22 : June 27 : June
24 : May 16 : May
3 : March 21 : March
7 : March 4 : February
21: February 15
: January 23
July 22, 2002
- SUPREME COURT RULES VOUCHERS CONSTITUTIONAL
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
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.
- ANALYSIS OF THE CHARITY AID, RECOVERY, AND EMPOWERMENT ("CARE") ACT (S.1924)
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
- NINTH CIRCUIT HOLDS PLEDGE OF ALLEGIANCE UNCONSTITUTIONAL
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.
v. U.S. Congress
June 24, 2002
- SUPREME COURT PROTECTS DOOR-TO-DOOR PROSELYTIZATION
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
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
- COURT REFUSES TO HEAR SEX DISCRIMINATION SUIT: PRIEST'S SALARY
DEEMED A MATTER OF INTERNAL CHURCH DOCTRINE
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
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.
to read the full text of the decision.
March 21, 2002
- TEN COMMANDMENTS PLAQUE UNDER ATTACK IN PITTSBURGH
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,
March 7, 2002
- COURT ORDERS REMOVAL OF TEN COMMANDMENTS PLAQUE
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 http://www.paed.uscourts.gov/documents/opinions/02D0167P.HTM
March 4, 2002
- NLRB LACKS JURISDICTION OVER CATHOLIC UNIVERSITY
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 http://pacer.cadc.uscourts.gov/common/opinions/200202/00-1415a.txt
NINTH CIRCUIT FINDS TUITION TO RELIGIOUS SCHOOLS NOT TAX-DEDUCTIBLE
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 http://caselaw.lp.findlaw.com/data2/circs/9th/0070753p.pdf
CATHOLIC CHARITIES' HEALTH INSURANCE MUST PAY FOR BIRTH CONTROL
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
NATION OF ISLAM MAY EXCLUDE WOMEN FROM MEETINGS
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
- TITLE VII'S RELIGIOUS ACCOMMODATION REQUIREMENT APPLIES TO
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,
January 23, 2002
- JUDGE ENDS FUNDING OF FAITH-BASED DRUG TREATMENT PROGRAM
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. http://pacer.wiwd.uscourts.gov/bcgi-bin/opinions/district_opinions/C/00/00-C-617-C-01-07-02.pdf