Opposition Brief — City of New York, New York v. Fifth Avenue Presbyterian Church (No. 06-163)

2) FILED

AUG 31 2006

No. 06-163

lalalime ERK

RENE COURT, U.S,

IN THE

Supreme Court of the United States

THE CITY OF NEW YORK, BERNARD KERIK, RUDOLPH

GIULIANI, RAYMOND W. KELLY AND

MICHAEL R. BLOOMBERG,

Petitioners,

V.

FIFTH AVENUE PRESBYTERIAN CHURCH, GLADYS ESCALERA,

NICHOLAS NESRON, WILLIAM P. RASMUSSEN, DONALD J.

ROBISON, VERONICA A. LESTER, ALFRED MCKENZIE, ALFRED

BROWN, DENNIS PAIGE, PEABODY DENNIS, STEFAN PARY AND

MARGARET SHAFER,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Second Circuit

BRIEF OF RESPONDENTS IN OPPOSITION

—s

JONATHAN R. NELSON CARTER G. PHILLIPS*

LAW OFFICE OF JONATHAN EDWARD R. MCNICHOLAS

ROBERT NELSON PATRICK F. LINEHAN

20 Exchange Place JULIE A. GURLEY

43rd Floor SIDLEY AUSTIN LLP

New York, NY 10005 1501 K Street, NW

(212) 593-5775 Washington, DC 20005

(202) 736-8000

Counsel for Respondents

August 31, 2006 * Counsel of Record

[Additional Counsel Listed on Inside Cover]

SAE ACRE NEENAH RE RCC ARN RNEN RT eNTTEN,

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

KATHERINE L. PRINGLE

FRIEDMAN KAPLAN SEILER &

ADELMAN LLP;

1633 Broadway

New York, NY 10019

(212) 833-1124

KENNETH E. LEE

THACHER PROFFITT &

WOOD LLP

Two World Financial Center

New York, NY 10281

(212) 912-8220

QUESTION PRESENTED

Whether the court of appeals correctly held that the Fifth

Avenue Presbyterian Church’s homelessness ministry, which

provides sanctuary to “service-resistant” homeless individuals

who choose to sleep on the Church’s steps, is an exercise of a

sincerely-held religious belief protected by the Free Exercise

Clause of the First Amendment. :

(i)

ii

RULE 29.6 STATEMENT

Respondent Fifth Avenue Presbyterian Church is a non-

governmental corporation with no parent company. No pub-

licly traded corporation owns 10% or more of this corpora-

tion.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..sccccccccssscssscccssssesseessssesessse

WANE 206 STATUOIIET cccoecccceececencesoncecsescercecencecsex i

TABLE OF AUTHORITIES ..scccossssscccecssssccssssseseeese iv

BRIEF OF RESPONDENTS IN OPPOSITION ..--ccoe-

~ STATEMENT OF THE CASE .osccsccsscccncccocscccsscccesosoee

REASONS FOR DENYING THE PETITION oecscccsssses 9

I. THE COURTS BELOW CORRECTLY AP-

PLIED THE WELL-SETTLED PROHIBITIONS

AGAINST JUDICIAL DEFINITION OF RELI-

Sa SNE NE s sisichennsticendcaninidbnnctcniintabencueesnumbveds 10

Il. THE CITY’S STATE LAW ARGUMENTS

PRESENT NO LEGAL ISSUE WARRANTING

BERE GAPIIRE USVI cictesnccsestvsateenpeeenvensaoniins 13

PIRI O cicinisinectescnsusecvinsdininieonlcicsicinsimimcibdecdatanuberioiosans 15

(iii)

iV

TABLE OF AUTHORITIES

CASES Page

Childs v. Duckworth, 705 F.2d 915 (7th Cir.

BI aided sisticisasishencichicecubonsluesieiibiaeiaticceian 12

Corporation of Presiding Bishop v. Amos, 483

Bs eT WOOT Nib intis sv dnicas de uiessiconssuia beninbaditinaivuasinis 1]

Employment Div., Dep't of Human Res. v. Smith,

NE ints bic ckcccinccnccdesdabieatascntcsenss 2, 10, 11

E.E.O.C. v. Union Independiente de la Autoridad

de Acueductos y Alcantarillados de P.R., 279

ae ar EWE al BONE Poa scccsssesissststeditodacndpncmssiecsicas 11

Fifth Ave. Presbyterian Church v. City of New

York, No. 01 Civ. 11493 (S.D.N.Y. Jan. 4,

LODZ) nscscvresseroroscarecnerasssvssnecoveeosenseseveseessovcerscavents 3

Fifth Ave. Presbyterian Church v. City of New

York, 293 F.3d 570 (2d Cir. 2002)..........:ccsceece+ 3

Fifth Ave. Presbyterian Church v. City of New

York, No. 01 Civ. 11493, 2004 WL 2471406

Fa Os RNs By ID ie tseciectartintncieeatuassnitgions :

Fifth Ave. Presbyterian Church v. City of New

York, No 04-6299-cv, 2006 WL 1116119 (2d

Ee a i RN scrastircicsid cccdis lattieenteanigeaardones 3

Hernandez v. Commissioner, 490 U.S. 680 (1989) 11, 12

Huddleston v. Dwyer, 322 U.S. 232 (1944).......... 14

Love v. Reed, 216 F.3d 682 (8th Cir. 2000).......... 12

Makin v. Colorado Dep’t of Corr., 183 F.3d 1205

EP Se iii cicecdecwtnsshidienabstpuabetnrtiandacens 12

Martinelli v. Dugger, 817 F.2d 1499 (11th Cir.

TN ike sun ciics ibehsiabedinaanasdicniadasiugdencnewatanadiod 12

McCain v. Koch, 511 N.E.2d 62 (N.Y. 1987)....... passim

Morrison v. Garraghty, 239 F.3d 648

I Be is caassisecascseikcocipainiaipicnsisadiceenmaameiiait 12

TABLE OF AUTHORITIES—continued

Page

New York Botanical Garden v. Board of

Standards & Appeals,694 N.E.2d 424 (N.Y.

PUTT i isschseiclnihieisnaiobeateiseicilibasiensciincteitiadinileeteinadiiiee 14

Rich v. Woodford, 210 F.3d 961 (9th Cir. 2000)... 12

Society of Separationists, Inc. v. Herman, 939

Pe RPE Ce ile BI ED wines sienseceneecncecssinsintcvnes 12

Tenafly Eruv Ass'n v. Borough of Tenafly, 309

Be Re NE EP esis tiivntninstcnitannerennians 11

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

United States v. Seeger, 380 U.S. 163 (1965)....... 2,9

University of Great Falls v. N.L.R.B., 278 F.3d

Pee GPs Scale. UNE D cones teeiniiesinceniasnibieennedioncuciiaini 11

Weaver v. Jago, 675 F.2d 116 (6th Cir. 1982)...... 12

RULE

ee 9,12

BRIEF OF RESPONDENTS IN OPPOSITION

The City of New York and other Petitioners (“City”) pre-

sent a baseless petition for review of the injunction against

dispersing the homeless persons who gather on the steps of

the Fifth Avenue Presbyterian Church (“Church”). The dis-

trict court correctly recognized that these homeless people are

provided sanctuary on the steps as part of the Church’s home-

less ministry and that the City’s effort to disperse them vio-

lated the Church’s First Amendment right to the free exercise

of religion.

At most, the City’s petition challenges the application of

well-settled principles of Free Exercise jurisprudence to the

unique facts presented. The City fails to identify any relevant

conflict of law among the courts of appeals. Nor does the

City make any serious argument that the decisions below are

in conflict with any decision of this Court.

Instead, the City’s petition merely attacks the bona fides of

the Church’s Homeless Outreach ministry, which is a ques-

tion of fact that was settled by the district court and affirmed

by the court of appeals. Review of that question of fact by

this Court is not warranted. Although the City concedes that

“actual service to the homeless may be part of a religious

ministry,” Pet. at 11 (emphasis added), it proceeds to make

the disturbing argument that a portion of this Church’s minis-

try to the homeless is not an expression of a sincerely-held

religious belief because of its alleged “meaninglessness,” id.

at 13, and the City’s inability to discern a “correlation of the

doctrine and the Church’s activity,” id. at 11. In the City’s

view, the Church’s ministry cannot be an expression of reli-

gious belief because its ministry does not measure up to secu-

lar standards for a homeless shelter, as expressed in McCain

v. Koch, 511 N.E.2d 62 (N.Y. 1987) (specifying public shel-

ter requirements). Pet. at 12.

The City’s argument depends heavily on its offensive and

unsupportable effort to recharacterize the facts in the record

2

in order to minimize what the district court considered the

“fairly draconian” methods used by the City to remove the

homeless from the Church’s steps. Pet. App. at A64. The

City disingenuously neglects even to mention that the

Church’s ministry at issue is focused on “service resistant”

homeless individuals, who “will not go to shelter if the City is

permitted to disperse them; rather, they will find another

place on the street upon which to sleep.” Jd. at A43. As the

court of appeals correctly found, “[t]he Church views its out-

door space as a sanctuary for the service-resistant homeless

who prefer not to sleep in shelters.” Jd. at A31.

Regardless of the City’s liberties with the record, the law is

settled that “[jJudging the centrality of different religious

practices is akin to the unacceptable ‘business of evaluating

the relative merits of differing religious claims.’” Employment

Div. v. Smith, 494 U.S. 872, 887 (quoting United States v.

Lee, 455 U.S. 252, 263 n.2 (1982) (Stevens, J., concurring)).

Courts properly discern only “whether the beliefs professed

by a [claimant] are sincerely held and whether they are, in his

own scheme of things, religious.” United States v. Seeger,

380 U.S. 163, 185 (1965). The sincerity of a religious belief

cannot be judged by its compliance with a particular law,

regulation, or norm of proper civility. As this Court has made

clear, religious beliefs need not even be “acceptable, logical,

consistent, or comprehensible to others in order to merit First

Amendment protection.” Thomas v. Review Bd., 450 U.S.

707, 714 (1981). Nothing in this case provides any basis for

revisiting any of these settled principles.

The undisputed evidence established that the teachings of

the Church at issue here constitute sincerely-held religious

beliefs that have been expressed by mainline Christians liter-

ally for centuries. It would indeed be difficult to overstate the

role of poor and homeless individuals as a symbol and a chal-

lenge in Christian scriptures and belief. There can be no

doubt that the Church’s ministry is a practice of a sincerely-

held religious belief and is thus entitled to full First Amend-

3 .

ment protection. The unremarkable application of well-

settled Free Exercise principles to the facts of this case raises

no issues worthy of this Court’s attention. The City’s petition

should therefore be denied.

STATEMENT OF THE CASE

The record in this case provides strong support for the

lower courts’ central factual finding that the Church’s minis-

try to its service-resistant homeless neighbors is an exercise

of a sincerely-held religious belief. Pet. App. at A52-53. The

City’s obvious unhappiness with the manner in which the

Church carries out its religious ministry does not render the

Church’s belief insincere. Nevertheless, because the City’s

factual rendition paints a misleading picture of the factual re-

cord, we provide a statement here, drawn from the four opin-

ions that have consistently agreed on these facts.’

1. The Nature of the Church’s Ministry to its Homeless

Neighbors. The Fifth Avenue Presbyterian Church has a

longstanding ministry to local homeless persons that has two

distinct components: (1) a formal homeless shelter for ten in-

dividuals who reside in the Church’s lower level; and (2) a

ministry known as its “hospitality program” to individuals

who wish to sleep on the Church’s steps; these individuals are

referred to as the Church’s “Homeless Neighbors.” Pet. App.

at A7-A8 (Fifth Ave. I). This latter ministry focuses on home-

less individuals who are “service-resistant,” that is, who

“would be as unlikely to stay in an indoor church shelter as a

City shelter.” Jd. at AS6 (Fifth Ave. III). Many of these indi-

viduals fear shelters and prefer sleeping outside in the bays

Fifth Avenue Presbyterian Church v. City of New York, No. 01 Civ.

11493 (S.D.N.Y. Jan. 4, 2002) (Pet. App. at A5-A26) (“Fifth Ave. I”);

Fifth Ave. Presbyterian Church v. City of New York, 293 F.3d 570 (2d Cir.

2002) (Pet. App. at A27-A44) (“Fifth Ave. II’); Fifth Avenue Presbyterian

Church v. City of New York, No. 01 Civ. 11493, 2004 WL 2471406

(S.D.N.Y. Oct. 29, 2004) (Pet. App. at A45-A90) (“Fifth Ave. IIT’); Fifth

Avenue Presbyterian Church v. City of New York, 2006 WL 1116119, No.

04-6299-cv (Apr. 26, 2006) (Pet. App. at A91-A94) (“Fifth Ave. IV’).

4 Slee

and stairways of the Church. /d. at A18 n.4 (Fifth Ave. I).

The Church has instituted its hospitality ministry in an effort

to meet these street-hardened individuals where they are emo-

tionally comfortable, to build trust relationships with them

and, ultimately, to help them to get off the street. Jd. at A9

(Fifth Ave. I).

Although the Church does not provide night-time indoor

facilities to the Homeless Neighbors, it nonetheless carries on

an active ministry to them. The Church has dedicated a mem-

ber of its staff to befriending and serving its Homeless

Neighbors, learning their individual needs, and inviting (al-

though not requiring) them to participate in worship services

and religious classes, all in an effort to build trust with the

Homeless Neighbors and, eventually, to bring them a better

quality of life. Jd. at A8-Al1 (Fifth Ave. J). In addition, the

Church has luncheons, dinners and parties for the service-

resistant Homeless Neighbors so that members of the Church

may befriend them. Joint Appendix before the Second Circuit

(“J.A.”) A174 (Declaration of Margaret Shafer (the Church’s

Associate for Outreach) (“Shafer Decl.”) 4§ 18(g) & (h)); Pet.

App. at Al0 (Fifth Ave. I). As a result of the relationships of

trust that the Church has established with its Homeless

Neighbors, dozens have entered housing and treatment cen-

ters. Pet. App. at Al8 n.4 (Fifth Ave. I). The City’s position

ignores the undisputed fact that this ministry is intended to

help homeless individuals transition into a more formal sys-

tem of support services.

The City’s unkind characterization of the Church’s outdoor

ministry — at one point analogizing it to a “punch[] ... in the

face,” Pet. at 11 — does appalling violence to the true nature of

the Church’s religious outreach. The Church has thoughtfully

tailored its ministry to meet the unique needs of the Homeless

Neighbors. Indeed, the City submitted uncontested evidence

from a Yale psychology professor establishing the mental

health benefits of such a ministry. See J.A. A443-A451 (Dec-

laration of Michael Rowe).

5

The City’s suggestions of a public nuisance are similarly

lacking in record support. The uncontested record is that each

morning the Church undertakes a thorough clean-up of its

steps and sidewalk area, which includes washing both its

landings and the alcoves adjacent to the Church, as well as

cleaning up any litter. Pet. App. at A73 (Fifth Ave. III.’ The

Church’s policy also requires the individuals who sleep on its

property to refrain from foul language, loud noise, and inap-

propriate behavior. See id. at A7 (Fifth Ave. I). The Church

recognizes and does not contest the authority of the police to

arrest any homeless. person who is actually violating the law.

Id. at A65 (Fifth Ave. III). The City, however, has never

made such an arrest of a homeless person at the Church, id. at

A62 (Fifth Ave. IIT), and there is no record evidence whatso-

ever of any “conduct [that] endangers or injures anyone’s

health,” id. at A94 (Fifth Ave. IV).’

> The Church’s policy also permitted individuals to sleep in the bayed

areas abutting the Church, as well as recessed stairways attached to the

Church. J.A. Al5-A16 (Complaint). The legality of the City’s effort to

disperse the homeless from the bayed areas is still pending both before the

district court and on the Church’s petition for rehearing of that portion of

the decision be!ow, before the court of appeals. /d. at A84-A85 (Fifth

Ave. IID.

* Few problems have occurred in connection with the Church’s outdoor

ministry. /d. at A72-A74 (Fifth Ave. III]. The City presented evidence of

only a single anonymous complaint regarding the Homeless Neighbors’

conduct. /d. at A62. The City’s allusion to its surveillance videotapes,

Pet. at 8, refers to footage taken after the City’s raids on the Church’s out-

door ministry, and which could not been the impetus for the City’s ac-

tions. The district court dismissed most of the City’s contentions concern-

ing the videotapes, describing them accurately as “[mJere speculation or

conclusory allegations.” Pet. App. at A68 n.9 (Fifth Ave. III). The district

court’s findings thus belie the City’s claim that the “evidence produced

revealed an ongoing pattern of anti-social behavior occurring at the over-

night encampment on the Church steps.” Pet. at 7. Rather, as the district

court found, “the record suggests, as would common sense, that the pat-

tern of activity that most consistently characterized the homeless persons’

presence on Church property was the lawful act of homeless persons

sleeping out-of-doors.” Pet. App. at A62 (Fifth Ave. III).

6

Moreover, as the district court observed, there can be no se-

rious dispute that the Church’s ministry to the Homeless

Neighbors is an expression of a sincerely-held religious be-

lief. Id. at Al7-A18 (Fifth Ave. I); id at A51 (Fifth Ave. III.

The Church’s policy regarding its Homeless Neighbors ex-

plains that its ministry is a means by which “we seek to ex-

press God’s unambiguous love and care for those who have

sought shelter on our steps.” J.A. A250 (Church’s Policy Re-

garding Homeless Persons). A sign above the Church’s steps

clearly articulates the Church’s mission: “This is God’s

house, all are welcome.” J.A. A164-A165 (Schafer Decl. 4

7).

2. The Facts Triggering Litigation. On November 28,

2001, the City notified the Church that it could no longer use

its own steps as a sanctuary for the homeless. /d. at A48

(Fifth Ave. III). In response, the Church requested a meeting

with the City. Before any meeting took place, the City de-

ployed dozens of police in a late-night raid designed to end

the Church’s ministry. Jd. at Al2-A13 (Fifth Ave. I). As the

district court found, the City engaged in “fairly draconian”

raids that “mobilized twenty-two police officers to the Church

‘bearing nightsticks and large clusters of handcuffs,’” and

“threatening arrests and accompanied by three police vans,

two squad cars, and a paddy wagon.” /d. at A64 (Fifth Ave.

Ill).

The City returned to the scene on the night of December 11,

2001. Id. at Al2 (Fifth Ave. III). The police again awoke all

of the Homeless Neighbors, using their nightsticks to bang on

the boxes in which they slept. J.A. A179-A180 (Shafer Decl.

4 29-30); A103 (Affidavit of co-plaintiff Veronica A. Lester

{ 11); A80 (Affidavit of co-plaintiff Donald J. Robisou § 6);

A63-A64 (Declaration of co-plaintiff Stefan Pary § 6). The

following evening the police were even more aggressive,

threatening the Church’s Homeless Neighbors with night-

sticks, handcuffs and arrest, although no potential charges

were identified and no arrests occurred. J.A. A180-A182

7

(Shafer Decl. 9] 32-34). The City’s lack of legal justification

was confirmed by then-Police Commissioner Bernard Kerik

(curiously present on the nights of at least two of the raids,

J.A. at A334-A336), who admitted that he “didn’t see a crime

being committed” at the time. J.A. at A334 (Deposition of

Bernard Kerik, at 27, line 4); Pet. App. at A64 (Fifth Ave. III)

(““didn’t see a crime being permitted’” [sic]).

3. Proceedings in the Courts Below. After similar raids oc-

curred again on December 17, the Church, its Staff Associate

for Outreach, and several homeless individuals who had slept

on the Church’s property filed a complaint under 42 U.S.C. §

1983 against the City and named City officials seeking to en-

join the City’s actions. /d. at Al3 (Fifth Ave. I). Another po-

lice raid occurred the very next evening, December 18, 2001.

Id. On December 19, 2001, the district court entered a tempo-

rary restraining order forbidding the City from entering onto

the Church’s property “for the purpose of dispersing or arrest-

ing any person who shall be sleeping or otherwise lawfully on

that property.” See id. A2.

On January 4, 2002, the district court entered a preliminary

injunction that was nearly identical to the temporary restrain-

ing order. See Fifth Ave. J. In its supporting opinion, the dis-

trict court made an explicit finding of fact that the Church’s

ministry was an expression of a sincerely-held religious be-

lief. Pet. App. at Al7 (Fifth Ave. I). The court of appeals af-

firmed the district court in a thoughtful opinion that rejected

the City’s assertions that the ministry was not a legitimate

“religious activity within the ambit of the First Amendment”

because of the City’s disagreement with the manner in which

the Church exercised these beliefs. Jd. at A27-A44 (Fifth

Ave. II). The court of appeals explicitly refused to inquire

into the nature of the Church’s exercise, properly applying the

well-settled principle of this Court that “[a]n individual claim-

ing a violation of free exercise rights need only demonstrate

that the beliefs are ‘sincerely held’ and in the individual’s

‘own scheme of things, religious.’”” /d. at A37 (quoting Pat-

8

rick v. Lefevre, 745 F.2d 153, 157 (2d Cir. 1999)). Because it

found that the Church’s ministry is an exercise of its sin--

cerely-held religious belief, it declared that the Church’s out-

door ministry “effectuate[d]” that belief, refraining from any

inquiry into the “centrality of [the Church’s] professed be-

lief.” Id. at A37-A38.

After the completion of discovery and cross-motions for

summary judgment, the district court granted, in part, the

Church’s motion for summary judgment, again holding that

“the Church’s practice of allowing homeless persons to sleep

out-of-doors on its property is an ‘exercise of sincerely held

religious beliefs.”” Pet. App. at A51 (Fifth Ave. III) (quoting

Fifth Ave. II, 293 F.3d at 574).* Further, it explained that the

City’s actions were overbroad and did not match its purported

goals, concluding that the actions “were undertaken in a fairly

draconian fashion.” /d. at A64.° The district court also ob-

served that the evidence presented showed that the City’s ac-

tions were not generally applicable, because they “result[ed]

in disparate treatment of religious activity by failing ‘to pro-

hibit nonreligious conduct that endangers these interests in a

similar or greater degree.’” Jd. at A66 (quoting Church of

Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 543

(1993)). Finally, the district court determined that the City’s

actions also violated the Church’s freedom of speech. /d. at

A78-A80 (Fifth Ave. II1).° The district court limited its per-

manent injunction, however, to the Church’s steps, excluding

the bayed areas adjacent to the Church.

* The City’s cross motion fer summary judgment was denied. See Pet.

App. at A83-A84 (Fifth Ave. III).

* The City perhaps reveals its true motives when it argues that the

Church’s use of its property for its homeless ministry is inappropriate

given “the upscale commercial character of the corner of 55th Street and

5th Avenue.” Pet. at 15.

® The district court did not reach the Church’s freedom of association

argument. See Pet. App. at A80 n.17 (Fifth Ave. III).

9

On cross-appeals, the court of appeals summarily affirmed

the injunction, in an unpublished two-page per curiam order.

Id. at A91-A94 (Fifth Ave. IV).

REASONS FOR DENYING THE PETITION

The question whether the Fifth Avenue Presbyterian

Church actually is exercising its sincerely-held religious be-

liefs when it invites homeless individuals to take sanctuary on

the Church’s steps is inherently unworthy of certiorari. The

petition identifies no conflicts.in the opinions of the court of

appeals of any kind and indicates no unanswered question in

this Court’s jurisprudence.

The basis for the City’s challenge is not entirely clear. At

times, the City seems implicitly to assert that the Church’s

belief in giving hospitality to the Homeless Neighbors on its

steps is not a “sincerely held religious belief” because its

“failure to provide security, toilets and sanitary facilities, and

shelter from the elements stands in direct contradiction to”

that religious belief. Pet. at i. Whether a particular religious

belief is sincerely held by the Church is necessarily a fact-

based inquiry, and one which was decided correctly based on

undisputed evidence. This Court’s review of such a factual

claim is unwarranted. See Sup. Ct. R. 10.

The City elsewhere suggests that its challenge is not

whether the lower courts found the Church’s belief to be sin-

cerely held, but “whether the maintenance of the nightly en-

campment is conduct that bears any perceptible relation to”

that belief. Pet. at 14. To the extent the City’s challenge is to

the court of appeals’ alleged failure to inquire into whether

the conduct is a legitimate exercise of the Church’s sincerely-

held religious belief, such an inquiry is foreclosed by the

well-settled principle that a court may properly discern only

“whether the beliefs professed by a [claimant] are sincerely

held and whether they are, in his own scheme of things, reli-

gious.” Seeger, 380 U.S. at 185. Courts are in no position to

10

judge religious beliefs to be “acceptable, logical, consistent,

or comprehensible.” Thomas, 450 U.S. at 714.

I. THE COURTS BELOW CORRECTLY APPLIED |

WELL-SETTLED PROHIBITIONS AGAINST JU-

DICIAL DEFINITION OF RELIGIOUS BELIEF.

The City purports to recognize the correctness of the prin-

ciple that courts are precluded from “inquir[ing] into the con-

sistency and rationality of a professed religious doctrine.”

Pet. at 11 (citing Thomas, 450 U.S. at 715). It further ac-

knowledges that ““‘religious beliefs need not be acceptable,

logical, consistent or comprehensible to others to merit First

Amendment protection.” /d. at 14 (quoting Thomas, 450

U.S. at 715). It asserts, nonetheless, that the district court

went “beyond the well established doctrine of Thomas” by -

failing “to [inquire] into the correlation of the [Church’s reli-

gious] doctrine and the Church’s activity.” /d. at 11. The

City thus does not appear to challenge any rule of law, but

merely the district court’s application of this principle, a

ground that does not merit review by this Court.

More critically, the City fails to recognize the district

court’s faithful application of the principle embodied in Tho-

mas and its progeny, viz., that, under Employment Div., Dep’t

of Human Res. of Oregon v. Smith, 494 U.S. 872, 886-87

(1990), “courts are not permitted to inquire into the centrality

of a professed belief to the adherent’s religion or to question

its validity in determining whether a religious practice exists.”

Fifth Ave. Ill at AS3 (internal quotation marks omitted). As

this Court opined, “[{i]t is no more appropriate for judges to

determine the ‘centrality’ of religious beliefs before applying

a ‘compelling interest’ test in the free exercise field, than it

would be for them to determine the ‘importance’ of ideas be-

fore applying the ‘compelling interest’ test in the free speech

field.” Smith, 494 U.S. at 886-87. “Judging the centrality of

different religious practices is akin to the unacceptable ‘busi-

ness of evaluating the relative merits of differing religious

claims.’” Jd. at 887 (quoting Lee, 455 U.S. at 263 n.2 (1982)

11

(Stevens, J., concurring)). This Court has “[{r]epeatedly and

in many different contexts ... warned that courts must not

presume to determine the place of a particular belief in a re-

ligion or the plausibility of a religious claim.” Jd. Indeed, the

law is well-settled that “[i]t is not within the judicial ken to

question the centrality of particular beliefs or practices to a

faith, or the validity of particular litigants’ interpretations of

* those creeds.” Hernandez v. Commissioner, 490 U.S. 680,

699 (1989); see also Corporation of Presiding Bishop v.

Amos, 483 U.S. 327, 336 (1987)

Thus, the courts below correctly found that the Church’s

practice of allowing homeless persons to sleep on its outdoor

property was, as a factual matter, an exercise of its sincerely-

held religious beliefs. Pet. App. at A51 (Fifth Ave. II) (citing

numerous excerpts from record evidence). Moreover, in re-

sponse to the City’s argument that the act of permitting the

Homeless Neighbors to sleep on its steps at night “does not

rise to the level of a sincerely held religious belief,” id. at AS2

(citing the City’s brief below), the district court declined to

venture further, reasoning that applying more exacting scru-

tiny to the Church’s religious practices would “run afoul of

the rule that ‘courts are not permitted to inquire into the cen-

trality of a professed belief to the adherent’s religion or to

question its validity in determining whether a religious prac-

tice exists.”” Jd. at AS3 (citations omitted).

The court of appeals’ articulation of the well-settled princi-

ple limiting judicial inquiry into religious practices to the sin-

cerity of those practices is fully consistent with that of every

other court of appeals.’ The City does not even suggest au-

” See E.E.O.C. v. Unién Independiente de la Autoridad de Acueductos y

Alcantarillados de P.R., 279 F.3d 49, 56 (1st Cir. 2002) (refusing to ques-

tion the religious nature of plaintiff's refusal to join a union); University

of Great Falls v. N.L.R.B., 278 F.3d 1335, 1343 (D.C. Cir. 2002) (explain-

ing, based on Smith, that “courts must not presume to determine the place

of a particular belief in a religion or the plausibility of a religious claim”);

Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 170 (3d Cir.

12

thority to the contrary. With no identified conflict with any

appellate decision or holding of this Court, the City’s petition

boils down to a challenge to the distric* « ourt’s factual find-

ings on the sincerity of the Church’s religious conduct, which

is no basis for granting certiorari. Sup. Ct. R. 10.

The City’s petition falls equally flat were it read to seek re-

view of the court of appeals’ purported failure to inquire into

“whether the maintenance of the nightly encampment is con-

duct that bears any perceptible relation to th{e] [Church’s re-

ligious] doctrine.” See Pet. at 14. The City simply does not —

and indeed cannot — point to any authority for the proposition

that such an inquiry is required. This would be tantamount to

an inquiry into the centrality of the outdoor ministry to the

Church’s faith, which is precisely the type of inquiry this

Court’s Free Exercise jurisprudence forbids. See Hernandez,

490 U.S. at 699; Thomas, 450 U.S. at 715.

Even assuming that such a searching inquiry into the

Church’s religious conduct were proper, the question whether

2002) (same); Morrison v. Garraghty, 239 F.3d 648, 658-59 (4th Cir.

2001) (refusing to inquire into the veracity of an inmate’s claims of sin-

cerely-held Native American religious beliefs); Rich v. Woodford, 210

F.3d 961, 963 n.2 (9th Cir. 2000) (declining to examine the ““‘plausibility

of a religious claim’” relating to a sweat lodge purification); Love v. Reed,

216 F.3d 682, 688 (8th Cir. 2000) (“we will not deny that Love’s desire to

- follow the express dietary laws of the Old Testament is rooted in religion

simply because he does not now attempt to draw more broad spiritual les-

sons from the text”); Makin v. Colorado Dep't. of Corr., 183 F.3d 1205,

1213 (10th Cir. 1999) (refusing to consider the validity or importance of

certain aspects of Ramadan); Society of Separationists, Inc. vy. Herman,

939 F.2d 1207, 1212 (Sth Cir. 1991) (reasoning that a court must provide

protection for a religiously motivated refusal to swear an oath even if the

court itself finds no religious significance in oath); Martinelli v. Dugger,

817 F.2d 1499, 1503-04 (11th Cir. 1987) (permitting a Greek Orthodox

prisoner to maintain certain practices he claimed to be motivated by sin-

cerely-held religious belief despite a doctrinal debate on their necessity);

Childs v. Duckworth, 705 F.2d 915, 919-20 (7th Cir. 1983) (resolution of

what is a religious belief or practice does “‘not to turn upon a judicial per-

ception of the particular belief or practice in question’”), Weaver v. Jago,

675 F.2d 116, 118 (6th Cir. 1982) (same).

13

the Church’s outdoor ministry bore “any perceptible relation,”

Pet. at 14, to the Church’s sincerely held belief in giving hos-

pitality to the homeless was in any event correctly resolved.

Citing numerous uncontested references to the factual record,

the district court found that the proposition that “the Church’s

practice of allowing homeless persons to sleep out-of-doors

on its property is an ‘exercise of sincerely held religious be-

liefs,’ cannot seriously be disputed.” Pet. App. at A51-A52

(Fifth Ave. III) (citations omitted). The district court also

credited the declaration of Ms. Shafer, the Church’s outreach

associate, that “‘[g]living those persons a place to sleep at

night is a central aspect of the Church’s hospitality to them.””

Id. at AS53. These uncontested findings of fact present no ba-

sis for this Court’s review. :

Simply put, the City can point to no deviation from the

longstanding principles articulated by this Court and applied

consistently by the courts of appeals. As such, it provides no

basis upon which to review the decision below. Accordingly,

the City’s petition should be denied.

Il. THE CITY’S STATE LAW ARGUMENTS PRE-

SENT NO LEGAL ISSUE WARRANTING THIS

COURT’S REVIEW.

The City also makes a number of arguments in favor of this

Court’s review based on state law.® In particular, it argues

that the New York court of appeals’ holding in McCain v.

Koch, 511 N.E. 2d 62 (1987), setting the standard of mini-

mally habitable shelter in cases where the City provides emer-

gency housing, “provides a useful reference point” for deter-

mining whether the Church’s outdoor ministry “bears any

perceptible relationship” to its belief in serving the needy.

Pet. at 13-14. It further argues that the Church’s outdoor min-

istry is not a permissible “accessory use” under Section 12-10

* The City is correct in asserting that accessory use argument was not

raised at the district court level. Compare Pet. at 16 with Fifth Ave. II at

A58-A59.

14

of the New York City Zoning Resolution. /d. at 14-17. This

argument entirely fails given the religious nature of the

Homeless Neighbor ministry.

Moreover, as the Second Circuit stated, “McCain addressed

a court’s equitable power to issue an injunction requiring the

City to provide particular amenities; it did not address the

City’s power to devise and enforce equitable standards of its

own making.” Pet. App. at A41 (Fifth Ave. IT) (emphasis in

original). Indeed, the City presents the remarkable proposal

that the limitation properly placed by a court on a public so-

cial services program should also define the boundaries of

appropriate religious expression. Under the City’s interpreta-

tion, there would be no freedom for religious ministries to

operate in a manner that is not blessed by the state. Not sur-

prisingly, the City cites no case to support this claim.

The City’s accessory use argument is likewise wrong. As

the district court correctly concluded, because the Church’s

activity is “based upon a sincerely held belief, allowing

homeless persons to sleep on [its] property constitutes a

proper accessory use.” Pet. App. at A58-A59 (Fifth Ave. III)

(footnote omitted). Moreover, although not expressly ad-

dressed by the district court, whether an activity is “‘clearly

incidental to and customarily found in connection with’” a

property’s primary use depends not on the primary uses of

surrounding properties as the City suggests, see Pet. at 15, but

on the primary use of the property in question. See, e.g., N.Y.

Botanical Garden v. Bd. of Standards & Appeals, 694 N.E.2d

413, 423-424 (N.Y. 1998).

The City’s arguments are not only wrong but also wrong in

ways that are deeply unworthy of certiorari. Its arguments

involve purely fact-specific questions based on New York

law. This has not been the business of this Court for more

than 50 years. See, e.g., Huddleston v. Dwyer, 322 U.S. 232,

237 (1944).

CONCLUSION

For the foregoing reasons, the City’s petition for certiorari

should be denied.

JONATHAN R. NELSON

LAW OFFICE OF JONATHAN

ROBERT NELSON

20 Exchange Place

43rd Floor

New York, NY 10005

(212) 593-5775

KATHERINE L. PRINGLE

FRIEDMAN KAPLAN SEILER &

ADELMAN LLP

1633 Broadway

New York, NY 10019

(212) 833-1124

Respectfully submitted,

CARTER G. PHILLIPS*

EDWARD R. MCNICHOLAS

PATRICK F. LINEHAN

JULIE A. GURLEY

SIDLEY AUSTIN LLP

1501 K Street, NW

Washington, DC 20005

(202) 736-8000

KENNETH E. LEE

THACHER PROFFITT &

WOOD LLP

~ Two World Financial Center

New York, NY 10281

(212) 912-8220

Counsel for Respondents

August 31, 2006

* Counsel of Record