Amicus Curiae Brief — City of Boerne v. Flores

| | ‘Supreme Court WS. 7?

Bee ie SD

JAN 10 1997

No. 95-2074

INTHE . Kix

Supreme Court of the United States

OCTOBER TERM, 1996

CITY OF BOERNE, TEXAS,

Petitioner,

Vv.

P.F. FLORES, ARCHBISHOP OF SAN ANTONIO,

Respondent,

and

UNITED STATES OF AMERICA,

Intervenor-Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF THE KNIGHTS OF COLUMBUS AS

AMICUS CURIAE IN SUPPORT OF RESPONDENT

PAT A. CIPOLLONE THOMAS D. YANNUCCI

‘ Senior Vice President Counsel of Record

and General Counsel KIRKLAND & ELLIS

CARL A. ANDERSON 655 Fifteenth Street, N.W.

Vice President for Washington, D.C. 20005

Public Policy (202) 879-5000

KNIGHTS OF COLUMBUS

One Columbus Plaza

New Haven, CT 06510

(203) 772-2130

Jacuary AY 1997

TT ci ~—— oes

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ....................-.. i

INTEREST OF AMICUS CURIAE .................1

SUMMARY OF ARGUMENT .....................2

ARGUMENT ................. PO RT

THE RELIGIOUS FREEDOM RESTORATION ACT IS A

CONSTITUTIONAL ACCOMMODATION OF

RELIGIOUS EXERCISE UNDER THE

EST AMLISEINGENT CLAUGBE. ............00 cues, 5

A. There exists a wide area for accommodation of

religion between government action that the Free

Exercise Clause requires and government action that

the Establishment Clause forbids. ........ . ie a

B. Accommodation in the form of specific exemptions

for religious exercise does not violate the

Establishment Clause............. Sell ovata a « 8

C. RFRA’s general legislative accommodation of

religious exercise comports on its face with the

Establishment Clause................ a a:

ee ee [Peal Pas sere ees 17

(i)

TABLE OF AUTHORITIES

Cases

Arlan's Dep't Store v. Kentucky,

SFU UD. SEO CIOOED vvnccccuees

Board of Educ. v. Mergens,

496 U.S. 226 (1990) ........ a hat

Bowen v. Roy,

476 U.S. GBS (1966) . ww eee

Braunfeld v. Brown,

366 U.S. 599 (1961) ..........

Cantwell v. Connecticut,

310 U.S. 296 (1940) ............

Corporation of Presiding Bishop v. Amos,

483 U.S. 327 (1987) ......... 16d

Employment Division v. Smith,

494 U.S. $72 (1990) ..........

Everson v. Board of Educ..,

pc Re BE. eee eee re

Gillette v. United States,

ee Mgt. | eee mr

Goldman v. Weinberger,

G19 U.S. SP SRE, ev avcvacentas

Hobbie v. Unemployment Appeals Comm'n,

GO U.S. GC cei Ree

Page(s)

10

10

Lamb's Chapel v. Center Moriches

Union Free Sch. Dist.,

508 U.S. 384 (1993) .

Lee v. Weisman,

505 U.S. 577 (1992) .

Lemon v. Kurtzman,

403 U.S. 602 (1971)

McDaniel v. Paty,

435 U.S. 618 (1978)

Mueller v. Allen,

463 U.S. 388 (1983)

Olsen v. Drug Enforcement Admin. ,

878 F.2d 1458 (D.C. Cir. 1989),

cert. denied, 495 U.S. 906 (1990)

Pierce v. Society of the Sisters of the

Holy Names of Jesus and Mary,

268 U.S. 510 (1925)

Selective Draft Law Cases,

245 U.S. 366 (1918)

Sherbert v. Verner.

374 U.S. 398 (1963)

Texas Monthly, Inc. v. Bullock,

489 U.S. 1 (1989) .

Thomas v. Review Bd.,

450 U.S. 707 (1981) .

16

10

iv

Thornton v. Caldor, Inc.,

GER Ci CUP EROOED oc cccuseccsces

Walz v. Tax Comm'n,

397 U.S. G4 (ISTO) .. 2... wees:

Wisconsin v. Yoder,

406 U.S. 205 (1972) ...

Witters v. Washington Dep't of Servs.

for the Blind,

474 U.S. 481 (1986) .............

Zobrest v. Catalina Foothills Sch. Dist.,

Se: RR bys cv veva cbs

Zorach v. Clauson,

343 U.S. 306 (1952)

Statutes

4 Sh Se ee

PE oo ccna we bok os

Religious Freedom Restoration Act,

42 U.S.C. § 2000bb ef seq. ....

U.S. CONST. amend. I .............

Se GE MR EEE 04s nie ws

“ae

Miscellaneous

Michael W. McConnell, Accommodation of Religion,

eo RR ear ie eee 6

Michael W. McConnell, Accommodation of Religion:

An Update and a Response to the Critics,

60 Geo. Wash. L. Rev. 685(1992)............... 6,7

Laurence H. Tribe, American Constitutional Law

ho”. ~ 6,7

l

BRIEF OF THE KNIGHTS OF COLUMBUS

AS AMICUS CURIAE IN SUPPORT OF RESPONDENT

INTEREST OF AMICUS CURIAE

The Knights of Columbus submits this amicus curiae brief

in support of respondent P.F. Flores, Archbishop of San

Antonio, and intervenor-respondent the United States of

America. The Knights, with the consent of all parties, shall

address in this amicus brief the fourth question presented by

the City of Boerne’s brief. whether the Religious Freedom

Restoration Act is constitutional under the Establishment

Clause. Amicus urges this Court to hold that RFRA is a

constitutional accommodation of religious exercise, and

therefore does not run afoul of the Establishment Clause.

The Knights of Columbus is a charitable Catholic family

fraternal organization of close to 1.6 million members and their

families, totalling nearly six million people. Founded in New

Haven, Connecticut in 1882 by Father Michael J. McGivney,

the Knights of Columbus has grown into an international

organization with some 11,000 local councils located in all 50

states, the District of Columbia, Puerto Rico, Guam, the U_S.

Virgin Islands, Canada, Mexico, the Phillipines, and several

other countries. The Knights of Columbus is the largest lay

organization in the Roman Catholic Church.

Since its founding, the Knights of Columbus has been

dedicated to several purposes: 1) rendering aid and assistance

to its sick, needy, and disabled members and their families; 2)

promoting social and intellectual discourse among its members

and their families; 3) promoting and conducting educational,

charitable, religious, social welfare, war relief, and public relief

work, and 4) maintaining a life insurance program for the

benefit of its members, their beneficiaries, and their families.

Last year alone, the Knights contributed more than $105

million to charitable causes and provided roughly 50 million

hours of volunteer service

2

In addition, the Knights of Columbus has a long history of

advocacy in this Court on issues of importance to the family

and the Church, including those involving religious liberty.

For example, the Knights underwrote the litigation in Pierce v.

Society of the Sisters of the Holy Names of Jesus and Mary,268

U.S. 510 (1925). In this case, amicus has a strong interest in

the Establishment Clause issue raised by the City of Boerne’s

challenge to the Religious Freedom Restoration Act. The

Knights of Columbus defends the constitutional principle that

all Americans may freely exercise their faith without hindrance

and without punishment from the government. In addition to

the government action this Court has held the Free Exercise

Clause to require, the Knights of Columbus support further

accommodation of religious belief and practice by Congress

and the states. Amicus therefore opposes efforts such as the

City of Boerne’s — based on misinterpretations of the

Establishment Clause — to hamper or erode the free exercise

of religion.

tet —— . 7

SUMMARY OF ARGUMENT

The Establishment Clause issue raised in this case is quite |

simple. It centers or the difference between the words “may” |

and “must” in the context of the First Amendment: may

Congress enact laws that protect religious exercise beyond the

level at which the Constitution dictates such exercise must be |

protected? The City of Boerne implicitly asks this Court to

answer “no” — to hold that only accommodations of religion

compelled by the Free Exercise Clause, as interpreted by this

Court in Employment Div. v. Smith, 494 U.S. 872 (1990), can

pass constitutional muster and that the Establishment Clause

permits nothing more. Neither the text of the Constitution nor

this Court’s precedents support the curious notion that the

Constitution permits only what it requires.

This Court’s precedents firmly establish that the government

may purposefully act to relieve burdens on the exercise of

religion. “Where... the government acts with the proper

purpose of lifting a regulation that burdens the exercise of

————————————EEEEee

3

religion, we see no reason to require that the exemption come

packaged with benefits to secular entities.” Corporation of

Presiding Bishop v. Amos, 483 U.S. 327, 338 (1987). The

Religious Freedom Restoration Act, 42 U.S.C. § 2000bb e/

$eq., is just such a regulation, with just such a purpose. RFRA

fits comfortably within the wide field in the constitutional

landscape identified by this Court and by others as a zone of

permissible “accommodation” of religious exercise.

Constitutional guarantees of individual rights, as interpreted by

this Court, provide a floor — but not a ceiling — for the

protection of those rights. This Court’s holding in Smith

defines, in part, the constitutional floor concerning religious

‘liberty. However, nothing in Smith disturbed what the

structure of the Religion Clauses and this Court’s precedents

have long dictated: that the Establishment Clause does not

prohibit Congress and the states from enacting additional

statutory protection for religious exercise.

The City of Boerne’s odd argument that Smith, which

prohibits the government from purposefully burdening

religious exercise, somehow limits Congress’s power under the

Establishment Clause to purposely relieve burdens on the

exercise of religion, fundamentally misconstrues that case.

Smith held that “if prohibiting the exercise of religion . . . is not

the object of [a general law] but merely the incidental effect of

a generally applicable and otherwise valid provision, the First

Amendment [is] not offended.” 494 U.S. at 878. But the case

by no means held the converse —- that government is somehow

prohibited from lifting burdens on religion.

Therefore, while Smith addressed the contours of the Free

Exercise floor, it did not establish a new Establishment Clause

ceiling. RFRA lies between the constitutional floor and ceiling

as a legitimate accommodation of religion under this Court's

precedents. It merely adds an extra level of statutory

protection to the Constitution’s guarantee of religious liberty

— a level of protection that is neither dictated by the Free

Exercise Clause nor forbidden by the Establishment Clause.

4

Such discretionary legislative accommodation of religion has

been unanimously upheld by this Court, see, e.g., Amos, 483

U.S. 327, and, indeed, was specifically invited by this Court in

Smith itself, see 494 U.S. at 890.

The City’s argument, therefore, that the Establishment

Clause prevents Congress from accommodating religion

beyond the requirement of the Free Exercise Clause is

supported by neither law nor logic. It would deny Congress

and the States any role in protecting religious liberty. It would

also render unconstitutional many of the pre-Smith

accommodations of religion that the former strict scrutiny Free

Exercise test required, as well as virtually all of the

discretionary legislative accommodations that it allowed.

Surely this was neither the intent nor the holding of Smith.

Rather, under Smith, the strict scrutiny accommodations that

were formerly constitutionally compelled are still entirely

permissible.

The City of Boerne correctly observes that RFRA differs in

one respect from some other accommodations of religion

previously upheld by this Court, in that it is a general rather

than a specific accommodation for any and all religious

exercise claims. This difference, however, hardly renders the

Statute constitutionally suspect. First, governmental

exemptions from burdens on religious believers need not

“come packaged with benefits to secular entities.” Amos, 483

U.S. at 338. Second, RFRA’s general applicability is a virtue

rather than a vice under Establishment Clause jurisprudence,

because it ensures uniform treatment fcr members of all

religious faiths.

5

ARGUMENT

THE RELIGIOUS FREEDOM RESTORATION ACT IS

A CONSTITUTIONAL ACCOMMODATION OF

RELIGIOUS EXERCISE UNDER THE

ESTABLISHMENT CLAUSE.

A. There exists a wide area for accommodation of

religion between government action that the Free

Exercise Clause requires and government action

that the Establishment Clause forbids.

This Court has consistently held that “the government may

(and sometimes must) accommodate religious practices and . . .

it may do so without violating the Establishment Clause.”

Corporation of the Presiding Bishop v. Amos, 483 U.S. 327,

334 (1987) (quoting Hobbie v. Unemployment Appeals

Comm 'n, 480 U.S. 136, 144-45 (1987)). Further, “[i]t is well-

established . . . that ‘[t]he limits of permissible state

accommodation to religion are by no means co-extensive with

the non-interference mandated by the Free Exercise Clause.”

Amos, 483 U.S. at 334 (quoting Walz v. Tax Comm'n, 397 U.S.

664, 673 (1970)).

The City of Boerne ignores this vital distinction between the

accommodation of religion this Court currently holds that the

Free Exercise Clause requires and the far greater

accommodation of religion that the Establishment Clause

permits. Petitioner purports to identify a constitutional

violation in that RFRA’s “plain purpose is to provide statutory

protection for all substantial burdens on religion, whether

constitutionally protected or not.” Pet. Br. at 47. The City thus

attempts to collapse the floor and ceiling between the two

Religion Clauses of the First Amendment’ and carries to an

unprecedented extreme the view that the clauses are in direct

conflict. Because the Free Exercise Clause does not mandate

' “Congress shall make no law respecting an establishment of religion, or

prohibiting the free exercise thereof.” U.S. CONST. amend. I.

6

RFRA, the City essentially argues, then Congress cannot

constitutionally enact it.

The structure of the Constitution and the bulk of this Court’s

precedents, however, suggest a different approach — one more

consistent with the widely held idea that the Religion Clauses

do not clash, but rather complement one another, and that they

have the same animating goal of protecting religious liberty.

On this view, “there is room for play in the joints productive of

a benevolent neutrality which will permit religious exercise to

exist without sponsorship and without interference.” Walz, 397

U.S. at 669. Indeed, it is well established that Congress” has

wide latitude to enact protections for religious exercise.

This latitude has allowed what this Court and commentators

__ from all perspectives have commonly acknowledged as the

“accommodation” of religion though “government laws or

policies that have the purpose and effect of removing a burden

on, or facilitating the exercise of, a person’s or an institution’s

religion.”’ As Justice Brennan explained it, the “government

[may] take religion into account . . . to exempt, when possible,

from generally applicable governmental regulation individuals

whose religious beliefs and practices would otherwise thereby

be infringed, or to create without state involvement an

_atmosphere in which voluntary religious exercise may

flourish.” McDaniel v. Paty, 435 U.S. 618, 639 (1978)

(Brennan, J., concurring in the judgment) (footnote omitted).

? Although this brief will refer only to capacities and limitations of

Congress under the Religion Clauses, the same standards apply to the states

under the incorporation of the First Amendment into the Fourteenth

Amendment Due Process Clause. See Cantwell v. Connecticut, 310 U.S.

296 (1940) (Free Exercise Clause), Everson v. Board of Educ., 330 US. |

(1947) (Establishment Clause).

> Michael W. McConnell, Accommodation of Religion: An Update and

a Response to the Critics, 60 Geo.Wash. L. Rev. 685, 686 (1992)

(“Update”), see also Laurence H. Tribe, American Constitutional Law §

14-5, at 1166-69 (2d ed. 1988), Michael W. McConnell, Accommodation

of Religion, 1985 Sup. Ct. Rev. 1.

7

Smith held that the Free Exercise Clause prevents

government from burdening religious activity by “ban[ing] acts

or abstentions only when they are engaged in for religious

reasons, or only because of the religious beliefs they display.”

494 U.S. at 877. This defines only the bare minimum of

deference to religion owed by the government under the

Constitution. It says nothing about whether the government

may, in its discretion, affirmatively relieve burdens on

religious exercise — a practice that this Court has long upheld.

See infra Section B. Such accommodations of religion may be

mandatory — that is, compelled by the Free Exercise Clause —

or discretionary — that is, neither required by the Free

Exercise Clause nor forbidden by the Establishment Clause.

See Tribe, supra note 3, at 1168-69. The “zone of required

accommodation recognizes that government’s actions impinge

on different persons in dramatically different ways, so that

truly even-handed treatment at times compels exempting those

whose religious beliefs are exceptionally burdened by a

challenged state action.” /d. at 1168. The same considerations

counsel what has been called the “zone of permissible

accommodation,” see id. at 1169, or the “legislative” or

“discretionary” accommodation, see McConnell, Update, supra

note 3, at 686. The goal of such statutory accommodation is

also to promote even-handed treatment for religious exercise,

but at a level beyond the minimum dictated by the Free

Exercise Clause.*

‘ Much has been made of the fact that RFRA’s language copies the

language used by this Court in its constitutional strict scrutiny test,

apparently in a farfetched attempt to claim that by using the same language

in a statute, the words carry the same legal weight that they carried in this

Court's interpretation of the Constitution. This is false. RFRA is plainly a

statute. It is not a constitutional amendment. Even language repeated

verbatim from the Constitution itself does not magically attain constitutional

weight, in terms of the strength and priority of its legal command.

Compare, e.g., 28 U.S.C. § 1331 (“The district courts shall have original

jurisdiction of all civil actions arising under the Constitution, laws, or

(continued...)

Nevertheless, the City of Boerne, relying on Smith, contends

it is unconstitutional to accommodate substantial burdens on

religion not already protected by the Free Exercise Clause. See

Pet. Br. at 47. This proposition is absurd. It would mean that

the two Religion Clauses are perpetually at war with one

another, with a continguous but ill-defined boundary that shifts

with each pronoucement of this Court on the requirements of

either the Free Exercise or the Establishment Clause. As stated,

this reading of Smith would render unconstitutional all previous

accommodations granted under strict scrutiny analysis that

arose from burdens not generated by laws directly targeting

religious exercise —- which is to say, almost all of them.

Because the Free Exercise Clause no longer compels them,

petitioner asks this Court to rule that the Establishment Clause

affirmatively forbids them. Smith does not remotely dictate

such a result.

B. Accommodation in the form of specific exemptions

for religious exercise does not violate the

Establishment Clause.

Not only would the City’s position make impossible

accommodations previously mandated under the strict scrutiny

Free Exercise test, it would also disturb a wide range of

discretionary accommodations that have been granted by

various government entities, and upheld by this Court, over the

nation’s history. This would be a monumental shift in

Establishment Clause jurisprudence that has taken shape

gradually, over time, by the accretion of accommodation

precedents. Whatever Smith says about mandatory exemptions

required by the Free Exercise Clause, it is irrelevant to the

boundary at the other end of accommodation law: the

* (...continued) .

treaties of the United States.”) with U.S. CONST. art. III. § 2 (“The judicial

Power shall extend to all Cases, in Law and Equity, arising under this

Constitution, the Laws of the United States, and Treaties made,or which

shall be made, under their Authority, . . .”).

9

Establishment Clause still allows all the accommodation that

this Court’s precedents have held it to allow.

This Court unanimously held in Amos that Congress did not

run afoul of the Establishment Clause in enacting a statute that

exempted only religious institutions from the

nondiscrimination requirements of Title VII of the Civil Rights

Act. Acknowledging the argument that “an exemption statute

will always have the effect of advancing religion” — an

argument relied upon in essence by the City of Boerne, see Pet.

Br. at 47 — this Court held that “it is a permissible legislative

purpose to alleviate significant governmental interference with

the ability of religious organizations to define and carry out

their religious missions.” 483 U.S. at 335. Thus, “singl[ing]

out religious entities for a benefit,” id. at 338, is perfectly

consistent with Establishment Clause principles.°

Amos leaves no doubt that, while the Free Exercise may not

compel them, the Establishment Clause certainly does not

forbid explicit accommodations of religious exercise. A

number of accommodations of religion that have been first held

not to be mandated by the Free Exercise Clause have

subsequently been enacted by legislative action ultimately held

* This Court’s decision in Texas Monthly, Inc. v. Bullock, 489 U.S. |

(1989), does not impair the relevant principle in Amos. Although Bullock

struck down a statute exempting only religious periodicals from a state sales

tax, even the plurality opinion in that case made clear that “we in no way

suggest that a// benefits conferred exclusively upon religious groups or upon

individuals on account of their religious beliefs are forbidden by the

Establishment Clause unless they are mandated by the Free Exercise

Clause.” /d. at 18 n.8. The accommodation in Bullock was struck down

simply because, in that case, there was no “concrete need to accommodate

religious activity... .” Jd. at 18. While amicus, as well as various

mernbers of this Court and various legislatures, may disagree about the

precise circumstances that counsel a permissive accommodation of religion,

denial of an accommodation where there is no legitimate need demonstrated

for such an accommodation hardly impairs the principle that

accommodations ought to be granted, and may be granted, when there is

such a purpose.

10

by the courts to comply with the Establishment Clause. For

example, exemption from military service on the basis of

conscientious objection to war has been held not to be a

mandatory Free Exercise right, but this Court upheld a

permissive, statutory accommodation granted by Congress.

See Gillette v. United States, 401 U.S. 437 (1971); Selective

Draft Law Cases, 245 U.S. 366 (1918). This Court held in

Goldman v. Weinberger, 475 U.S. 503 (1986) that the First

Amendment did not compel an exemption from military

requirements for an Orthodox Jew who sought to wear his

yarmulke with his Air Force uniform while on duty. Nothing

in Goldman’s holding, however, prevented Congress from

responding the very next year with a statute allowing just such

a practice. See 10 U.S.C.§ 774. The exemption for Jewish

merchants from a Sunday closing law, held not to be compelled

in Braunfeld v. Brown, 366 U.S. 599, 609 (1961), was upheld

against an Establishment Clause challenge in Arlan’s Dep't

Store v. Kentucky, 371 U.S. 218, 219-20 (1962). And, while

Smith declined to find the right to a mandatory Free Exercise

exemption for use of peyote in religious ceremonies, it noted

that “a number of States have made an exception to their drug

laws for sacramenta! peyote use.” 494 U.S. at 890; see also

Olsen v. Drug Enforcement Admin. , 878 F.2d 1458 (D.C. Cir.

1989) (upholding DEA exemption for religious use of peyote),

cert. denied, 495 U.S. 906 (1990).

Permissive exemptions in the public school context have

been particularly numerous and generous. They have been

held to comport with the Establishment Clause as long as there

is no coercion, sponsorship, or endorsement by the state.

Zorach v. Clauson, 343 U.S. 306 (1952), upheld a New York

City program releasing students from school for one hour per

week to engage in prayer off the school premises. /d. at 312-

14. This Court found that, to deny such a permissive

accommodation on Establishment Clause grounds, it would be

forced to “press the concept of separation of Church and State

to... extremes.” /d. at 313. There is no Establishment Clause

violation when a legislature “respects the religious nature of

our people and accommodates the public service to their

spiritual needs. To hold that it may not would be to find in the

Constitution a requirement that the government show a callous

indifference to religious groups.” /d. at 314. Failing to allow

such legislative accommodation “would be preferring those

who believe in no religion to those who do believe.” Jd. The

value and necessity of allowing Congress and state legislatures

to respond to the needs of religious citizens in order to ensure

equal treatment with nonbelievers retains vitality in this

Court’s more recent accommodation precedents. See Hobbie,

480 U.S. at 148 (Stevens, J., concurring) (quoting Bowen v.

Roy, 476 U.S. 693, 707 n.17 (1986) (Stevens, J., concurring in

part) (For government to treat “‘religious claims less favorably

than other claims” is to subject “religious believers [to]

unequal treatment.”)

Nor does the state accommodation of the religiously

motivated practice of schooling one’s children at home violate

the Establishment Clause, as this Court held in Wisconsin v.

Yoder, 406 U.S. 205 (1972). Yoder, which held that the state

could not charge members of the Amish religion with violating

a compulsory school attendance law for refusing to send their

children to public school after the eighth grade, was followed

by many other accommodations of religious exercise in the

context of education. See Zobrest v. Catalina Foothills Sch.

Dist., 509 U.S. 1, 13 (1993) (no Establishment Clause violation

where public school uses federal IDEA funds to provide sign

language interpreter for deaf student at Catholic high school);

Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508

U.S. 384, 394-95 (1993) (no Establishment Clause violation to

allow religious community group to show religious film in

public school classroom after school hours); Board of Educ. v.

Mergens, 496 U.S. 226 (1990) (no Establishment Clause

violation to Christian Club meeting on public secondary school

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

474 U.S. 481 (1986) (no Establishment Clause violation for

blind student studying at Christian college to receive state

assistance for vocational training); Mueller v. Allen, 463 U.S.

12

388 (1983) (no Establishment Clause violation where state

provides tax deductions for certain educational expenses even

if deductions primarily benefit children attending sectarian

schools).

Several of the cases that have drawn these boundaries

involve accommodation of religion in the form of state benefits

to persons who are unemployed for religious reasons. For

example, Sherbert v. Verner, 374 U.S. 398 (1963), held that the

state was constitutionally compelled to grant unemployment

benefits to a worker who lost her job for refusing to work on

Saturday, her Sabbath. The strict scrutiny test developed in

Sherbert repeatedly led this Court to hold that government

refusal to award unemployment compensation to religious

claimants violated the Free Exercise Clause. See Hobbie v.

Unemployment Appeals Comm'n, 480 U.S. 136 (1987);

Thomas v. Review Bd., 450 U.S. 707 (1981). These cases

make clear as an independent proposition that the

accommodations involved do not violate the Establishment

Clause. Extending unemployment benefits to Saturday

worshipers “‘reflects nothing more than the governmental

obligation of neutrality in the face of religious differences, and

does not represent the involvement of religious with secular

institutions which it is the object of the Establishment Clause

to forestall.”” Hobbie, 480 U.S. at 145 (quoting Sherbert, 374

U.S. at 409).

The City of Boerne does not suggest outright — nor, to the

knowledge of amicus, has any other litigant before this Court

or any other court — that this significant and growing body of

caselaw approving accommodations of religion has been

overruled. Smith cannot possibly mean that accommodations

for Saturday Sabbath, home schooling, conscientious objection

to war, and wearing of yarmulkes in the military now violate

the Establishment Clause. These religious accommodations are

all still valid. And Smith plainly invited further legislative

accommodations of religious exercise:

13

Values that are protected against government

interference through enshrinement in the Bill of

Rights are not thereby banished from the

political process. Just as a society that believes

in the negative protection accorded to the press

by the First Amendment is likely to enact laws

that affirmatively foster the dissemination of

the printed word, so also a society that believes

in the negative protection accorded to religious

belief can be expected to be solicitous of that

value in its legislation as well.

494 U.S. at 890. This invitation from the Court was quite

clear: the question of whether religious practices ought to be

accommodated by the government is a matter to be resolved by

the political process — the very process that gave birth to

RFRA.

C. RFRA’s general legislative accommodation of

religious exercise comports on its face with the

Establishment Clause.

Petitioner’s challenge to RFRA is a facial one; thus amicus

need only contend inere that the statute comports on its face

with the Establishment Clause. The City faces an onerous

burden in raising its facial challenge to a Congressional statute,

yet it offers no convincing Establishment Clause rationale that

would render RFRA facially unconstitutional.

First, as a matter of simple logic: if case-by-case

accommodations of religious exercise are valid under the

Establishment Clause, then there is no reason why a general

legislative exemption is not also constitutionally sound on its

face. The City of Boerne asserts in its brief that across-the-

board exemptions are problematic, see Pet. Br. at 47, but it

gives no reason for this conclusory statement other than that

the “sheer breadth and substantive strength of RFRA

necessarily ‘advance’ religion.” Pet. Br. at 47. If this is so,

then the “sheer strength and breadth” of this Court’s

accommodation precedents must “advance religion.” Indeed,

14

the strongest and most general pronouncement — the Free

Exercise Clause itself — would by this logic “advance

religion.”

Nevertheless, the City of Boerne attempts to tag RFRA with

a violation of the Establishment Clause test of Lemon v.

Kurtzman, 403 U.S. 602 (1971), which held that to be

constitutional, a statute must have a secular legislative purpose,

must have a principal primary effect that neither advances nor

inhibits religion, and must not foster excessive government

entanglement with religion. /d. at 612-13. While it is

questionable whether the Lemon test is still the appropriate

analytical tool in Establishment Clause cases, Lemon is

certainly the most stringent analysis potentially applicable to

this case. Yet RFRA easily passes even the Lemon test.

As support for its contention that RFRA flunks the first

prong of Lemon, petitioner claims: “The plain purpose is to

provide statutory protection for all substantial burdens on

religion, whether constitutionally protected or not.” This

implies that the City believes there is something wrong —

indeed, something unconstitutional — about the government

affording any protection beyond the Free Exercise minimum to

those whose religious practice is substantially burdened.

Under this analysis, virtually all permissive accommodations

of religion, both before and after Smith, would fail the Lemon

test.

Again, this cannot be. Many of the important cases

upholding accommodations of religion — including the

unanimous decision of this court in Amos — were decided after

the Lemon test was instituted in 1971. Therefore, Lemon’s

nonestablishment test could hardly condemn religious

accommodation. With regard to Lemon’s secular purpose

requirement, it is well-established that protecting explicitly

religious exercise is indeed a perfectly respectable secular

purpose. Accommodations of religious exercise necessarily

take religion specifically into account. This does not mean,

however, that they work an unconstitutional establishment of

15

religion. Accommodations do not promote any favored

religious exercise by the government, but rather allow

individuals and groups to exercise sincerely held convictions

without government interference. “A law is not

unconstitutional simply because it allows churches to advance

religion, which is their very purpose. For a law to [violate the

Establishment Clause], it must be fair to say that the

government itself has advanced religion through its own

activities and influence.” Amos, 483 U.S. at 337.

The many accommodations upheld by this Court as

constitutionally valid are conscious of religion, respectful of it,

and even deferential to it. In each case, accommodation is

distinguishable from establishment of religion because the

government merely steps out of the way of religious exercise:

it does not coerce, lead, or even suggest any religious practice

or conviction. This crucial difference makes cases of

accommodation easily distinguishable from cases of

impermissible establishment.

The City further faults RFRA because its protection of

religious exercise is not “narrowly tailored . . ~ [as]

contemplated by the Court in Smith.” Pet. Br. at 47. Again,

the City cites no law other than the “contemplations” of the

Smith majority to support this allegedly fatal constitutional

defect. Furthermore, far from being a defect, RFRA’s

generality promotes equal treatment for all religious exercise

claims. While the specific religious exemptions this Court has

granted in the past remain perfectly constitutional, none of this

Court’s holdings prevent Congress or the States from neutrally

granting such exemptions to all religions. Indeed, RFRA’s

general accommodation of religious practices ensures

neutrality so that all claims for religious accommodation will

receive equal respect from the government. See, e.g., Thornton

v. Caldor, Inc., 472 U.S. 703 (1985); Goldman v. Weinberger,

475 US. 503, 512 (1986) (Stevens, J., concurring)

(emphasizing the constitutional principle of advancing

“uniform treatment for the members of all religious faiths”).

16

As to the second prong of Lemon, the City claims that RFRA

fails the “neutral effect” test because its “sheer breadth and

substantive strength .. . necessarily ‘advance’ religion.” Pet.

Br. at 47. Again, RFRA pales in strength beside the weight of

this Court’s accommodation precedents and beside the Free

Exercise command in the Constitution itself. On Lemon's

third, “entanglement” prong, the City argues that RFRA

entangles “every government . . . [that] must investigate

whether [a] law will be the means of accomplishing its goal

that is the least restrictive of every religion’s requirements” —

something that will entail “extensive investigation into the

theological requirements of every relevant religion.” Pet. Br.

at 48. Petitioner paints a daunting picture of the research

RFRA would require, but the demands on government bodies

will be no different from the demands pre-Smith. The strict

scrutiny inquiry has not proven to be overwhelming in the past.

Those with legitimate claims for religious exemptions will

doubtless do the legwork and bring their “theological

requirements” to the attention of the relevant authorities. And

even if RFRA does entail a bit of extra work, it hardly amounts

to a constitutional violation but is rather the price that

Congress, as the representative legislative body in this country,

has decided is appropriate to accommodate the demands of a

religiously pluralistic society. If that society later decides

RFRA is too burdensome, it can demand change from

Congress. , q

Finally, the City of Boerne claims that RFRA runs afoul of

the Establishment Clause test in Lee v. Weisman, 505 U.S. 577

(1992), which prohibits government from endorsing the

message of a particular religion. /d at 587. The City

maintains that RFRA “endorses a global message: the

government likes religion” and that this endorsement “violates

the fundamental constitutional requirement of neutrality on

issues of conscience.” Pet. Br. at 48. Again, RFRA epitomizes

neutrality: it does not play favorites among those seeking

accommodations. Thus, it is every bit as compatible with the

Establishment Clause as are the myriad _ religious

17

accommodations long upheld by this Court. The City

articulates no standard under which these discrete

accommodations are constitutionally acceptable, but RFRA’s

across-the-board accommodation is not. Therefore, all its

Establishment Clause objections would condemn equally every

specific accommodation ever granted or allowed by this Court.

The constitutionality of accommodating religious exercise

is well settled. RFRA does nothing more.

CONCLUSION

This Court should hold that the Religious Freedom

Restoration Act does not violate the Establishment Clause.

Respectfully submitted,

Thomas D. Yannucci

Kirkland & Ellis

655 15th Street, N.W.

Washington, D.C. 20005

(202) 879-5000

Counsel of Record

Pat A. Cipollone

Carl A. Anderson

The Knights of Columbus

One Columbus Plaza

New Haven, Connecticut 06510

(203) 772-2130

Attorneys for Amicus Curiae

The Knights of Columbus

January 10, 1997