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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2006

## Text

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386016_1264%3A2. Public record. Not legal advice.