Amicus Curiae Brief — University of Notre Dame v. Laskowski, 127 S. Ct. 3051 (2007) (No. 06-582)

Suprome Coun. U.S

FILED

NOV 27 2006

OFFICE OF THE CLERK

No. 06-582

IN THE

Supreme Court of the United States

THE UNIVERSITY OF NOTRE DAME,

Petitioner,

v.

JOAN LASKOWSKI, ET AL.,

Respondents.

On Petition for Writ of Certiorari

to the United States Court of Appeals

for the Seventh Circuit

BRIEF OF AMICI CURIAE WE CARE AMERICA,

EVANGELICALS FOR SOCIAL ACTION,

CENTER FOR NEIGHBORHOOD ENTERPRISE,

AND THE CENTER FOR PUBLIC JUSTICE

IN SUPPORT OF PETITIONER

BENJAMIN W. BULL

(Counsel of Record)

JORDAN LORENCE

DALE SCHOWENGERDT

ALLIANCE DEFENSE FUND

15333 N. Pima Rd., Ste. 165

Scottsdale, AZ 85260

(480) 444-0020

TABLE OF CONTENTS

Fe PATTING wi eco ceessevtisecncsscdsviciscescsstcsirsssesiese: il

INTEREST OF AMICI IN THIS CASE .0.0.0...c-cccccescsececececesesecececeeees l

SUMMARY OF THE ARGUMENT 3.........ccccccccssscsecececsecsseseseseceeees 3

REASONS FOR GRANTING THE WRIT ...........0..ccccceeececeeceeeeeeee 4

I. The Seventh Circuit’s Decision Will Severely Chill

FBOs’ Cooperation With Government To Provide

Much Needed Social Services.................:::cccseceeeeees 4

I The Seventh Circuit’s Decision Unreasonably

Requires FBOs to “Know” When the Government Is

Violating the Establishment Clause ...............ccceccssee 7

Ill. The Laskowski Decision Is Inconsistent With The

ee I, sacinidinbnniaiadaatdtinaniatiiiie 11

RPE RIRT IE RESALE OT NN OSSD REECE AE TUCE NSE! POP SPEED 13

ii

TABLE OF AUTHORITIES

Cases Page

Barnes v. Cavazos,

966 F.2d 1056 (6th Cir. 1992).........ccececsececeseseseseoeeeees 9

Bowen v. Kendrick,

og Ft IRR ISEREERree ceeanetare Renter oes seh 11

City of Zion v. City of Rolling Meadows,

SF F.2e BOGE CI Cir. BIE ances ce esvcerrencnsenrerscevers 9

County of Allegneny v. American Civil Liberties

Union Greater Pittsburgh Chapter,

ee eae cen ciidniinnsesoniegnincienineniinebiniinitiones 8

Everson v. Board of Ed. Of Ewing,

Bs ECOG T Peiiciscitsevieiinincinnceinnnintecitniianniinntih 8

Flast v. Cohen,

FG TE iiintctonnstntvaninidtasindtubeanietindoneniane 12

Laskowski v. Spellings,

443 F.3d 930 (7" Cir. 2006)... eal eae 5,11, 12

Laskowski v. Spellings,

456 F.3d 702 (7" Cir. 2006)(denying rehearing).......7

Lee v. Weisman,

es RE i caierckccenicinstouphinccisitiisincianensiniaredion 9

Lemon v. Kurtzman,

i, OT 8 ciaicieincnsesietaciiasosnitasmeccnstombevainniabeiasied 9

Lynch v. Donnelly,

465 U.S. 668 (1984)... eens tsicininnctinadanees 9

Marsh v. Chambers,

eee eee ees 9

McCreary County Kentucky v. American Civil

Liberties Union of Kentucky, 545 U.S. 844,

Sree b fe Wes fe RRR On seer 9, 10

Roemer v. Board of Public Works of Maryland,

ey. He Ne Pi nse cetcscsentiseceirentevitatevnmenett 8, 12

ili

Rosenberger v. Rector and Visitors of the

Univ. of Virginia, 515 U.S. 819 (1995) ......occcccccsccse.. 9

Rusk v. Crestview Local Schs.,

220 F.Supp.2d 854 (N.D. Ohio 2002) 0.00.00... ccc... 9

Valley Forge Christian College v. Americans

United for Separation of Church and

State, Inc., 454 U.S. 464 ( Se are 1]

Van Orden v. Perry,

545 U.S. 677, 125 S.Ct. 2854 (2005)... ceececceese. 8, 10

Statutes

Oe ne chia itiinsaaicuimbticanilas 7

Other Authorities

White House Office of Faith-Based and Community

Initiatives, Grants to Faith Based Organizations for Fiscal

Year 2005 (2006) http://www.whitehouse. gov/

government/foci/final_report_2005.pdf oo... ..eeccecccccccccccccesees 7

White House Office of Faith-Based and Community

Initiatives, Unlevel Playing Field: Barriers to Participation

by Faith-Based and Community Organizations in Federal

Social Service Programs 3 (2001) www.whitehouse. gov

/news/ releases/2001/08/2001081 6-3-report.pdf.................... a

\

INTEREST OF AMICI IN THIS CASE!

Each of the amici is a Faith-Based Organization that

has received public funding or is an organization that works

to promote public funding of Faith-Based Organizations.

The work of these amici may be severely impacted by the

Seventh Circuit’s decision that bases an Establishment

Clause plaintiff's standing solely on a claim for restitution

against Faith-Based Organizations. Each of the amici is

described specifically as follows.

WE CARE AMERICA is an organization dedicated

to strengthening Faith-Based and Community organizations

by supporting and leveraging public, corporate, and private

support. We Care America has affiliates in 28 states, many

of which are located within the Seventh Circuit's

jurisdiction.

EVANGELICALS FOR SOCIAL ACTION (“ESA”)

is an association of Christians seeking to promote Christian

engagement, analysis and understanding of major social,

cultural and public policy issues. ESA intersects with Faith-

Based Organizations all over the country, many of which are

located within the Seventh Circuit, in an effort to promote

social justice and attend to the needs of the nation's poor and

marginalized.

' All parties have consented to the submission of this brief

through letters filed with the Clerk of the Court. Amici state

~ that no portion of this brief was authored by counsel for a

party and that no person or entity other than amici or their

counse! made a monetary contribution to the preparation or

submission of this brief.

2

CENTER FOR NEIGHBORHOOD ENTERPRISE

(“CNE”) provides effective community and faith-based

organizations with training and technical assistance and links

them to sources of public and private support. CNE’s

grassroots network includes many organizations located

within the Seventh Circuit’s jurisdiction. Societal problems

addressed by this network include youth violence, substance

abuse, teen pregnancy, homelessness, joblessness, education

of the poor, and rebuilding deteriorating neighborhoods.

CENTER FOR PUBLIC JUSTICE is a public policy

and leadership organization that has been at the forefront of

the movement to promote cooperation between government

and institutions of civil society, including Faith-Based

Organizations, in the fight against poverty. The Center was

a key supporter of Congress’ “Charitable Choice” provision

of the 1996 welfare reform law. Charitable Choice makes it

possible for Faith Based Organizations to cooperate with the

government in providing family counseling, job training, and

other services to those who need them. The Center continues

to assist state officials and religious leaders across the

country, some of whom work within the jurisdiction of the

Seventh Circuit, to understand how to best utilize Charitable

Choice.

3

SUMMARY OF THE ARGUMENT

The Seventh Circuit’s decision below threatens to

greatly diminish Faith-Based Organizations’ (“FBOs”)

cooperation with government in providing much needed

social services. For the first time FBOs are made the focuses

of Establishment Clause challenges instead of the

government. This involves a twofold threat. First, FBOs

will have to endure protracted and expensive litigation even

when there is no Establishment Clause violation. Second,

every government grant that an FBO accepts will perpetually

be at risk of an action for restitution. The risk of being the

center of a lawsuit for a grant received and spent years

earlier will prove too much to bear for many FBOs that will

simply choose to forgo government funding. That outcome

is to the detriment of the government, FBOs, and, most

importantly, those who are in need of the assistance that

these FBOs offer.

The Seventh Circuit attempts to ameliorate the effects

of its decision by stating that an FBO will be liable for

restitution only if it “knew or should have known” that it was

receiving an unconstitutional grant. But the Seventh

Circuit’s superimposition of the equitable doctrine of

restitution onto Establishment Clause cases is a bad fit. It

leaves FBOs in a very untenable position by requiring them

to be able to accurately discern when the government is

violating the Establishment Clause. In these cases there is no

allegation that the FBO has acted illegally or has violated the

conditions of the grant. FBOs rely on government officials

to design the grant in a manner that complies with the

constitution. To require FBOs to accurately discern

constitutional wrongdoing in such a fact-specific and

fluctuating area of law is neither reasonable nor workable.

4

The Seventh Circuit's decision involves an important

question of federal law and is inconsistent with the decisions

of this Court. It tums the Establishment Clause into a

personal constitutional right, drains Article Ill’s standing

requirements of meaning, and involves the government in

more entanglement with religion, not less.

REASONS FOR GRANTING THE WRIT

I. The Seventh Circuit’s Decision Will Severely Chill

FBOs’ Cooperation With Government To Provide

Much Needed Social Services.

The social safety net in the United States would

collapse without the assistance of private, Faith-Based

Organizations. The White House Office of Faith-Based and

Coinmunity Initiatives has reported that:

[R]eligious organizations represent a major part of

the American welfare system. Tens of thousands of

people in the Philadelphia area are being helped by

all kinds of programs, from soup kitchens to housing

services, from job training to educational

enhancement classes. One can only imagine what

would happen to the collective quality of life if these

religious organizations would cease to exist.

White House Office of Faith-Based and Community |

Initiatives, Unlevel Playing Field: Barriers to Participation

by Faith-Based and Community Organizations in Federal

Social Service Programs 3 (2001)

www. whitehouse.gov/news/releases/200 1/08/2001 08 16-3-

report.pdf (quoting Ram A. Cnaan, with Robert J. Wineburg

and Stephanie C. Boddie, The Newer Deal: Social Work and

Religion in Partnership 275 (1999)). This charitable work

ranges from prisoner reentry programs to housing for the

5

elderly and homeless, to soup kitchens, job training and

AIDS shelters. Jd. In short, the breadth of social services

provided by FBOs spans almost every sector of society’s

needy. Much of the funding that supports these

organizations is private, but FBOs also receive significant

funding from the government. /d.

But the effectiveness and vitality of these

organizations in assisting the federal] government is placed in

real jeopardy by the Seventh Circuit’s decision in Laskowski

v. Spellings, 443 F.3d 930 (7" Cir. 2006). As the Office of

Faith-Based and Community Initiatives has found, FBOs

already “often face serious managerial and _ political

obstacles” to helping fulfill “the Nation’s social agenda.”

Unilevel Playing Field, at 3. FBOs must wade through the

bureaucratic red-tape that accompanies government

programs, jump through extra hoops because they are faith-

based, worry how their religious-based hiring policies will

open them to liability, and endure restrictions on their

religious activities that are not prohibited by the

Constitution. /d. at 1-3. The Office of Faith-Based and

Community Initiatives has found that many of the obstacles

that are erected specifically for FBOs are often based not on

the law, but instead a public official's overly-cautious view

of what restrictions must be placed on FBOs. /d. at 10-11.

The Seventh Circuit’s decision represents a new

threat for faith-based charities that choose to cooperate with

the government. Now, for the first time, FBOs, not the

government, are made the focuses of Establishment Clause

challenges even though they have engaged in no

wrongdoing. The Seventh Circuit described this new

doctrine as simply “cutting out the [government]

middleman.” /d. at 935. Under the Seventh Circuit’s ruling,

an FBO can now be hauled into court based not on what the

charity has done, but instead on what a third party presumes

6

that the government has done. Armed with a Freedom of

Information Act (“FOIA”) request and a vague allegation of

constitutional wrongdoing, Establishment Clause plaintiffs

are able to force FBOs to divert limited resources from

helping those in need to paying out legal fees to defend

against Establishment Clause lawsuits, even when those suits

are meritless. Normally, if an Establishment Clause plaintiff

seeks an injunction against a government grant to an FBO,

the FBO can sit on the sidelines and wait for a decision by

the court. After all, it is not the FBO that is acting

unconstitutionally. The FBO is relying on the government to

Structure the grant in a way that complies with the

Constitution. Under the Seventh Circuit’s decision, an FBO

will now find itself in the middle of the lawsuit as a

defendant for a grant that it had already relied upon and

spent. The knowledge that a grant, once taken, can be the

subject of an action for restitution years later will likely

make seeking government funding for charitable work more

trouble than it is worth for many FBOs.

Of those Faith-Based Organizations that continue to

accept government funding, many will likely feel even more

pressure to secularize all activities in order to avoid raising

even the specter of an Establishment Clause problem. Such a

system benefits neither the government nor the FBO, and

inhibits the service of the nation’s needy. Moreover, a policy

that pressures FBOs to totally secularize their organizations

runs counter to Congress’ intent in creating the Chantable

Choice program:

The purpose of this section is to allow states to

contract with religious organizations to accept

certificates, vouchers or other forms of disbursement

...on the same basis as any other nongovernmental

provider without impairing the religious character of

such organizations, and without diminishing the

j

religious freedom of beneficiaries of assistance

funded under such programs.

42 U.S.C. § 6042 (b) (emphasis added).

The number of government grants to FBOs is not

negligible. A sampling of seven government agencies shows

that over $2.15 billion dollars was awarded to faith-based

charities in 2005 alone, totaling over 2,760 individual grants.

White House Office of Faith-Based and Community

Initiatives, Grants to Faith-Based Organizations for Fiscal

Year 2005 (2006).’ Although this is only a fraction of the

nearly $20 billion in funding available to private entities in

2005, plaintiffs like those in Laskowski are now able to

rummage through thousands of individual government

records to find what they believe could be an Establishment

Clause violation.’ Under the Seventh Circuit's decision, any

one of the thousands of government grants to FBOs over the

years can now be the subject of an Establishment Clause

case for restitution.

il. The Seventh Circuit’s Decision Unreasonably

Requires FBOs to “Know” When the Government

Is Violating the Establishment Clause.

The Laskowski majority attempted to blunt the effect

of its decision by stating that an FBO or other private

religious organization would only be held liable for

restitution for a grant that “it knows or should know was

wrongfully obtained.” Laskowski v. Spellings, 456 F.3d 702,

704 (7" Cir. 2006) (denying rehearing) (citing Lord Goff &

*http://www.whitehouse.gov/government/fbci/final_report_2

005.pdf (last visited November 20, 2006).

> By comparison, secular non-profits were awarded nearly

$12.7 billion in 2005. Jd.

—

8

Gareth Jones, The Law of.Restitution § 40-018 (6" ed.

2002)). This does little to reassure amici. Although it is

unclear how this defense against a claim for restitution

would even apply in an Establishment Clause case, the

Seventh Circuit’s “solution” requires FBOs to do the

impossible: accurately predict when the government is

violating the Establishment Clause.

Members of this Court have candidly acknowledged

that “in respect to the First Amendment's Religion Clauses

... there is ‘no simple and clear measure which by precise

application can readily and invariably demark the

permissible from the impermissible.” Van Orden v. Perry,

545 U.S. 677, 125 S.Ct. 2854, 2868 (2005) (Breyer, J.,

concurring in judgment) (quoting School Dist. Of Abington

Township v. Schempp, 374 U.S. 203, 306 (1963) (Goldberg,

J., concurring). Indeed, Establishment Clause jurisprudence

has proven to be one of the most unpredictable areas of

American law. Since at least the decision in Everson v.

Board of Ed. Of Ewing, 330 U.S. | (1947), this Court has

struggled to find a consistent Establishment Clause test. As

this Court has recognized, “[t}here is no exact science in

gauging the entanglement of church and state.” Roemer, 426

U.S. at 767. This Court has also noted that Establishment

Clause challenges involve fact-specific inquiries that will

often lead to varying results. County of Allegheny v.

American Civil Liberties Union Greater Pittsburgh

Chapter, 492 U.S. 573, 607-608 (1989); Van Orden, 125

S.Ct. at 2689 (“no exact formula can dictate a resolution to

such fact-intensive cases”) (Breyer, J., concurring in the

judgment).

It is not reasonable to expect an FBO to know with

any degree of certainty whether an aspect of a government

grant somehow violates the Establishment Clause when this

Court and the federal courts of appeal are unable to come to

9

any consensus. Although it appears that the test from Lemon

v. Kurtzman, 403 U.S. 602 (1971), remains the dominant

Establishment Clause test, the Court has also “repeatedly

emphasized [its] unwillingness to be confined to any single

test or criterion in this sensitive area.” Lynch v. Donnelly,

465 U.S. 668, 679-81 (1984). This Court has applied several

different tests to Establishment Clause cases. See Lynch v.

Donneily, 465 U.S. 668 (1984) (endorsement test); Lee v.

Weisman, 505 U.S. 577 (1992) (psychological coercion test);

Rosenberger v. Rector and Visitors of the Univ. of Virginia,

SIS US. 819 (1995) (neutrality test); and Marsh v.

Chambers, 463 U.S. 783 (1983) (historical test). And

several justices have explicitly questioned Lemon's

continued value. See, e.g., McCreary County_ Kentucky v.

American Civil Liberties Union of Kentucky, 545 U.S. 844,

125 S.Ct. 2722, 2751 (2005) (Scalia, J. dissenting) (citing

instances in which Scalia, J., Thomas, J., Kennedy, J.,

O’Connor, J., Rehnquist, C.J., and Stevens, J., expressed

criticism of Lemon). Nonetheless, no test has yet

conclusively supplanted Lemon.

Several circuits have noted that Lemon is not well-

suited to predictable outcomes in cases involving the religion

Clauses. See, e.g., Barnes v. Cavazos, 966 F.2d 1056, 1063

(6th Cir. 1992) (“The Lemon test has received criticism from

virtually every corner and we add our voices to those who

profess confusion and frustration with Lemon's analytical

framework.”); City of Zion v. City of Rolling Meadows, 927

F.2d 1401, 1419 (7th Cir. 1991) (“Applying Lemon . . . to

religious symbols on city seals is no cakewalk. Lemon's

‘three-part test’ is not a test. It is a triad of questions, the

answers to which conflict in all interesting cases.”); see also

Rusk v. Crestview Local Schs., 220 F.Supp.2d 854, 856-57

(N.D. Ohio 2002) (“The Lemon test has attracted criticism

due to the lack of explicit language and confusion in

applying it to specific scenarios.”).

10

The recent Ten Commandments decisions by this

Court highlight the confusion FBOs face in trying to gauge

whether the government is violating the Establishment

Clause. In McCreary County v. American Civil Liberties

Union of Kentucky, 545 U.S. 844, 125 S.Ct. 2722 (2005),

the Court found, in a plurality decision, that the public

display of the Ten Commandments in two Kentucky

courthouses violated the Establishment Clause. However, in

Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854 (2005),

the Court found, in a plurality decision, that a public display

of the Ten Commandments on the Texas State Capitol

grounds did not violate the Establishment Clause. The

plurality in McCreary applied the Lemon test in finding an

Establishment Clause violation. McCreary, 125 S.Ct. at

2735-2736. The plurality in Van Orden, however, jettisoned

Lemon in favor of an analysis “driven both by the nature of

the monument and by our Nation’s history.” Van Orden,

125 S.Ct. at 2861 (“Whatever may be the fate of the Lemon

test in the larger scheme of Establishment Clause

jurisprudence, we think it not useful in dealing with the sort

of passive monument that Texas has created on its Capitol

grounds”). Thus, the plurality in each case applied a

different test and came to a different outcome regarding the

public display of the Ten Commandments. In the end, only

Justice Breyer thought that both decisions were mghtly

decided. McCreary, 125 S.Ct. at 2727; Van Orden, \25

S.Ct. at 2868 (Breyer, J., concurring in the judgment).

To expect FBOs to navigate through Establishment

Clause jurisprudence with any degree of certainty is too

much to ask, and does not give the reassurance that the

Seventh Circuit majority suggests it should. Regardless of

what one thinks the outcome of these Establishment Clause

decisions should be, it is beyond dispute that they are highly

unpredictable, even for constitutional scholars. Certainly an

il

FBO’s liability for receiving grants long ago spent cannot

turn on whether it “knew or should have known” that the

Government was violating the Establishment Clause. The

FBO relies on the government to structure the grant in a way

that is constitutional. It cannot possibly be expected to be an

expert on the vicissitudes of Establishment Clause

jurisprudence. To require such prescience in as

unpredictable a field as Establishment Clause cases is

unreasonable and unworkable.

Hil. The Laskowski Decision Is Inconsistent With ‘he

Decisions of This Court.

The Laskowski decision brings to fruition two fears

that members of the Court have previously expressed. First,

it creates a very real potential that the Establishment Clause

will become a “personal constitutional right.” Valley Forge

Christian College v. Americans United for Separation of

Church and State, Inc., 454 U.S. 464, 482 (1982) (citations

omitted). The Seventh Circuit’s decision replaces Flast v.

Cohen’s “narrow exception ... to the general rule against

taxpayer standing” with a gaping exception that would open

the floodgates to an already thriving industry of

Establishment Clause lawsuits. Bowen v. Kendrick, 487 U.S.

589, 618 (1988). As Judge Sykes noted in her dissent in

Laskowski, the majority vests “taxpayers with a unique sort

of qui tam-like authority to sue private parties for

reimbursement of the Treasury when the government 1s

alleged to have committed an Establishment Clause

violation.” Laskowski, 443 F.3d at 939. “But assertion of a

right to a particular kind of Government conduct, which the

Government has violated by acting differently, cannot alone

satisfy the requirements of Art. III without draining those

requirements of meaning.” Valley Forge, 454 U.S. at 483.

Surely the majority’s decision in Laskowski is not what the

Court envisioned when it granted the limited and narrow

12

exception to the prohibition against taxpayer standing in

Flast v. Cohen, 392 U.S. 83 (1968). If it is consistent with

Flast’s holding, this Court should revisit whether Flast is

consistent with Article III’s standing requirements.

Second, putting FBOs at the center of a suit for

restitution involves the government in more entanglement

with religion, not less. In Roemer v. Board of Public Works

of Maryland, 426 U.S. 736 (1976), a plurality of the court

addressed in passing the claim that funds could be recouped

from private colleges, some of which were religious. The

plurality noted that “[t]he funds in question here long since

have been paid out to, and spent by, the colleges. As for the

protection of the substantive constitutional rights, the

separation of church and state may well be better served by

not putting the State of Maryland in the position-of a

judgment creditor of the appellee colleges.” Jd. at 767. The

Seventh Circuit's decision puts courts in the uncomfortable

position of retroactively policing which funds must be repaid

by Faith-Based Organizations into the federal treasury.

Also, the Seventh Circuit’s concept of “cutting out the

middleman,” Laskowski, 443 F.3d at 935, by focusing on the

religious grant recipient instead of the government places the

alleged constitutional wrongdoer, the government, as a sort

of judgment creditor of the religious entity. Such a scenario

heightens, not relieves, entanglement concerns.

—

BEST AVAILABLE COPY

13

CONCLUSION

Amici respectfully request that this Court grant Notre

Dame’s Petition for a Writ of Certiorari to address whether a

taxpayer's standing to pursue an Establishment Clause

challenge can be based solely on a plaintiff's claim for

restitution from a private religious entity on behalf of the

government.

Respectfully submitted,

BENJAMIN W. BULL

(Counsel of Record)

JORDAN LORENCE

DALE SCHOWENGERDT

ALLIANCE DEFENSE FUND

15333 N. Pima Rd., Ste. 165

Scottsdale, AZ 85260

(480) 444-0020

November 27, 2006