Amicus Curiae Brief — Good News Club v. Milford Central School

—

yO» 2000 a) || Fe

NOV 3 .0 20m

No. 99-2036 |

IN THE —_ =

Supreme Court of the Anited States

THE GOoD NEws CLUB, ef ai..,

Petitioners,

Vv.

MILFORD CENTRAL SCHOOL,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF OF THE

SOLIDARITY CENTER

FOR LAW AND JUSTICE, P.C.

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

JAMES P. KELLY, III *

SOLIDARITY CENTER FOR LAW

AND JUSTICE, P.C.

Two Ravinia Drive

Suite 1650

Atlanta, Georgia 30346

(770) 392-6079

* Counsel of Record

_

WiILSON-EPES PRINTING Co., INC. — (202) 789-0096 - WASHINGTON, D. C. 20001

TABLE OF CONTENTS

YOUTH DEVELOPMENT ORGANIZA-

TIONS THAT TRAIN CHILDREN TO

ADOPT DEEPLY HELD MORAL OR

ETHICAL BELIEFS ABOUT WHAT IS

RIGHT AND WRONG ARE ENGAGED IN

THE PRACTICE OF A RELIGION ..................

A.

Moral or ethical beliefs about what is right

and wrong that are held with the strength

of traditional religious convictions qualify

as religious in the traditional sense ..............

Moral or ethical beliefs are deeply held

when they function as a religion in the life

of the believer by imposing a duty of

conscience to do what is right and to

refrain from doing what is wrong ................

The moral and ethical beliefs of youth

development organizations such as the Boy

Scouts of America, Girl Scouts, and 4-H

Se ID I ND ernerernesenssssseenenscesesenen

(i)

ii

TABLE OF CONTENTS—Continued

Il. GRANTING PUBLIC SCHOOL ACCESS TO

YOUTH DEVELOPMENT ORGANIZA-

TIONS FOR THE MORAL OR ETHICAL

TRAINING OF CHILDREN WHILE DENY-

ING ACCESS TO YOUTH DEVELOPMENT

ORGANIZATIONS FOR THE CHRISTIAN

RELIGIOUS TRAINING OF CHILDREN

UNCONSTITUTIONALLY TENDS TO _ ES-

TABLISH A CIVIC RELIGION.............cccceeeees

A. Granting access to youth development

organizations for the training of children

based on deeply held moral or ethical

beliefs while denying petitioners equal

access for the training of children based on

deeply held Christian religious beliefs has

a primary effect of advancing religion.........

(a) The preferential access granted under

the Community Use Policy to

organizations that teach — youth

character and leadership skills in the

context of deeply held moral or ethical

beliefs results in the governmental

indoctrination of children in en ethical

Se ctenaenpsctestenensstenssisesintnennenenmnen

(b) The ascertainment by Respondent of

the source and content of the deeply

held moral, ethical, or religious beliefs

of applicants under the Community

Use Policy creates an excessive

entanglement between government and

Se istcrinisnscnssnonmensetensiasssssnnnesesseinsese

Page

16

TABLE OF CONTENTS—Continued

B. Granting access to youth development

organizations for the training of children in

deeply held moral or ethical beliefs while

denying Petitioners equal access for the

training of children in deeply held

Christian religious beliefs tends to

establish civic, scientific, evolutionary,

ethical, or secular humanist form of a civic

. In order to avoid an Establishment Clause

violation, absent the provision of a

legitimate threat to the health and safety of

children, Respondents must grant public

school access to all youth development

organizations that train children to adopt

deeply held moral, ethical, or religious

beliefs about what is right and wrong..........

Se IIIS cecccesecececencssceccesssousessnsnscessvsssscsvensnerensesees

Page

20

iv

TABLE Of AUTHORITIES

Cases Page

Agostini v. Felton, 521 U.S. 203 (1997) ..... eee 15, 16

Ambach v. Norwick, 441 U.S. 68 (1979).............0.. 12

Board of Education, Island Trees Union Free

School Dist. No. 26 vy. Pico, 457 U.S. 853

Ce cccnsnnsscnssasessnsimmsccnnmnstesnnusenmiintnesinmanin 12

Boy Scouts of America et al. v. Dale _,

US ee 9, 10

Braunfeld v. Brown, 366 U.S. 599 (1961).............. 19

County of Allegheny v. American Civil Liberties

Union, Greater Pittsburgh Chapter, 492 U.S.

FES CO cress 19

Epperson v. Arkansas, 393 U.S. 97 (1968) ........00+. 17

Fellowship of Humanity v. County of Alameda,

ee BT 20

Gillette v. United States, 401 U.S. 437 (1971)....... 19

Good News Club et al. v. Milford Central School,

202 F.3d 503 (2nd Cir. 2000) cert. granted,

Fae Bs Ge, Be ee crntentnscnsininniunicennasiennsiianinnnii 3,4,8

Lee v. Weisman, 505 U.S. 577 (1992)......3, 12, 13, 15, 27

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

Lynch vy. Donnelly, 465 U.S. 668 (1984)................ 12

Minersville School District v. Gobitis, 310 U.S.

a ea nccunscacttacmsncnianiditniainitiniiemmmmgmmmmcaiiainies 13

Mitchell v. Helms, ___ U.S. ___, 120 S. Ct. 2530

Cire nncsesncsnnninntenicepncncinanniansiatiatatinmieniiiainnaianabiniiemaamtamaiiins 28, 29

Rosenberger vy. Rector and Visitors of the

University of Virginia, 515 U.S. 819 (1995)...... 4,5,7

Santa Fe Independent Sch. Dist. v. Doe, ___ U.S.

15, 20, 27

Sherbert v. Verner, 374 U.S. 398 (1963) .............0. 14, 15

Torcaso v. Watkins, 367 U.S. 488 (1961) ............... 20

United States v. Seeger, 380 U.S. 163 (1 965)........ passim

Walz v. Tax Commission, 397 U.S. 664 (1970) ...... 16

—_— —_——

Vv

TABLE Of AUTHORITIES—Continued

Page

Washington Ethical Society v. District of

Columbia, 249 F.2d 127 (1987) .....cccccccceeeseeeeeeee 20

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

West Virginia State Bd. of Ed. v. Barnette, 319

ls Ge Ge incsnnannecnrssenninemnmeniannnaniaied 3, 13, 17, 22

Westside Community Bd. of Ed. v. Mergens, 496

ee Sa ee acercnnnvinnnsscserenenetannnintinemeisienianins 18-19

Zobrest v. Catalina Foothills School Dist., 509

SB Gira Pccenesnsnsensnnsnaseesseinrenisemenninemiennetoin 15

Statutes

Equal Access Act, 20 U.S.C. 4071 (a) ........ccccccceeeee 19 -

Universal Military Training and Service Act, 50

U.S.C. App. 456(j) (1958 ed.) .......ccccceceeeeeeeees 6

Other Authorities

A. Comte, The Catechism of Positive Religion

FUIETE a inereensensensnnsscemsenninneneimensianiainminnnniemtes 24

American Ethical Union Statement of Purpose ..... 23

D. MacLeod, Building Character in the

American Boy: The Boy Scouts, YMCA, and

Their Forerunners, 1870-1920 (1983)............... 21-22

D. Muzzey, Ethics as a Religion (1951) ............... 24

F. Adler, Reconstruction of the Spiritual Ideal

Gore cccnsestemnenenindetnenteneacseniennnisndmenmmmaiaiensennen 23

Girl Scouts USA, The Girl Scout Program

iia csssnccsesenensennenemecsetenmsmnentnnnunanineniatenemannties 9

H. Cox, The Secular City (1965) ........ccccccccceeeeeeeee 25

H. Kallen, Secularism is the Will of God (1954)... 21, 24

J. Dewey, A Common Faith, (1934)...........c00c000+ 8, 22, 23

J. E. Dirks, “The Death of God Theologies

Today,” in Radical Theology and the Death of

vi

TABLE Of AUTHORITIES—Continued

J. Huxley, Essays of a Humanist (1961) ............00+.

J. Huxley, Religion Without Revelation

PIE Gl caccsrsincscctnteenensmntunncianienteniannninimennenn

J. Huxley, The Humanist Frame (1964).............00.

J. Robinson, Honest to God (1963)..........cccceceeeeees

M. Marty, “Does Secular Theology Have a

Future?” in The Great Ideas Today (1967) ........

M. Olds, American Religious Humanism (1996)...

P. Kurtz, Living Without Religion: Eupraxophy,

Fe eee narcnntnncntutanemnenndinduanememanmmannmtnianeees

P. Tillich, Morality and Beyond (1963)...............++.

P. Tillich, The Shaking of the Foundations

T. Jefferson, “Letter to William Short” (October

31, 1819) in The Life and Selected Writings of

PD ETE, Ci i iccerecnccnmanccsnintsenemenesen

UNESCO Advisory Committee on Education for

Peace, Human Rights, Democracy,

International Understanding and Tolerance,

PR, © Ga wccecncencenscntsencetniennnennennn

W. Murray, Boy Scouts of America New

TGR, Cie enctccnsscsesctnsneemmnmane

Constitutional Provisions

24-25

20-21

IN THE

Supreme Court of the Anited States

No. 99-2036

THE GooD News CLUB, et al.,

Petitioners,

v.

MILFORD CENTRAL SCHOOL,

Respondent.

On Writ of Certiorari to

United States Court of Appeals

for the Second Circuit

BRIEF OF THE

SOLIDARITY CENTER

FOR LAW AND JUSTICE, P.C.

AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF AMICUS®

Solidarity Center for Law and Justice, P.C. is a professional

corporation organized under the laws of the State of Georgia

for the promotion of social welfare by defending human and

civil rights secured by law, to wit: those individual liberties,

freedoms, and privileges involving human dignity that are

either specifically guaranteed by the U. S. Constitution or by

" Counsel for the amicus curiae authored the brief in its entirety. No

person or entity other than the amicus curiae, its members or its counsel

made a monetary contribution to the preparation or submission of the

brief.

2

a special statutory provision coming directly within the scope

of the 13th or 14th Amendment, some other comparable

constitutional provision, or that otherwise fall within the

protection of the Constitution by reason of their long

established recognition at the common law as rights that are

essential to the orderly pursuit of happiness by free men and

women. When permitted by court rules and practice,

Solidarity Center for Law and Justice, P.C. files briefs as

amicus curiae in litigation of importance to the protection of

human and civil rights, particularly when the primary right of

parents to direct the upbringing of their children in

accordance with the dictates of their consciences is at issue.

The preferential public school access granted under

Respondent's Community Use Policy to youth organizations

that train children in deeply held moral or ethical beliefs

about what are right or wrong attitudes and behaviors tends to

establish a civic religion. The United States Court of Appeals

for the Second Circuit decided that it was permissible for

Respondent to distinguish between youth organizations that

teach moral and character development from a “religious

viewpoint” and youth organizations, like the Good News

Club, that teach moral and character development through

“religious instruction and prayer.” This Court should reverse

the Second Circuit’s decision in favor of Respondent and

insist that Respondent adopt a policy that respects the private,

independent childrearing decisions of all parents, regardless

of the particular deeply held moral, ethical, or religious belief

system they use to form their children.

Counsel of Record for the parties in this case have

consented to the filing of this brief. Their letters of consent

have been filed with the Clerk of the Court pursuant to Rule

36.

3

SUMMARY OF ARGUMENT

Since early in United States history, constant attention has

been paid to the important task of indoctrinating children in

attitudes and beliefs that are deemed essential to the

maintenance of a peaceful and productive democracy. The

Establishment Clause of the First Amendment to the U.S.

Constitution was designed to safeguard against government

officials undertaking to dictate what “shall be orthodox in

politics, nationalism, religion, or other matters of opinion or

force citizens to confess by word or act their faith therein.”

West Virginia State Bd. of Ed. v. Barnette, 319 U.S. 624, 642

(1943). States may not go beyond the teaching of civic

knowledge and skills to the actual teaching of civic virtues

that “stand on a right of self-determination in matters that

touch individual opinion and personal attitude.” /d., 319 U.S.

at 631.

What public school officials cannot do lawfully through the

direct indoctrination of students during the school day cannot

be done indirectly by providing preferential access to their

school facilities for the training of children in a generally

moral or ethical, as opposed to a specifically religious, belief

system. The government may not establish “an official or

civic religion as a means of avoiding the establishment of a

religion with more specific creeds.” Lee v. Weisman, 505

U.S. 577, 590 (1992).

In the present case, pursuant to a Community Use Policy

that expressly forecloses the use of public school facilities for

religious purposes, Respondent granted access to youth

organizations, such as the Boy Scouts, Girls Scouts, and 4-H

Club, to engage in “pure” moral and character development

through “the discussion of secular subjects from a religious

viewpoint.” Good News Club et al. v. Milford Central

School, 202 F.3d 503, 510 (2nd Cir. 2000) cert. granted, 121

S. Ct. 296 (2000). On the other hand, Respondent denied

access to Petitioners to engage in Christian moral and

4

character development through “the discussion of religious

material through religious instruction and prayer.” /d. The

United States Court of Appeals for the Second Circuit upheld

this disparate treatment because the Christian viewpoint

espoused by Petitioners “contains an additional layer” that

makes “the activities of the Club fall clearly on the side of

religious instruction and prayer” that could not be endorsed

under the Policy. /d.

Based on past decisions of this Court regarding to what

extent purely moral or ethical belief systems qualify as

religions in the traditional sense, the distinction made by the

Respondent and the Second Circuit between the religious

nature of the two approaches to the moral and character

development of children was erroneous. The training of

children in deeply held moral or ethical beliefs about what is

right and wrong is as religious in the traditional sense as the

training of children in Christian moral or ethical beliefs on the

same subject. United States v. Seeger, 380 U.S. 163 (1965);

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

whether they are taught from a “pure” or Christian viewpoint,

such moral or ethical beliefs serve as the first principles of an

ultimate reality that can have the effect of motivating children

to adopt attitudes and conduct their lives in accordance with

such beliefs. Rosenberger v. Rector and Visitors of the

University of Virginia, 515 U.S. 819, 835-837 (1995)

Respondent’s granting of access under the Community Use

Policy to youth character and leadership development

organizations that indoctrinate children in a moral or ethical

religion unconstitutionally tends to establish a civic religion.

Such a policy has the further effect of placing Petitioner’s

Christian faith at a competitive disadvantage in the formation

of children relative to the various humanist religions

advocated by influential statesmen, social scientists,

education philosophers, and theologians throughout American

history.

5

To remedy this injustice, this Court should insist that

Respondent adopt a Community Use Policy that respects the

principle of neutrality among religions and safeguards the

private, independent choices of parents to have their children

educated for democratic participation in a accordance with

the dictates of their consciences. Petitioners should be

granted access to Respondent’s school facility to train

children in the context of the Christian religion on equal

terms with youth organizations that train children in the

context of deeply held moral or ethical beliefs.

ARGUMENT

I. YOUTH DEVELOPMENT ORGANIZATIONS

THAT TRAIN CHILDREN TO ADOPT DEEPLY

HELD MORAL OR ETHICAL BELIEFS ABOUT

WHAT IS RIGHT AND WRONG ARE EN-

GAGED IN THE PRACTICE OF A RELIGION.

Prior decisions of this Court provide a basis for

determining whether youth development organizations that

train children through the “discussion of secular subjects from

a religious viewpoint” are, in fact, engaged in the practice of

a religion. See United States v. Seeger 380 U.S. 163 (1965);

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

Rector and Visitors of the University of Virginia, 515 U.S. 819

(1995). The precedent established by these cases make it

clear that the pursuit of youth character and leadership

development in the context of deeply held moral or ethical

beliefs about what is right and wrong constitutes a religion.

A. Moral or ethical beliefs about what is right and

wrong that are held with the strength of

traditional religious convictions qualify as

religious in the traditional sense.

During the Vietnam War, this Court examined the military

service exemption claims of conscientious objectors who did

- 6

not belong to an orthodox religious sect. Section 6(j) of the

Universal Military Training and Service Act exempted from

combatant service in the armed services those who were

conscientiously opposed to participation in war by reason of

their religious training and belief. 50 U.S.C. App. 456(j)

(1958 ed.) The Act defined the term “religious training and

belief” as “an individual’s belief in a relation to a Supreme

Being involving duties superior to those arising from any

human relation, but not including essentially political,

sociological, or philosophical views or a merely personal

code.” Seeger, 380 U.S. at 165.

In Seeger this Court included within the scope of the term

“religious training and belief’ Seeger’s “belief in and

devotion to goodness and virtue for their own sakes, and a

religious faith in a purely ethical creed.” Seeger 380 U.S. at

166. Seeger cited such personages as Plato, Aristotle and

Spinoza as support for his ethical belief in intellectual and

moral integrity “without belief in God, except tn the remotest

sense.” /d. His belief was found to be sincere, honest, and

made in good faith; and his conscientious objection to be

based upon individual training and belief, both of which

included research in religious and cultural fields.

Five years later, in Welsh this Court determined that

Welsh was entitled to conscientious objector status. Unlike

Seeger, who, in filling out his conscientious objector

application, had put quotation marks around the word

“religious,” Welsh struck the word “religious” out entirely

and later characterized his beliefs as having been formed “by

reading in the fields of history and sociology.” Welsh, 398

U.S. at 341.

This Court determined that Welshshould be granted an

exemption because, although his moral and ethical views did

not qualify as “religious” in the traditional sense, they were

“held with the strength of traditional religious convictions.”

Id., 398 U.S. at 342.

7

B. Moral or ethical beliefs are deeply held when

they function as a religion in the life of the

believer by imposing a duty of conscience to do

what is right and to refrain from doing what is

wrong.

The main purpose of the conscientious objector cases was

to determine whether individuals who adhered to purely

moral or ethical belief systems could satisfy the statutory

requirement of having a “belief in a relation to a supreme

Being involving duties superior to those arising from any

human relation.” In the cases where an objector did not

tieve in God, this Court examined the circumstances under

which a moral or ethical code could constitute a force,

parallel to a belief in God, that would preclude participation

in the war.

This Court determined that deeply held moral or ethical

beliefs occupy in the life of an individual a place parallel to

that filled by God in cases where such beliefs impose upon

the individual a duty of conscience to do what is right and to

refrain from doing what is wrong. Welsh 398 U.S. at 340. In

such instances, the moral or ethical beliefs serve as the first

principles of an ultimate reality to which the holder of such

beliefs aspires. Rosenberger 515 U.S. at 837. ~

Youth character and leadership development organizations

that train children to embrace a moral or ethical ultimate

reality to guide their lives are no less religious in the

traditional sense than a Christian religious organization that

advocates or rests upon a belief in a deity. Thus, in

Rosenberger this Court indicated that a college policy that

prohibited the use of student fees in support of a Christian

organization likewise would have to prohibit the use of

student fees in support of “essays by hypothetical student

contributors named Plato, Spinoza, and Descartes” who

believed in a non-theistic ultimate reality. Rosenberger 515

U.S. at 837-838. One of America’s leading educators and

8

humanists, John Dewey, explained how a moral or ethical

ideal could substitute for God:

Suppose for the moment that the word “God” means the

ideal ends that at a given time and place one

acknowledges as having authority over his volition and

emotion, the values to which one is supremely devoted

... these ends, through imagination, take on unity... .

Whether one gives the name “God” to this union,

operative in thought and action, is a matter of individual

decision. But the function of such a working union of

the ideal and actual seems to me to be identical with the

force that has in fact been attached to the conception of

God in all the religions that have a spiritual content; and

a Clear idea of that function seems to me urgently needed

at the present time.

J. Dewey, A Common Faith, 29, 35 (1934).

C. The moral and ethical beliefs of youth devel-

opment organizations such as the Boy Scouts of

America, Girl Scouts, and 4-H Club are deeply

held.

Respondent has granted access under the Community Use

Policy to local chapters of the Boy Scouts, Girl Scouts, and 4-

H Club for the secular purpose of offering youth character

and leadership development training. The main goals of these

organizations are to promote “personal growth and

development of leadership skills” (Boy Scouts), encourage

young women to vow to “try . . . [t]o serve God and [their]

country” (Girl Scouts), and help “to enable youth to develop

knowledge, skills, abilities, attitudes, and behaviors to be

competent, caring adults” (4-H Club). Good News Club, 202

F.3d 503, 511 (2nd Cir. 2000). These goals evidence the fact

that these organizations train children in the context of deeply

held moral and ethical beliefs that are an express, integral,

and long-standing part of their respective youth development

programs.

9

Even if one ignores the fact that it would be impossible to

train a Girl Scout to “serve God” without providing her

religious instruction about God and what God expects from

us, the purely moral and ethical beliefs expressed by the Girl

Scouts program serve as an ultimate reality, parallel to belief

in a deity, to which Girl Scouts are trained to aspire. These

deeply held moral and ethical beliefs are reflected in the four

program goals of the Girl Scout Program: developing self-

potential, relating to others, developing values, and

contributing to society.

The Boy Scouts of America (“BSA”) is a private, nonprofit

organization. The mission of the Boy Scouts is “to serve

others by helping to instill values in young people and, in

other ways, to prepare them to make ethical choices over their

lifetime in achieving their full potential.” Boy Scouts of

America et al. v. Dale, U.S. , 120 S.Ct. 2446, 2451-

2452 (2000) To instill its shared values, BSA has adopted a

“Scout Oath” and a “Scout Law” setting forth its central

tenets.

The Scout Oath requires a member to pledge: “On my

honor, I will do my best, To do my duty to God and my

country and obey the Scout Law; To help other people at all

times; To keep myself physically strong, mentally awake, and

morally straight.” The Boy Scout Handbook defines

“morally straight,” in the following manner:

' The details pertaining to the Girl Scout program goal of “developing

values” include:

Girls will develop a meaningful set of values to guide their actions

and to provide for sound decision-making. Girl Scouting will: Help

girls develop meaningful values and ethics that will guide their

actions. Foster an ability to make decisions that are consistent with

girls’ values and that reflect respect for the rights and needs of

others. Encourage girls to reexamine their ideals as they mature.

Girl Scouts USA, The Girl Scout Program (2000). See http://

www. gsusa.org/about/tgsp.html

10

To be a person of strong character, guide your life with

honesty, purity, and justice. Respect and defend the

rights of all people. Your relationships with others

should be honest and open. Be clean in your speech and

actions, and faithful in your religious beliefs. The values

you follow as a Scout will help you become virtuous and

self-reliant.

Boy Scouts of America et al., 120 S.Ct. at 2461.

Although BSA _ bylaws state that it is “absolutely

nonsectarian in its attitude toward . . . religious training,”

Christian New Testament virtues serve as the foundation of

the virtues comprising the Scout Law. The BSA strive to

instill the following values in their members: trustworthy,

obedient, loyal, cheerful, helpful, thrifty, friendly, brave,

courteous, clean, kind, and reverent. The linkage between the

Scout Law values and the Christian religion is evidenced by

the publication by the BSA Editorial Board, early in the

history of the American Boy Scout movement, of an official

BSA edition of the New Testament. W. Murray, Boy Scouts

of America New Testament (Est. 1925) The BSA New

Testament included a listing of New Testament scriptures

specifically relating to the twelve Scout Law virtues.”

> The BSA New Testament sets forth the correlation between Boy

Scout ultimate values and New Testament scripture in the following

manner:

NEW TESTAMENT SCRIPTURES ON SCOUT LAW

A SCOUT IS TRUSTWORTHY Matt. 25: 14-30. Acts 5: 1-6

A SCOUT IS LOYAL Rom. 13: 1-7. Rev. 3: 7-13

A SCOUT IS HELPFUL Acts. 27: 27-44. Matt. 25: 34-36

A SCOUT IS FRIENDLY Mark 10: 46-52. Luke 10: 25-37

A SCOUT IS COURTEOUS Luke 7: 36-50. Luke 17: 11-19

A SCOUT IS KIND Luke 15: I-7. Heb. 13: 1-6

A SCOUT IS OBEDIENT Matt. 4: 18-22. Matt. 7: 24-27

A SCOUT IS CHEERFUL Matt. 5: 1-12. Phil. 4: 10-20

A SCOUT IS THRIFTY John 6; 12-14. 1 Tim. 6: 17-19

A SCOUT IS BRAVE 2 Tim. 4: 5-8. Luke 22: 54-62

The religious roots of the stated missions and values of the

Boy Scouts, Girl Scouts, and 4-H Club, the solemnity with

which they are subscribed to by their organizational leaders

and participants, the time and personal sacrifices that must be

made to successfully participate in these programs, the

personal bonds between group participants, and the

overriding institutional concern for training children to be

strong in ideals and character provide overwhelming evidence

that the moral and ethical beliefs of these organizations

impose a duty of conscience to do good and refrain from

doing wrong. For this reason, the beliefs of these

organizations function as a religion in the lives of their

members and are deeply held from an Establishment Clause

perspective.

Il. GRANTING PUBLIC SCHOOL ACCESS TO

YOUTH DEVELOPMENT ORGANIZATIONS

FOR THE MORAL OR ETHICAL TRAINING

OF CHILDREN WHILE DENYING ACCESS TO

YOUTH DEVELOPMENT ORGANIZATIONS

FOR THE CHRISTIAN RELIGIOUS TRAINING

OF CHILDREN UNCONSTITUTIONALLY

TENDS TO ESTABLISH A CIVIC RELIGION,

The first clause in the First Amendment to the Federal

Constitution provides that “Congress snall make no law

respecting an establishment of religion, or prohibiting the free

exercise thereof.” The Fourteenth Amendment imposes those

substantive limitations on the legislative power of the States

and their political subdivisions. “It is beyond dispute that, at

a minimum, the Constitution guarantees that government may

not coerce anyone to support or participate in religion or its

exercise, or otherwise act in a way which ‘establishes a [state]

A SCOUT IS CLEAN Matt. 5: 27-32. James |: 19-27

A SCOUT IS REVERENT Phil. 2: 1-li. 1 Cor. 8: 1-13

12

religion or religious faith, or tends to do so.’” Lee v. Weisman

505 U.S. 577, 587 (1992) (quoting Lynch v. Donnelly, 465

U.S. 668, 678 (1984).

A. Granting access to youth development organi-

zations for the training of children based on

deeply held moral or ethical beliefs while

denying petitioners equal access for the

training of children based on deeply held

Christian religious beliefs has a primary effect

of advancing religion.

Respondent must not discriminate against Petitioners on

the basis of their deeply held Christian religious beliefs about

the secular subject of youth character and leadership

development. For Respondent to continue to do so has an

impermissible primary effect of advancing the religion of

organizations that teach youth character and leadership

development in the context of deeply held moral or ethical

beliefs.

(a) The preferential access granted under the

Community Use Policy to organizations that

teach youth character and leadership skills in

the context of deeply held moral or ethical

beliefs results in the governmental indoc-

trination of children in an ethical religion.

This Court has acknowledged “that public schools are

vitally important ‘in the preparation of individuals for

participation as citizens,’ and as vehicles for ‘inculcating

fundamental values necessary to the maintenance of a

democratic political system.” Board of Education, Island

Trees Union Free School Dist. No. 26 v. Pico, 457 U.S. 853,

864 (1982) (plurality) (quoting Ambach v. Norwick, 441 U.S.

68, 76-77 (1979)). The legal fact remains, however, that

public schools cannot be used to indoctrinate children in what

the government, from time to time, considers as the moral or

a od ne -

13

ethical values that are essential to realizing the ultimate

democratic reality. “The State may require teaching by

instruction and study of all in our history and in the structure

and organization of our government, including the guaranties

of civil liberty which tend to inspire patriotism and love of

country.” West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624,

631 (1943) (quoting Minersville School District v. Gobitis,

310 U.S. 586, 604 (1940) (Stone, C.J., dissenting)).

Nevertheless, the state may not go beyond the teaching of

civic knowledge and skills to the actual teaching of civic

virtues that “stand on a right of self-determination in matters

that touch individual opinion and personal attitude.”

Barnette., 319 U.S. at 631.

Ignoring the limitations expressed by this Court in

Barnette, many of America’s public school districts either

have begun to teach moral or ethical values throughout the

school day or have begun to grant access to their school

facilities to youth development organizations for the purpose

of training students in the attitudes and behaviors that will

make them “good” democratic citizens.”

“A state-created orthodoxy puts at grave risk that freedom

of belief and conscience which are the sole assurance that

religious faith is real, not imposed.” Lee v. Weisman, 505

U.S. at 592. In Lee, this Court struck down a public school

graduation ceremony policy that had permitted a Rabbi-lead

graduation exercise benediction which had asked God to help

each attendee “strive to fulfill what You require of us all: to

do justly, to love mercy, to walk humbly.” In comparison,

* Some of the organizations that are at the forefront of the most recent

national character education movement include the Character Education

Partnership, The Communitarian Network, Center for the Fourth and Fifth

Rs, Character Education Institute, Jefferson Center for Character

Education, Josephson Institute of Ethics, Institute for Global Ethics,

Association for Moral Education, Center for the Advancement of Ethics

and Character, and the Character Counts! Coalition.

14

Respondent has selectively made its public school available

to youth development organizations the participants in which

are trained to revere God; to serve God; to serve others; to

develop meaningful values and ethics that will guide their

actions; to develop knowledge, skills, abilities, attitudes, and

behaviors to be competent, caring adults; and to be, among

other things, trustworthy, loyal, helpful, friendly, courteous,

kind, obedient, and morally straight. In most cases, the

participants in each of these groups wear the same type of

uniform, learn the same history and dogma of their respective

institution, participate in official ceremonies marking their

passage into higher orders of merit, and engage in weekly

meetings. The group leaders are thoroughly trained in the

tenets of the their organization's moral or ethical religion and

in child development techniques. The organizations have

long-standing policies and procedures, a hierarchy of

institutional officials and offices, and engage in professional

fundraising efforts.

If this Court can strike down a once-a-year, one minute

graduation benediction that merely asks God for help “to do

justly, to love mercy, to walk humbly,” then Respondent's

policy of granting exclusive school facility access for the

holding of weekly meetings of youth character and leadership

development organizations that formally, pervasively, and

professionally indoctrinate children in deeply held moral or

ethical beliefs must meet with the same fate.

Such a determination cannot be avoided by arguing that

such meetings are voluntary. In point of fact, the potential

exists that parents who would otherwise enroll their children

in the Christian Good News Club may choose to enroll their

children in more convenient meetings of moral or ethical

youth development organizations who have been granted

access to the public school by Respondent. As this Court

observed in Sherbert v. Verner, where one’s “ineligibility for

benefits derives solely from the practice of her religion,” the

——_— _—_— —- + —_—

15

“pressure upon her to forgo that practice is unmistakable.”

Such a state of affairs “forces her to choose between

following the precepts of her religion and forfeiting benefits,

on the one hand, and abandoning . . . the precepts of her

religion in order to accept [them], on the other hand.” 37

U.S. 398, 404 (1963). ) ‘

Further potential for governmental indoctrination of

children arises from the fact that the inherently religious

nature of the moral or ethical belief systems of the “favored”

youth development organizations makes it likely that group

leaders will intentionally or inadvertently indoctrinate

children. Because many of these leaders may have learned the

foundational moral and ethical values of these groups in the

context of traditional Judeo-Christian religious instruction

and worship, there will be a significant likelihood for

transference of some traditional religious teachings and

practices, such as scripture lessons, songs, religious holiday

celebrations, and forms of prayer, to the Boy Scout, Girl

Scout, or 4-H Club setting.

Unlike a teacher who is permitted to provide secular

remedial education to disadvantaged children in parochial

schools (see Agostini v. Felton, 521 U.S. 203 (1997)) ora sign

language interpreter who is permitted to work on behalf of a

deaf student in a Roman Catholic high school (see Zobrest vy.

Catalina Foothills School Dist., 509 U.S. 1 (1993)), Boy

Scout, Girl Scout, and 4-H Club group leaders indoctrinate

group members in inherently religious moral and ethical

beliefs concerning the very meaning of, and means to, a life

lived in service to God and neighbors. This Court has

stressed “the obvious observation that ‘adolescents are often

susceptible to pressure from their peers towards conformity,

and that the influence is strongest in matters of social

convention.’” Santa Fe Independent Sch. Dist. v. Doe, 530

ua. 290, 120 S.Ct. 2266 (2000) (quoting Lee, 505 U.S. at

16

The exclusive public school access granted by Respondent

for the moral and ethical training of children leaves the public

with the impression that Respondent endorses such religious

indoctrination.

(b) The ascertainment by Respondent of the

source and content of the deeply held moral,

ethical, or religious beliefs of applicants

under the Community Use Policy creates an

excessive entanglement between government

and religion.

To assess entanglement, this Court looks to the character

and purposes of the institutions that are benefited, the nature

of the aid that the state provides, and the resulting

relationship between the government and religious authority.

Agostini, 521 U.S. at 232-33; Lemon v. Kurtzman, 403 USS.

602, 614-615 (1971).

The youth character and leadership development programs

of organizations such as the Boy Scouts, Girl Scouts, and 4-H

Club are inherently religious in that their ultimate goal is to

indoctrinate children in deeply held moral and ethical beliefs

that impose upon the participants a duty of conscience to do

what is right and to refrain from doing what is wrong.

Implementing the Community Use Policy in a manner that

distinguishes between youth development organizations that

train children in the context of moral or ethical beliefs and

those that do so in the context of traditional religious beliefs _

excessively entangles Respondent with religion.

In examining the constitutionality of government aid

programs, courts “must survey meticulously the circum-

stances of governmental categories to eliminate, as It were,

religious gerrymanders.” Welsh, 398 U.S. at 357 Pe

opinion) (quoting Walz v. Tax Commission, 397 U.S. 664,

(1970) (Harlan, J., opinion)).

—

17

By granting access to its public school to organizations for

the character and leadership development of youth,

Respondent is furthering the legitimate secular purpose of

training children for peaceful and productive democratic

participation. However, there is no greater internal threat to

peaceful and productive democratic participation than for

government agencies to grant selective aid exclusively to

those opinion-shaping youth organizations that conform in

content and practices to that which government officials

prescribe as “orthodox in politics, nationalism, religion, or

other matters of opinion.” Barnette., 319 U.S. at 642. “As

governmental pressure toward unity becomes greater, so strife

becomes more bitter as to whose unity it shall be. Probably

no deeper division of our people could proceed from any

provocation than from finding it necessary to choose what

doctrine and whose program public educational officials shall

compel youth to unite in embracing.” /d., at 641.

The government “must be neutral in matters of religious

theory, doctrine and practice” and “may not aid, foster, or

promote one religion or religious theory against another.”

Epperson v. Arkansas, 393 U.S. 97, 103-104 (1968),

The disparate treatment afforded under the Community Use

Policy to different youth character and leadership

organizations based on the religious nature of the source and

content of their moral, ethical or religious beliefs completes a

reversal of the roles and fortunes of the adherents to different

religious theories of the parties in Epperson case. Thirty-two

years ago, it was the adherents to a deeply held natural

evolutionary belief system that were seeking access to public

school facilities over the objections of those who believed

deeply in a supernatural creationist theory of the origins of

man. The evolutionists sought relief from this Court because

the authorities deemed their beliefs not to be religious enough

by traditional Christian standards.

18

In contrast, Christians seek relief from this Court because

the authorities deem the source and content of their beliefs to

be too religious by present secular standards. From the

perspective of many Christians, what was once a vice is now

a habit (and vice versa). In their view, while government aid

flows in support of a “purely” moral and ethical habit, the

“purely” religious vice goes begging. If Respondent is

permitted to become excessively entangled in religion by

denying the Good News Club because it adds an additional

layer of Christian religious instruction and prayer to purely

moral or ethical training, then evolutionary humanist Julian

Huxley was prophetic when he wrote: “The time is ripe for

the dethronement of gods from their dominant position in our

interpretation of destiny, in favor of a naturalistic type of

belief-system.” * J. Huxley, Religion Without Revelation, 62

(1957 ed.)

In cases where a public school “regards its student clubs as

a mechanism for defining and transmitting fundamental

values,” just as it is unconstitutional for the public school to

grant public school access to a Christian club to the exclusion

of other ideological organizations, it is unconstitutional to

exclude a Christian club when public school access is granted

to numerous other ideological organizations. Westside Com-

‘Huxley, whose other titles relevant to the development of an

evolutionary humanist religion include Essays of a Humanist (1961) and

The Humanist Frame (1964), was the Director General of the United

Nations Economic Security and Cultural Organization (“UNESCO”) from

1946 to 1948. In a recent report, UNESCO officials called for a “holistic

concept of education for a culture of peace,” which would include

“integrated comprehensive education covering human rights, democracy,

international understanding, tolerance, non-violence, multiculturalism,

and all other values conveyed through the school curriculum.” Final

Report, UNESCO Advisory Committee on Education for Peace Human

Rights, Democracy, International Understanding and Tolerance, | (2000).

The Final Report encourages the adaptation and dissemization of

UNESCO teaching materials for peace, human rights, democracy, and

tolerance.

19

munity Bd. of Ed. v. Mergens, 496 U.S. 226, 266-267 (1990)

(Marshall, J., concurring).

The Equal Access Act, the extension of which to public

secondary schools was the subject of Mergens, specifically

prohibits discrimination against students groups on the “basis

of the religious, political, philosophical, or other content of

the speech at such meetings.” 20 U.S.C. 4071(a) (1984

version). It is instructive that, once a public high school

opens its doors to the potential indoctrination of

impressionabie high school students, the Equal Access Act

and this Court treat religious student groups and philosophical

student groups as equals.

The Establishment Clause “prohibits misuse of secular

government programs ‘to impede the observation of one or all

religions or . . . to discriminate invidiously between

religions.” Gillette v. United States, 401 U.S. 437, 462

(1971) (quoting Braunfeld v. Brown, 366 U.S. 599, 607

(1961) (Warren, C. J. opinion)). Because government dis-

crimination between religions could have such a devastating

effect on impressionable children, this Court has determined

“we must remain sensitive, especially in our public schools,

to the numerous subtle ways that government can show

favoritism to particular beliefs or convey a message of

disapproval to others.” Mergens Bd. of Ed., 496 U.S. at 269

(Marshall, J., concurring) (quoting County of Allegheny v.

American Civil Liberties Union, Greater Pittsburgh Chapter,

492 U.S. 573, 627-628 (1989) (O'Connor, J., concurring)).

Respondent has become excessively entangled with

religion by promoting moral or ethical “ideologies” regarding

youth character and leadership development to the exclusion

of a Christian religious “ideology” regarding the identical

subject.

20

B. Granting access to youth development organ-

izations for the training of children in deeply

held moral or ethical beliefs while denying

Petitioners equal access for the training of

children in deeply held Christian religious

beliefs tends to establish civic, scientific,

evolutionary, ethical, or secular humanist form

of a civic religion.

This Court has observed that “among religions in this

country which do not teach what would generally be

considered a belief in the existence of God are Buddhism,

Taoism, Ethical Culture, Secular Humanism, and others.”

Torcaso v. Watkins, 367 U.S. 488, 496, fn. 11 (1961) citing

Washington Ethical Society v. District of Columbia, 249 F.2d

127 (1957); Fellowship of Humanity v. County of Alameda,

315 P.2d 394 (1957).

Resporident’s failure to extend community use of a school

facility to Petitioners has the effect of providing natural moral

or ethical humanist religions with a competitive advantage

over supernatural religions in the formation of children in

ultimate values deemed essential to peaceful and productive

democratic participation. The continuation of such a system

“encourages divisiveness along religious lines and threatens

the imposition of coercion upon those students not desiring to

participate in a religious exercise” of a purely moral or ethical

nature. Santa Fe Independent School Dist., 530 U.S., at 319,

120 S. Ct. at 2283.

Throughout American history, there have been attempts to

advance natural moral or ethical belief systems as the

foundation for a state-sponsored civic religion. In most

* Thomas Jefferson wrote his own version of the Bible in an attempt to

rescue the “diamond” of primitive, Unitarian Christianity from the

“dunghill” of Trinitarian Christianity. In his opinion, “the innocent and

genuine character” of Jesus needed to be rescued “from the imputation of

21

instances, these various forms of humanist religions have

been developed out of pedagogical concern for the training of

young Americans to become willing and able participants in

the American democratic system.°

During and for the two decades following World War I, the

focus of the proposed civic religion shifted from a form of

deist humanism to a civic humanism that indoctrinated

immigrants, particularly German and Irish Catholics, in

Protestant-American morals and ethics. Youth development

organizations such as the Boy Scouts of America and the

YMCA played an important role in this indoctrination

7

process.

imposture, which has resulted from artificial systems, invented by ultra-

Christian sects, unauthorized by a single word ever uttered by Him.”

According to Jefferson, these “artificial systems” included:

“The immaculate conception of Jesus, His deification, the creation

of the world by Him, His miraculous powers, His resurrection and

visible ascension, His corporeal presence in the Eucharist, the

Trinity, original sin, atonement, regeneration, election, orders of

Hierarchy, etc.”

T. Jefferson, “Letter to William Short” (October 31, 1819) in The Life and

Selected Writings of Thomas Jefferson, 633 (1993).

*Horace Kallen provides an explanation of the development of

humanism through its various stages. Kallen describes the essential

features of Rousseau and Jefferson's deistic humanism; Auguste Comte’s

positive humanism; Matthew Arnold and Irving Babbitt’s new humanism;

John Dewey’s scientific humanism; Felix Adler's ethical humanism:

Julian Huxley’s evolutionary humanism; and Kallen’s secular humanism.

H. Kallen, Secularism is the Will of God, 198-218 (1954).

” Boy Scouts of America historian David MacLeod has explained that:

if Boy Scout leaders as a group had a level of ultimate concern, it

was Americanism rather than religious faith, for Protestants had

long identified their values with Americanism, and the priorities

were easily reversed. . . . The BSA, in other words, upheld what

recent scholars have labeled a “civil religion”—not as a prophetic

faith standing in judgment upon actual American practices but as a

22

Civic humanism reached its zenith as a state-sponsored

civic religion in the years leading up to and covering the first

few years of World War Il. American children were

indoctrinated in democratic values like honesty, sacrifice,

respect for God, love of Country, duty, patriotism, trust,

loyalty, and freedom—all of which were viewed as essential

ingredients in the formation of good citizens. The American

flag was seen as the embodiment of these democratic virtues

and it was the successful contest to West Virginia’s

compulsory flag salute statute in this Court’s Barnette

decision that was largely responsible for the decline of civic

humanism as America’s official civic religion.

In 1934, one of America’s leading education philosophers,

John Dewey, attempted to move beyond a normative civic

humanism to advocate a “common faith” based on

“distinctively religious values inherent in natural experience.”

J. Dewey, A Common Faith, 20. In Dewey’s scientific

humanist’ view, the development and practice of such a

natural, common faith would help undermine the “claim on

the part of the religions to possess a monopoly of ideals and

of the supernatural means by which alone, it is alleged, they

can be furthered.” /d. at 19. Dewey felt that his “common

faith” could serve as a civic religion because it emancipated

the religious qualities and values inherent in human

experience from any dependency on the “God of theism” or

“the whole notion of special truths.” /d. at 23.

celebration of the American way of life, in which a decent measure

of religiosity plays an important but subordinate role.

D. MacLeod, Building Character in the American Boy: The Boy Scouts,

YMCA, and Their Forerunners, 1870-1920, 176 (1983).

* “There is but one sure road of access to truth—the road of patient,

cooperative inquiry operating by means of observation, experiment,

record and controlled reflection.” J. Dewey, A Common Faith, 23 (1934).

23

Dewey rejected “religion” as signifying “a special body of

beliefs and practices having some kind of institutional

organization,” in favor of “religious” as denoting “attitudes

that may be taken toward every object and every proposed

end or ideal.” /d. at 8. The present-day distinction made by

Respondents between the “discussion of religious material

through religious instruction and prayer,” for which access

was denied, and the “discussion of secular subjects from a

religious viewpoint,” for which access was granted, has the

effect of establishing Dewey’s scientific humanism as a civic

religion.

During the first half of the twentieth century, practitioners

of Felix Adler’s Ethical Culture religion’ were rejecting

Dewey’s practical scientific humanism in favor of a more

idealistic ethical humanism the spiritual ideal of which was to

“seek to elicit the best in others, and thereby you will bring to

light the best that is in yourself.” F. Adler, Reconstructicn of

the Spiritual Ideal, 56 (1923).

” The American Ethical Union (“AEU”) has a Statement of Purpose

that includes the following definition of Ethical Culture:

Ethical Culture is a humanistic religious and educational movement

inspired by the ideal that the supreme aim of human life is working

to create a more humane society.

The AEU affirms and promotes the following principles which it

considers to be integral to the Ethical Movement:

1. Every person has inherent worth; each person is unique.

2. It is our responsibility to improve the quality of life for ourselves

and others.

3. Ethics are derived from human experience.

4. Life is sacred, interrelated and interdependent.

The American Ethical Union's State of Purpose and the four principles of

the Ethical Movement are set forth in their entirety at http://www.ethical

culture.org/aeuves/purpose | .html and http://www.ethicalculture.org/

aeuves/hist! .html

24

In the opinion of David Muzzey, an early advocate of the

Ethical Culture religion, what the world needed was a

“religion of humanity,”"” which could be a “force for the

redemption of the world from the hell of inhumanity into

which it has fallen,” if only churches would “abandon their

outdated creeds and devote all their energies to the

understanding and improvement of the nature of man and his

institutions.” D. Muzzey, Ethics as a Religion, 48 (1951). A

personal God is not a condition for the construction of an

ethical humanist religion along the lines of Ethical Culture

since “instead of positing a personal God whose existence

man can neither prove nor disprove, the ethical concept is

founded on human experience.” /d. at 95 (quoted in Seeger,

380 U.S. at 183).

By the early 1960s, Muzzey’s ethical humanist civic

religion model was considered too normative and unrealistic

for use in youth character development in a modern and

uncertain world. In 1963, Protestant theologian Paul Tillich,

proposed that “the fundamental concept of religion is the state

of being grasped by an ultimate concern.” P. Tillich, Morality

and Beyond, 30 (1963). For Tillich, love, not the particular

symbols of thought and action of any traditional religion,

should be the ultimate concern of separated persons who

desire to enter into a unity community. In Tillich’s view, in

order to speak of one’s ultimate concern, perhaps one “must

forget everything traditional that [one has] learned about

'’ The French social scientist, Auguste Comte, was the first to call for

the replacement of the religions of mankind by a Religion of Humanity.

In Comte’s religion, “Humanity would be the true God, the divine Whole

that every one of its individual parts must learn to love and obey with a

total faith.” H. Kallen, Secularization is the Will of God, 202. The Bible

of the Religion of Humanity consisted of works of poetry and fiction,

science, history, philosophy and religion determined by Comte as apt to

the propagation of the faith. See A. Comte, The Catechism of Positive

Religion (1858).

25

God.” P. Tillich, The Shaking of the Foundations, 57 (1948)

(quoted in Seeger, 380 U.S. at 187).

Tillich, and the “death of God” advocates of secular

humanism that followed in his path such as Bishop John A. T.

Robinson,'' Paul van Buren,'? and Harvey Cox." abandoned

any notion of a normative civic religion in an American

culture of the 1960s. For those who were being “honest” to

God by trusting “the world, not God, to be our need fulfiller

and problem solver,” moral, ethical, and religious norms were

to evolve solely in the relative context of one’s worldly

relations with their neighbor in the “secular city.” J. E. Dirks,

“The Death of God Theologies Today,” in Radical Theology

and the Death of God, 40 (1966).

One commentator on the movement to secularize

Christianity described an endgame that is manifested in

Respondent's preferential treatment of youth organizations

that form children using a purely moral or ethical belief

system: “Secular theology, in effect, tells us: The world for

four centuries has been removing the shackles of superstition,

religion, and quasi-religion. In the future it will purge itself

further and may complete the purge. At the end of the

process is a kind of serene, carefree agnostic who cares for

others.” M. Marty, “Does Secular Theology Have a Future?”

in The Great Ideas Today (1967).

, Respondent has penalized Petitioner for being too Christian

in the moral formation of youth. Petitioner has dared to

discuss Christian Gospel morals and values through Christian

religious material (i.e. Bible lessons) and prayer. Meanwhile,

Respondent has rewarded the Boy Scouts, Girl Scouts, and 4-

H Club for discussing these same Gospel values from a

' J, Robinson, Honest to God (1963).

'° P. van Buren, The Secular Meaning of the Gospel (1963).

'* H. Cox, The Secular City (1965).

26

“secularized” religious standpoint. This disparate treatment

affords advocates of secularized Christianity an

unconstitutional competitive advantage for recruiting families

to a faith that is an anathema to orthodox Christianity.

During the past forty years, national and international

organizations have been created in an attempt to bring

together followers of the different moral and ethical belief

systems including scientific humanism, ethical humanism,

and secular humanism.'* The institutional presence of these

humanist organizations in national and international religious

affairs, including youth development programs, heightens the

importance of the need to arrive at an equitable First

Amendment policy- a policy that does not place traditional

religions in the position of having to dilute the religiosity of

their youth outreach efforts in order to compete for available

state aid.

Ultimately, the success of any of the various humanist

religions depends on the ability of its adherents to

indoctrinate rising generations of potential followers in

deeply held moral or ethical beliefs. Paul Kurtz, a co-

president of the International Humanist and Ethical Union

admits that “if humanism is to have any long-range impact on

society, it must cultivate moral awareness by means of ethical

education,” an agenda that “depends on the schools.” P.

Kurtz, Living Without Religion: Eupraxophy, 139 (1994).

‘These organizations include the American Ethical Union, the

Fellowship of Religious Humanists, the American Humanist Association,

and Humanistic Judaism. These four organizations are members of an

alliance called the North American Committee on Humanism which runs

the Humanist Institute, publishes an annual journal called Humanist

Today, holds annual meetings at which scholarly addresses are presented,

seminars are held and business is conducted, and periodically mails out a

newsletter to its members. The Humanist Institute offers a three-year

graduate degree program that provides certification as a professional

humanist leader. M. Olds, American Religious Humanism 190, 191

(1996).

27

The principals and values of Kurtz’ ethical education agenda

include character training and the cultivation of a

compassionate regard for the needs of others. Thus, Kurtz’

secular humanism, as do Jefferson’s civic humanism,

Dewey’s scientific humanism, Huxley’s evolutionary

humanism, and Muzzey’s ethical humanism, contemplates

using the student attitude and behavior shaping capacities of

the public schools to indoctrinate children in deeply held

moral or ethical beliefs that are contrary Petitioners’ deeply

held Christian religious beliefs.

This Court has acknowledged the possibility that a civic

religion constructed from the “common aspects of religions”

might advance “the sense of community and purpose sought

by all decent societies.” Lee, 505 U.S. at 589-590.

Nevertheless, this Court has rejected “the suggestion that

government may establish an official or civic religion as a

means of avoiding the establishment of a religion with more

specific creeds.” /d., at 590. Although a policy that grants

preferential access to youth development organizations that

teach children purely moral or ethical beliefs may be more of

a “civic Or nonsectarian” nature, such a policy “does not

lessen the isolation to the objectors. At best it narrows their

number, at worst increases their sense of isolation and

affront.” Santa Fe Independent School Dist., 530 U.S. at 312,

120 S.Ct. at 2277 (quoting Lee, 505 U.S., at 594).

C. In order to avoid an Establishment Clause

violation, absent the provision of a legitimate

threat to the health and safety of children,

Respondents must grant public school access to

all youth development organizations that train

children to adopt deeply held moral, ethical, or

religious beliefs about what is right and wrong.

Where a statute or government policy is defective because

of underinclusion, a court may declare it a nullity and order

28

that its benefits not extend to the intended class, or it may

extend coverage to include those who are aggrieved by

exclusion. Welsh, 398 at 361.

In the present case, instead of voiding the entire

Community Use Policy because it engages in “religious

gerrymandering” in favor of deeply held moral or ethical

beliefs, this Court should require an expansion of the

Community Use Policy to include organizations that provide

youth character and leadership training in the context of

deeply held religious beliefs. In this way, neutrality of

government aid can be ensured. Further, whether children are

indoctrinated in the deeply held moral, ethical, or religious

beliefs of a particular youth development program would

depend solely on the voluntary, private, and independent

decisions of parents who enroll their children in the program.

As recently stated by this Court:

“.. , the religious nature of a recipient should not matter

to the constitutional analysis, so long as the recipient

furthers the government's secular purpose. . . . If a

program offers permissible aid to the religious (including

the pervasively sectarian), the areligious, and the

irreligious, it is a mystery which view of religion the

government has established, and thus a mystery what

they constitutional violation would be. The pervasively

sectarian recipient has not received any special favor,

and it is most bizarre that the Court would, as the dissent

seemingly does, reserve special hostility for those who

take their religion seriously, who think that their religion

should affect the whole of their lives, or who make the

mistake of being effective in transmitting their views to

their children.”

Mitchell v. Helms, __. U.S. __, 120 S. Ct. 2530, 2551

(2000).

These principles of neutrality and private choice can be

applied to eliminate the indoctrination that is attributable to

29

the Respondents under the present formulation of the

Community Use Policy. By offering assistance to recipients

who offer moral, ethical, and religious youth development

programs, Respondents cannot be thought responsible for any

particular indoctrination. Mitchell v. Helms, 120 at 2256-57

Such government neutrality is further ensured by the fact that

“numerous private choices, rather than the single choice of a

government” will determine the granting of public school

= access pursuant to neutral eligibility criteria. Jd. at

CONCLUSION

For the foregoing reasons, the judgment of the Second

Circuit should be reversed.

Respectfully submitted,

JAMES P. KELLY, III *

SOLIDARITY CENTER FoR LAW

AND JUSTICE, PC.

Two Ravinia Drive

Suite 1650

Atlanta, Georgia 30346

(770) 392-6079

* Counsel of Record