News 2002

July 22 : June 27 : June 24 : May 16 : May 3 : March 21 : March 7 : March 4 : February 21: February 15 : January 23

July 22, 2002


    In the long-awaited decision in Zelman v. Simmons-Harris, the Supreme Court held in a 5-4 vote that Cleveland's school voucher program did not violate the Establishment Clause. Chief Justice Rehnquist, writing for the Court, adopted the reasoning of Mueller, Zobrest, and Witters that where a government-funding program is neutral toward religion and "reaches religious institutions only by way of the deliberate choices of numerous individual recipients," it is constitutional. The majority held that Cleveland's program fell into this category. Click to read the decision Zelman v. Simmons-Harris.

    The Institute for Justice represented the parents of Cleveland school children in this landmark case. For more information about their role, click HERE.

    Practice group member Richard W. Garnett offers a more detailed analysis of the opinion in a National Review Online piece. Click HERE to read this piece.

    Dr. Jerry Ellig and Dr. Kenneth Kelly, two economists at the Federal Trade Commission, have recently completed a study analyzing whether competition among schools will improve educational quality. Their study analogizes the public school system to other instances in which competition was introduced to a monopoly provider environment. They conclude that school choice offers significant benefits both to children who receive vouchers and to children who remain in the public schools, which must improve in the face of competition. This study is forthcoming in the Spring 2002 issue of the Texas Review of Law & Politics. For a preview, click HERE.


    The Heritage Foundation has published a short analysis of this bill, which is intended to increase private giving through tax incentives. Please click HERE to read this analysis.

June 27, 2002


    The Ninth Circuit held that the 1954 legislation adding the words "under God" to the Pledge of Allegiance was an unconstitutional establishment of religion. Judges Goodwin and Reinhardt, writing for the majority, concluded that although the pledge admittedly has a secular purpose, the primary effect advances religion. Moreover, the majority found that reciting the pledge also failed the coercion test as articulated by Lee v. Weisman. Judge Fernandez concurred in part and dissented in part, noting that the religion clauses intended to avoid discrimination, not to ban religious expression from public thought. Reducing the majority's argument to absurdity, he noted that the panel's theory of the Constitution would prohibit the public singing of "God Bless America," among other patriotic hymns.

    Newdow v. U.S. Congress

June 24, 2002


    The Supreme Court decided this week that certain provisions of a village ordinance requiring a permit before engaging in door-to-door neighborhood "canvassing" were unconstitutional as applied to religious proselytization, anonymous political speech, and the distribution of handbills. Justice Stevens, writing for the majority, emphasized the historic importance of pamphleteering to "the poorly financed causes of little people," which outweighed the village's interest in preventing crime and fraud. Justice Rehnquist dissented, noting that the ordinance does not prohibit door-to-door canvassing, but merely requires the canvassers to obtain a permit. Because the permit process was content-neutral and the municipal official had no discretion to deny a permit, Justice Rehnquist would have upheld the ordinance.

    Watchtower Bible & Tract Soc'y of New York, Inc. v. Village of Stratton

May 16, 2002

  • On Thursday, May 9, 2002, Deputy Solicitor General Paul Clement spoke on the Supreme Court's current term to roughly 60 attendees at a luncheon sponsored by the Federalist Society's Milwaukee Attorneys Chapter. Although many of the Court's decisions have not been issued yet, Clement still noted several interesting aspects of the current term.

    Clement stated that the Solicitor General's office weighs in on the vast majority of cases that come before the Supreme Court, and only declines to do so when no federal interest is implicated. He cited the Cleveland school voucher case, Zelman v. Simmon-Harris, as the case from the current term that will likely have the greatest impact. Clement declined to predict the outcome, but did indicate that those hoping for a "pro-voucher" decision should not expect more than a 5-4 majority. Regarding the decision in Tahoe-Sierra v. Tahoe Regional Planning Agency, Clement commented that those seeking to have local government's regulation considered a "taking" had aimed too high; he contrasted the more incremental approach taken by those defending statutes imposing drug tests on certain groups of high school students, which appeared to have more success. Clement also touched on the recent developments regarding Second Amendment jurisprudence, stating that the interpretation of the amendment as providing for the rights of the individual was not a novel or radical concept. Clement also discussed several Fourth Amendment cases before the Supreme Court.

May 3, 2002


    On April 25, the Massachusetts Supreme Judicial Court ruled that the First Amendment precludes jurisdiction over claims of sex discrimination by a female Episcopal priest (Williams v. Episcopal Diocese of Mass., Mass., No.SJC-08687, 4/25/02). Sandy Williams, an Episcopal priest, filed an employment discrimination claim under Massachusetts law against the Episcopal Diocese of Massachusetts and the presiding bishop. The compliant alleged that Williams was paid considerably less than similarly-situated male priests, that she was threatened when she complained of this disparity, and that in the end she was constructively discharged as a result of the hostile work environment. The trial judge had dismissed the case based on the "ministerial exception," which, as articulated in McClure v. Salvation Army, 460 F.2d 533 (5th Cir.), cert. denied, 409 U.S. 896 (1972), is rooted in the premise that a court's jurisdiction over employment discrimination claims infringes on its religious freedom protected by the First Amendment. The Superior Court affirmed the dismissal, but relied solely on the First Amendment and not on the ministerial exception. The Superior Court explained that Massachusetts case law firmly establishes that the religious clauses of the First Amendment "preclude[] jurisdiction of civil courts over church disputes touching on matters of doctrine, canon law, polity, discipline, and ministerial relationships" and "[t]he facts alleged ... present a quintessential example of such a church dispute. The court reasoned:

    It is true that the plaintiff's claims do not, on their face, question the verity of religious doctrines or beliefs. It is hard to conceive, however, how a court could inquire into the reasons for the defendants' decisions regarding the plaintiff's ministry without intruding into matters of the internal management of the Dioscese. Irrespective of whether the defendants' treatment of the plaintiff and her ministry was based on legitimate or illegitimate grounds, the plaintiff's claims, by their very nature, implicate the defendants' First Amendment rights. To argue otherwise diminishes the importance of the constitutional separation of church and State. (footnote omitted). The court refused to apply a balancing test to these First Amendment principles, stating that if adjudication would involve an evaluation of ecclesiastical relationships, the courts should not intrude. It concluded, "To the extent that this case involves a conflict between the legislative mandate of [Massachusetts'] G. L. c. 151B to eliminate discrimination in the workplace and our constitutional mandate to preserve the separation of church and State, the constitutional directive must prevail.

    Click HERE to read the full text of the decision.

March 21, 2002


    A federal district court in Pennsylvania will soon decide whether a plaque listing the Ten Commandments may remain on the Allegheny County Courthouse. The Ten Commandments plaque is only one of more than twenty displays on the courthouse walls and courtyard depicting historical notions of law and items of cultural significance. The defendants challenge the plaintiffs' standing on the ground that they have suffered insufficient injury-in-fact: they have not changed their conduct to avoid viewing the plaque; they have shown no disparate treatment because of their views; and they have not demonstrated psychological injury. Moreover, defendants suggest that to the extent plaintiffs have suffered feelings of stigmatization, it stems from their status as atheists rather than from any confrontation with the plaque itself. Standing rules in the Establishment Clause context are notoriously lax, and a victory on this point would erode the ability of plaintiffs to sue for redress of de minimus visual offenses. On the merits, defendants analogize the display to the winter seasonal array found constitutional in Lynch v. Donnelly, 465 U.S. 668 (1984), noting that honoring the county's historical and cultural heritage is a legitimate secular purpose and the diverse display does not place religion in a place of primacy.

    Modrovich v. Allegheny County, C.A. No. 01-0531 (E.D. Pa. pending). For Allegheny County's Motion for Summary Judgment, click HERE.

March 7, 2002

    The Eastern District of Pennsylvania ordered the authorities of Chester County to remove a plaque listing the Ten Commandments in the King James Version from the front of the county courthouse. This 50" x 26" plaque had graced the courthouse's facade since 1920. The court applied the Lemon test, recognizing signals that the Supreme Court has moved away from that standard but noting that it had not been specifically overruled. It concluded that the purpose and effect of the display was to advance religion.

    Freethought Society v. Chester County, No. 01-5244 (E.D. Pa. Mar. 6, 2002), available at

March 4, 2002


    The D.C. Circuit recently overturned the NLRB's decision that it had jurisdiction over a Catholic University. To determine jurisdiction, the NLRB employs a case-by-case analysis of a religiously affiliated institution to determine whether it has a substantially religious character, or whether it is secular. The court held that the NLRB applied the wrong test. The court said, "The NLRB's 'substantial religious character' test with its multifaceted analysis" implicated First Amendment concerns addressed by the Supreme Court in a previous NLRB case, Catholic Bishop. "Moreover, since Catholic Bishop, at least a plurality of the Supreme Court itself has rejected 'inquiry into ... religious views' as 'not only unnecessary but also offensive,' Mitchell v. Helms ...." "Smith
    teaches that '[i]t is no more appropriate for judges to determine the 'centrality' of religious beliefs before applying a 'compelling interest' test in the free exercise field, than it would be for them to determine the 'importance' of ideas before applying the 'compelling interest' test in the free speech field."

    University of Great Falls v. NLRB, No. 00-1415 (D.C. Cir. Feb. 12, 2001), available at


    Parents attempted to deduct a portion of their tuition payments to religious schools under a section of the IRS code that allowed deductions for contributions for "solely intangible religious benefits." They alleged that because 55 percent of the school day was allocated to religious education, 55 percent of the tuition should be tax deductible. They argued that because payments to the Church of Scientology were deductible despite the fact that donors received religious training in return, failure to include tuition payments violated the Establishment Clause by preferring Scientology to other religions. The Ninth Circuit found that the payments were not eligible for a deduction under the code, but it hinted that the deduction for the Scientologists might violate the Establishment Clause.

    Sklar v. Comm'r of Internal Revenue, No. 00-70753 (9th Cir. Feb. 27, 2002), available at


    A California Court of Appeals denied Catholic Charities claim that forcing them to provide prescription contraceptives to employees under their health insurance policy violated their right to free exercise. California law requires employers who offer health insurance to their employees that covers prescription drugs also to cover contraceptives. Although the California legislature included a narrowly-drawn exemption for religious employers, the exemption does not apply to Catholic Charities. The court held that the law was neutral, generally applicable, and did not target Catholicism. The case is pending before the California Supreme Court.

    Catholic Charities v. Superior Court (Cal. App. 3d 2001), available at


    The Massachusetts Supreme Judicial Court held that the application of the state's public accommodation statute to compel Louis Farrakhan's Nation of Islam to open a men's meeting to women would violate the First Amendment's guarantee of freedom of association. The court relied heavily on the Supreme Court's Dale and Hurley decisions and distinguished a 1988 Mass. decision rejecting a constitutional challenge to the application of the statute to a rod and gun club.
    Unlike the members of the rod and gun club, Farrakhan and his co-defendants were "associating for the explicit purpose of engaging in protected expressive activities." The fact that the event was sponsored by a religious organization seems to have weighed heavily in the court's assessment of this issue.

    The court's decision on the First Amendment question was an alternative holding. The court reached it after concluding that the place where the defendants had their meeting was not a public accommodation within the meaning of the statute at the time the meeting was being held.

    Donaldson v. Farrakhan (Mass. Feb. 13, 2002), available at

February 21, 2002

  • The Supreme Court this week heard oral argument in Zelman vs. Simmons-Harris, the case in which the Sixth Circuit struck down on establishment clause grounds the school voucher program enacted by the Ohio Legislature for use by Cleveland schoolchildren and their parents. The program was created in response to the dismal condition of public education in Cleveland, and allowed low-income families to use vouchers to attend private schools, both religious and non-religious. Assistant Ohio Attorney General Judith French, Columbus attorney David Young, and Solicitor General Theodore Olson argued on behalf of the petitioners, while respondents were represented by National Education Association general counsel Robert Chanin and retired judge Marvin E. Frankel.

    The Justices' questions focused on several issues. Of particular importance was the relevance of statistics regarding the ratio of religious-to-non-religious schools, a factor upon which the Sixth Circuit had relied heavily. Citing Mueller, Justices O'Connor, Kennedy, and Scalia seemed skeptical that a "statistical snapshot" of one year's religious-to-non-religious mix in the program was of significant relevance, Justice Scalia noting that the Sixth Circuit's approach would essentially require annual reviews of such statistics to determine such a program's constitutionality. Justice Scalia also noted that the track record of a similar voucher program in Milwaukee showed that such ratios change over time. Responding to hypotheticals put to them by Justices Breyer and Stevens, respondents seemed to argue that even if only a small percentage of participating schools were religious, the program would still be unconstitutional. At the same time, respondents repeated the statistic that 96% of the schools participating in a recent school year were religious.

    Petitioners primary argument was that voucher money only went to religious schools as a result of independent choices made by parents regarding the education of their children. Under the program, the government remains neutral between favoring and disfavoring religious schools. The Sixth Circuit had held that because 96% of the schools in the program were religious, there was not a true choice available. However, Justice O'Connor noted the wide range of other educational opportunities outside of the voucher program. She also noted that the amount of the voucher was less than that of aid provided to Cleveland children who chose not to participate in the program, which showed that the state was not favoring religious schools.

    In sharp questioning of respondents' counsel, Justice O'Connor sought to learn whether respondents believed that, unlike the Sixth Circuit's approach, the Court could consider all educational opportunities (e.g., community schools, tutorial programs, and magnet schools) available to Cleveland schoolchildren in determining the constitutionality of the voucher program. Her questioning left the impression that Justice O'Connor disagreed with the Sixth Circuit's approach.

  • The Justice Department recently announced the creation of a new position of Senior Counsel to coordinate anti-religious discrimination efforts in various sections of the Civil Rights Division. The Senior Counsel will serve in the Office of the Assistant Attorney General for Civil Rights and report
    directly to the Assistant Attorney General.

    The Civil Rights Division of the Justice Department is the primary institution within the federal government responsible for enforcing a number of federal statutes prohibiting discrimination on the basis of religious affiliation or belief and guaranteeing reasonable accommodation for religious practice, including Titles III, IV and VII of the Civil Rights Act of 1964, the Religious Land Use and Institutionalized Persons Act of 2000, the Equal Access Act, and the federal arson statute. The Division also defends religious discrimination laws against constitutional attack, and plays a leading role in administering a number of federal provisions that protect and preserve the religious autonomy of individuals and institutions against federal interference, such as the Religious Freedom Restoration Act, the Fair Housing Act, and various charitable choice provisions. Finally, the Division's amicus practice includes litigation activities to combat religious discrimination.

February 15, 2002


    A federal district court in Indianapolis ruled that a state employer is not immune from Title VII religious accommodation lawsuits. Title VII requires employers to "reasonably accommodate" an employee's religious beliefs and practices as long as no "undue hardship" results to the employer's business," which the Supreme Court has defined as anything more than a de minimis cost to an employer. The district court held that Title VII's religious accommodation requirement was a congruent and proportional response to the problem of religious discrimination because employers were given such a broad exemption from liability that the core injury targeted by Title VII--intentional discrimination-is the same as that targeted under the Free Exercise Clause and was therefore a valid exercise of congressional authority under Section 5 of the Fourteenth Amendment. The district court distinguished recent RFRA and ADA cases and stated that the lack of legislative findings of religious discrimination is not a significant factor because Title VII only targets intentional discrimination.

    Holmes v. AFSCME Ind. Council 52, S.D. Ind., No. IP 00-0677-C-M/S, 1/28/02,

January 23, 2002


    A federal district court in Milwaukee found that state funding to a faith-based drug treatment program for troubled fathers that uses a faith-enhanced 12-step program is unconstitutional. The program, Faith Works, received funding from Wisconsin's Department of Workforce Development. The judge found the grants unconstitutional because they were "unrestricted, direct funding of an organization that engages in religious indoctrination." The opinion did not address the constitutionality of the charitable choice statute, 42 U.S.C. § 604a.


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