# Amicus Curiae Brief — Mitchell v. Helms > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0270%3A26 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 2000 - **Citation:** 530 U.S. 793 ## Text 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 S BRIEF AMICI CURIAE OF CHRISTIAN LEGAL SOCIETY AND NATIONAL ASSOCIATION OF EVANGELICALS IN SUPPORT OF PETITIONERS 7 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 i 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 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. 27 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 28 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 29 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 into) such matters.© The Court has found that prayer,®! 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). 30 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0270%3A26. Public record. Not legal advice.