Amicus Curiae Brief — Eklund v. Byron Union Union School School District District (No. 05-1539)

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4) Supreme Court, U.S. ]

No. 05-1539 ae

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OFFICE OF THE CLERK

in The

Supreme Court of the Gnited States

+

JONAS EKLUND, et ai.,

Petitioners,

V.

BYRON UNION SCHOOL DISTRICT, et ai.,

Respondents.

¢

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

¢

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

+

WILLIAM PERRY PENDLEY*

*Counsel of Record

MOUNTAIN STATES LEGAL

FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorney for Amicus Curiae

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

OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

Whether the Establishment Clause is violated when a

public elementary school has students adopt the persona

of a member of a religion and act out religious activities

and practices under the guise of cultural education?

i

TABLE OF CONTENTS

Page

QUESTION PRESENTED .cocccoscceccssevccovscesescccesesvececs i

TAG GF BAT FNC URE Ee Bie cee ccvceisioretiesacécastexswcosonvioss iv

IDENTITY AND INTEREST OF AMICUS CURIAE...... 1

OPINIONS BELOW, JURISDICTION, AND

STATEMENT OF THE CASE.................ccseccssseeeeees 2

SUMMARY OF THE ARGUMENT.....................0...06 2

ARGUMENT IN SUPPORT OF PETITION .............. 3

I.

THIS COURT SHOULD REVIEW THE

NINTH CIRCUITS DECISION BECAUSE

IT CONFLICTS WITH THIS COURT'S IN-

TERPRETATION OF THE ESTABLISH-

DEN XS NER sanicacinipieinavicnderseopestonseuvebvntiees

A. The Byron Union School District Vio-

lated The First Amendment By Coercing

Students To Participate In A Religious

PO cs cincinccdibicledeiportastanictbindgeetebaasnvaeia

1. The students were coerced into engag-

ing in the Islamic role-playing unit.......

2. The students were engaged in “reli-

gious exercises” even if those exer-

cises did not satisfy each and every

aspect of the Islamic religion..............

B. This Court Should Grant Certiorari Be-

cause The Holding Of The Ninth Circuit

Conflicts With Decisions Of This Court ...

7

ili

TABLE OF CONTENTS -— Continued

Page

II. THIS COURT SHOULD GRANT CERTIORARI

TO DECIDE AN IMPORTANT FEDERAL

QUESTION: WHETHER GOVERNMENT CO-

ERCION REGARDING RELIGION ESCAPES

APPLICATION OF THE ESTABLISHMENT

CLAUSE WHEN THE RELIGION IS INTER-

TWINED WITH THE HISTORY AND CUL-

TURE OF THAT RELIGION AND ITS

FRET Es icovwsincwsiiatilisdaninenenlpaincdeenenrvernneninete 8

CP ARIINY viviicdesbtsdant (idacwcnindcduvicdantntn Gebbinsanentenenenen 10

lv

TABLE OF AUTHORITIES

Page

CASES

Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F.3d

BES CEG GAS FO aisas dois air hei icnscindainnnniontn 2

Buono v. Norton, 371 F.3d 543 (9th Cir. 2004).................... 9

Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th

GEE, FREE deleus poss Eedtinanndesiecoupeastasiasbarsibpansdetousacerrc 2,8,9

Engel v. Vitale, 370 U.S. 421 (1962)................ccccssseseeseeneenes 4

Lee v. Weisman, 505 U.S. 577 (1992) .0.....c ce eeeeeeceeeeeee passim

Lemon v. Kurtzman, 403 U.S. 602 (1971)... eee eeeeeeeees 4

Lynch v. Donnelly, 465 U.S. 668 (1984) occ eeeeeeeeees 4

McCreary County, Ky. v. American Civil Liberties

Union of Ky., ___ U.S. ___, 125 S.Ct. 2722 (20085) .......... 9

Natural Bridge and Arch Society v. Alston, 98 Fed.

Pe: FEE LAO Ge, BO da viacccididachevcasteccseishtiatarinderveess 2

Rocky Mountain Oil and Gas Ass’n and Independ-

ent Petroleum Ass’n of America v. U.S. Forest

Service, 2001 WL 470022 (9th Cir. 2001)... 2

Sahi v. Gonzales, 416 F.3d 587 (7th Cir. 2005)................... 6

School Dist. of Abington Tp., Pa. v. Schempp, 374

Bee SRE cs ed ccc sianachns takacendasd ceaueseapianbcioubases ous coacth 4

Wyoming Sawmills, Inc. v. U.S. Forest Service, 383

Fe RAE eee CEs MOD ivi Secs cescieosciviscadovnanedscoveabenccnons 2

CONSTITUTIONAL PROVISION

OF MP SIN, Ov ncctithecelstasicsssicenasubintcckesciasasneoensl passim

TABLE OF AUTHORITIES — Continued

Page

RULES

NS COE TED BID sscsicnescnercndsvnsiecievecevsnenevebvosean 1

INN I a eleslessuanins 1

OTHER AUTHORITIES

http://www.alislam.org/ (last visited June 21, 2006).......... 6

http://www.beliefnet.com/story/191/story_19198: 1.html

Se es SD iy SE wih: scdibeidlintaccetrehadeeiecieenietber scenes 6

Michael Novak, On Two Wings: Humble Faith and

Common Sense at the American Founding (En-

I BI POE icc Arcentaiceuccacsesiuidhiceomsdcloieensdipetanbedis 9

AMICUS CURIAE BRIEF OF

MOUNTAIN STATES LEGAL FOUNDATION

IN SUPPORT OF PETITIONERS

Mountain States Legal Foundation (“MSLF”) respect-

fully submits this amicus curiae brief in support of the

Petitioners. Pursuant to Supreme Court Rule 37(2)(a), this

amicus curiae brief is filed with the written consent of ail

the parties.’

oe

IDENTITY AND INTEREST OF AMICUS CURIAE

MSLF is a non-profit, membership public interest

legal foundation dedicated to bringing before the courts

those issues vital to the defense and preservation of

individual liberties, the right to own and use property,

limited and ethical government, and the free enterprise

system. MSLF’s members include businesses and indi-

viduals who live and work in nearly every State of the

country. Most of MSLF’s members, however, live and work

in the eleven States of the American West; as a result, for

economic and recreational purposes, they must make use

of the federal lands that predominate in the West.

For more than a decade, the ability of MSLF’s mem-

bers to engage in such economic and recreational pursuits

has been constrained by decisions of federal land manag-

ers to accede to the demands of American Indian religious

* Copies of the consent letters have been filed with the Clerk of the

Court. In compliance with Supreme Court Rule 37(6), MSLF represents

that no counsel for any party authored this brief in whole or in part and

that no person or entity, other than MSLF, made a monetary contribu-

tion to the preparation or submission of this brief.

2

practitioners that certain federal lands are sacred and

must be closed to non-Indians. Consistently, MSLF has

challenged those closures as a violation of the Establish-

ment Clause, including in Bear Lodge Multiple Use Ass’n

v. Babbitt, 175 F.3d 814 (10th Cir. 1999); Rocky Mountain

Oil and Gas Ass’n and Independent Petroleum Ass’n of

America v. U.S. Forest Service, 2001 WL 470022 (9th Cir.

2001); Natural Bridge and Arch Society v. Alston, 98 Fed.

Appx. 711 (10th Cir. 2004); Wyoming Sawmills, Inc. v. U.S.

Forest Service, 383 F.3d 1241 (10th Cir. 2004); and Cholla

Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th Cir. 2004).

Because of this interest in Establishment Clause jurispru-

dence, MSLF joins the Petitioners in requesting that

certiorari be granted.

°

OPINIONS BELOW, JURISDICTION,

AND STATEMENT OF THE CASE

Amicus hereby adopts Petitioners’ description of the

decisions below, statement of jurisdiction, and statement

of the case. See Petition at 1-16.

ry

vv

SUMMARY OF THE ARGUMENT

This Court should grant certiorari in this case for two

reasons. First, the Ninth Circuit implicitly decided an

important federal question concerning the Establishment

Clause in a way that conflicts with this Court’s interpreta-

tion of the Establishment Clause. Specifically, the Byron

Union School District, a public school district, compels

students to participate in an Islamic role-play unit. This

unit immerses students directly in religious exercises,

3

even if the exercises do not exactly emulate the tenets of

Islam. Yet, the Ninth Circuit held that no Establishment

Clause violation existed. This Court should grant certio-

rari to reverse that decision, which is in clear conflict with

this Court’s precedents that prohibit compelled religious

exercises or compulsory religion generally.

Second, this Court should grant certiorari to clarify

the status of Establishment Clause jurisprudence, an

important federal question. The Byron Union School

District’s Islamic role-play unit teaches facts and beliefs of

the religion of Islam. The Ninth Circuit implicitly held,

however, that this lesson was cultural and historical and

not religious. This Court should grant certiorari and

conclude that government coercion regarding religion does

not escape application of the Establishment Clause merely

because the subject religion is intertwined with the history

and culture of that religion and its adherents.

,’

vv

ARGUMENT IN SUPPORT OF PETITION

I. THIS COURT SHOULD REVIEW THE NINTH

CIRCUIT’S DECISION BECAUSE IT CON-

FLICTS WITH THIS COURT’S INTERPRETA-

TION OF THE ESTABLISHMENT CLAUSE.

A. The Byron Union Scho.» District Violated

The First Amendment By Coercing Students

To Participate In A Religious Exercise.

In Lee v. Weisman, 505 U.S. 577, 587 (1992), this

Court declared, with regard to Establishment Clause

claims in public schools: “[iJt is beyond dispute that, at a

minimum, the Constitution guarantees that government

4

may not coerce anyone to support or participate in religion

or its exercise. ...”

1. The students were coerced into engag-

ing in the Islamic role-playing unit.

This Court has held that religious activities that are

“held in [public] school buildings under the supervision

and with the participation of teachers employed in those

schools” violate the Establishment Clause. School Dist. of

Abington Tp., Pa. v. Schempp, 374 U.S. 203, 223 (1963).

Further, the ability to refrain from the religious activity

does not negate the coercive effect of religion in public

schools. Engel v. Vitale, 370 U.S. 421, 430-482 (1962)

(holding that a prayer at the beginning of a school day

violates the Establishment Clause even if students are

permitted to remain silent or leave the classroom). This

Court explained that “[w]hen the power, prestige and

financial support of government is placed behind a par-

ticular religious belief, the indirect coercive pressure .. . is

plain.” Jd. at 431. Likewise, the students in the Dyree.

Union School District were coerced into engaging in the

Islarruc role-playing unit in spite of the purported ability

to opt-out of the unit.

* This Court has developed three related but distinct tests to

evaluate Establishment Clause claims: the Lemon test, Lemon v.

Kurtzman, 403 U.S. 602, 612-13 (1971); the Lynch test, Lynch v.

Donnelly, 465 U.S. 668, 688 (1984) (O’Connor, J. concurring); and the

Lee test, Lee, 505 U.S. 577, 587. Only Lee applies in the context of

alleged religious activity in a public school; therefore, amicus will only

apply the Lee test.

5

2. The students were engaged in “reli-

gious exercises” even if those exercises

did not satisfy each and every aspect

of the Islamic religion.

The district court held, and the Ninth Circuit implic-

itly affirmed, that the students in the Byron Union School

District did not perform any religious exercises. Instead,

the court held that students participated in activities that,

although analogous to Islamic religious practices, “were

not actually the Islamic religious rites.” Petition Appendix

at 18-19. The children in the Byron Union School District

adopted Muslim names, as Americans converting to Islam

would, memorized and recited Muslim prayers to “analo-

gize” religious worship, gave up a meal or snack to honor

Ramadan, read from the Koran, and took a “pilgrimage” to

Mecca. The district court compared these classroom

activities to the practice of “devout Muslim practitioners”

and concluded that anything less than the latter would not

constitute a religious exercise. As such, the students’

activities were merely “approximations” of the Islam

religion. Jd.

This holding and the Ninth Circuit’s affirmance of it

conflict directly with this Court’s ruling in Lee where this

Court held that an act constitutes a religious exercise if a

reasonable person objectively could believe that the act

signified participation or approval of the exercise. 505 U.S.

at 593. In Lee, this Court held that a nonsectarian gradua-

tion prayer by a rabbi constituted a “religious exercise”

because a reascnable person at the graduation could have

believed that religion was being practiced. Jd.

The district court’s view that the activities in which

the children were required to engage “were not actually

the Islamic religious rites” is flawed. Even among

6

Muslims, there is no small disagreement as to what

activities are true “Islamic religious rites” and what

activities only “approximate” those rites. For example,

Islamic law requires that Muslims pray five times a day

facing Mecca. Petition Appendix at 18. Yet, many Muslims

“approximate” this requirement and pray less often. See

http://www.beliefnet.com/story/191/story_19198_1.html (last

visited June 20, 2006) (“Not all Muslims follow their

religion’s rules on praying five times a day.”). Nonetheless,

a reasonable person would conclude that these Muslims

participate in religious practices when they do pray.

Similarly, the Ahmadis read from the Koran, which

they believe is the literal word of God, worship Moham-

med as the messenger of God, take pilgrimages to Mecca,

fast during Ramadan, and consider themselves devout

Muslims. http://www.alislam.org/ (last visited June 21,

2006); Sahi v. Gonzales, 416 F.3d 587 (7th Cir. 2005). Yet,

unlike other Muslims, they do not believe that Mohammed

was the last prophet Jd. This has caused some Muslims to

denounce the Ahmadis’ Islamic ties. Jd. Nonetheless, most

objective observers would conclude that reading from the

Koran, -vorshiping Mohammed, taking pilgrimages to

Mecca, and fasting during Ramadan constitute actual

religious activities — not mere approximations of religion.

Likewise, the Byron Union School District’s Islamic role-

playing exercise objectively constituted a religious prac-

tice.

Assuming arguendo that the Eklunds did not partici-

pate in a “religious exercise,” the Islamic role-playing unit,

nonetheless, violates the First Amendment, as interpreted

by this Court in Lee. The Lee test provides: “[t]he Consti-

tution guarantees that government may not coerce anyone

to support or participate in religion or its exercise....

Lee, 505 U.S. at 587. The phrase “religion or its exercise”

is written in the disjunctive. Therefore, the test prohibits

the coerced participation in religion in a general sense, or

participation in religious exercises.

The Byron Union School District’s role-playing unit

encouraged the students to “become Muslim” and taught

various aspects of the religion itself. The purpose of the

unit was not to clarify a secular historical or cultural

lesson through an explanation of religion but, instead, to

teach about the religion for its own sake. See Section II,

following. Thus, regardless of whether the role-playing

unit constituted an actual practice of a religious exercise,

it nevertheless unconstitutionally amounted to coerced

support for religion generally.

B. This Court Should Grant Certiorari Be-

cause The Holding Of The Ninth Circuit

Conflicts With Decisions Of This Court.

As this Court enunciated in Lee, governments may not

“coerce anyone to support or participate in religion or its

exercise.” Lee, 505 U.S. at 587. The Byron Union School

District’s role-playing unit, in which students were told

“you and your classmates will become Muslims,” Petition

Appendix at 7, and in which students actively engaged in

Islamic rituals — albeit not to the extent of some devout

Muslim practitioners — was objectively a religious exercise,

or, at a minimum, religion, and the students were coerced

into participating in the Islamic role-play unit. As a result,

the holding by the district court, which was affirmed by

the Ninth Circuit, is in direct conflict with this Court’s

holding in Lee. Therefore, this Court should grant certio-

rari.

8

Il. THIS COURT SHOULD GRANT CERTIORARI

TO DECIDE AN IMPORTANT FEDERAL

QUESTION: WHETHER GOVERNMENT CO-

ERCION REGARDING RELIGION ESCAPES

APPLICATION OF THE ESTABLISHMENT

CLAUSE WHEN THE RELIGION IS INTER-

TWINED WITH THE HISTORY AND CULTURE

OF THAT RELIGION AND ITS ADHERENTS.

The district court concluded, and the Ninth Circuit

implicitly affirmed, that the Islamic role-playing unit was

purely secular because it instructed students solely about

the culture and history of Islam. Petition Appendix at 23-

24.

This is not the first time that the Ninth Circuit has

upheld government coercion regarding religion when

religious faith is intertwined with history and culture. In

Cholla, 382 F.3d 969, the Ninth Circuit concluded that

federal protection of a site on private land regarded by

some American Indian religious practitioners as sacred did

not violate the Establishment Clause because, “protecting

Native American shrines and other culturally-important

sites has historical value for the nation as a whole.... ”

Id. at 977. Specifically, the Ninth Circuit ruled, “(T]he

Establishment Clause does not bar the government from

protecting an historically and culturally important site

simply because the site’s importance derives at least in

part from its sacredness to certain groups.” Id.

That is not, however, the approach taken by the Ninth

Circuit in a case decided three months earlier involving

the constitutionality of a Latin cross erected on federal

land in the California desert to commemorate those who

died in World War J. In that case, the Ninth Circuit ruled

9

that, despite the historical and cultural significance of the

Latin cross, the cross remained a symbol of the Christian

faith and had to be removed. Buono v. Norton, 371 F.3d

543, 548-550 (9th Cir. 2004).

With its decision in the instant case, the Ninth Circuit

has demonstrated, once again, that it does not apply the

Establishment Clause jurisprudence of this Court consis-

tently. As to religions whose history and culture are

intertwined with matters of religious faith, the Ninth

Circuit has held explicitly (in Cholla) and implicitly (in

Eklund) that no Establishment Clause violation occurs

when the public is coerced by government into respecting

the religious orthodoxies of those religions. These holdings

are in conflict with the rulings of this Court.’

Moreover, the Ninth Circuit’s holding here is in

conflict with the facts of the case. The materials used by

the Byron Union School District in its Islamic role-playing

unit were titled, “Islam: A simulation of Islamic history

and culture.” Petition at 2. Yet the unit neither presented

a secular history lesson, nor did. it address a particular

culture.

* That Judeo-Christian religion is intertwined with its adherents’

“history” and “culture” has not saved purported government endorse-

ment of that religion, for example, in the case of displays of the Ten

Commandments, from application of the Establishment Clause.

McCreary County, Ky. v. American Civil Liberties Union of Ky., __ U.S.

___, 125 S.Ct. 2722 (2005). “In one key respect, the way the story of the

United States has been told for the past one hundred years is wrong. It

has cut off one of the two wings by which the American Eagle flies, her

compact with the God of the Jews — the God of Israe] championed by

the nation’s first Protestants. . .. Believe that there is such a God or not

~ the founding generation did, and relied upon this belief. Their faith is

an ‘indispensable’ part of their story.” Michael Novak, On Two Wings:

Humble Faith and Common Sense at the American Founding at 5

(Encounter Books 2002).

10

Islam is a religion; therefore, while the unit might

have taught the history of Islam and its spread throughout

the world, that is not what the unit taught. Instead, it

taught the students to “become Muslims” by engaging in

the “religious orthodoxy” of Islam. Lee, 505 U.S. at 592.

Similarly, the role-play unit did not teach about culture.

Islam is a religion; it is not a racial or cultural group such

as “Arab” or “Persian.”

Therefore, because the [slamic role-play unit in a

public school was religious, regardless of its historical or

cultural components, it violated the Establishment Clause.

This Court should grant certiorari to reverse the decision

of the Ninth Circuit and to clarify its Establishment

Clause jurisprudence.

te

v

CONCLUSION

Mountain States Legal Foundation respectfully

requests that this Court grant the Petition for Writ of

Certiorart.

Respectfully submitted,

WILLIAM PERRY PENDLEY*

*Counsel of Record

MOUNTAIN STATES LEGAL FOUNDATION

2596 South Lewis Way

Lakewood, Colorado 80227

(303) 292-2021

Attorney for Amicus Curiae

Dated July 3, 2006