establishment clause

Advocate Health Care Network v. Stapleton

Issues

Does the Employment Retirement Income Security Act of 1974’s “church plan” exemption apply to a pension plan maintained by an otherwise-qualifying church-affiliated organization, regardless of whether a church initially established the plan?

This consolidated case provides the Supreme Court with the opportunity to resolve a conflict over the application of the “church plan” exemption of the Employee Retirement Income Security Act (“ERISA”). The parties disagree over whether the exemption applies to a pension plan maintained by a church-affiliated entity but not established by a church. Petitioners Advocate Health Care Network et al. (“Advocate”) argue that historical evidence and the statutory text establish that the exemption covers pension plans created by church agencies in addition to plans created by churches themselves. Advocate contends that a contrary interpretation would invite impermissible government interference with and discrimination between religious denominations. Maria Stapleton and fellow Respondents (“Stapleton”) contend that the language and purpose of the “church plan” exemption illustrate that it was not meant to cover a pension plan that was not created by a church. Stapleton also asserts that exempting the pension plans of church-affiliated entities from ERISA violates the Establishment Clause and puts thousands of church-agency employees at risk of losing their retirement benefits. 

Questions as Framed for the Court by the Parties

The Employee Retirement Income Security Act of 1974 (“ERISA”) governs employers that offer pensions and other benefits to their employees. “Church plans” are exempt from ERISA’s coverage. 29 U.S.C. §§ 1002(33), 1003(b)(2). For over thirty years, the three federal agencies that administer and enforce ERISA—the Internal Revenue Service, the Department of Labor, and the Pension Benefit Guaranty Corporation—have interpreted the church plan exemption to include pension plans maintained by otherwise qualifying organizations that are associated with or controlled by a church, whether or not a church itself established the plan.

The question presented is whether ERISA’s church plan exemption applies so long as a pension plan is maintained by an otherwise qualifying church-affiliated organization, or whether the exemption applies only if, in addition, a church initially established the plan.

This case is a combination of appeals from United States Courts of Appeals for the Seventh, Ninth, and Third Circuits. The facts from each case are substantially similar. 

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Arizona Christian School Tuition Organization v. Winn; Garriott v. Winn

Issues

1. Do Arizona taxpayers have a sufficiently personal injury to file a lawsuit against Section 1098, which authorizes a tax credit for voluntary donations to student tuition organizations?

2. Although Section 1089 is neutral on its face, is it nonetheless unconstitutional as applied if taxpayers have used it as a means of providing funding primarily to religious schools?

 

Arizona taxpayers brought claims alleging that Arizona’s Tuition Tax Credit violates the Establishment Clause of the First Amendment. The Tax Credit gives taxpayers a reduction in their tax liabilities for their donations to school tuition organizations. These organizations may give scholarships to students of particular faiths to attend certain religious schools. The taxpayers contend that they have the right to sue the government and these organizations for two reasons: the state loses over $50 million in tax revenue each year because the money that the organizations receive would otherwise be state tax revenue and the Tuition Tax Credit promotes religion. The petitioners claim that the taxpayers do not assert a sufficiently personal injury to initiate a lawsuit, and they claim that program does not violate the Establishment Clause because individual taxpayers, not the government, choose where to donate their money. The Supreme Court will decide whether the taxpayers have the right to sue and if so, whether Arizona’s Tax Credit violates the Establishment Clause.

Questions as Framed for the Court by the Parties

Questions Presented in Arizona Christian School Tuition Org. v. Winn

1. Do Respondents lack taxpayer standing because they do not allege, nor can they, that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds?

2. Is the Respondents' alleged injury-which is solely based on the theory that Arizona's tax credit reduces the state's revenue-too speculative to confer taxpayer standing, especially when considering that the credit reduces the state's financial burden for providing public education and is likely the catalyst for new sources of state income?

3. Given that the Arizona Supreme Court has authoritatively determined, under state law, that the money donated to tuition granting organizations under Arizona's tax credit is private, not state, money, can the Respondents establish taxpayer standing to challenge the decisions of private taxpayers as to where they donate their private money?

Question Presented in Garriott, Director, Arizona Dept. of Revenue v. Winn

Under Arizona Revised Statutes (A.R.S.) Section 43-1089, individuals who contribute money to school tuition organizations (STOs) that provide scholarships to students wishing to attend private schools are entitled to an income tax credit. Respondents alleged that Section 1089's neutral language and the Legislature's stated secular purpose for enacting it were a pretense and that the tuition tax credit program had the primary effect of advancing religion because a majority of taxpayers who contributed to STOs chose to contribute to STOs that awarded scholarships to students attending religious schools.

The question presented is the following:
Did the court of appeals err in holding that if most taxpayers who contribute to STOs contribute to STOs that award scholarships to students attending religious schools, Section 1089 has the purpose and effect of advancing religion in violation of the Establishment Clause even though Section 1089 is a neutral program of private choice on its face and the State does nothing to influence the taxpayers or the STOs' choice?

In 1997, the Arizona Legislature approved the Arizona Tuition Tax Credit, Section 1089 of which permits individuals to claim income tax credit in return for contributions to school tuition organizations ("STOs"). See Brief for Petitioner Gale Garriott at 3–4. Tax cr

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· Wex: Establishment Clause

· Annotated U.S. Constitution: First Amendment

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Carson v. Makin

Issues

Can a state restrict students’ access to a state-sponsored financial assistance program when the aid would fund attending private religious schools with religious teaching?

This case asks the Supreme Court to balance state public school funding schemes and First Amendment religious freedoms. Maine enacted a law for School Administrative Units without public secondary schools that allows them to provide tuition assistance for students to attend approved, nonsectarian private schools. Carson, Gillis, and Nelson (collectively “Carson”) contend that the nonsectarian requirement constitutes religious discrimination in violation of the Free Exercise Clause of the First Amendment. Makin, in her official capacity as the Commissioner of the Maine Department of Education, counters that Maine’s public school funding scheme is permissible because its purpose of funding secular public education implicates only religious “use” and not religious “status.” The outcome of this case has heavy implications for religious freedom, state school funding schemes, and accessibility to schooling.

Questions as Framed for the Court by the Parties

Whether a state violates the religion clauses or equal protection clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction.

Maine’s constitution mandates the state legislature to require towns to provide “support and maintenance” of public schools at the towns’ own expenses. Carson v. Makin at 25. To do so, the legislature divided the state into 260 school administrative units (“SAUs”) and required that each SAU “make suitable provisions” to maintain and support public schools. Id. Less than half of the SAUs contain a public secondary school. Id.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his guidance and insights into this case.

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Catholic Charities Bureau, Inc., et al., v. Wisconsin Labor & Industry Review Commission, et al.

Issues

Does Wisconsin violate the First Amendment’s religion clauses by denying a religious organization a tax exemption available under the state’s unemployment compensation system to organizations that are church-controlled and operated for primarily religious purposes?

This case asks the Court to determine whether Wisconsin violates the Constitution’s First Amendment by denying a particular religious organization a tax exemption under Wisconsin’s unemployment compensation system. Catholic Charities argues that the Wisconsin Supreme Court’s interpretation and application of the statute to deny the organization an exemption violates the First Amendment’s Establishment and Free Exercise Clauses. Specifically, Catholic Charities argues that the court’s decision violates the church’s autonomy, entangles the state in religious matters, and discriminates among religions for their church organizational structure and their distinct religious beliefs and practices. Wisconsin, on the other hand, maintains that the exemption and its interpretation effectuate no constitutional violations. Wisconsin argues that the exemption and the court’s interpretation do not infringe on the church’s autonomy, do not cause the state to become excessively entangled in religion, and do not discriminate among religions. This case directly calls for a balancing of church and state interests while also having implications for both charities and unemployment insurance on a large scale.

Questions as Framed for the Court by the Parties

Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior. 

In 1932, Wisconsin passed the nation’s first unemployment compensation statute, Wisconsin Statute § 108.02(15). Catholic Charities Bureau, Inc. v. State at 16. The statute implemented unemployment compensation coverage for unemployed workers.

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Cutter v. Wilkinson

 

The Religious Land Use and Institutionalized Persons Act contains provisions that are applicable to institutionalized persons which prohibit the government from imposing a substantial burden on prisoner's exercise of religion. The issue, in this case, is whether or not such provisions violate the Constitution's Establishment Clause, Spending Clause, or Commerce Clause.

Questions as Framed for the Court by the Parties

Whether Congress violated the Establishment Clause by enacting the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc-1 through § 2000cc-5, which requires state officials to lift unnecessary governmental burdens imposed on the religious exercise of institutionalized persons under their control.

Factual Summary
 
In 2000, Congress passed the Religious Land Use and Institutionalized Persons Act  ("RLUIPA"), which, in relevant part required that no government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution unless the burden is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that interest. 42 U.S.C. § 2000cc-1(a).
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Espinoza v. Montana Department of Revenue

Issues

Does the Montana constitutional provision barring all religious entities from participating in a generally available benefit program—a student scholarship fund—violate the Religion Clauses of the First Amendment or violate the Equal Protection Clause of the Fourteenth Amendment?

Court below

This case asks the U.S. Supreme Court to consider the extent to which there is “room for play in the joints” between the Religion Clauses in the First Amendment of the U.S. Constitution, namely the Free Exercise Clause and the Establishment Clause. While the Free Exercise Clause forbids the government from burdening religious practice, the Establishment Clause forbids the government from advancing it. But in some instances, the government may operate in the sphere of religion—what is known as the “room for play between the joints”—without running afoul of either provision. Article X, Section 6(1) of the Montana Constitution excludes religious entities from participating in some generally applicable funding programs. In drafting the provision, legislators sought to erect a greater barrier between church and state. However, the provision may also have unduly burdened religious practice. Kendra Espinoza, Jeri Ellen Anderson, and Jaime Schaefer—mothers who wish to use state-administered scholarship funds to send their children to religious schools—argue that Article X, Section 6(1) violates the Religion Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment by forbidding scholarship recipients from using the funds to cover tuition expenses at religiously-affiliated schools. The Montana Department of Revenue counters that Article X, Section 6(1) does not violate the Free Exercise Clause or the Equal Protection Clause and does not create hostility toward religion in violation of the Establishment Clause. Instead, the Department contends that Article X, Section 6(1) creates a greater barrier between church and state. The outcome of this case will impact other religious entities’ ability to participate in government benefit programs, and it will impact the national debate over school choice programs.

Questions as Framed for the Court by the Parties

Whether it violates the religion clauses or the equal protection clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.

In 2015, the Montana State Legislature (the “Legislature”) established a Tax Credit Program wherein a taxpayer could receive dollar-for-dollar tax credit up to $150 for the taxpayer’s donations to a Student Scholarship Organization (“SSO”) in Montana.

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Fulton v. City of Philadelphia

Issues

Under the First Amendment, can a city prevent a private foster care agency from participating in the city’s foster care system because that agency refuses to agree to a non-discrimination policy that requires it to consider potential same-sex or unmarried foster parents?

This case asks the Court to balance First Amendment rights with the government’s interest in promoting equality. Petitioner Catholic Social Services (“CSS”) contracted with Respondent City of Philadelphia (“the City”) to provide foster care and choose foster parents for the City’s youth; however, CSS objected to the inclusion of a non-discrimination clause in its contract that required it to consider LGBT+ individuals as foster parents. CSS argues that the City’s non-discrimination clause specifically targets it as a Catholic organization, thereby infringing upon its religious beliefs under the Free Exercise Clause and compelling it to endorse LGBT+ relationships in contravention of the Free Speech Clause. The City counters that the non-discrimination clause is a policy that applies to all contractors who undertake governmental work, and that CSS cannot claim to use religious freedom to undermine the City’s strong interest in preventing discrimination. The Supreme Court’s decision in this case will implicate laws impacting religious freedom, LGBT+ issues, and equal protection.

Questions as Framed for the Court by the Parties

(1) Whether free exercise plaintiffs can only succeed by proving a particular type of discrimination claim—namely that the government would allow the same conduct by someone who held different religious views—as two circuits have held, or whether courts must consider other evidence that a law is not neutral and generally applicable, as six circuits have held;

(2) whether Employment Division v. Smith should be revisited; and

(3) whether the government violates the First Amendment by conditioning a religious agency’s ability to participate in the foster care system on taking actions and making statements that directly contradict the agency’s religious beliefs.

Catholic Social Services (“CSS”) was established in 1797 in Philadelphia (“the City”), Pennsylvania as a religious non-profit foster care service. Fulton v. City of Philadelphia at 12. Although affiliated with the Archdiocese of Philadelphia, CSS is regulated both by the state of Pennsylvania and the City. Id. at 12–13.

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Acknowledgments

The authors would like to thank Professor Nelson Tebbe for his insights into this case.

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Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal

Issues

Whether public health and safety concerns and the potential for non-religious use are sufficiently compelling reasons for the government to prevent the religious group, UDV, from using a tea containing a Schedule 1 hallucinogenic for religious ceremonies.

 

The Religious Freedom Restoration Act of 1993 (“RFRA”) generally prohibits the federal government from restricting the use of controlled substances in bona fide religious ceremonies. A small North American sect of the Brazilian group, “O Centro Espirita Beneficiente Uniao Do Vegetal” (“UDV”) has challenged the government’s enforcement of a ban on DMT, a Schedule I narcotic and principle ingredient of “ hoasca ” a tea imported from South America that is central to UDV’s religious rituals. The government argues that its restriction on UDV falls within narrow RFRA exceptions because of the health risks associated with the use of DMT, the potential for diversion of the substance to non-religious uses, and the 1971 United Nations Convention ban on the importation of DMT. In this  case  the Supreme Court will decide whether RFRA's prohibition extends to the use and importation of Schedule I narcotics, which are those substances the federal government deems most harmful.

Questions as Framed for the Court by the Parties

Whether the Religious Freedom Restoration Act of 1993 (RFRA) requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty.

In May, 1999, federal customs officials seized goods labeled “tea extract” en route to Sante Fe, New Mexico, to Jeffrey Bronfman, President of the United States Chapter of a Brazilian religious group known as O Centro Espirita Beneficiente Uniao Do Vegetal (“UDV”) — roughly translated, “The Beneficial Spiritualist Center of the Union of the Vegetable.” See Gonzales v. O Centro Espirita Beneficiente Uniao De Vegetal, No. 04-1084 (U.S.

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Hein v. Freedom from Religion Foundation

Issues

Do taxpayers have the ability to challenge the actions of the Executive Branch based on the Establishment Clause of the First Amendment, which prohibits the Legislative Branch from making laws violating the freedom of religion?

 

In 2001, President Bush announced the Faith Based and Community Initiatives plan, which uses funds appropriated by Congress to establish a series of conferences designed to coordinate and support both religious and secular community organizations. The Freedom from Religion Foundation, represented by taxpayer plaintiffs, challenged this program on the basis that it violated the Establishment Clause of the First Amendment, but the suit was dismissed for lack of standing. The Seventh Circuit Court of Appeals reversed the district court, holding that various Supreme Court precedents establish that the Foundation did have standing. The government has appealed the case to the Supreme Court, arguing that the Foundation’s inability to identify a particular Congressional appropriation removes the programs from the Establishment Clause prohibition on Congressional action supporting religion.

Questions as Framed for the Court by the Parties

Whether taxpayers have  standing  under Article III of the Constitution to challenge on Establishment Clause grounds the actions of the Executive Branch pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government.

In 2004, the Freedom from Religion Foundation (“the Foundation”), represented by three taxpayer plaintiffs, filed suit in Federal District Court, challenging part of President Bush’s Faith Based and Community Initiatives (“FBCI”) plan. See Freedom from Religion, Inc. v. Chao, 433 F.3d 989, 993 (7th Cir. 2006).

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Kennedy v. Bremerton School District

Issues

Does a prayer said by a public-school football coach in front of students constitute government speech unprotected by the First Amendment or private speech; and if it is private speech protected under the Free Speech and Free Exercise Clause, must a public school still prohibit it under the Establishment Clause?  

This case asks the Supreme Court to decide whether a public school can prohibit a football coach from praying at midfield after a game ends. Petitioner Joseph A. Kennedy argues that he has a First Amendment right to pray on school grounds as long as he does so in his capacity as a private citizen and not as a coach. Respondent Bremerton School District contends that Kennedy impermissibly engaged in religious expression while in the course of performing his duties as a public-school employee. Therefore, Bremerton School District argues that it is properly within their discretion to prohibit Kennedy’s conduct as government speech. Bremerton School District further asserts that even if Kennedy’s prayer is properly considered private speech, they are compelled to prohibit it as a violation of the Establishment Clause. This case holds implications for the nature of the coach-student relationship, the scope of religious expression on public grounds, and the appropriate balance between free speech and religious pluralism.

Questions as Framed for the Court by the Parties

(1) Whether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection; and (2) whether, assuming that such religious expression is private and protected by the Free Speech and Free Exercise clauses, the Establishment Clause nevertheless compels public schools to prohibit it.

Joseph A. Kennedy (“Kennedy”) is a practicing Christian who served as a football coach at Bremerton High School in Bremerton, Washington, from 2008 to 2015. Kennedy v. Bremerton School District, at 1010.

Acknowledgments

The authors would like to thank Professor Nelson Tebbe and Professor Michael Heise for their guidance and insights into this case.

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