Supreme Court: Church-State Cases, 2001-2002 Term

Supreme Court: Church-State Cases, 2001-2002 Term

Order Code IB10092
Issue Brief for Congress
Received through the CRS Web
Supreme Court:
Church-State Cases,
2001-2002 Term
Updated November 26, 2002
David M. Ackerman
American Law Division
Congressional Research Service ˜ The Library of Congress

CONTENTS
SUMMARY
MOST RECENT DEVELOPMENTS
BACKGROUND AND ANALYSIS
Cases Decided
Watchtower Bible & Tract Society of New York, Inc. v. Stratton, Ohio
Zelman v. Simmons-Harris
Cases Affirmed
Utah v. Evans
Cases Vacated and Remanded
Gentala v. Tucson, Arizona
O’Connor v. Northshore International Insurance Services
Cases Carried Over to the Next Term
Prater v. Burnside, Ky.
Warren v. Morris Cerrullo World Evangelism
Whistine v. Kilpatrick Life Insurance Co.
Cases Denied Review
Adler v. Duval County, Florida, School Board
Ali v. Alamo Rent-A-Car, Inc.
Arkansas Presbytery of Cumberland Presbyterian Church v. Hudson
Broughton v. Pulaski Fiscal Court
Brown v. Gilmore
Bruff v. North Mississippi Health Services, Inc.
Calderon v. Sandoval
Church of Scientology International v. Time-Warner, Inc.
DiBari v. Bedford Central School District
Gernetzke v. Kenosha Unified School District No. 1
Hack v. President and Fellows of Yale College
Henderson v. Mainella
Hope Lutheran Church of Hastings, Minn. v. Shepherd of the Valley Lutheran Church
of Hastings, Minn.
Jae-Woo Cha v. Korean Presbyterian Church of Washington
James v. United States
Knights of Columbus, Council # 94 v. Lexington, Mass.
LeVake v. Independent School District No. 656
Lightman v. Flaum
O’Bannon v. Indiana Civil Liberties Union
Oregon Arena Corporation v. Lee
Protestant Episcopal Church in Diocese of Mississippi v. Mabus
REN Laboratories of Florida, Inc. v. Weiss
Searles v. Van Bebber
Wells v. Denver, Colorado
Wilkinson v. Flagner
Williams v. Watts-Willowbrook Church of Christ

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Supreme Court: Church-State Cases, 2001-2002 Term
SUMMARY
In its 2001-2002 Term the Supreme
than 80 percent of the private schools in the
Court decided two cases with significant
city that took part were church-affiliated; and
church-state implications. In Watchtower
96 percent of the subsidized students attended
Bible and Tract Society of New York, Inc. v.
such schools. The program had been held
Stratton, Ohio, the Court, by an 8-1 margin,
unconstitutional by a federal district court and
held unconstitutional a municipal ordinance
the U.S. Court of Appeals for the Sixth Cir-
requiring religious groups (and others) to
cuit. But the Supreme Court held it not to
obtain a permit prior to engaging in neighbor-
violate the establishment clause, 5-4. The
hood canvassing. In Zelman v. Simmons-
majority said that the voucher program was
Harris the Court, by a 5-4 margin, upheld as
but one of a number of options available to
constitutional an Ohio school voucher pro-
parents and schoolchildren in Cleveland.
gram providing tuition subsidies to students in
Eligible parents, the Court said, could obtain
failing public schools to allow them to attend
special tutoring for their children in the public
private schools, most of which were religious.
schools, send them to public magnet schools
or publicly-financed community schools, or
Watchtower Bible and Tract Society of
use the vouchers to send them to private
New York, Inc. v. Stratton, Ohio, concerned a
sectarian or secular schools. Thus, the Court
municipal ordinance that required all door-to-
held, the program was “entirely neutral with
door canvassers in the community to first
respect to religion.” It provided benefits to a
obtain a permit. The ordinance required
wide spectrum of individuals defined on the
potential canvassers to disclose their identi-
basis of nonreligious criteria, and it afforded
ties, the purpose of their calls, the addresses
parents a “true private choice” in selecting the
they would visit, and the time period in which
appropriate education for their children. As a
the calls would be made. The ordinance had
consequence, the Court concluded that the
been largely upheld as constitutional by a
program was constitutional.
federal district court and the U.S. Court of
Appeals for the Sixth Circuit. But the Su-
In addition, the Court during its 2001-
preme Court struck it down. The Court held
2002 Term affirmed a lower court decision
that the ordinance restricted far more speech
that found no constitutional violation in the
than necessary and was not narrowly tailored
exclusion of 11,000 overseas Mormon mis-
to serve the village’s interests of protecting its
sionaries from the 2000 census; and it vacated
citizens’ privacy and preventing crime.
and remanded two cases for reconsideration in
light of other recent decisions. It also denied
Zelman v. Simmons-Harris concerned the
review in twenty-six cases raising issues of
constitutionality of Ohio’s Pilot Scholarship
church and state, and it carried three such
Program. That program provided up to $2250
cases on its docket over to the next Term.
to poor students in kindergarten through the
eighth grade in public schools in Cleveland to
This Issue Brief provides a detailed
help them attend private schools in the city or
summary of Watchtower and Zelman and brief
public schools in the neighboring suburbs that
summaries of all other church-state cases on
chose to participate. None of the suburban
the Court’s docket in the 2001-2002 Term.
schools chose to participate, however; more
Congressional Research Service ˜ The Library of Congress

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MOST RECENT DEVELOPMENTS
During its 2001-2002 Term the Supreme Court decided two cases having significant
church-state implications. In Watchtower Bible and Tract Society of New York, Inc. v.
Stratton, Ohio, the Court on June 17, by an 8-1 margin, held unconstitutional a municipal
ordinance that required religious organizations (and others) to obtain a permit prior to
engaging in neighborhood canvassing. On June 27 the Court in Zelman v. Simmons-Harris
upheld as constitutional, 5-4, a school voucher program providing tuition subsidies to
students in failing schools in Cleveland to enable them to attend private schools in the city,
notwithstanding that most of the schools were religious in nature. During its Term the
Court also affirmed one lower court decision that found no constitutional violation in the
exclusion of 11,000 overseas Mormon missionaries from the 2000 census; and it vacated and
remanded two cases for reconsideration in light of other recent decisions. In addition, the
Court denied review in twenty-six cases raising church-state issues during the Term, and
three additional church-state cases remained pending on its docket for consideration in its
next Term.
BACKGROUND AND ANALYSIS
Cases Decided
Watchtower Bible & Tract Society of New York, Inc. v. Stratton,
Ohio
122 S.Ct. 2080, 70 U.S.L.W. 4540 (June 17, 2002) (No. 00-1737): In this case the
Supreme Court held unconstitutional a village ordinance which barred individuals and
organizations from going door-to-door in the community unless they first obtained a permit
from the mayor’s office. The Court held the ordinance to be unconstitutionally overbroad
and not to be tailored to serve the village’s claimed interests. The decision was 8-1.
The Village of Stratton’s ordinance required all “canvassers, solicitors, peddlers, [or]
hawkers” that wanted to go to a private residence in the Village for the “purposes of
advertising, promoting, selling and/or explaining any product, service, organization, or
cause” to register with the office of the Mayor. The registration form required the name and
home address[es] of the solicitors and their sponsoring organization[s], a description of the
nature and purpose of the solicitation, the specific addresses that were to be visited, the
length of time for which the privilege was sought, and “such other information concerning
the Registrant and its business or purpose as may be reasonably necessary to accurately
describe the nature of the privilege desired.” Unless the information was incomplete or
fraudulent, the ordinance mandated that a “Solicitation Permit” then be issued which allowed
the applicant to canvas between the hours of 9 and 5. No fee was required to obtain the
permit. Another part of the ordinance not challenged in this litigation also allowed
homeowners to file a “No Solicitation Form” with the Village barring specified organizations
from canvassing at their homes and to post “No Solicitation” signs on their lawns. This form
listed a number of organizations that would be barred unless the homeowner specified that
they could visit, including the Jehovah’s Witnesses.
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National and local organizations of Jehovah’s Witnesses, who engage in door-to-door
proselytizing and distribution of literature as a matter of religious mandate, brought suit
challenging the constitutionality of the ordinance. But a federal district court, with a few
modifications, generally found the ordinance to be a valid, content-neutral regulation. See
61 F.Supp.2d 735 (S.D. Ohio 1999). The court said that the 5 p.m. time restraint in the
ordinance was “an unreasonable restriction on time” and needed to be changed to allow
visitations during “reasonable hours of the day.” It held the “purpose” section of the
ordinance overbroad as applied to the Jehovah’s Witnesses and said they need only note on
the application that they seek to canvas “as part of the Jehovah’s Witness.” Finally, it held
the requirement that a canvasser identify each address he or she intended to visit to be
onerous and potentially unconstitutional, but it said that the Village had cured this problem
by itself attaching a list of residents willing to receive canvassers to the form. Because of
these modifications, the court found the Jehovah’s Witnesses to be a prevailing party in the
litigation and, under 42 U.S.C. 1988, awarded them attorneys’ fees and costs in the amount
of $58,892.41.
Nonetheless, the Jehovah’s Witnesses appealed the rest of the court’s ruling on the
constitutionality of the statute, and the Village appealed the ruling on attorneys’ fees. The
U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision, affirmed both of these aspects
of the trial court’s decision. See 240 F.3d 553 (6th Cir. 2001). It rejected the Jehovah’s
Witnesses’ argument that the case was a hybrid rights case involving both free speech and
the free exercise of religion and that, under Employment Division, Oregon Department of
Human Resources v. Smith, 494 U.S. 872 (1990), it should be reviewed under a strict
scrutiny standard. The pertinent language in Smith, it said, was “dicta and therefore not
binding.” It also rejected their argument that the ordinance was overbroad because it
impaired the right to distribute political pamphlets anonymously that the Supreme Court had
recognized in McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). And it rejected
as well the argument that the ordinance was similar to numerous regulation of solicitation
schemes which the Supreme Court had struck down in the 1930s and 1940s on the grounds
that those earlier decisions had involved either a flat prohibition on the dissemination of
ideas or had left the issuance of a permit to the discretion of a municipal officer. The
ordinance, the Sixth Circuit concluded, was content neutral and of general applicability and
was a reasonable means of promoting the village’s interests of protecting its citizens from
fraud, crime, and undue annoyance.
On the attorneys’ fees issue, the Sixth Circuit simply deferred to the trial court’s finding
that the alterations the Jehovah’s Witnesses obtained in the ordinance were sufficiently
substantial to warrant the award of attorneys’ fees, notwithstanding their failure to invalidate
the ordinance entirely or to gain an exemption.
The Supreme Court reversed, 8-1. Justice Stevens, writing for the Court, said that the
case was informed, although not resolved, by the Court’s 1930s and 1940s decisions which
had invalidated a variety of restrictions on door-to-door canvassing and pamphleteering.
Cases such as Murdock v. Pennsylvania, 319 U.S. 105 (1943), Cantwell v. Connecticut, 310
U.S. 296 (1940), Schneider v. State (Town of Irvington), 308 U.S. 147 (1939), and others,
he said, had emphasized the value of door-to-door canvassing and pamphleteering as means
of disseminating ideas and had recognized door-to-door evangelism as a form of speech
entitled to First Amendment protection. The earlier cases, he said, had also recognized the
legitimacy of a town’s interests in preventing fraud and other crimes as justifications for the
regulation of certain forms of canvassing, particularly those involving the solicitation of
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money. But, he cautioned, “our precedent is clear that there must be a balance between these
interests and the effect of the regulations on First Amendment rights.”
If the ordinance had applied only to commercial activities and the solicitation of funds,
the Court stated, “arguably the ordinance would have been tailored to the Village’s interests
in protecting the privacy of its residents and preventing fraud.” But the ordinance, Justice
Stevens noted, was far broader and applied not only to religious causes but political ones as
well. He stated:
The mere fact that the ordinance covers so much speech raises constitutional concerns.
It is offensive – not only to the values protected by the First Amendment, but to the very
notion of a free society – that in the context of everyday public discourse a citizen must
first inform the government of her desire to speak to her neighbors and then obtain a
permit to do so. Even if the issuance of permits by the mayor’s office is a ministerial task
..., a law requiring a permit to engage in such speech constitutes a dramatic departure
from our national heritage and constitutional tradition.
The ordinance, Justice Stevens said, swept within its purview those who might wish to
maintain their anonymity while canvassing or distributing literature in support of unpopular
causes for fear of economic or official retaliation or social ostracism, individuals with
religious or political objections to having their speech “licensed by a petty official,” and even
spontaneous speech by neighbors or others who might make a spur-of-the-moment decision
to become active in a political or other cause.
But, the Court stated, the ordinance was not unconstitutional simply because it swept
within its purview speech that is constitutionally protected. The ordinance also, it said, was
not tailored to the Village’s stated interests. The interest in preventing fraud might support
the ordinance to the extent it applied to commercial transactions or the solicitation of funds,
Justice Stevens asserted, but that interest provided no support for its application to religious
or political canvassing. The village’s interest in protecting the privacy of its residents, he
stated, was better served by the opportunity given residents to post “No Solicitation” signs
on their lawns and the residents’ “unquestioned right to refuse to engage in conversation with
unwelcome visitors.” And finally, he said, the village’s interest in preventing crime was not
well served by the ordinance because criminals could easily register under a false name or
avoid the permit requirement altogether by posing as posing as persons not covered by the
ordinance, such as surveyors or census takers or simply as persons needing directions or use
of a phone. Moreover, he asserted, in the lower courts the village had not even asserted an
interest in preventing crime as a justification for the ordinance.
The Court concluded:
The rhetoric used in the World War II-era opinions that repeatedly saved petitioners’
coreligionists from petty prosecutions reflected the Court’s evaluation of the First
Amendment freedoms that are implicated in this case. The value judgment that then
motivated a united democratic people fighting to defend those very freedoms from
totalitarian attack is unchanged. It motivates our decision today. The judgment of the
Court of Appeals is reversed ....
Justice Breyer, joined by Justices Souter and Ginsburg, concurred with the Court’s
opinion but wrote separately to emphasize that the village’s claimed justification for the
ordinance of preventing crime was decidedly weak. The legislative body that passed the
ordinance, he claimed, did not consider that justification; the village made no reference to
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that rationale in the courts below; and its references to crime in its brief to the Court seemed
to cover nothing other than fraud, which it asserted as a separate interest. “I can only
conclude,” he stated, “that if the village of Stratton thought preventing burglaries and violent
crimes was an important justification for this ordinance, it would have said so.”
Justice Scalia, joined by Justice Thomas, concurred in the Court’s judgment but not
with all its reasoning. In a separate opinion he expressed particular disagreement with the
Court’s view that the ordinance was unconstitutional in part because it would lead persons
with religious or other objections to having their speech regulated at all to forego speaking
rather than complying with the ordinance. Such objections, he said, provided no basis either
for the exemption of such speakers from a lawful ordinance or for the invalidation of the
ordinance.
Chief Justice Rehnquist dissented. Terming the Court’s decision to be “newly
fashioned doctrine,” he said it “contravenes well-established precedent, renders local
governments largely impotent to address the very real safety threats that canvassers pose, and
may actually result in less of the door-to-door communication that it seeks to protect.”
Canvassers, he emphasized, do have the potential of lessening “the peaceful enjoyment of
a home” and of engaging in crime; and for that reason, he said, the Court “for over 60 years
[has] categorically stated that a permit requirement for door-to-door canvassing which gives
no discretion to the issuing authority, is constitutional.” Citing language to that effect from
each of the cases cited by Justice Stevens, the Chief Justice said that Stratton’s ordinance had
“none of the defects” of an invalid regulation of canvassing. It was not a blanket prohibition
of canvassing, he said; it conferred no discretion on any official to decide who gets a permit;
and its language was not vague.
Moreover, he said, the Court had failed to articulate what test it was using to evaluate
the ordinance and, instead, had simply asserted that it affected more speech than necessary
and was not tailored to the village’s interests. But because the ordinance was content-neutral
and merely regulated the manner of canvassing rather than barring it, the Chief Justice stated,
it was clear that intermediate scrutiny was the appropriate standard of review. Under that
standard, he asserted, “the ordinance easily passes muster.” It was, he said, narrowly tailored
to serve each of the village’s three claimed interests. In particular, he said, it furthered the
interest of preventing crime because it applied to everyone who wanted to canvass door-to-
door and increased the possibility of detecting and apprehending those who commit crimes
in the process. Finally, he claimed, the ordinance satisfied the last element of the
intermediate scrutiny standard by leaving open “ample alternatives for expression.” “A
discretionless permit requirement,” the Chief Justice concluded, “does not violate the First
Amendment.”
Zelman v. Simmons-Harris
122 S.Ct. 2460, 70 U.S.L.W. 4683 (June 27, 2002) (No. 00-1751): In this case the
Supreme Court, by a narrow margin, upheld as constitutional a school voucher program
affording certain students in Cleveland’s public schools the opportunity to attend private
schools in the city, notwithstanding the fact that most of the schools were religious in nature.
The Ohio Pilot Project Scholarship Program had been enacted in partial response to a 1995
federal district court decision directing the state to take control of Cleveland’s public schools,
which had chronically failed to meet even minimal academic performance standards. As re-
enacted in 1999, the program provided grants of up to $2250 to poor families with
elementary and middle school students in Cleveland’s public schools to enable those who
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chose to do so to attend private schools in the city. Notwithstanding that most of the private
schools participating in the program were sectarian in nature and that most of the subsidized
students enrolled in such schools, the Court held that the program did not coerce parents into
sending their children to religious schools but afforded them a constitutionally sufficient
range of secular and religious educational choices. Those choices, the Court said, included
not only subsidized attendance at religious and nonreligious private schools in the city but
also subsidized tutoring for those who chose to remain in public schools, transfer to public
magnet schools in the city, and attendance at publicly-financed community schools. The
decision was 5-4. (Note: The Court’s decision also applies to two other appeals that had
been consolidated with this case – Hannah Perkins School v. Simmons-Harris ( No. 00-1777)
and Taylor v. Simmons-Harris ( No. 00-1779)).
Zelman has a tangled legislative and judicial history. In 1995, in partial response to a
court order placing the Cleveland public schools under direct state control, the Ohio
legislature adopted the Ohio Pilot Scholarship Program. The program had two components.
One component provided scholarships to selected students attending the Cleveland public
schools in grades kindergarten through the eighth grade to enable them to attend private
schools within Cleveland or public schools in the suburban school districts adjacent to the
city that chose to participate. Preference was given to students from families with incomes
below 200 percent of the poverty line, and the scholarship could pay 90 percent of the private
or out-of-district public school’s tuition charge up to a maximum of $2250. For students
from families with higher incomes, the scholarship was capped at $1875 and could pay up
to 75 percent of the tuition charge. In the second component of the program, eligible
students who chose to remain in public school could receive up to $360 to pay for special
tutorial assistance. In the 1999-2000 school year 3761 students participated in the voucher
program, and more than 2000 chose to receive tutorial assistance grants. Because no
suburban public schools chose to participate in the voucher program, all of the voucher
students attended private schools in the city. Forty-six of the 56 private schools participating
in the program that year (82 percent) were religiously-affiliated; and 96 percent of the
scholarship students were enrolled in those schools.
Soon after the program’s original enactment in 1995, a number of plaintiffs brought suit
in state court challenging its constitutionality under the establishment of religion clause of
the First Amendment and several provisions of the Ohio Constitution. The Ohio trial court
held the program to be constitutional. But on May 1, 1997, the Ohio Court of Appeals
reversed, holding the program to violate both the establishment clause and two provisions
of the Ohio Constitution it said were “coextensive” with the establishment clause. Adopting
the reasoning of the Supreme Court’s 1973 decision in Committee for Public Education v.
Nyquist, 413 U.S. 756 (1973), the appellate court stated that the domination of the universe
of participating schools by sectarian schools meant that the parents did not have a “genuine
and independent choice” about where to use the scholarships and that the program provided
“direct and substantial, non-neutral government aid to sectarian schools.”
On May 25, 1999, however, the Ohio Supreme Court reversed on the establishment
clause issue (with one minor exception) by a margin of 4-3 but still held the program to
violate a procedural provision of the Ohio Constitution, 5-2. Simmons-Harris v. Goff, 86
Ohio St. 3d 1, 711 N.E. 2d 203 (1999). On the establishment clause issue, the court
emphasized that the primary beneficiaries of the program were “children, not sectarian
schools” and that the relationship between state aid and the schools was “attenuated” because
the parents made “independent decisions to participate in the School Voucher Program and
independent decisions as to which registered nonpublic school to attend.” But while
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upholding most of the program, it did strike down one provision on establishment clause
grounds. That provision allowed participating schools to give preference in admission on
the basis, among other reasons, that the students’ parents were “affiliated with any
organization that provides financial support to the school.” The court found that provision
to create a financial “incentive for parents desperate to get their child out of the Cleveland
City School District to ‘modify their religious beliefs or practices’ in order to enhance their
opportunity to receive a ... scholarship” and thus to be unconstitutional.
But the Ohio Supreme Court also held the program to have been enacted in a manner
that violated a provision of the Ohio Constitution mandating that each bill adopted by the
legislature contain no more than one subject (Art. II, § 15D). Noting that the voucher
program had been enacted as a rider to a massive appropriations bill and constituted only10
pages of a 1000 page bill, the court said that there was a “blatant disunity” between the
voucher program and the rest of the appropriations bill and no “rational reason for their
combination.” As a consequence, it held the one-subject provision of the state constitution
to have been violated. It delayed the effective date of the decision, however, until June 30,
1999, “in order to avoid disrupting a nearly completed school year.”
On June 29, 1999, the Ohio legislature re-enacted the Pilot Scholarship Program,
eliminating only the parental affiliation preference that had been found unconstitutional by
the Ohio Supreme Court. Within a month two new suits — Simmons-Harris v. Zelman and
Gatton v. Zelman — were filed challenging the constitutionality of the program under the
establishment clause, this time in federal district court rather than state court. On August 24,
1999, Judge Solomon Oliver consolidated the cases and granted the plaintiffs’ motion for a
preliminary injunction barring further implementation of the program, stating in a lengthy
opinion that “the Plaintiffs have a substantial chance of succeeding on the merits.”
Simmons-Harris v. Goff, 54 F.Supp.2d 725 (N.D. Ohio Aug. 24, 1999) (order granting
preliminary injunction). However, this order came down on the same day private schools in
Cleveland opened and only one day before the public schools were to open. As a
consequence, a substantial public outcry ensued about the hardship the injunction placed on
the voucher children who were already enrolled in private schools and on the public schools
that suddenly would have to accommodate several thousand new students. In response Judge
Oliver on August 27, 1999, partially stayed the injunction and permitted students who had
been enrolled in the scholarship program in the previous school year (but not students newly
enrolled) to continue for one more semester. However, after an emergency appeal by Ohio,
the U.S. Supreme Court on November 5, 1999, by a 5-4 margin, granted an emergency
request by Ohio and stayed the preliminary injunction in its entirety, thus allowing about 800
new students to participate as well and permitting the voucher program to continue beyond
the first semester. Zelman v. Simmons-Harris, 528 U.S. 943 (1999) (the majority was
comprised of Chief Justice Rehnquist and Justices O’Connor, Scalia, Kennedy, and Thomas.)
On December 20, 1999, Judge Oliver held Ohio’s Pilot Scholarship Program to violate
the establishment clause. Simmons-Harris v. Zelman, 72 F.Supp.2d 834 (N.D. Ohio 1999).
Because 82 percent of the private schools in Cleveland which were participating were
church-related, he said, the program was “skewed toward religion” and provided “financial
incentives to attend religious schools.” Under Ohio’s program, he asserted, “parents and
their children do not have a significant choice between parochial and nonparochial schools
.... That choice is essentially made for them as a function of the fact that almost all
participating schools are religious in nature.” Finding Nyquist to be controlling, the court
permanently enjoined continuation of the voucher program; but it stayed the injunction
pending review by the U.S. Court of Appeals for the Sixth Circuit.
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A year later, on December 11, 2000, the Sixth Circuit affirmed Judge Oliver’s decision,
2-1. Simmons-Harris v. Zelman, 234 F.3d 945 (6th Cir. 2000). The majority held that the
“choice” afforded the participants in the program was “illusory,” and that “the program
clearly has the impermissible effect of promoting sectarian schools”:
We find that when, as here, the government has established a program which does not
permit private citizens to direct government aid freely as is their private choice, but which
restricts their choice to a panoply of religious institutions and spaces with only a few
alternative possibilities, then the Establishment Clause is violated .... There is no neutral
aid when that aid principally flows to religious institutions; nor is there truly “private
choice” when the available choices resulting from the program design are predominantly
religious .... The effect of the voucher program is in direct contravention to ... Supreme
Court cases which mandate that the state aid be neutrally available to all students who
qualify, that the parents receiving the state aid have the option of applying the funds to
secular organizations or causes as well as to religious institutions, and that the state aid
does not provide an incentive to choose a religious institution over a secular institution.
On June 27, 2002, the Supreme Court reversed, 5-4. Chief Justice Rehnquist, joined
by Justices O’Connor, Scalia, Kennedy, and Thomas, stated that the lower courts had used
too narrow a framework in evaluating the choices available to the voucher students and their
parents. The proper framework, he said, included not only the private school options,
whether secular or religious, but also the option of remaining in public school and obtaining
special tutoring, transferring to one of the 23 magnet schools in the city that had specialized
curricula or teaching methods, or attending one of the 10 start-up community schools in the
city that, although publicly financed, had their own school boards and enjoyed substantial
academic independence from state prescriptions. Within that broader framework, he
asserted, parents clearly were not coerced into sending their children to religious schools but
did so only as the result of a genuinely independent choice among a range of secular and
religious options.
There was no dispute, the Chief Justice observed, that the Pilot Scholarship Program
served the “valid secular purpose of providing educational assistance to poor children in a
demonstrably failing public school system.” The key question, he said, was whether it had
the forbidden effect of advancing or inhibiting religion. The pertinent criteria for that
question, he said, had been established in three prior cases involving indirect assistance to
sectarian schools. In Mueller v. Allen, 463 U.S. 388 (1983), he stated, the Court had upheld
a state program allowing tax deductions for various educational expenses, including private
school tuition, because the class of beneficiaries included all parents, not just the parents of
children attending private schools, and because the subsidy of the educational expenses at
private sectarian schools occurred “only as a result of numerous, private choices of individual
parents of school-age children.” Similarly, he said, the Court in Witters v. Washington
Department of Services for the Blind, 474 U.S. 481 (1986) had upheld as constitutional a
vocational rehabilitation grant program which provided tuition aid to a student studying at
a religious institution to be a youth minister. The Court had done so, he stated, because the
aid was made available generally without regard to the nature of the institution ultimately
benefitted and because “any aid ... that ultimately flows to religious institutions does so only
as a result of the genuinely independent and private choices of aid recipients.” Finally, he
asserted, the Court in Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) had
upheld the provision of a sign-language interpreter to assist a deaf student in a sectarian high
school pursuant to a program that generally assisted disabled students in public and private
schools. Again, he said, the Court had done so because the aid was made available on a
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religiously neutral basis and because parents, not the government, made the decision to send
their children to public or private schools.
With respect to the Ohio Pilot Scholarship Program, Chief Justice Rehnquist stated that
“[w]e believe that the program challenged here is a program of true private choice, consistent
with Mueller, Witters, and Zobrest, and thus constitutional.” The program, he said,
is neutral in all respects toward religion .... It confers educational assistance directly to
a broad class of individuals defined without reference to religion, i.e., any parent of a
school-age child who resides in the Cleveland City School District .... Program benefits
are available to participating families on neutral terms, with no reference to religion ....
There are “no financial incentives” that “skew” the program toward religious schools ....
There ... is no evidence that the program fails to provide genuine opportunities for
Cleveland parents to select secular educational options for their school-age children.
Cleveland schoolchildren enjoy a range of educational choices: They may remain in
public school as before, remain in public school with publicly funded tutoring aid, obtain
a scholarship and choose a religious school, obtain a scholarship and choose a
nonreligious private school, enroll in a community school, or enroll in a magnet school.
Consequently, the Chief Justice concluded, “in keeping with an unbroken line of decisions
rejecting challenges to similar programs, we hold that the program does not offend the
Establishment Clause.”
Justice Souter, joined by Justices Stevens, Ginsburg, and Breyer, dissented. Terming
the Court’s decision a “dramatic departure from basic Establishment Clause principles,” he
said that the majority’s criteria for evaluating the constitutionality of a voucher program
amounted to “verbal formalism,” violated the no aid to religious instruction principle set
forth in Everson v. Board of Education, 330 U.S. 1 (1947), opened the door to substantial
public subsidy of religious schools, and defied “every objective supposed to be served” by
the establishment clause.
In Everson, Justice Souter claimed, the Court had adopted the principle that public
funds should not subsidize religious instruction. Subsequent decisions – until Mueller – had
adhered to that principle, he said; but Mueller “started down the road from realism to
formalism.” Mueller, Witters, and Zobrest allowed indirect aid to be used for religious
instruction, he stated, subject only to the criteria of neutrality and private choice. But not
until this case, he asserted, had a majority of the Court rejected the “substantiality of aid” as
constitutionally irrelevant and “held purely formal criteria to suffice for scrutinizing aid that
ends up in the coffers of religious schools.”
The neutrality test, he said, ought to focus on the aid program that may be directed to
religious as well as secular schools and ask whether the scheme “favors a religious
direction”; and in this case, he stated, that meant the question ought to be directed to the
scholarship and tutoring program itself. But, he claimed, the majority looked “not to the
provisions for tuition vouchers ... but to every provision for educational opportunity.” As
a consequence, he said,
the majority’s reasoning would find neutrality in a scheme of vouchers available for
private tuition in districts with no secular private schools at all. “Neutrality” as the
majority employs the term is, literally, verbal and nothing more.
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The majority committed the same error, Justice Souter asserted, with respect to the
private choice criterion. By focusing on “the entire menu of possible educational
placements” rather than on where the scholarships can be spent, he said, the majority
“ignores the reason for having a private choice enquiry in the first place.” That enquiry
properly asks, he said, whether the parent or student that initially receives the public aid is
free to channel it in either a secular or religious direction. But the majority eliminates the
utility of that enquiry, he said, by bringing into the equation public spending on public
magnet and community schools “that goes through no private hands and could never reach
a religious school under any circumstance”:
If “choice” is present whenever there is any educational alternative to the religious school
to which vouchers can be endorsed, then there will always be a choice and the voucher
can always be constitutional, even in a system in which there is not a single private
secular school as an alternative to the religious school.
By allowing “substantial amounts of tax money” to be used to systematically underwrite
religious practice and indoctrination, Justice Souter said the Court’s decision undermines the
three major purposes of the establishment clause. It violates respect for freedom of
conscience by compelling individuals to subsidize religious instruction contrary to their own
beliefs; it threatens to compromise the integrity and independence of religious institutions
by bringing government regulation in its wake; and it threatens social conflict as religious
sects compete for public subsidies and religious differences become the subject of public
debate. “The reality,” Justice Souter concluded, “is that in the matter of educational aid the
Establishment Clause has largely been read away.”
Several Justices filed additional opinions as well. Justice O’Connor authored a
concurring opinion challenging Justice Souter’s contention that the voucher program would
lead to substantial public aid to private religious schools and defending the inclusion of a
broad range of educational choices in evaluating whether an aid recipient has a genuinely
independent choice. Justice Thomas wrote to suggest that all of the strictures of the
establishment clause ought not to be deemed incorporated in the due process clause of the
Fourteenth Amendment and that the states are more free than the federal government to “pass
laws that include or touch on religious matters so long as these laws do not impede free
exercise rights or any other individual religious liberty interest.” Justice Stevens filed a
dissenting opinion arguing that three factual matters relied upon by the majority – the
educational crisis in Cleveland’s public schools, the availability of a wide range of choices
within the public school system, and the voluntary character of a private choice to prefer
parochial education over a public school education – were irrelevant to the constitutional
enquiry. Finally, Justice Breyer, joined by Justices Stevens and Souter, wrote a dissenting
opinion stressing “the Establishment Clause concern for protecting the Nation’s social fabric
from religious conflict” and the dangers posed to that concern by the Court’s decision.
Cases Affirmed
Utah v. Evans
143 F.Supp.2d 1290 (D. Utah), judgment affirmed, 70 U.S.L.W. 3359 (November 26,
2001) (No. 01-283): A three-judge federal district court held that the federal law including
overseas federal employees in the 2000 census but excluding approximately 11,000 overseas
Mormon missionaries violated neither the Religious Freedom Restoration Act nor the free
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exercise clause because the law imposed no burden on the missionaries’ religious beliefs or
practices.
Cases Vacated and Remanded
Gentala v. Tucson, Arizona
244 F.3d 1065 (9th Cir.), judgment vacated and case remanded for reconsideration in
light of Good News Club v. Milford Central School,533 U.S. 98 (2001), 70 U.S.L.W. 3267
(October 9, 2001) (No. 01-75): The lower court held a city’s refusal to cover the costs of a
religious group’s use of a public park for a National Day of Prayer ceremony to violate the
establishment clause in light of the fact that the city did so for all other groups using the park.
(Note: The Ninth Circuit subsequently remanded the case to the district court for
reconsideration. See Gentala v. City of Tucson, 275 F.3d 1160 (9th Cir. 2002).)
O’Connor v. Northshore International Insurance Services
2001 U.S. App. LEXIS 22955 (3d Cir.), judgment vacated and case remanded for
reconsideration in light of Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), 70 U.S.L.W.
3773 (June 11, 2002) (No. 01-1205): Lower court upheld the dismissal of a suit by an
employee who claimed she had been fired for religious reasons in violation of Title VII,
because she failed to show that anyone with the authority to fire her knew she was a
fundamentalist Christian.
Cases Carried Over to the Next Term
Prater v. Burnside, Ky.
289 F.3d 417 (6th Cir.), pet. for cert. filed, 71 U.S.L.W. 3137 (August 5, 2002) (No. 02-
183): A federal appellate court affirmed summary judgment for the city in a suit by a church
charging that the city’s decision to develop a roadway abutting its property prevented it from
expanding in violation of its right of free exercise and associated “hybrid” rights.
Warren v. Morris Cerrullo World Evangelism
___ Cal. ___ (Cal. Ct. App. 2001), pet. for cert. filed, 70 U.S.L.W. 3742 (May 17, 2002)
(No. 01-1699): State court held free exercise and establishment clauses to preclude
adjudication of minister’s claim that World Evangelism had fraudulently induced him to
relocate and had reneged on its promise to make him the successor to the head of the
organization.
Whistine v. Kilpatrick Life Insurance Co.
___ F.3d ___, 2002 U.S. App. LEXIS 16828 (5th Cir.), pet. for cert. filed, 71 U.S.l.W.
3117 (July 22, 2002)(No. 02-131): Lower court affirmed dismissal of suit charging religious
discrimination in employment on the grounds the manager’s comment that he had
interviewed a “fat Pentecostal preacher that did not meet expectations” did not make out a
prima facie case under Title VII.
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Cases Denied Review
Adler v. Duval County, Florida, School Board
250 F.3d 1330 (11th Cir.), cert. denied, 70 U.S.L.W. 3383 (December 10, 2001) (No.
01-287): After remand from the Supreme Court for reconsideration in light of Santa Fe
Independent School System v. Doe, the lower court reinstated its former decision upholding
as constitutional a school system’s policy permitting the graduating senior class in each
public high school to vote on whether to select a student to give a “message” wholly of the
student’s own choosing at the beginning or closing of their graduation ceremony.
Ali v. Alamo Rent-A-Car, Inc.
8 Fed. Appx. 156, 2001 U.S. App. LEXIS 3389 (4th Cir.), cert. denied, 70 U.S.L.W.
3245 (October 1, 2001) (No. 00-1813): Lower court dismissed Title VII complaint by an
employee whose employer barred her from wearing a headscarf as required by her religion
on the grounds she had suffered no adverse employment action and such action is a
prerequisite to a Title VII suit.
Arkansas Presbytery of Cumberland Presbyterian Church v.
Hudson
344 Ark. 332, 40 S.W.3d 301, cert. denied, 70 U.S.L.W. 3245 (October 1, 2001) (No.
01-8): State court, using a neutral principles of law approach, awarded title to two pieces of
property to the local church rather than its parent body notwithstanding the hierarchical
nature of the organization.
Broughton v. Pulaski Fiscal Court
___ Ky. ___ (Ky. Ct. App. 2000), cert. denied, 70 U.S.L.W. 3240 (October 9, 2001)
(No. 01-90): State court held an occupational tax levied as a percentage of income rather than
as a flat fee to be a religiously neutral revenue measure and not to violate the free exercise
clause as applied to taxpayers whose income resulted from their practice of their religion as
ministers or principals of parochial schools.
Brown v. Gilmore
258 F.3d 265 (4th Cir.), cert. denied, 70 U.S.L.W. 3315 (October 29, 2001) (No. 01-
384): Lower court held a Virginia statute mandating that all pupils begin each day with a
moment of silence during which they may “meditate, pray, or engage in any other silent
activity” to accommodate rather than promote religion and, consequently, not to violate the
establishment clause.
Bruff v. North Mississippi Health Services, Inc.
244 F.3d 495 (5th Cir.), cert. denied, 70 U.S.L.W. 3267 (October 9, 2001) (No. 01-210):
Lower court held Title VII not to be violated by a medical center’s discharge of a counselor
who refused to counsel clients on subjects that conflicted with her religious beliefs, including
gay and extra-marital relationships, on the grounds the center was so small accommodation
would impose an undue hardship.
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Calderon v. Sandoval
241 F.3d 765 (9th Cir.), cert. denied, 70 U.S.L.W. 3244 (October 1, 2001) (No. 00-
1774): Lower court held, inter alia, that prosecutor’s argument at the penalty phase of a
capital trial to the effect that the imposition of the death penalty would vindicate divine
authority and give the defendant a chance for redemption after death violated the Eighth
Amendment’s requirement that the jury assume personal responsibility for its decision and
focus on the specific factors set forth in the statute.
Church of Scientology International v. Time-Warner, Inc.
238 F.3d 168 (2d Cir.), cert. denied, 70 U.S.L.W. 3233 (October 1, 2001) (No. 00-
1683): Lower court affirmed trial court ruling that magazine’s highly critical article of
religious group did not constitute libel because the statements were made on the basis of
extensive research and were not made with any actual malice.
DiBari v. Bedford Central School District
245 F.3d 49 (2d Cir.), cert. denied, 70 U.S.L.W. 3234 (October 1, 2001) (No. 00-1932):
Lower court held a public high school’s earth day celebration, which included the assembly
of the student body before an earth-totem on a tripod and various ceremonies to “honor the
Earth,” not to violate either the establishment or the free exercise clause.
Gernetzke v. Kenosha Unified School District No. 1
274 F.3d 464 (7th Cir. 2001), cert. denied, 70 U.S.L.W. 3654 (April 22, 2002) (No. 01-
1181): Lower court held that a principal did not violate the Equal Access Act by barring a
student Bible club from including a large cross in a hallway mural due to concerns over
possible litigation and disruption, because he barred secular symbols in other student displays
for the same reason.
Hack v. President and Fellows of Yale College
237 F.3d 81 (2d Cir.), cert. denied, 70 U.S.L.W. 3240 (October 1, 2001) (No. 01-70):
Lower court held Orthodox Jewish students’ objection to Yale’s policy requiring all
unmarried freshmen and sophomores to live in college dorms, all of which were co-ed, not
to state a claim under either the Fair Housing Act or, because Yale is not a state actor, the
First Amendment.
Henderson v. Mainella
253 F.3d 12 (D.C. Cir. 2001), cert. denied, 70 U.S.L.W. 3654 (April 22, 2002) (No. 01-
978): Lower court held that a National Park Service ban on the sale of T-shirts on the Mall
did not substantially burden the evangelical Christian plaintiffs’ religious vocation of
spreading the gospel “by all available means” within the meaning of the Religious Freedom
Restoration Act, given the alternatives available to them of selling the T-shirts on nearby
streets or giving them away for free.
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Hope Lutheran Church of Hastings, Minn. v. Shepherd of the Valley
Lutheran Church of Hastings, Minn.
626 N.W.2d 436 (Minn. Ct. App.), cert. denied, 70 U.S.L.W. 3427 (January 7, 2002)
(No. 01-670): A state appellate court held that the trial court had properly used neutral
principles of law in awarding disputed property to the existing congregation and holding the
vice president of the congregation, who had tried unsuccessfully to orchestrate the removal
of the minister and then transferred the church’s property to a newly formed congregation for
no compensation without informing his fellow officers of what he was doing, not to be
entitled to the good faith immunity from civil liability afforded unpaid directors of nonprofit
corporations by state law.
Jae-Woo Cha v. Korean Presbyterian Church of Washington
262 Va. 604, 553 S.E.2d 511, cert. denied, 70 U.S.L.W. 3668 (April 29, 2002) (No. 01-
1264): State court held the free exercise clause to preclude its exercise of jurisdiction over
a pastor’s wrongful discharge suit against his church and several members who served on its
governing board, on the grounds that adjudication would necessarily involve the court in
issues of church governance and internal organization and would interfere with the church’s
right to select its religious leaders.
James v. United States
___ F.3d ___ (7th Cir. 2001), cert. denied, 70 U.S.L.W. 3741 (June 3, 2002) (No. 01-
1580): Lower court dismissed with prejudice a complaint asserting that citizens have a right
to vote on whether prayer should be restored to the public schools.
Knights of Columbus, Council # 94 v. Lexington, Mass.
272 F.3d 25 (1st Cir. 2001), cert. denied, 70 U.S.L.W. 3695 (April 13, 2002) (No. 01-
1271): Lower court held a municipality’s ordinance barring unattended structures from the
village green to be a content-neutral time, place, manner regulation of speech,
notwithstanding its effect of barring the long-standing practice of displaying a creche on the
green for several weeks during the Christmas season.
LeVake v. Independent School District No. 656
625 N.W.2d 502 (Minn. Ct. App. 2001), cert. denied, 70 U.S.L.W. 3427 (January 7,
2002) (No. 01-665): State court found no due process, free exercise, or free speech violation
in principal’s reassignment of a biology teacher to teach a different subject after discovery
that teacher intended to teach criticisms of evolution rather than evolution as prescribed by
the curriculum.
Lightman v. Flaum
97 N.Y.2d 128, 736 N.Y.S.2d 300, 761 N.E.2d 1027 (2001), cert. denied, 70 U.S.L.W.
3724 (May 28, 2002) (No. 01-1280): State court held a state law establishing a clergy-
penitent evidentiary privilege not to give rise to a cause of action against a cleric for breach
of fiduciary duty due to the cleric’s alleged disclosure of the congregant’s confidential
communications.
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O’Bannon v. Indiana Civil Liberties Union
259 F.3d 766 (7th Cir.), cert. denied, 70 U.S.L.W. 3533 (February 25, 2002) (No. 01-
966): Lower court held the display of the Ten Commandments on a seven-foot stone
monument on the statehouse grounds to violate the establishment clause, notwithstanding
the display of the Bill of Rights and the preamble to Indiana’s constitution on the other,
smaller faces of the monument.
Oregon Arena Corporation v. Lee
276 F.3d 550 (9th Cir.), cert. denied, 70 U.S.L.W. 3756 (June 10, 2002) (No. 01-1580):
Lower court held a private corporation that leased city-owned outdoor area deemed to be a
public forum to be liable under 42 U.S.C. 1983 for issuing regulations on speech that barred
persons from preaching in the area.
Protestant Episcopal Church in Diocese of Mississippi v. Mabus
___ Miss. ___ (Cir. Ct. 2001), cert. denied, 70 U.S.L.W. 3695 (May 13, 2002) (No. 01-
1263): State court dismissed invasion of privacy claim but refused to dismiss tort claim
alleging that the plaintiff’s priest, church, and diocese had violated ecclesiastical law by
allowing her husband to surreptitiously tape her counseling sessions with the priest and
subsequently to disseminate the tapes to third parties and to use them against her in a custody
proceeding.
REN Laboratories of Florida, Inc. v. Weiss
251 F.3d 161 (11th Cir.), cert. denied, 70 U.S.L.W. 3315 (October 29, 2001) (No. 01-
292): Lower court reversed trial court’s grant of a post-trial motion for judgment as a matter
of law in a case involving the discharge of an employee for harassing his co-workers about
religion on the grounds that reasonable jurors could have concluded that the employee’s
actions did not constitute harassment and that his religion was a factor in his discharge. (The
Court also denied review in the companion case of Weiss v. REN Laboratories of Florida,
Inc., 251 F.3d 161 (11th Cir.), cert. denied, 70 U.S.L.W. 3315 (October 29, 2001) (No. 01-
317).)
Searles v. Van Bebber
251 F.3d 869 (10th Cir.), cert. denied, 70 U.S.L.W. 3756 (June 10, 2002) (No. 01-785):
Lower court held that a provision of the Prison Litigation Reform Act barring recovery for
mental or emotional injury unless a physical injury is also demonstrated applied to a free
exercise claim by a prisoner based on the temporary denial of a kosher diet and,
consequently, found the refusal of the trial court to give the jury an instruction to that effect
to be in error.
Wells v. Denver, Colorado
237 F.3d 1132 (10th Cir.), cert. denied, 70 U.S.L.W. 3315 (October 29, 2001) (No. 01-
503): Lower court upheld trial court’s denial of injunctive relief to a private group that
wanted to add a “Winter Solstice” display to the city’s annual holiday display or display it
separately, holding that the annual display constituted government speech, that such speech
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can be selective, and that city’s unwritten policy prohibiting unattended private displays did
not vest unbridled discretion in city officials.
Wilkinson v. Flagner
241 F.3d 475 (6th Cir.), cert. denied, 70 U.S.L.W. 3383 (December 10, 2001) (No. 01-
324): Lower court held that prison officials possessed a qualified immunity from suit by an
Orthodox Hasidic Jewish prisoner who objected to a prison grooming regulation that
required him to cut his beard and sidelocks in contravention of his religious beliefs but that
the prisoner could bring a constitutional challenge to the regulation to determine whether it
was “reasonably related to legitimate penological interests.”
Williams v. Watts-Willowbrook Church of Christ
___ F.3d ___ (9th Cir.), cert. denied, 70 U.S.L.W. 3234 (October 1, 2001) (No. 00-
1827): Lower court held it had no jurisdiction over an appeal in a case alleging collusion by
various parties to oust the appellant as minister.
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