|AJC in The Courts: 1999 ( 1 of 2 )|
Religion in the Public Schools
Adler v. Duval County School Board
The plaintiffs in this case, students and parents in a Florida school district, challenged the school board's guidelines allowing prayer at graduation ceremonies. The school board's counsel wrote a memorandum entitled "Graduation Prayers" that set forth guidelines to principals. These guidelines provided that the graduating seniors should decide whether or not to have a brief opening or closing message at graduation ceremonies, who should give this message, and what the content of the message should be.
The stated purpose of the guidelines was to allow students alone to direct their graduation message. The words "prayer," "benediction," or "invocation" were not used in the guidelines themselves; however, the introduction makes clear that they were written in response to concerns regarding the constitutionality of student-initiated prayers. Moreover, there was no requirement in the guidelines that the message be nonsectarian. There was also some evidence that the motivation behind the guidelines was to allow prayer in graduation ceremonies. (At the relevant school board meeting, several members of the school board openly stated that their desire was to have prayer at these graduations.) In accordance with the guidelines, the schools delegated the decision-making to the students. Prayers were given at the commencement ceremonies of 10 of the 17 schools in the district.
The plaintiffs, after being denied a preliminary injunction, moved for summary judgment, asserting that the guidelines failed the three-pronged test articulated in Lemon v. Kurtzman. They contended that: (1) the purpose of the guidelines was not secular, but rather to find a way to include prayer in graduation ceremonies; (2) by allowing prayer at a school-sponsored event, the school board was endorsing and therefore advancing religion; and (3) excessive entanglement was the inevitable result of allowing prayer at school-sponsored and school-controlled ceremonies. The defendants and intervenor-defendants (a group of students supportive of the guidelines) moved for summary judgment as well. They asserted that there was no Lemon violation because the school had delegated the authority to the students. The defendants also argued that a graduation ceremony was a limited public forum, and, therefore, to allow the students to engage in religious speech was not a violation of the Establishment Clause.
Relying on the Fifth Circuit Court of Appeals' decision in Jones v. Clear Creek Independent School District II (1992), the district court held that since school officials were not involved in the decision-making process, there was no Lemon violation. Moreover, the court found no coercion problem as described by the Supreme Court in Lee v. Weisman (1992). The district court also held that since graduation ceremonies are often held away from school grounds and often involve outside speakers, the ceremonies are limited public forums. Therefore, the court concluded, the state could not exclude religious speech with a content-based regulation.
The plaintiffs appealed to the Eleventh Circuit Court of Appeals. On May 6, 1997, a three-judge panel dismissed the plaintiffs' claims for injunctive and declaratory relief because the students protesting the guidelines had graduated, rendering their claims moot. The panel also abstained from ruling on the constitutionality of the guidelines, holding that the plaintiffs had waived their claim for monetary damages by failing to allege any connection between the prayer and their damages.
In May 1998, a new lawsuit (Adler II) was filed in which students with graduation dates from 1998 to 2000 were plaintiffs. Later that month, the Florida district court granted judgment for defendants and the case was again appealed to the Eleventh Circuit.
On May 11, 1999, the Eleventh Circuit reversed the district court and struck down (2-1) the Duval County school system's graduation speaker policy. The court determined that, under either Lemon's "tripartite test" or Lee's "graduation prayer" standard (i.e., a policy of school-sponsored graduation prayer violates the Establishment Clause when (a) state officials direct the performance of a formal religious exercise and (b) graduating student attendance is "in a fair and real sense obligatory"), the Duval County graduation prayer regulations were unconstitutional.
As to the Lemon test and its "secular purpose" prong, the court held that the policy "both on its face and based upon the history surrounding its inception" had an actual purpose to permit prayer-- including sectarian and proselytizing prayer-- at graduation ceremonies. In fact, the board's avowed purpose in adopting its policy was to provide an option that might allow its historical tradition of graduation prayer to survive the prohibitions of the Supreme Court's decision in Lee. The court also found that the policy of permitting prayer at graduation ceremonies had the "primary effect" of advancing religion. That policy placed those attending graduation ceremonies "in the position of participating in a group prayer" in violation of Lemon. In light of the fact that the policy failed the first two parts of the Lemon test, the Eleventh Circuit found no need to engage in an analysis of Lemon's third "entanglement" prong.
The result was the same when the court subjected the Duval County policy to the standard articulated by the Supreme Court in Lee. The Eleventh Circuit noted that although distinguishable from Lee, where the school was involved in the selection of clergy to deliver the prayer, "our review leads us to the conclusion that the delegation of the decision regarding a Ôprayer' or Ômessage' to the vote of graduating students does not erase the imprint of the state from graduation prayer." In this regard, the court pointed to the fact that the school exerted tremendous control over the graduation ceremonies. The school board rented the facilities for the graduation; told the graduating students what they should wear; decided when the graduating students and audience could sit and stand; decided the sequence of events at the graduation; designed and printed the program for the ceremonies. Thus, the court found that student autonomy to choose the graduation message"fails to erase the overwhelming control that the school exerted over the remainder of the graduation ceremony."
Finally, said the court, the student speakers were considered"state actors" for Establishment Clause purposes. When the state permits individuals to exercise government functions they"must be subject to constitutional limits." Thus, just as a publicly elected school board president could not make a "private decision" to lead children in the recitation of prayer every morning, neither could the senior class's elected representative make a private decision to do the same thing from the graduation podium. As such, the Eleventh Circuit reversed the district court judgment in favor of the school board and remanded the case for further discovery and proceedings consistent with its ruling.
However, less than one month later, in June 1999, upon a request by a member of the court, the Eleventh Circuit withdrew and vacated its Adler II decision, and announced that it would rehear the case en banc. Another decision from the Eleventh Circuit is therefore awaited.
The National Coalition for Public Education and Religious Liberty (PEARL), of which AJC is a member, filed briefs in support of the plaintiffs-appellants in the Eleventh Circuit Court of Appeals in both Adler I and Adler II (on initial hearing and rehearing). Other organizations joining in the briefs included Americans United for Separation of Church and State, the Anti-Defamation League, and the American Civil Liberties Union.
In our briefs, we urged reversal of the district court's decisions. We argued that the guidelines circumvented the Supreme Court's holding in Lee v. Weisman and were a thinly veiled attempt to promote prayers at public high school graduations, in violation of the Establishment Clause. Furthermore, under Eleventh Circuit precedent, government officials may not delegate to citizens any power which, if exercised by the officials, would impermissibly infringe a fundamental liberty guaranteed by the Constitution. Therefore, the school board's delegation to students of the decision-making authority over graduation prayer failed to sever the board's involvement in endorsing prayer at school functions. As our brief pointed out,"[t]he extensive control that schools exercise over graduation ceremonies inevitably presents the state as endorsing the content of messages that are part of the official program."
Coles v. Cleveland Board of Education
The Cleveland School Board opened its public meetings with a long prayer on the theory that the practice would solemnize the meetings and reduce divisiveness. Originally the prayer was offered by clergymen of various faiths, the vast majority of whom were Christian. When a Christian minister became president of the school board, he personally offered the prayer at every meeting. The prayer alternated between supplicating and thanking God for directing the work of the board, as well as for assistance in funding school projects. On several occasions, the audience was asked to say"Amen," or join in prayer, or bow their heads for a moment of silent prayer.
Students were frequently invited to board meetings to be honored for special achievements. One of these students, along with a teacher who attended every board meeting, brought this lawsuit, claiming their constitutional rights had been violated by the practice of opening the public meeting with a prayer.
These facts led a federal magistrate judge to conclude that the board's prayers "go beyond solemnizing the proceedings; they ask attendees to seek God's intervention in their lives." By so doing the board created" a state-sponsored and state-directed religious exercise which, because of [the board's] reason-for-being and very agenda, cannot be separated from the public schools." The magistrate concluded that the board prayer occurred in a school setting and thereby violated the Establishment Clause by promoting and appearing to endorse religion, and coercing the public to participate.
The U.S. District Court for the Northern District of Ohio accepted the magistrate judge's factual findings, but rejected her legal analysis. The court accepted the board's argument that because the purpose of the prayer was not to proselytize but to solemnize acrimonious meetings, the practice was permitted by a 1983 U.S. Supreme Court decision, Marsh v. Chambers, permitting prayer in state legislative chambers. In Marsh, the Supreme Court held such a practice constitutional, noting that "[t]he opening of sessions of legislative and other deliberative bodies with prayer is deeply embedded in the history and tradition of this country." The district court held that prayer at a school board meeting was more akin to an opening prayer at a legislative session than to prayer in the schools because it was" fundamentally a meeting of adults, open to the public and conducted for the purpose of doing public business." Accordingly, the court found that the board's practice did not violate the Constitution.
On March 18, 1999, the U.S. Court of Appeals for the Sixth Circuit overturned the district court and ruled that the prayers in question were unconstitutional. The court began its analysis by noting that this case put it "squarely between the proverbial rock and a hard place." The "rock" was Lee v. Weisman, which held that prayers at high school graduation ceremonies violated the Establishment Clause of the First Amendment. The "hard place" was Marsh v. Chambers, which ruled that prayers were constitutionally permissible at state legislative sessions.
Highlighting its dilemma, the court acknowledged that prayers at school board meetings did not neatly fit within the category of "school-sponsored prayer" as defined in Lee, because the prayers were not said in front of the student body as a whole. By the same token, however, the practice challenged did not fall under the "unique and narrow exception" articulated in Marsh, because the school board was "an integral part of the public school system." Resolving the issue, the court concluded that although school board meetings might be of a "different variety" from other school-related activities, the fact remained that they took place on school property, were inextricably intertwined with the public school system, and were attended by students who actively and regularly participated in the discussions of school-related matters. Furthermore, students who wished to challenge their suspension or expulsion from school were required by statute to air their grievances at such meetings. For these students, attendance was a matter of necessity, not a matter of choice.
Concluding its analysis, the court indicated that the Supreme Court's "tripartite test" in Lemon v. Kurzman was controlling and that the school board practice violated all three prongs of the test. As to "secular purpose," it dismissed the school board's contention that it adopted the practice of opening its meetings with an invocation in order to give them a more professional decorum. The court noted that the statements made by school board members indicated otherwise. The board's president, for example, stated that the prayers were an acknowledgment of "Christians who participate in the schools." The court also found that the invocations had the primary effect of endorsing religion and entangling the government with religion. The court highlighted the fact that the prayers at issue were clearly sectarian-- with repeated references to Jesus-- and that the board president was a Christian minister who delivered the majority of the prayers. Under those circumstances, the court noted that "any reasonable observer would conclude that the school board was endorsing Christianity."
In June 1999, the Sixth Circuit rejected a petition for rehearing en banc. Accordingly, its decision that the school board prayers were unconstitutional still stands.
AJC joined in the National Coalition for Public Education and Religious Liberty's (PEARL's) amicus brief to the Sixth Circuit urging affirmance of the magistrate judge's legal analysis. The brief argued that the school board meetings, at which students were frequently present, were not the equivalent of meetings of deliberative bodies for the purpose of Establishment Clause analysis. "By declining to review the school board's practice under the school-prayer cases, the district court ignored the potential that students attending the school board meetings may conclude . . . that school officials lack neutrality in their attitudes toward religion and that students in attendance are likely to feel pressure to participate in the prayer. . . ." As a consequence, the school board's conduct was constitutionally invalid. Our brief reiterated that the special impressionability of children made it all the more critical that the constitutional guarantee of separation of church and state be carefully maintained.
Freiler v. Tangipahoa Parish Board of Education
In August 1994, the Tangipahoa Parish Board of Education adopted a resolution requiring the statement of a disclaimer whenever the scientific theory of evolution was to be taught in elementary or high school classes. The disclaimer stated, in part, that "the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the biblical version of Creation or any other concept." Several parents of children in the Tangipahoa Parish public schools brought suit in the U.S. District Court for the Eastern District of Louisiana challenging the validity of the resolution under the provisions in the U.S. and Louisiana constitutions barring laws "respecting an establishment of religion."
Relying on Supreme Court precedent holding unconstitutional any state act motivated solely by a purpose to advance religion, the district court ruled that the board's mandating the disclaimer constituted an endorsement of religion and thus a violation of the Establishment Clause. The court examined the circumstances surrounding the adoption of the resolution and found that it was an attempted compromise between a policy allowing creationism to be taught and the teaching of evolution only in science classes. This context led the court to reject the board's argument that the disclaimer had the secular purpose of urging students to exercise their critical thinking skills. "As hard as it tries to," wrote Judge Livaudais, "this Court cannot glean any secular purpose to this disclaimer."
In August 1999, the U.S. Court of Appeals for the Fifth Circuit affirmed the district court's ruling striking down the disclaimer. While agreeing with the trial court that the disclaimer did not encourage students to think critically, the appellate court held that it did serve the secular purposes of disclaiming an orthodoxy of belief and reducing any offense caused by the teaching of evolution to students and parents. Nonetheless, the circuit court held that the disclaimer did not pass constitutional muster because its primary effect was"to protect and maintain a particular religious viewpoint, namely belief in the biblical version of creation." As such, the disclaimer violated the Establishment Clause under both Lemon's tripartite test and the endorsement test enunciated by the Supreme Court in Allegheny County v. ACLU.
AJC joined in the amicus brief filed in the Fifth Circuit by the National Coalition for Public Education and Religious Liberty (PEARL), which urged the affirmance of the district court's decision. In our brief, we argued that in addition to the board's impermissible purpose in adopting the resolution, the resolution also had the impermissible effect of advancing religion by "putting the state's stamp of approval on religious doctrine as a plausible explanation of reality." Furthermore, the brief pointed out, by referring only to the "biblical version of Creation" as a plausible competing account of the origins of the human race, the disclaimer unconstitutionally preferred one religious doctrine over others and over other secular accounts.
Grumet v. Pataki
In 1977, the Satmar Hasidim incorporated Kiryas Joel as an independent village, carved out of the town of Monroe, some forty miles northwest of New York City. In 1989, the state legislature passed a bill, which was signed by Governor Mario Cuomo, authorizing the village to form its own public school district, coterminous with the village. The Monroe Woodbury Central School District, from which the Kiryas Joel Village School District in effect seceded, actually supported the establishment of the new district. (There was a long and bitter history of tension and conflict between the Monroe-Woodbury Central School District and the Hasidim, relating to the education of the Hasidic children.)
Most of the Hasidic children are educated in their own private religious schools. The purpose of the new district was to provide publicly financed special education for handicapped Hasidic pupils. Previously, the twenty-one learning-disabled children of the village had received special educational services, taught by public school teachers from Monroe-Woodbury Central School District, in an annex to a Kiryas Joel yeshiva. But that arrangement ceased in 1985 when the U.S. Supreme Court ruled in Aguilar v. Felton that publicly funded employees could not teach in religious schools. Thereafter, the children received special education in the public schools. However, their parents contended that this experience was extremely traumatic for them because of their obvious cultural differences from the other children in the public school. Thus the special school district was established.
The special school district was challenged from the very beginning. The State Education Department refused to support its creation. The executive director of the New York State School Boards Association, Louis Grumet, and its president, Albert Hawk, brought the suit to challenge the district's constitutionality. The trial court declared the legislation establishing the district unconstitutional and the Appellate Division affirmed. The case was then appealed to New York State's highest court, the Court of Appeals.
In 1993, the Court of Appeals affirmed the decision to strike down the legislation. The majority based its decision on the test articulated in Lemon v. Kurtzman, that a governmental action must have a secular purpose, its primary effect must be one that "neither enhances nor inhibits religion," and it must not foster "an excessive entanglement with religion." The court found that the creation of the school district had the "primary effect" of advancing religion by creating a "symbolic union of church and state." Justice Kaye (now chief justice), in a concurring opinion, asserted that the creation of a separate school district violated the Establishment Clause because it was not narrowly tailored to fit a compelling interest. She argued that there were far more moderate measures to satisfy the government's purpose, such as furnishing special education services at a neutral site.
The school district appealed to the U.S. Supreme Court. On June 27, 1994, the Supreme Court affirmed the decision of the New York Court of Appeals, by a vote of 6-3. The majority held that the legislature acted in an "anomalous case-specific" way for the benefit of a religious sect. The Court further held that the creation of the school district was an unconstitutional delegation of political power to a religious group. The Court suggested that the distinct needs of the handicapped Satmar children could be met within the limits of the Establishment Clause by the provision of special services to those children at a neutral site near one of the village's religious schools.
Shortly after the Supreme Court's decision, the New York State legislature passed a law allowing municipalities wholly contained within one school district to operate their own school districts, subject to certain restrictions. This law circumvented the Supreme Court decision, enabling the Kiryas Joel Village School District to continue to operate. The New York State School Boards Association once again brought suit in state court to challenge this new law. The New York State Supreme Court upheld the constitutionality of the new law. The New York State School Boards Association appealed that decision and in August 1996 the State Appellate Division declared the new law unconstitutional. The court called the law a "subterfuge" whose specific demographic criteria were tailored to benefit only the Hasidim of Kiryas Joel. Thus, the court said, the law singled out a particular religious group for preferential treatment and was therefore unconstitutional.
The school district appealed to the Court of Appeals and obtained an automatic stay, enabling the school district to continue operating, pending the outcome of the appeal.
On May 6, 1997, the Court of Appeals unanimously struck down the second attempt by the legislature to create a school district for Kiryas Joel. The court said that the 1994 law intended to address the village's desire for a school district to educate its disabled children violated one of the core principles of the Constitution: the division between government and religion. Judge Carmen Beauchamp Ciparick, writing for the Court of Appeals, said the 1994 law "operates not as a generally applicable, religion-neutral law but has the same non-neutral effect of singling out Kiryas Joel for special treatment that caused this court and the Supreme Court to strike down" the previous law.
Undeterred, the legislature attempted again in 1997 to pass a constitutionally valid law permitting the establishment of the Kiryas Joel school district. Mindful of the courts' suspicion of the prior legislation because it benefited only Kiryas Joel, under this broader third law the affluent community of Stony Point in Rockland County also qualified and would be allowed to establish a school district separate from that of the poorer surrounding town of Haverstraw.
Finding that this third effort was still an invalid act of "legislative favoritism," in April 1998 a State Supreme Court justice in Albany struck down the law and chastised the legislature for its continuous attempts to end-run the courts' previous rulings. On appeal, the Appellate Division, noting that the new legislation applied only to two of the state's 1,545 municipalities and had only speculative future application, agreed with the lower court that it was an "impermissible governmental endorsement of this religious community." The appellate court noted, however, a constitutionally viable alternative for defendants in light of the recent Supreme Court decision in Agostini v. Felton, which overruled Aguilar v. Felton. Agostini permitted public school districts to send teachers into parochial schools to teach remedial classes to needy children. Therefore, the Appellate Division pointed out, under the Supreme Court's most recent Establishment Clause pronouncement, it would be constitutional for Monroe-Woodbury to provide on-site instruction to the special needs children of Kiryas Joel.
In May 1999, the Court of Appeals affirmed (4-3) the lower courts' rulings and struck down the third legislative effort to create a separate Kiryas Joel school district. The court began by noting that the Establishment Clause bars government from passing laws which "aid one religion, aid all religions, or prefer one religion over another." Examining the statute at issue, the court concluded that although it was "neutral" on its face, in application it benefited only the village of Kiryas Joel and the town of Stony Point out of the state's 1,545 municipalities. The court stressed that in allowing one additional municipality to qualify, the statute was not transformed into a "general religion neutral law." Since other communities with similar educational needs would not have an equal opportunity to create a publicly funded school district, its effect was to "secure for one religious community a unique and significant benefit-- a 'public school' where all the students adhere to the tenets of a particular religion-- unavailable to other, similarly situated communities."
Having determined that the statute failed on "neutrality" grounds, the court then ruled that the statute was also unconstitutional under the Supreme Court's Lemon v. Kurtzman tripartite test. Focusing on the"primary effect" prong, the court found that the statute delegated to a religious group the right to form its own public school district, a delegation "which carries with it vast powers." The court determined that the statute's exclusive delegation of significant governmental power to a religious sect violated the Constitution in that it did not ensure that similarly situated groups would also be able to avail themselves of that power.
The school district then appealed to the U.S. Supreme Court, which initially stayed the application of the Court of Appeals' decision but in October 1999 declined to review the case again.
AJC joined in an amicus brief filed by Americans United for Separation of Church and State in the U.S. Supreme Court in support of appellees, the New York State School Boards Association. Also signing onto the brief were the Anti-Defamation League, the American Civil Liberties Union, the National Council of Jewish Women, and the Unitarian Universalist Association. In our joint brief, we argued that the special school district violated the Establishment Clause because the state had delegated governmental power to a religious entity and had singled out one religious group for preferential treatment. We asserted that"this purposeful delegation of governmental authority to a religious entity violate[d] core notions of nonestablishment of religion going back to our nation's founding."
School Aid Programs
Bagley v. Maine Department of Education
A Maine statute allowed the state to pay private school tuition for children in towns where there were no public schools to accommodate them, but prohibited the use of state funds to pay tuition at religiously affiliated schools. Parents of students in the rural town of Raymond brought suit claiming that the statute's exclusion of religious schools violated the constitutional guarantee of the free exercise of religion.
In April 1998, a Maine Superior Court judge ruled that the state's refusal to subsidize plaintiffs' religious education did not substantially burden their religious beliefs or practices. In addition, the court noted that if the statute were modified so as to permit tuition payments to sectarian schools, it would violate the Establishment Clause because the "primary effect" would be to subsidize and advance religion. Plaintiffs appealed the Superior Court's decision to the Maine Supreme Court.
On April 23, 1999, the Maine Supreme Court found the tuition reimbursement statute to be constitutional. It began its analysis by rejecting plaintiffs' free exercise claim, quoting the U.S. Supreme Court's 1963 Sherbert v. Verner decision, which stated:
The fact that government cannot exact from [a citizen] a surrender of one iota of [her] religious scruples does not, of course, mean that [she] can demand of government a sum of money, the better to exercise them.
The court found no substantial burden to plaintiffs' free exercise of religion resulting from the tuition reimbursement statute's exclusion of sectarian schools.
The court reviewed the state of Establishment Clause jurisprudence to determine if the statute properly excluded religious schools. It noted that, although the "Lemon test" is still in use, the 1980s witnessed a significant shift in the U.S. Supreme Court's interpretation of the Establishment Clause. With respect to school aid programs, the Supreme Court was previously chiefly concerned with whether such programs allowed a benefit to sectarian schools. In recent years, however, the Court's analysis has shifted to focusing on the degree to which government aid to sectarian schools is attenuated.
After reviewing the status of school aid programs in other states, the court concluded that despite the shift in the Supreme Court's Establishment Clause analysis, Maine's tuition program would violate the Establishment Clause absent the exclusion of religious schools. In reaching that conclusion, the court determined that the statute has a legitimate secular purpose-- the education of the state's children-- but would have the "impermissible effect of advancing religion" if it did not exclude religious schools. Because Maine's tuition program involved a direct financial subsidy to the recipient schools, the court found it distinguishable from cases in which the U.S. Supreme Court had upheld the provision of limited services to children in sectarian schools or limited financial benefit to their parents. In contrast to programs from which religious schools only indirectly benefited, the Maine tuition program would provide direct, unrestricted financial aid to the religious institutions.
Plaintiffs appealed to the U.S. Supreme Court, which on Oct. 12, 1999, declined to review the Maine Supreme Court's decision.
AJC joined in an amicus brief filed by Americans United for Separation of Church and State with the Maine Supreme Court supporting the constitutionality of a vouchers program that directs that public funds can only be used to subsidize tuition at nonsectarian private secondary schools. Other organizations signing onto the brief included the Anti-Defamation League and People for the American Way.
In the Maine Supreme Court, plaintiffs argued that the Establishment Clause mandates neutrality in public funding, i.e., the equal treatment of religious and secular institutions. Therefore, parents wishing to enroll their children in sectarian schools pursuant to Maine's reimbursement statute must be treated identically to parents enrolling their children in public or nonsectarian private schools.
Our brief argued that "neutrality" is not the sole or even dominant principle in Establishment Clause jurisprudence. Rather, the Supreme Court has recognized the special dangers where government makes direct money payments to sectarian institutions even pursuant to a "neutral" program that includes nonsectarian recipients. In response to plaintiffs' free exercise argument, our brief noted that the Free Exercise Clause is applicable solely to government prohibitions that are religiously based. No such prohibition existed here, as the plaintiffs were free to exercise their constitutional right to send their children to any school of their choice, religious or otherwise. The effect of the statute was simply to deny public funding for the exercise of that right.
Chittenden Town School District v. Vermont Department of Education
Due to its sparse population and pursuant to state law, the Chittenden School District does not maintain a high school for the provision of secondary education to the residents of the town, but provides tuition for their attendance at high schools elsewhere in Vermont. In May 1996, the Chittenden Town School Board authorized the use of public funds to pay tuition for Chittenden students to attend Mount Saint Joseph Academy, a high school owned and operated under the authority of the Roman Catholic diocese of Burlington. Because it viewed the board's payments to the Catholic school as unconstitutional, the Vermont Board of Education terminated state aid to the Chittenden Town School District. The town then brought suit in Vermont Superior Court seeking a ruling that such payments were constitutional.
Analyzing Chittenden's program under the Supreme Court's 1997 Agostini v. Felton ruling, which held that not all direct government aid benefiting the educational function of sectarian schools violates the Establishment Clause, the Superior Court nevertheless struck down Chittenden's policy. As distinguished from the program in Agostini, which sent public school teachers into parochial schools to provide remedial education to disadvantaged children, (1) the Chittenden program provided for public funds to flow "directly to the coffers of Mount Saint Joseph Academy for its unrestricted use," (2) the "Chittenden tuition payments would relieve Mount Saint Joseph Academy of costs it would otherwise bear in educating its students," and (3)"public funds would be used to pay employees of a religious institution, who are bound by their contract to incorporate teachings of the Roman Catholic church into their classes." Therefore, the court ruled, the program created "an actual and direct link" between church and state in violation of the U.S. and Vermont constitutions.
The case was appealed to Vermont's Supreme Court, which, faced with a challenge based upon both the state and federal constitutions, first narrowed the scope of its legal analysis. The court determined that due to the uncertain state of federal Establishment Clause jurisprudence, and because the Vermont constitution was dispositive of the issue presented, it need only decide the dispute under the state constitution. Therefore, the court did not review the case under the First Amendment's Establishment Clause.
The "Compelled Support" Clause of Article 3 of the Vermont constitution provides "that no person ought to, or of right can be compelled to support any place of worship contrary to the dictates of conscience . . . . " There was no dispute between the parties that the word "support" included financial support through the payment of taxes and that the phrase "contrary to the dictates of conscience" included compelled support for a place of worship that offended the religious beliefs of the supporter. Rather, their dispute focused on (1) whether a sectarian school is a "place of worship" as that term is used in Article 3, and (2) whether the Chittenden program constituted" state sponsorship" of religion because the parents-- not the school district-- chose the religious school.
To determine whether religious education falls within Article 3's prohibition against compelled funding of a "place of worship," the court first looked to prior case law and the text of the constitutional provision and concluded that Article 3 is "not offended by mere compelled support for a place of worship unless the compelled support is for the 'worship' itself." The court then pointed to three historical elements leading to the conclusion that the Chittenden program did violate Article 3. First, in 1806, Vermont repealed its"Ministerial Act," which created a tax for the establishment of houses of worship and the hiring of ministers, after it was determined that the act violated the nonsupport provisions of Article 3. Second, the court pointed to the 1785 "Virginia Bill for Religious Liberty," which contained a "nonsupport" provision similar to Article 3, and found Virginia's rejection of public funding of religious education as instructive that Article 3's prohibition was intended to include religious education. Third, the court looked to the nonsupport language in the Pennsylvania constitution, which is almost identical to Article 3, leading it to the conclusion that the Pennsylvania Quaker insistence on nonsupport for religious institutions was incorporated into the Vermont constitution. Based upon these three historical lessons, the court determined that "no artificial line between religious worship and religious education emerged in Vermont, and Article 3's nonsupport mandate therefore prohibits compelled funding of religious education."
Finding "no way to separate 'religious instruction' from 'religious worship,'" and because the Chittenden program contained no restrictions on the use of public funds for religious education, the court concluded that the program violated Article 3 of the Vermont constitution. Moreover, it ruled that the independent choice of parents opting to send their children to sectarian schools could not save the program. On this issue the court stated: "If choice is involved in the Article 3 equation, it is the choice of those who are being required to support religious education, not the choice of the beneficiaries of the funding."
AJC joined in an amicus brief filed by the National Coalition for Public Education and Religious Liberty (PEARL) that urged the Vermont Supreme Court to affirm the Superior Court's decision. In our brief we pointed out that in Committee for Public Education and Religious Liberty v. Nyquist, the U.S. Supreme Court held unconstitutional a New York program that reimbursed parents for tuition expended on parochial school education. Furthermore, the brief argued, "[u]nlike those aid programs benefiting students at religious schools that have satisfied . . . Supreme Court standards in the past,
. . . the Chittenden plan would give the green light to publicly funded religious instruction, thereby creating an incentive to organize religious schools where none has existed in the past."
Holmes v. Bush
Florida's voucher plan, the Opportunity Scholarship Program (OSP), was passed by the Florida legislature on April 30, 1999, and signed into law by Gov. Jeb Bush on June 21, 1999. Under the plan, students who are enrolled in or assigned to attend a public school that has received a performance grade category of "F" for two years (during one of which the student was in attendance) will be offered three options other than remaining in their assigned school. First, such students may attend a designated higher-performing public school in their school district. Second, such students may attend-- on a space-available basis-- any public school in an adjacent school district. Third, such students may attend any private school, including a sectarian school, that has admitted the student and has agreed to comply with the requirements set forth in the voucher plan.
If a student chooses the third option, the state will pay an amount in tuition and fees at a qualifying private school "equivalent" to the "public education funds" that would have been expended on a public education for the student and will continue to do so until the student graduates from high school. Although the amount of school vouchers may not exceed the amount charged by a qualifying private school in tuition and fees, there is nothing in the voucher plan that would prevent a private school from raising its tuition and fees to capture the maximum available return under the voucher plan.
The funds necessary to pay for the vouchers will be drawn from each affected school district's appropriated funds and paid directly to recipient private schools. Although the voucher plan provides that voucher payments will be made by check payable to a student's parents, the checks are mailed to the recipient private school and must be restrictively endorsed over to the school for payment by the parent.
Private schools qualify for receipt of voucher payments if they have admitted an eligible student, agreed to participate in the voucher plan by not later than May 1 of the school year in question, and agreed to comply with certain minimum criteria.
Among other things, to participate in the voucher plan private schools must:
(1) accept as full tuition and fees the amount provided by the state for each student;
(2) determine, on an entirely random and religious-neutral basis, which students to accept;
(3) comply with the prohibitions against discrimination on the basis of race, color or national origin;
(4) agree "not to compel any student to profess a specific ideological belief, to pray or to worship."
With respect to this last criterion, the voucher plan does not prohibit a school from requiring a student to receive religious instruction. The plan also does not place any limitation on the uses to which schools can put voucher payments.
Parents are required to notify the state of their intent to request a school voucher for their child by no later than July 1 of the school year in which they intend to use the voucher. The first round of voucher payments was scheduled to be made on August 1, 1999.
In June 1999, a group of Florida citizens and organizations brought suit challenging the legislation as unconstitutional. The complaint, filed in the Circuit Court of the Second Judicial Circuit for Leon County, Florida, alleges that the program violates the Florida constitution, which provides (1) that "no revenue of the state É shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution"; and (2) that "income derived from the state school fund shall É be appropriated only to the support and maintenance of free public schools." In addition, the complaint asserts that the vouchers will funnel public funds to sectarian schools where they will be used for religious education, worship, and other religious activities, in violation of the Establishment Clause of the First Amendment.
The Florida Education Association, et al., subsequently filed a similar legal challenge to the voucher plan, along with a motion to consolidate the two actions. Also added to the suit, but as defendants, were individual Florida citizens and the Urban League of Greater Miami, which intervened to support the legislation.
The litigation is currently in the pretrial phase.
The organizations involved in the challenge to the voucher plan include the American Jewish Committee, the NAACP, the League of Women Voters, the American Civil Liberties Union, Americans United for Separation of Church and State, People for the American Way, the American Jewish Congress, and the Anti-Defamation League. AJC is serving as "of counsel" to the plaintiffs.
Mitchell v. Helms
Chapter 2 of Title I of the Elementary and Secondary Education Act of 1965 provides federal funds for the distribution of library books, slide, movie and overhead projectors, television sets, tape recorders, projection screens, maps, globes, filmstrips, cassettes, resource materials, computers, and computer software by state and local educational agencies to public and private schools, including sectarian schools, for the purpose of improving student achievement. Chapter 2 also permits a host of programs to be provided that involve public school staff, including the development of technology programs and drop-out and illiteracy prevention programs.
Louisiana's special education program mandated the provision of "free, publicly supported education to every exceptional child who is a resident" of the state. The Jefferson Parish School Board contracted with the Special Education Services Corporation to provide special education services by public school teachers at private schools operated under the authority of the archdiocese of New Orleans. As of October 1997, fourteen publicly employed special education teachers and five teaching assistants worked full-time in nine parochial schools in Jefferson Parish.
Plaintiffs challenged the constitutionality of the state and federal school aid programs as applied in Jefferson Parish, Louisiana.
In 1994, the District Court for the Eastern District of Louisiana, which rendered its decision prior to the Supreme Court's 1997 ruling in Agostini v. Felton permitting the sending of public school teachers into parochial schools to teach remedial classes to needy children, ruled that Louisiana's special education program was unconstitutional because it advanced religion and resulted in excessive entanglement between church and state.
On appeal, the U.S. Court of Appeals for the Fifth Circuit reversed the district court's decision, noting that Agostini instructs that "the mere presence of a publicly paid teacher on sectarian school premises will no longer give rise to the presumption that those teachers will inculcate religion in their students" nor "create an impermissible 'symbolic link' between government and religion."
Relying on the Supreme Court's ruling in Meek v. Pittenger, which held Pennsylvania's provision of instructional materials other than textbooks to parochial schools unconstitutional, the Fifth Circuit went on to strike down the federal and Louisiana instructional materials programs that provided direct aid to sectarian schools in the form of slide projectors, television sets, maps and computers, etc.
After the Fifth Circuit denied the U.S. Department of Education's petition for rehearing with respect to the constitutionality of the federal Chapter 2 program in Jefferson Parish, in June 1999 the U.S. Supreme Court agreed to review the case. Oral argument before the High Court is scheduled for December 1999.
AJC joined in the National Coalition for Public Education and Religious Liberty's (PEARL's) amicus brief filed with the Fifth Circuit which argued that, in view of the many documented church-state violations in the Jefferson Parish school district, Louisiana's special education program violated the Establishment Clause on its face and in its implementation. The brief further argued that the program lacked sufficient safeguards to prohibit major Establishment Clause violations, the provision of equipment represented an impermissible direct subsidy to religious schools, and the extent of documented church control of funds and equipment represented an unacceptable level of entanglement prohibited by the Establishment Clause.
As we did in the Fifth Circuit, AJC subsequently joined with a coalition of organizations in an amicus brief to the Supreme Court opposing the provision of computers and other equipment to parochial schools as violative of the Establishment Clause. In arguing that the Jefferson Parish program resulted in an impermissible subsidy of religion, the brief focused on the ease with which religious institutions could use the equipment for sectarian purposes, thereby diverting public resources in furtherance of their sectarian agendas.
Simmons-Harris v. Goff
The Ohio Pilot Scholarship Program was enacted in response to an educational and fiscal crisis in the Cleveland City School District so severe that the U.S. District Court for the Northern District of Ohio ordered the state to take over the administration of the district. As part of the Pilot Scholarship Program, the state was required to provide financial aid to students residing within the Cleveland City school district by setting up a scholarship program to enable students to attend "alternative schools." Scholarship recipients received a fixed percentage (depending on income level) of the tuition charged by the alternative school of their choice up to $2500. Once a scholarship recipient had chosen a school, the state delivered a check payable to the recipient's parents, who then had to endorse the check over to the school. Approximately 80 percent of the schools eligible to participate in the program were sectarian.
Plaintiffs filed suit challenging the constitutionality of the scholarship program and seeking to prevent its implementation.
On appeal from a district court decision in favor of defendants, the Ohio Court of Appeals struck down the scholarship program, ruling that it violated the establishment clauses of the U.S. and Ohio constitutions.
The court rejected the state's attempt to characterize the program as valid because it "neutrally" dispensed vouchers to sectarian and nonsectarian school students, as well as public and private school students. The court found that far from being neutral in its distribution of benefits, the program was "skewed towards religion," created an "impermissible incentive for parents to send their children to sectarian schools," and effectively "steer[ed] aid to sectarian schools, resulting in what amount[ed] to a direct government subsidy." Since the court construed such government subsidies to be direct and substantial, it held that the program had the "primary effect of advancing religion in violation of the Establishment Clause."
Pending its consideration of the case, the Supreme Court of Ohio granted a stay of the appellate court's decision. The state legislature subsequently increased the allocation of funds and the number of students to be served by the program in the 1997-98 school year.
In May 1999, the Ohio Supreme Court struck down Cleveland's school voucher program on narrow grounds. In doing so, however, the court ruled that the Pilot Scholarship Program did not run afoul of the church-state separation requirements of either the U.S. or Ohio constitutions. Rather, the court found the statute to be violative of the one-subject" rule of the Ohio constitution.
In determining that the voucher program did not violate the Establishment Clause, the court employed the U.S. Supreme Court's Lemon v. Kurtzman analysis. As to Lemon's first prong, the court found that the school voucher program had a secular legislative purpose, since it did "nothing more or less than provide scholarships to certain children residing within the Cleveland School District to enable them to attend an alternative school." The court next addressed the primary effect of the statute and whether it advanced or inhibited religion. In Agostini v. Felton, the Supreme Court established three criteria to evaluate whether government aid has the effect of advancing religion: (1) whether the program results in governmental indoctrination; (2) whether the program's recipients are defined by reference to religion; and (3) whether the program creates an excessive entanglement between government and religion. Among the factors to be considered in determining whether a government program results in indoctrination is whether a "symbolic link" between government and religion is created. The Ohio Supreme Court found that the link between government and religion created by the voucher program was "indirect" in that it was premised upon the "genuinely independent and private choices" of individual parents. The court concluded that to the extent children were indoctrinated by sectarian schools receiving tuition dollars from the voucher program, it was not the result of direct government action.
As to whether the program recipients were "defined by reference to religion," the court noted that the voucher program provided scholarships to students to attend private schools that admit their students according to a list of priorities that included "students whose parents are affiliated with any organization that provides financial support to the school." Thus, a student whose parents belonged to a religious group that supported a sectarian school was given priority over other students-- a clearly unconstitutional practice. The court, however, determined that this objectionable portion of the statute could be severed from the remainder of the statutory scheme while still allowing the balance of the statute to stand on its own.
The court next examined whether the statute had the effect of advancing religion by excessively entangling church and state. The court noted that the primary beneficiaries of the aid provided by the state were the children, not the sectarian institutions. Given the indirect nature of the aid, the resulting relationship between the sectarian schools and the state was "attenuated and permissible."
Moving beyond the church-state issues, the court then focused on Article II of the Ohio constitution, which states"no bill shall contain more than one subject, which shall be clearly expressed in its title." To violate this "one-subject rule," a statute must encompass various topics that lack a "common purpose or relationship" so that there is no "discernible, practical, rational or legitimate reason for combining the provisions in one act." Here, the omnibus appropriations bill consisted of over 1,000 pages, of which the school voucher provision comprised only ten pages. In addition, the bill encompassed a range of issues, including the residency of certain elected officials, contracts for the private operation of correctional facilities, and a mandate that the files of the legislative ethics committee be confidential. Thus, the court concluded that since none of the aforementioned provisions had anything to do with the school voucher program, there was "considerable disunity in subject matter" within the statute, in violation of the one-subject rule.
In June 1999, the Ohio legislature passed new legislation enabling the Cleveland voucher program, but in a separate bill so as to satisfy the Ohio Supreme Court's objections. The program was again challenged as unconstitutional and is now the subject of litigation pending in a federal district court in Ohio. In August 1999, the district court issued a preliminary injunction temporarily halting the voucher program based upon the judge's determination that the program would most likely be found to violate the Establishment Clause. However, the judge stayed part of his order so that returning students could attend their sectarian schools, but new students would not be permitted to use public funds to do so. When the Sixth Circuit Court of Appeals did not respond to state officials' request to stay the district court's order, they asked the U.S. Supreme Court to lift the injunction. On Nov. 5, 1999, the Supreme Court issued a stay, thereby allowing the program to continue until the case is resolved by the Sixth Circuit.
AJC joined in the National Coalition for Public Education and Religious Liberty's (PEARL's) brief submitted to the Ohio Supreme Court in which we argued that "[t]he Ohio Pilot Scholarship Program violates the bedrock Establishment Clause prohibition against government financing of religious activities." Citing Supreme Court precedent, our brief pointed out that unrestricted state aid to religious institutions was unconstitutional and that the mere fact that a statute benefited secular as well as sectarian schools did not establish that it was "neutral" toward religion. Moreover, the state's attempt here to avoid a constitutional violation by funneling aid through parents elevated form over substance. The pilot program's provision of checks to parents rather than to religious schools was a "transparent fiction," since the state mailed grant checks to parents for use at approved schools and the parents were then required to endorse the check over to the schools. Because it made state funds available to religious schools for an unrestricted range of sectarian activities, the brief argued, Cleveland's pilot program was constitutionally invalid.
Balint v. Carson City, Nevada
In February 1995, Lisette Balint, a member of the Worldwide Church of God, was offered a position in the detention section of the Carson City Sheriff's Department. Carson City deputy sheriffs were assigned work shifts (including Saturdays and Sundays) by a system under which the deputies bid for shifts in order of seniority. When Balint informed the department that she could not work during her Sabbath (Saturday) and requested that her schedule be adjusted to accommodate her religious practice, she was informed that there could be no accommodation. She subsequently withdrew her application for employment with the department. Balint then filed suit alleging that in making no effort to accommodate her religious practices, the department had engaged in religious discrimination in violation of Title VII of the Civil Rights Act of 1964.
The U.S. District Court for the District of Nevada granted the department summary judgment and dismissed Balint's case on the ground that the department's bona fide seniority system by which it allocated work shifts extinguished any obligation it had to accommodate Balint's religious practices. The Ninth Circuit Court of Appeals affirmed the district court's ruling.
In reaching their decisions, both courts relied on TWA v. Hardison, a U.S. Supreme Court case that held that employers must reasonably accommodate their employees' religious beliefs so long as such accommodation does not result in "undue hardship" to their business. The district court ruled, and the Ninth Circuit agreed, that "[b]ecause the Department had in place a non-discriminatory seniority-based system for assigning shifts, it had no duty to accommodate Balint, even if such accommodation would have no more than a de minimis impact."
On rehearing, in June 1999 the Ninth Circuit Court of Appeals, sitting en banc, reversed its May 1998 ruling that the mere existence of a bona fide seniority system by which work shifts are assigned extinguishes an employer's duty to accommodate an employee's religious practices.
At the outset of its decision, the Ninth Circuit examined the "seeming conflict" between the "religious accommodation" and "seniority system" provisions of Title VII. In keeping with the intent of the Civil Rights Act of 1964 to rid American society of institutionalized discrimination, Title VII prohibits an employer from discriminating against an employee based upon the employee's religious practices if the employer can reasonably accommodate the employee and such accommodation would not impose an undue burden on the employer's business. The court explained that Congress enacted the seniority system provision of Title VII, which permits an employer to "discriminate" among its employees pursuant to a bona fide seniority or merit system, to limit the extent to which Title VII would invalidate existing seniority systems enacted without discriminatory animus due to their discriminatory impact. Noting, however, that the statute does not exempt employers with seniority systems from its other requirements, the court rejected the city's argument that the department's seniority system operated as a bar to Balint's religious accommodation claim.
Moving beyond the plain meaning of the statute's text, the Ninth Circuit explained why its interpretation of Title VII comported with the Supreme Court's Hardison decision. In Hardison, the Supreme Court stated unequivocally that Title VII made it an "unlawful employment practice . . . for an employer not to make reasonable accommodations, short of undue hardship, for the religious practices of his employees É" (emphasis added). However, the High Court recognized that the extent of an employer's duty to accommodate an employee's religious practices was not defined by the statute. Noting that seniority systems were singled out for "special treatment" in Title VII, the Court concluded that an employer need not violate a nondiscriminatory seniority system in order to accommodate an employee's religious observance. Disregarding the preferences of higher-ranking workers to accommodate the religious needs of those less senior, the Court held, would constitute "unequal treatment" of employees. The Court then examined the options available to TWA that would accommodate Hardison's Sabbath observance but not violate the seniority system. Finding that the proposed alternatives would impose "additional costs" on the airline or leave it shorthanded, the Court held that"to require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship."
The Ninth Circuit interpreted the Supreme Court's search for reasonable accommodations in Hardison as counter to the city's argument that the existence of a seniority system ended the inquiry into whether an employer has met its obligation to accommodate its employees. Rather, the court agreed with Balint that an employer must attempt to reasonably accommodate the religious practices of an employee when doing so would not disrupt the employer's seniority system and would not impose more than a de minimis cost on the employer. Whether a proposed accommodation resulted in "undue hardship" was a fact-sensitive determination, the court instructed, but lost efficiency, higher wages, the deprivation of coworkers' seniority rights or forcing coworkers to"shoulder the plaintiff's share of potentially hazardous work" could all be indicators.
Applying its holding to the case at bar, the Ninth Circuit analyzed whether Balint's proposed accommodations of shift splitting or voluntary shift trades would impose an undue hardship on the city. Based on uncontroverted deposition testimony, the court concluded that voluntary shift trades would result in additional costs and logistical personnel problems for the department, and would force coworkers to work undesirable shifts despite their seniority rights. In contrast, there was no evidence in the record that shift splitting would affect the rights of senior coworkers, other than to change the types of shifts for which they would exercise those rights. However, the court found that a factual question existed as to the potential costs to the department of implementing shift splitting. Therefore, summary judgment could not be granted and the court reversed and remanded the case to the district court.
AJC joined in the amicus brief filed by the American Jewish Congress in the Ninth Circuit. The brief pointed out that the court's reliance on Hardison was misplaced because while the Supreme Court in Hardison ruled that anything more than a de minimis cost to an employer would constitute undue hardship, it underscored the need for some effort to be made at accommodation. Moreover, fourteen years earlier in EEOC v. Hacienda Hotel, the Ninth Circuit rejected its initial reading of Hardison and noted,"[t]he court in TWA addressed the degree of accommodation that was required of an employer within the framework of a seniority system. The court recognized that, at a minimum, the employer was required to negotiate with the employed in an effort reasonably to accommodate the employee's religious beliefs. . . ."
Missouri v. Pride
Farrel Gene Pride went to trial in Missouri state court on forgery charges in July 1997. Before the jury had been sworn, Pride reminded the court that he was a Seventh-Day Adventist who celebrated the Sabbath between sundown Friday and sundown Saturday and would have a conflict if trial were held on Saturday. When it became clear by Friday afternoon that the trial would not conclude before sundown, the court denied Pride's motion to adjourn the trial until Monday. Forced to choose between observing his Sabbath and exercising his right to testify in his own defense, Pride appeared in court on Saturday. However, one of his fact witnesses, also a Seventh-Day Adventist, refused. Pride appealed the trial court's denial of his motion to adjourn on Friday afternoon until Monday.
The Missouri Court of Appeals, Western District, affirmed the trial court's decision, and Pride moved to transfer the case to the Missouri Supreme Court. That motion is currently pending.
AJC joined in an amicus brief filed by the American Civil Liberties Union, the Anti-Defamation League, and the General Conference of Seventh-Day Adventists with the Missouri Supreme Court in support of transferring the case. Our brief argued that the court should accept transfer because of the need to determine the appropriate legal standard where a governmental rule or regulation conflicts with an individual's religious beliefs or practices.
On the federal front, our brief contended that the court of appeals erred in its interpretation of the constitutional standard. While the U.S. Supreme Court has narrowed the scope of the "compelling interest test" set forth in Sherbert v. Verner, Employment Div. of Oregon v. Smith (1990) made clear that where the state has in place a system of individual exemptions, it may not refuse to extend that system to cases of religious hardship without a compelling reason. Likewise, the compelling interest test was not struck down entirely by the Supreme Court's decision in Boerne v. Flores (1997), but rather still applies "where the State has in place a system of individual exemptions." In this case, we argued, the court's normal hours of operation are Monday through Friday, unless an exception is made by order of the court. Therefore, the judge's ability to consider individual requests for variance constitutes a system of exemptions. Contrary to the appellate court's decision, Smith and Boerne uphold the proposition that when the government's discretionary interests collide with an individual's right to exercise his faith, the government must demonstrate a compelling interest before depriving the individual of his right.
In addition to the First Amendment's Free Exercise Clause, also at issue in this case is the Missouri constitution's guarantee that "no person shall, on account of his religious persuasion or belief be disqualified from testifying." Missouri's free exercise clause seemingly grants broader protections than its federal counterpart, but no Missouri case law sets the boundaries of the state's free exercise provisions. Our brief urged the Missouri Supreme Court to take up this case so that Missouri courts and members of the bar will have sufficient guidance on this issue.
The Religious Freedom Restoration Act
United States v. Sandia
In 1996, Johnny Sandia sold a golden eagle skin and other migratory bird parts to an undercover federal agent and was charged with violating the federal Migratory Bird Treaty, the Bald and Golden Eagle Protection Act, and the Lacey Act, which prohibits the sale of wildlife taken or possessed in violation of federal law with a value in excess of $350. Sandia, a member of the Jemez Pueblo, moved to dismiss the indictment on the ground that because his taking and possession of the wildlife was solely for religious ceremonial purposes, his actions were protected by the Religious Freedom Restoration Act (RFRA).
A federal district court in New Mexico denied Sandia's motion to dismiss, ruling that because the Supreme Court found RFRA unconstitutional as applied to the states in City of Boerne v. Flores (1997), RFRA did not apply here. Sandia then pleaded guilty to violating the Lacey Act by selling a golden eagle in violation of the Migratory Bird Treaty Act, but appealed the district court's denial of his motion to dismiss to the U.S. Court of Appeals for the Tenth Circuit.
On appeal, both Sandia and the government contended that the district court had erred in holding RFRA inapplicable to the federal government. However, the Tenth Circuit held that upon his decision to sell the birds, Sandia possessed them in violation of federal law and was no longer engaging in protected religious activity. Thus, without determining whether his initial taking of the birds was protected activity under RFRA, or the larger question of RFRA's applicability to the federal government, the court affirmed the denial of defendant's motion to dismiss.
AJC, as a member of the Coalition for the Free Exercise of Religion, filed an amicus brief in the Tenth Circuit defending the constitutionality of RFRA as applied to the federal government.
Kuhl v. Board of Adjustment of the Township of Montclair and B'Nai Keshet Montclair Jewish Center
B'nai Keshet Montclair Jewish Center, a Reconstructionist congregation, had been sharing space in the First Baptist Church Community House in Montclair for seven years when, after a long and exhaustive search, it located and entered into a contract to purchase property located in a mixed residential and institutional use area for a permanent home. In November 1993, the congregation applied to the Montclair Board of Adjustment for a use variance to allow a house of worship, religious school, and related activities on the property. A neighborhood group objected to the variance application, claiming that construction of the synagogue would increase area traffic and ultimately reduce property values.
After twenty-six hearings, the Montclair Board of Adjustment approved a use variance for the construction of a permanent home for B'nai Keshet on the property. The board's ruling was based on its finding that the proposed use was inherently beneficial and in furtherance of the general welfare and thus satisfied the requirements for the grant of a use variance under New Jersey zoning law. The board subsequently granted the congregation's application for site plan approval and bulk variances.
In 1995, the objecting neighbors filed a complaint seeking to reverse the board's grant of the variances and site plan approval. A New Jersey Superior Court judge rejected plaintiffs' claim that houses of worship are not inherently beneficial uses under the zoning statute and that a finding to the contrary would violate the Establishment Clause. In upholding the board's rulings, the court stated: "Identifying the general welfare benefits of religious uses and according such uses the same benefits as are granted other inherently beneficial uses in no way violates either the United States or the New Jersey Constitutions."
Plaintiffs appealed to the Appellate Division, which in 1997 upheld the board's grant of B'nai Keshet's zoning variance. In affirming the superior court judge's decision, the appellate court wrote: "The contention that houses of worship should not be treated as inherently beneficial uses is without merit. There is direct benefit to the general population from the proposed facility. That it may be run by a religious organization does not detract from the inherent benefits it provides by promoting the morals and general welfare of the community."
On March 10, 1998, the New Jersey Supreme Court dismissed plaintiffs' appeal of the lower courts' rulings, and in October 1998 the U.S. Supreme Court declined to review the case. Therefore, the Appellate Division's decision upholding the board's grant of B'nai Keshet's zoning variance stands.
AJC joined with the American Civil Liberties Union of New Jersey, the American Jewish Congress, and the Montclair Clergy Association in an amicus brief submitted to the Appellate Division on behalf of B'nai Keshet. In addition to arguing that the lower courts correctly applied the zoning law's"inherently beneficial use" doctrine, our brief took the position that the Free Exercise Clauses of the U.S. and New Jersey constitutions and RFRA also compelled affirmance of the judgments below because they precluded any substantial burden on the exercise of religion that was not the least restrictive means of achieving a compelling state interest. The board's grant of the use variance with carefully sculpted conditions demonstrated the existence of less restrictive means in this case.
City of Chicago Heights v. Living World Outreach Full Gospel Church and Ministries, Inc.
In order to counter the city's economic decline, the city of Chicago Heights in December 1995 adopted a comprehensive zoning plan that included commercial zones intended to foster economic development. According to the zoning plan, churches could be located anywhere in a residential zone, or in a"B-2 commercial" zone if granted a special use permit. In January 1996, the Living World Outreach Full Gospel Church purchased a property located within a B-2 commercial zone, but did not apply for a special use permit until after it took possession of the property.
Pursuant to a city ordinance, special use permits were granted where the special use would not"(1) be unreasonably detrimental to or endanger the public health, safety, morals, comfort or general welfare; (2) be injurious to the use and enjoyment of other property in the immediate vicinity or substantially diminish and impair property values in the neighborhood; or (3) impede the normal and orderly development and improvement of surrounding property for permitted uses." The church applied to the city council for a special use permit, but the application was denied because the church was situated in an area zoned for economic development purposes. Despite the denial, the church continued to operate in its new location. When the church failed to heed the city's citations, the city brought suit in Illinois state court to enjoin the church's operations.
The trial court rejected the city's request for an injunction, finding that the city's denial of the special use permit was "arbitrary and capricious and not substantially related to the public health, safety or welfare," and that the church had met all the requirements for a permit. In a subsequent order, the court permanently enjoined the city from enforcing the ordinance against the church, and also held that the city's actions violated the First Amendment's Free Exercise Clause. The city appealed those rulings.
In December 1998, the Appellate Court of Illinois, First District, Third Division, held that under the state Religious Freedom Restoration Act (the state RFRA) the usual presumptive validity of zoning ordinances and special uses gives way to a more stringent burden for the city. Because free exercise rights were burdened by the zoning ordinance, the city had to show that its interest in the adoption of the ordinance was compelling and that the ordinance was the least restrictive means of furthering that interest. Despite this more stringent test, the appellate court held that the ordinance was valid because the city had a compelling interest in enforcing its zoning laws and the ordinance served the public health, safety and morals. Since the ordinance only affected the 40 percent of the city zoned for commercial use, and therefore the church had access to the "majority of the city," the court went on to hold that the ordinance was the least restrictive means of achieving the city's interest.
The church has appealed to the Illinois Supreme Court.
AJC joined in an amicus brief filed in the Illinois Supreme Court supporting the church's right to operate in its present location. Other organizations signing onto the brief include the Anti-Defamation League, the American Jewish Congress Midwest Region, the Catholic Conference of Illinois, the Christian Legal Society, and the Greek Orthodox Diocese of Chicago. Our brief emphasized that the Illinois RFRA was a valid exercise of the Illinois General Assembly's broad authority to enact legislation for the general welfare of Illinois citizens, including the protection of their basic civil liberties. We urged the Illinois Supreme Court to affirm the appellate court's ruling that the city's actions constituted a substantial burden on religious exercise, but to reject the appellate court's perfunctory application of RFRA. For example, the city's permitting meeting halls to locate in similar business districts without special use permits demonstrates the absence of a compelling governmental interest in enforcing the zoning ordinance against the church. Because RFRA mandates the application of a stringent standard where the government interferes with religious exercise rights, the city's interest in enforcing the ordinance against the church "must be genuinely compelling, and there must be no other means of protecting it."