecclesiastical issue into which

civil court may not inquire); McEnroy v. St. Meinrad School of

Theology, 1999 WL 418701 (Ind. App. 1999) (dismissing claim for

breach of employment contract brought by professor of theology

against seminary); Basich v. Board of Pensions, 540 N.W.2d 82

(Minn. Ct. App. 1995) (holding that First Amendment prevented

district court from exercising jurisdiction over action for breach

of pension contract and breach of fiduciary duty); Pearson v.

Church of God, 458 S.E.2d 68, 71 (S.C. Ct. App. 1995) (holding that

trial court did not have constitutional authority to decide claim

for breach of contract).

41 See, e.g., EEOC v. Catholic Univ. of Am., 83 F.3d 455, 464-65

(D.C. Cir. 1996) (finding EEOC investigation into Catholic nun’s

gender discrimination Title VII claim was barred by

Establishment Clause); Himaka v. Buddhist Churches of Am., 917

F. Supp. 698, 707-09 (N.D. Cal. 1995) (holding that minister’s Title

VII retaliation claim should be dismissed based upon excessive

governmental entanglement with religion in violation of

Establishment Clause); Van Osdol v. Vogt, 908 P.2d 1122, 1130-32

(Colo. 1996) (holding that Establishment Clause insulated a

religious institution’s choice of minister from judicial review;

Title VII claim against church was properly dismissed); Geraci v.

Eckankar, 526 N.W.2d 391, 399-400 (Minn. Ct. App. 1995) (gender

discrimination claim against church is barred by Establishment

Clause).

* United States v. Ballard, 322 U.S. 78 (1944) (in trial for mail

fraud, the truth or falsity of a religious belief or professiom may

not be subject to scrutiny by a jury).

“too religious” and thus denied Chapter 2 assistance.* A

more discriminatory rule that defines itself to coincide

with a theological division could hardly be devised.

The foregoing two paragraphs rely upon Establish-

ment Clause cases. Ancillary to deciding free exercise

cases, this Court has likewise considered itself limited in

power. For example, it has held that a religious belief or

practice need not be central to (and therefore more

important to) a claimant's faith as a prerequisite to receiv-

ing the protection of the clause.“ This is because civil

* Meaningful denominational divisions among religions are

no longer along the old alignments of Protestant versus Catholic

versus Jewish. The realignment is now orthodox (Protestant,

Catholic and Jewish) versus progressive (Protestant, Catholic and

Jewish). James Davison Hunter, Cucrure Wars: THe StrRuGGLE TO

Derwwe America 42-46 (1991). Professor Hunter, a sociologist of

religion, has identified the pervasively sectarian groups as

“orthodox,” and the theologically liberal groups as religious

“progressives.” Hunter explains that the religious orthodox are

devoted “to an essential, definable, and transcendent authority,”

whereas progressives “resymbolize historic faiths according to

the prevailing assumptions of contemporary life.” Religious

organizations most willing to conform to contemporary culture

will appear to the government as less sectarian. Conversely, those

organizations more conservative in theology and that have

resisted acculturation will inevitably appear to civil courts as

more sectarian. To exclude from government aid programs those

groups that are more sectarian is to punish those religions that

resist conformity to culture while favoring those religions willing

to evolve and conform to secular culture. Hence, the “pervasively

sectarian” test is discriminatory against the religiously orthodox.

“4 Employment Div. v. Smith, 494 U.S. 872, 886-87 (1990)

(“Judging the centrality of different religious practices is akin to

the unacceptable business of evaluating the relative merits of

differing religious claims.”); Lyng v. Northwest Indian Cemetery

Protective Ass'n, 485 U.S. 439, 449-51, 457-58 (1988) (rejecting Free

Exercise Clause test that “depend[s] on measuring the effects of a

governmental action on a religious objector’s spiritual

development”); United States v. Lee, 455 U.S. 252, 257 (1982)

magistrates are not competent to decide which practices

are at the “core” of a given religion and which are periph-

eral to its faithful practice. Moreover, the Court has said

that a religious claimant may disagree with co-religionists

or be unsure or wavering and still receive full free exer-

cise protection.* This is because a civil magistrate has no

juridically intelligible means for resolving doctrinal dis-

putes or gauging the relative degree of a claimant's reli-

gious fervency. The “too religious” versus “secular

enough” test casts the civil magistrate into just as unchar-

tered a water as the questions avoided in the foregoing

Establishment Clause cases.

The problem illustrated by these cases is not that

government officials are, without more, interacting with

religious organizations. Some regulatory interaction

between government and religious associations is inevita-

ble, more so as government has gotten bigger and society

more complex. Thus, the argument is not that regulatory

fact finding into religious organizations is in some sense

an invasion of ecclesiastical “privacy” or that the net

increase in administrative probing will “entangle” gov-

ernment with faith-based schools beyond some threshold

that is thought to be “excessive.” Rather, the problem is

that the government is being asked to adjudicate matters

(rejecting government's argument that free exercise claim does

not lie unless “payment of social security taxes will . . . threaten

the integrity of the Amish religious belief or observance”).

This rule was recently reaffirmed in City of Boerne v. Flores,

521 U.S. 507, 513 (1997), as helping to explain the decision in

Smith. The compelling-interest balancing test, abandoned in

Smith, required a judge to weigh the importance of a religious

practice against a state’s interest in applying a neutral law

without any exceptions for religious burdens.

* Thomas v. Review Bd., 450 U.S. 707, 715-16 (1981) (“Courts

are not arbiters of religious interpretation.”).

* The Supreme Court's excessive entanglement analysis is

addressed in Point IV of this brief.

beyond its constitutional competence, that is, asked to

pass on subject matters reserved to the cognizance of

religion.*”7 That explains why the Supreme Court states

the foregoing rules, not as an individual right to free

exercise of religion, but in terms of the civil courts lack-

ing subject matter jurisdiction: “[I)t is not within the

judicial function and judicial competence to inquire

whether the petitioner or his fellow worker more cor-

rectly perceived the commands of their common faith.”*

47 Professor Stackhouse notes just how remarkable was the

American church/ state settlement in that a government should

go beyond the protection of the personal free exercise rights of

individuals and to limit its sovereignty by acknowledging

another center of competence when it comes to matters of

spiritual cognizance:

[The First] amendment to the Constitution

acknowledges the existence of an arena of discourse,

activity, commitment, and organization for the

ordering of life over which the state has no authority. It

is a remarkable thing in human history when the

authority governing coercive power limits itself. . . .

However much government may become involved in

regulating various aspects of economic, technological,

medical, cultural, educational, and even sexual

behaviors in society, religion is an arena that, when it is

doing its own thing, is off limits. This is not only an

affirmation of the freedom of individual belief or

practice, not only an acknowledgment that the state is

noncompetent when it comes to theology, it is the

recognition of a sacred domain that no secular

authority can fully control. Practically, this means that

at least one association may be brought into being in

society that has a sovereignty beyond the control of

government.

Max L. Stackhouse, Religion, Rights, and the Constitution, in An

Unsetriep Arena: RELIGION AND THE Bit of Ricuts 92, 111 (Ronald

C. White, Jr. & Albright G. Zimmerman eds., 1990).

48 Thomas v. Review Bd., 450 U.S. 707, 716 (1981). See also

Employment Div. v. Smith, 494 U.S. 872, 887 (1990); Lyng v.

The problem of exceeding constitutional power arises

when government is called on to weigh doctrinal ques-

tions or to otherwise intrude into that sphere of inher-

ently religious matters reserved to religion and religious

organizations. The “pervasively sectarian” test requires

administrative — and eventually judicial - discovery into

the self-understanding, creed, ecclesiology, mission, ped-

agogic motivation, and other beliefs and activities of the

“too religious” schools and their differentiation from the

“secular enough” schools. Government simply is not

competent to scour the organic documents, mission state-

ments, textbooks, and classrooms of faith-related schools

and place its own interpretation on what this pedagogy

means in terms of being “too religious.” Such bureaucra-

tic rummagings will unmask all manner of ecclesiastical

“facts” in which state educational personnel will be the

first to admit they have no training, no experience, and

no theological insight. The possibilities for misunder-

standings, spiritual insensitivity, and outright sectarian

bigotry wrought by the “too religious” test is breathtak-

ing. Bureaucratic divining into the “pervasively sec-

tarian” question will trample any notion that God and

Caesar, so to speak, must stay — for the benefit of both -

within their respective spheres.

Unlike no-aid separationism, neutrality in program

assistance avoids the lack-of-competence problem by

placing the focus not on the character of the school, but

on what Chapter 2 provides. The Chapter 2 program, out

of secular purpose, purchases educational equipment and

loans it to schools without regard to religion. Periodic on-

Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 457-58

(1988); United States v. Lee, 455 U.S. 252, 257 (1982); Lee v. Weisman,

505 U.S. 577, 616-17 (1992) (Souter, J., concurring) (rejecting

nonpreferentialism because its application “invite[s] the courts to

engage in comparative theology”); County of Allegheny v. Greater

Pittsburgh ACLU, 492 U.S. 573, 678 (1989) (Kennedy, J., concurring

in the judgment in part and dissenting in part) (courts are “ill

equipped to sit as a national theology board”).

site visits are performed to monitor all independent

schools and ensure that the educational purpose is real-

ized. In this manner, the government keeps its eye on

whether students are actually being helped and thus

whether the secular purpose of the program is being

fulfilled. Additionally, neutrality empowers the ultimate

beneficiaries (students and their parents) by enabling

them to select from a plurality of educational providers,

including, if they so desire, a faith-based school.

IV. Entanglement Analysis Masks What Is Properly An

Inquiry Concerning Governmental Intrusion Into

Inherently Religious Matters.

The second prong of the Supreme Court’s Lemon test

requires that the primary effect of a law not be the

advancement of religion. The test acquired a third prong

in 1971 called “excessive entanglement,”*? only to have

entanglement analysis recently absorbed back into the

effect prong. Although entanglement is once again just

a factor to consider as part of the overall “effect” inquiry,

this Court has never said that such analysis is to be

abandoned altogether. The court of appeals addressed

Chapter 2 in relation to regulatory entanglement (Tr.

52a-53a), and it is anticipated that Respondents’ Answer

Brief will do so as well.

Entanglement analysis appears wildly uneven,

strictly scrutinized by the Court in some opinions®' while

in others receiving only summary review.*? Clearly these

cases are not turning on the aggregate number of admin-

istrative contacts with religion, or even on the intensity of

# Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971).

50 Agostini v. Felton, 521 U.S. 203, 232-33 (1997).

5! See, e.g., Aguilar v. Felton, 473 U.S. 402, 409-14 (1985);

Lemon v. Kurtzman, 403 U.S. 602, 614-22 (1973).

52 See, e.g., Agostini v. Felton, 521 U.S. 203, 232-34 (1997);

Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290,

305-06 (1985).

such contacts. Rather, this Court appears to instinctively

vary its entanglement analysis based on whether the reg-

ulatory intrusion is (or is not) into matters that are inher-

ently religious.

In a modern, complex nation with extensive regula-

tion and massive subsidization of the independent sector,

some interaction between government and religion is

inevitable, often useful, and sometimes in the interest of

both.®> Even in the absence of government funding, the

state can and does impose reasonable regulation on the

educational, health care, and charitable activities of reli-

gious organizations.™ If regulatory entanglement vel non

was the real concern of the Supreme Court, there would

be entanglement analysis regardless of funding any time

a religious organization claimed it was the victim of

excessive regulation. Instead, entanglement analysis is

rarely performed when government regulates but does

not fund religious organizations. The Establishment

Clause does indeed place limits on the government's

regulatory power, but only when the regulation interferes

58 When government appropriates tax monies it has a duty,

of course, to reasonably account for how the funds are utilized.

Regulatory controls that “trace” funds appropriated under

neutral educational programs via grants or in-kind services are

entirely proper in order that the monies actually benefit students

and needy parents as intended. The required accounting should

be evenhanded for all providers, whether religious or secular, so

that no class of providers is singled out for greater scrutiny.

4 See Pierce v. Society of Sisters, 268 U.S. 510 (1925). Pierce is

regarded as a charter of religious liberty, not only of the freedom

for faith communities to operate religious schools but also for the

freedom of parents to direct the religious upbringing of their

children. Id. at 535-36. Nonetheless, before acknowledging these

freedoms, the Court in Pierce took care to first stake out the

government's power to reasonably regulate religious schools and

their teachers, as well as acknowledge some governmental

interest in minimal curricular standards. Id. at 534.

with inherently religious matters. Thus, the straight

forward question to be asking is whether the regulatory

oversight brought about by the legislation in question

causes government to intrude into that sphere of activ-

ities that the Establishment Clause consigns to religion

and religious organizations.

The cases bear out that this Court’s sensitivity to

entanglement is proportional to a law’s proximity to sub-

ject matters that are inherently religious. For example,

this Court has deemed the entanglement excessive when

the regulation in question intrudes on inherently reli-

gious matters.* In parallel with the line of cases set out

in the foregoing note, when upholding legislation that

exempts religion from a regulatory burden that would

otherwise interfere with inherently religious matters, the

Court has expressly welcomed the exemption as a means

of preventing entanglement from occurring.*”

55 See Esbeck, supra note 22, at 77-81.

56 See, e.g., Serbian E. Orthodox Diocese v. Milivojevich, 426

U.S. 696, 709 (1976) (holding that courts without competence to

adjudicate essentially doctrinal disputes for, inter alia, avoidance

of entanglement); Rusk v. Espinosa, 456 U.S. 951 (1982) (aff'd

mem.) (striking down charitable solicitation ordinance that

required officials to distinguish between “spiritual” and secular

underlying solicitation by religious organizations); cf.

Mueller v. Allen, 463 U.S. 388, 403 (1983) (holding entanglement

not excessive when only governmental task is review of secular

instructional materials); Committee for Pub. Educ. v. Regan, 444

U.S. 646, 660-61 (1980) (upholding reimbursement to religious

schools of the cost of state-mandated tests because the tests were

wholly secular and not part of regular teaching program, hence

entanglement not excessive).

57 See, e.g., Corporation of Presiding Bishop v. Amos, 483 U.S.

327, 335-36 (1987) (religious exemption from regulatory burden is

permissible legislative means to alleviate significant

governmental interference with ability of religious organizations

to define and carry out their religious mission); Walz v. Tax

Comm'n, 397 U.S. 664, 674 (1970) (property tax exemption for

Conversely, when the subject matter being regulated

does not touch upon inherently religious matters, this

Court has played down the importance of entanglement

analysis. For example, the Court has given cursory entan-

glement analysis when the legislation in question

addresses commercial, public health, or similar matters

otherwise unrelated to subjects that are inherently reli-

gious.°* In pa allel with the line of cases set out in the

foregoing note, when upholding ordinary commercial or

labor law legislation that has no exemption for religious

organizations or practices, the Court has remarked that the

absence of an exemption is a good thing because it avoids

the regulatory entanglement that administering such an

exemption would entail.59

religious organizations has the laudable effect of avoiding

entanglement when tax authorities evaluate the worth to the

community of faith-based social welfare programs); see also St.

Martin Evangelical Lutheran Church v. South Dakota, 451 U.S. 772

(1981) (construing unclear religious exemption in tax legislation

in a manner that broadened the scope of the exemption and

thereby avoiding First Amendment issue administrative

entanglement); NLRB v. Catholic Bishop, 440 U.S. 490, 501-04

(1979) (desiring to avoid significant risk of entanglement, Court

employed unusual rule of construction that thereby exempted

religious schools from federal regulation).

58 See, e.g., Bowen v. Kendrick, 487 U.S. 589, 615-18 (1988)

(holding that because faith-based social services are not inherently

religious, some regulation attendant to administration of program

does not amount to excessive entanglement); Tony & Susan Alamo

Found. v. Secretary of Labor, 471 U.S. 290, 305-06 (1985) (regulation of

commercial operations of religious organization undertaken for a

commercial purpose do not amount to excessive entanglement);

Roemer v. Board of Pub. Works, 426 U.S. 736, 762-65 (1976) (plurality

opinion) (because religious colleges are not pervasively religious,

regulatory entanglement attendant to state funding is not excessive);

Hunt v. McNair, 413 U.S. 734, 745-49 (1973) (same); Tilton v.

Richardson, 403 U.S. 672, 684-89 (1971) (same).

5 See, e.g., Hernandez v. Commissioner, 490 U.S. 680, 696

(1989) (rejecting interpretation of statute requiring the

Entanglement analysis has thus been masking what is

really a proper inquiry by civil courts concerning regula-

tory intrusion (or lack thereof) into inherently religious

matters. The focus on subject matters that are “inherently

religious” makes sense because elsewhere this Court has

said that government does not exceed the restraints of the

Establishment Clause unless it is acting on (or intruding

devotional Bible reading,®* veneration of the Ten Com-

mandments,® classes in confessional religion, and the

government to distinguish between secular and religious benefits

as fraught with entanglement); Bob Jones Univ. v. United States,

461 U.S. 574, 604 n.30 (1983) (uniform application of statute to all

religious schools avoids entangling inquiry by IRS officials); see

also Bd. of Educ. of Westside Comm. Sch. v. Mergens, 496 U.S. 226,

252-53 (1990) (upholding Equal Access Act because, inter alia,

attempting to exclude religious speech would create greater

entanglement problems); Texas Monthly, Inc. v. Bullock, 489 U.S. 1,

20 (1989) (plurality opinion) (overturning religious exemption is

a laudable rule of law because it reduces possible entanglement);

Widmar v. Vincent, 454 U.S. 263, 270 n.6, 272 n.11 (1981)

(preventing public university from excluding religious worship

or religious speech from designated public fora is a laudable rule

of law because it reduces possible entanglement); Jones v. Wolf,

443 U.S. 595, 603 (1979) (employing, whenever possible, neutral-

principles approach to resolve religious disputes avoids

entanglement with religious doctrine, polity, or practice).

60 Bowen v. Kendrick, 487 U.S. 589, 605, 612-13 (1988)

(counseling teenagers to remain chaste is not an inherently

religious activity, even when the counseling takes place at

religious counseling centers).

61 Lee v. Weisman, 505 U.S. 577 (1992); Wallace v. Jaffree, 472

U.S. 38 (1985); School Dist. of Abington Tsp. v. Schempp, 374 U.S. 203

(1963); Engel v. Vitale, 370 U.S. 421 (1962).

62 School Dist. of Abington Tsp. v. Schempp, 374 U.S. 203 (1963).

63 Stone v. Graham, 449 U.S. 39 (1980) (per curiam).

64 McCollum v. Board of Educ., 333 U.S. 203 (1948).

biblical story of creation taught as science® are all inher-

ently religious. Hence, by virtue of the Establishment

Clause, the Court held these topics were off limits as

objects of any legislation, purposeful action by executive

branch officials, or judicial inquiry.

The Chapter 2 program, in both purpose and effect, is

about improving the welfare of society, specifically the

improvement of educational opportunities for all elemen-

tary and secondary students without regard to where the

students are enrolled. Because the government is not

intruding into matters inherently religious by merely

loaning educational equipment to K-12 schools (hence,

the “entanglement” is not “excessive”), the Establishment

Clause restraint has not been transgressed by Chapter 2

or its implementation by the State of Louisiana.

CONCLUSION

Amici request that this Court hold that Chapter 2 of

Title I of the Elementary and Secondary Education Act of

1965, as amended, 20 U.S.C. §§ 7301-7373 (Supp. 1998),

and its legislative counterpart in the State of Louisiana, as

applied, do not violate the Establishment Clause.

Respectfully submitted,

Cart H. Esseck Steven T. McFar _anp*

Professor of Law Samuet B. Casey

213 John K. Hulston Hall CuristiAn Lecat Society

Missouri & Conley Avenues Center for Law and

Columbia, MO 65211 Religious Freedom -

(573) 882-3035 4208 Evergreen Lane,

Suite 222

Annandale, VA 22003

(703) 642-1070

*Counsel of Record

August 18, 1999

65 Edwards v. Aguillard, 482 U.S. 578 (1987); see Epperson v.

Arkansas, 393 U.S. 97 (1968).

App. 1

APPENDIX

STATEMENTS OF INTEREST

The Christian Legal Society (“CLS”), founded in

1961, is a nonprofit ecumenical professional association of

4,000 Christian attorneys, judges, law students, and law

professors with chapters in every state and at 85 law

schools. Since 1975, the Society’s legal advocacy and

information arm, the Center for Law and Religious Free-

dom, has advocated the protection of religious belief and

exercise in this Court and in state and federal courts

throughout the nation.

Using a network of volunteer attorneys and law pro-

fessors, the Center provides accurate information to the

general public and the political branches regarding the

law pertaining to religious exercise. In addition, the CLS

Center has filed briefs amici curiae on behalf of many

religious denominations and civil liberties groups in vir-

tually every case before the U.S. Supreme Court involv-

ing church-state relations since 1980. These include

Widmar v. Vincent, 454 U.S. 263 (1981); Witters v. Washing-

ton Dept. of Services, 474 U.S. 481 (1986); Bowen v. Kendrick,

487 U.S. 589 (1988); Zobrest v. Catalina Foothills School

Dist., 113 S. Ct. 2462 (1993); Rosenberger v. Rectors of Univ.

of Virginia, 515 U.S. 819 (1995); and Agostini v. Felton, 521

U.S. 203, 117 S. Ct. 1997 (1997).

The Society is committed to religious liberty because

the founding instrument of this nation acknowledges as a

“self-evident truth” that all persons are divinely

endowed with rights that no government may abridge

nor any citizen waive. Declaration of Independence

App. 2

(1776). Among such inalienable rights are those enumer-

ated in (but not conferred by) the First Amendment, the

first and foremost of which is religious liberty. The right

sought to be upheld here inheres in all persons by virtue

of its endowment by the Creator, Who is acknowledged

in the Declaration. It is also a “constitutional right,” but

only in the sense that it is recognized in and protected by

the U.S. Constitution. Because the source of religious

liberty, according to our nation’s charter, is the Creator,

not a constitutional amendment, statute or executive

order, it is not merely one of many policy interests to be

weighed against others by any of the several branches of

state or federal government. Rather, it is foundational to

the framers’ notion of human freedom. The State has no

higher duty than to protect inviolate its full and free

exercise. Hence, the unequivocal and non-negotiable pro-

hibition attached to this our First Freedom is “Congress

shall make no law... . ”

The CLS Center’s national membership, 25 years of

experience, and professional resources enable it to speak

with authority upon religious liberty.

The National Association of Evangelicals (NAE) is a

non-profit association of evangelical Christian denomina-

tions, churches, organizations, institutions and individ-

uals that includes more than 50,000 churches from 74

denominations and serves a constituency of approxi-

mately 20 million people. NAE is committed to defending

religious freedom as a precious gift of God and a vital

component of the American heritage.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.