DANIEL J. POSNER, a minor, by his :
parent, LOUIS J. POSNER,
:
Plaintiff,
:
-against-
:
CENTRAL SYNAGOGUE, CENTRAL 93 cIV. 2448 (LBS) 93 Civ. 2448 (LBS)
SYNAGOGUE NURSERY SCHOOL, and :
MARY SOLOW, as director of CENTRAL
SYNAGOGUE NURSERY SCHOOL, :
Defendants, :
-and- :
THE UNITED STATES OF AMERICA, :
Defendant-Intervenor. :
MEMORANDUM OF LAW OF THE UNITED STATES OF AMERICA
IN OPPOSITION TO PLAINTIFF'S CONSTITUTIONAL CHALLENGE
TO SECTION 307 OF THE AMERICANS WITH DISABILITIES ACT
MARY JO WHITE
United States Attorney
Southern District of New York
Attorney for Defendant-Intervenor
PING C. MOY
Assistant United States Attorney
JOHN L. WODATCH
JOAN A. MAGAGNA
KEN S. NAKATA
Attorneys
Public Access Section
Civil Rights Division
United States Department of Justice
- Of Counsel -
01-06574
TABLE OF CONTENTS
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . .. ii
I. PRELIMINARY STATEMENT .... . . . . . . . . . . . . . . . . . . . .. . 1
II. STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . 3
III. ARGUMENT: SECTION 307'S EXEMPTION FOR
RELIGIOUS ORGANIZATIONS DOES
NOT VIOLATE THE FIRST AMENDMENT.. . . . . . . . . . . . . 5
A. The First Amendment Permits
Legislation that Accommodates Religion . . . . . . . . 5
B. Section 307 Does Not Violate
the Establishment Clause . . . . . . . . . . . . . . . . 7
1. Section 307 Serves the Permissible
Secular Purpose of Preventing
Government Interference with Religion. . . . . 8
2. Section 307 Does Not Have
the Effect of Either Advancing
or Inhibiting Religion . . . . . . . . . . . . 11
3. Section 307 Does Not Entangle the Government
with a Religious Entity, but Instead Fosters
a Complete Separation of Church and State . . .16
IV. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
i
01-06575
TABLE OF AUTHORITIES
CASES:
Alma Motor Co. v. Timken-Detroit Axle Co.,
329 U.S. 129 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . 5
Braunfeld v. Brown, 366 U.S. 599 (1961) . . . .. . . . . . . 14, 16, 17
Church of Scientology Flag Service Organization
v. Clearwater, 2 F.3d 1514 (11th Cir. 1993) . . . . . . . . . . . . 19
Committee for Public Education & Religious Liberty
v. Nyquist, 413 U.S. 756 (1973) . . . . . . . . . . . . . . . . . . . 6
Corporation of the Presiding Bishop of
the Church of Jesus Christ of Latter-Day
Saints v. Amos, 483 U.S. 327 (1987) . . . . . . . .7-11, 13, 15, 17, 18
County of Allegheny v. ACLU, 492 U.S. 573 (1989) . . . . . . 12, 13, 15
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) . . . . . . .12
Forest Hills Early Learning Center
v. Grace Baptist Church, 846 F.2d 260 (4th Cir. 1988),
cert. denied, 488 U.S. 1029 (1989) . . . . . . . . . . . . 9, 10, 16-18
Forte v. Coler, 725 F. Supp. 488 (M.D. Fl. 1989) . . . . . . . . . . 10
Gillette v. United States, 401 U.S. 437 (1971) . . . . . . . .6, 14, 16
Lemon v. Kurtzman, 403 U.S. 602 (1971) . . . . . . . . . . . . . . 7, 8
Lynch v. Donnelly, 465 U.S. 668 (1984) . . . . . . . . . . . . . .6, 13
Marsh v. Chambers, 463 U.S. 783 (1983) . . . . . . . . . . . . . . . .6
McDaniel v. Paty, 435 U.S. 618 (1978) . . . . . . . . . . . . . . . .13
Merrill v. Town of Addison, 763 F.2d 80 (2d Cir. 1985) . . . . . . . .5
New York Transit Auth. v. Beazer, 440 U.S. 568 (1979) . . . . . . . . 5
School District v. Ball, 473 U.S. 373 (1985) . . . . . . . . . . . . .6
Selective Draft Law Cases, 245 U.S. 366 (1918) . . . . . . . . . . . 15
Texas Monthly v. Bullock, 489 U.S. 1 (1989) . . . . . . . . . . .15, 17
United States v. Lee, 455 U.S. 252 (1982) . . . . . . . . . . . . 4, 16
ii
Walz v. Tax Commission,
397 U.S. 667 (1970) . . . . . . . . . . . 5, 6, 11, 13, 14, 16
Zorach v. Clauson, 343 U.S. 306 (1952) . . . . . . . . . 11, 14
CONSTITUTION:
U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . 5
STATUTES:
Americans with Disabilities Act
42 U.S.C. 12181 (7) (j) . . . . . . . . . . . . . . . . . . 2
42 U.S.C. 12181 (9) (B) . . . . . . . . . . . . . . . . . 19
42 U.S.C. 12182 (b) (2) (A) (i) . . . . . . . . . . . . . . 2
42 U.S.C. 12182 (b) (2) (A) (ii) . .. . . . . . . . 2, 18, 19
42 U.S.C. 12182 (b) (2) (A) (iii) . . . . . . . . . . . . . 2
42 U.S.C. 12182 (b) (2) (A) (iv) . .. . . . . . . . . . 2, 19
42 U.S.C. 12182 (b) (2) (A) (v) . . . . . . . . . . . . . . 2
42 U.S.C. 12183 . . . . . . . . . . . . . . . . . . . . . . 2
42 U.S.C. 12187 . . . . . . . . . . . . . . . . . . . . . . 2
42 U.S.C. 12188 (a) . . . . . . . . . . . . . . . . . . . 11
42 U.S.C. 12188 (b) (1) (B) . . . . . . . . . . . . . . . 11
42 U.S.C. 12188 (b) (2) (C) . . . . . . . . . . . . . . . 11
42 U.S.C. 12181-89 (Supp. II 1990) . . . . . . . . . . . . 1
Civil Rights Act of 1964,
42 U.S.C. 2000e . . . . . . . . . . . . . . . . . . . . . . 7
42 U.S.C. 2000e-1 . . . . . . . . . . . . . . . . . . . . . 7
Others
28 U.S.C. 2403 . . . . . . . . . . . . . . . . . . . . . . 3
iii
01-06577
REGULATIONS:
28 C.F.R. 36.104 . . . . . . . . . . . . . . . . . . . . . 19
28 C.F.R. 36.202 . . . . . . . . . . . . . . . . . . . . . .2
28 C.F.R. 36.301 . . . . . . . . . . . . . . . . . . . . . .2
28 C.F.R. 36.302 . . . . . . . . . . . . . . . . . . . . . .2
28 C.F.R. 36.302 (a) . . . . . . . . . . . . . . . . . . . 19
28 C.F.R. 36.304 . . . . . . . . . . . . . . . . . . . . . .2
28 C.F.R. 36.305 . . . . . . . . . . . . . . . . . . . . . .2
28 C.F.R. 36.406 (a) . . . . . . . . . . . . . . . . . . . 10
28 C.F.R. 36.301-.406 . . . . . . . . . . . . . . . . . . . 2
iv
01-06578
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
x
DANIEL J. POSNER, a minor, by his :
parent, LOUIS J. POSNER,
:
Plaintiff,
:
-against-
:
CENTRAL SYNAGOGUE, CENTRAL SYNAGOGUE : 93 Civ. 2448 (LBS)
NURSERY SCHOOL, and MARY SOLOW, :
as director of CENTRAL SYNAGOGUE
NURSERY SCHOOL, :
Defendants, :
-and- :
THE UNITED STATES OF AMERICA, :
Defendant-Intervenor.
x
MEMORANDUM OF LAW OF
THE UNITED STATES OF AMERICA
IN OPPOSITION TO PLAINTIFF'S CONSTITUTIONAL
CHALLENGE TO SECTION 307 OF THE
AMERICANS WITH DISABILITIES ACT
Preliminary Statement
Plaintiff Louis J. Posner commenced this action on behalf of
his son, Daniel J. Posner, alleging, inter alia, violations of
title III of the Americans with Disabilities Act of 1990 ("ADA"),
42 U.S.C. 12181-89 (Supp. II 1990), by various defendants
affiliated with defendant Central Synagogue Nursery School
("Nursery School") and controlled or employed by defendant
Central Synagogue.1 Title III of the ADA prohibits
discrimination on the basis of disability in places of public
___________________
1 Plaintiff did not assert an ADA claim in his original
complaint but added such a claim in an amended complaint filed on
or about June 2, 1993. 01-06579
accommodation, including privately owned and operated nursery
schools. 42 U.S.C. 12181(7) (j).2
Defendants moved for summary judgment arguing, inter alia,
that they are exempt from the requirements of title III pursuant
to section 307 of the ADA, which provides that, "the provisions
of [title III] shall not apply . . . to religious organizations
or entities controlled by religious organizations, including
places of worship." 42 U.S.C. 12187. In response to the
motion, plaintiff challenged the constitutionality of this
exemption. See Plaintiff's Memorandum of Law in Support of
Challenge of Constitutionality of the Americans with Disabilities
Act, 42 U.S.C. 12101 ("Pl. ADA Mem."). Because the
constitutionality of a Federal statute was called into question,
this Court duly notified the Attorney General and granted the
______________________
2 For existing public accommodations, title III imposes
several prohibitions and requirements to ensure nondiscriminatory
treatment for persons with disabilities, including the
elimination of unnecessary eligibility criteria, 42 U.S.C.
12182(b)(2)(A)(i), 28 C.F.R. 36.301, the requirement of
making reasonable modifications in policies, practices, or
procedures, 42 U.S.C. 12182(b)(2)(A)(ii), 28 C.F.R. 36.302,
the requirement of taking steps necessary to ensure that no
person with disabilities is excluded, denied services,
segregated, or otherwise treated differently, 42 U.S.C.
12182(b)(2)(A)(iii), 28 C.F.R. 36.202, the removal of
existing barriers to access, where such removal is readily
achievable, 42 U.S.C. 12182(b)(2)(A)(iv), 28 C.F.R. 36.304,
and, if removal of barriers is not readily achievable, the
requirement of adopting readily achievable alternate methods to
ensure access to goods or services. 42 U.S.C.
12182(b)(2)(A)(v), 28 C.F.R. 36.305. For new construction
and alterations, title III also imposes the additional
requirements of ensuring that the newly constructed or altered
portions of a facility be readily accessible and usable by
persons with disabilities. 42 U.S.C. 12183; 28 C.F.R.
36.301-.406.
2
01-06580
United States permission to intervene in this action pursuant to
28 U.S.C. 2403 to defend the constitutionality of section 307
of the ADA.
Plaintiff's argument should be rejected because Congress
acted constitutionally when it chose to exempt the activities of
religious organizations from title III of the ADA. Plaintiff's
argument is misfocused on whether Congress could have chosen to
regulate the activities of nursery schools operated by religious
organizations without running afoul of the Free Exercise or
Establishment Clauses of the First Amendment. See generally Pl.
ADA Mem. at 12-20. Because Congress in fact chose to exempt from
title III all activities of religious organizations, the relevant
issue is whether the exemption runs afoul of the Establishment
Clause. The relevant Supreme Court precedents demonstrate that
it does not.
Statement of Facts
It is uncontested that the defendant Nursery School is
operated by, or is a program of, defendant Central Synagogue, a
fundamentally religious entity. While Posner asserts that the
Nursery School is a secular operation,3 the defendants assert
that it is only one of a number of religious programs closely
related to the Synagogue. See Affidavit of Livia Thompson, sworn
to Nov. 18, 1993 ("Thompson Aff."), 8. The Sabbath and all
_____________________
3 Posner bases his assertion that the Nursery School is a
secular institution on the Nursery School's statement that it
"values and welcomes children from diverse, ethnic, racial and
religious backgrounds." See, e.g., Amended Complaint PP 29-30.
3
01-06581
major Jewish holidays are integrated and observed in the Nursery
School's program. See Affidavit of Linda Yassky, sworn to July
19, 1993 ("Yassky Aff."), 13; Affidavit of Louis J. Posner,
sworn to Mar. 29, 1993 ("Posner Aff.")(Ex. F. to Yassky Aff.),
8. In addition, celebrations for Passover and Chanukah are
observed (id.) and Shabbat parties are conducted every Friday
morning at the Nursery School. Affidavit of Mary Solow, sworn to
Nov. 18, 1993 ("Solow Aff."), Ex. D. The Nursery School is
located in the same building as the Synagogue's administrative
offices, has no separate legal existence, relies solely on
Central Synagogue for all of its needs, and is completely
overseen by the Synagogue's board of directors in conjunction
with the Synagogue's Nursery School Committee. Solow Aff. 2;
Thompson Aff. 8; Yassky Aff. 1, n.1. The Synagogue and the
Nursery School also share one set of books and all costs incurred
by the Nursery School, including staff salaries, are paid by the
Synagogue. Solow Aff. 2; Thompson Aff. 1. Finally, the
Synagogue also monitors all tuition payments generated by the
Nursery School, which, together with Synagogue donations,
membership dues, religious school tuition, and cemetery fees, are
the sole financial support for the Synagogue. Thompson Aff. 8.
4
01-06582
Argument
SECTION 307'S EXEMPTION FOR
RELIGIOUS ORGANIZATIONS DOES NOT
VIOLATE THE FIRST AMENDMENT4
A. The First Amendment
Permits Legislation that
Accommodates Religion
The First Amendment's Free Exercise Clause prohibits
Congress from acting to interfere with religious practices. The
Establishment Clause on the other hand prohibits Congress from
acting to sponsor religion.5 The Supreme Court made clear
that there is also a middle ground within which Congress can
properly act to accommodate religion. See, e.g., Walz v. Tax
Commission, 397 U.S. 667, 673 (1970). Such accommodation may go
beyond what Congress is minimally required to do to avoid
interference with religion so long as it falls short of what
would constitute improper government sponsorship or entanglement
_____________________
4 The government takes no position on the merits of
plaintiff's ADA claim or defendants' defenses to it, other than
section 307. However, because it is well established that
federal courts "ought not pass on the constitutionality of an act
of Congress unless such adjudication is unavoidable," Alma Motor
Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136 (1946); e.g.
New York Transit Auth. V. Beazer, 440 U.S. 568, 582 (1979);
Merrill v. Town of Addison, 763 F.2d 80, 83 (2d Cir. 1985), this
court should, if possible, decide the matter on nonconstitutional
grounds.
5 The Free Exercise Clause and the Establishment Clause
are both set forth in the First Amendment to the Constitution, as
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof." U.S. Const.
amend. I.
5
01-06583
in religion.6 As we will demonstrate, section 307 of the ADA is
an accommodation of religion of the type that the Supreme Court
has recognized as permissible.7
It is well settled that the Establishment Clause does not
flatly forbid all government action relating to religion.
Rather than mechanically invalidating all governmental
conduct or statutes that confer benefits or give
special recognition to religion in general or to one
faith -- as an absolutist approach would dictate -- the
Court has scrutinized challenged legislation or
official conduct to determine whether, in reality, it
establishes a religion or religious faith, or tends to
do so.
Lynch v. Donnelly, 465 U.S. 668, 678 (1984). The evil against
which the Clause protects is the "'sponsorship, financial
support, and active involvement of the sovereign in religious
activity.'" Committee for Public Education & Religious Liberty v.
Nyquist, 413 U.S. 756, 772 (1973) (citation omitted); see also
School District v. Ball, 473 U.S. 373, 381 (1985). However,
reasonable government accommodation of religion, as is the case
here, is not proscribed.
____________________
6 As the Supreme Court has noted, "[t]he limits of
permissible state accommodation to religion are by no means co-
extensive with the noninterference mandated by the Free Exercise
Clause. To equate the two would be to deny a national heritage."
Walz v. Tax Commission, 397 U.S. at 673; see also Marsh v.
Chambers, 463 U.S. 783, 812 (1983) (Brennan, J., dissenting);
Gillette v. United States, 401 U.S. 437, 453 (1971).
7 Because there can be no serious argument that section
307 interferes with religious organizations' religious practices,
but cf. Pl. ADA Mem. at 14-16 (analyzing the Free Exercise
Clause), the only issue here is whether section 307 violates the
Establishment Clause.
6
01-06584
B. Section 307 Does Not
Violate the Establishment Clause
As the Supreme Court noted in an Establishment Clause case
very similar to this one, Corporation of the Presiding Bishop of
the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S.
327 (1987), a statute broadly exempting religious entities from
regulation is subject to the three tests outlined in Lemon v.
Kurtzman, 403 U.S. 602 (1971): "First, the statute must have a
secular legislative purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion;
finally, the statute must not foster 'an excessive government
entanglement with religion'" Lemon, 403 U.S. at 612-613
(citations omitted).8 Section 307 satisfies each of these tests.
_____________________
8 In Amos, a building engineer employed by the Church of
Latter Day Saints was discharged because he failed to become a
member of the church. 483 U.S. at 330. The engineer brought suit
against the church under title VII of the Civil Rights Act of
1964, 42 U.S.C. 2000e, alleging discrimination on the basis of
religion. Id. at 331. The church moved to dismiss, relying on
section 702 of title VII, which exempts religious organizations
from the prohibition against discrimination on the basis of
religion, 42 U.S.C. 2000e-1. In response, the plaintiff argued
that section 702 would violate the Establishment Clause if it
would allow religious employers to discriminate on the basis of
religion in hiring for nonreligious positions, an argument
accepted by the district court in striking down the statutory
exemption. 483 U.S. at 331-34. The Supreme Court, however,
disagreed and held that Section 702 constitutionally exempted the
church from liability under title VII for discharging Amos. Id.
at 334-40.
7
01-06585
1. Section 307 Serves the Permissible
Secular Purpose of Preventing
Government Interference with Religion
As the Court noted in Amos, the first test under Lemon is
whether the statute has a secular purpose. The Court noted that
relieving government interference with religious activities, as
well as the consequential burden on religious entities, is a
valid secular purpose.
Under the Lemon analysis, it is a permissible
legislative purpose to alleviate significant
governmental interference with the ability of religious
organizations to define and carry out their religious
missions.... [I]t is a significant burden on a
religious organization to require it, on pain of
substantial liability, to predict which of its
activities a secular court will consider religious.
The line is hardly a bright one, and an organization
might understandably be concerned that a judge would
not understand its religious tenets and sense of
mission. Fear of potential liability might affect the
way an organization carried out what it understood to
be its religious mission.
Amos, 483 U.S. at 335-36 (citations omitted).
Like the exemption considered in Amos, section 307 of the
ADA properly alleviates government interference with religious
organizations. Just as religious entities are permitted to hire
only people of their faith under title VII, section 307 allows
them also to design their facilities and perform their services
in accordance with their religious tenets. Many of the services
that a church or synagogue provides to its members or
parishioners (e.g., spiritual counseling and the performance of
rituals or ceremonies) are vitally important to that religion and
may involve tenets central to its beliefs; any government
interference with these services may intrude upon this
8
01-06586
pervasively religious relationship. There is not always
agreement, however, over where to draw the line separating
intrinsically-religious activities from the more secular
activities of a church. See Amos, 483 U.S. at 336. Congress's
decision here to avoid government interference entirely is an
approach that is entitled to deference. Id. at 338.9
Forcing religious entities to open even their more secular
day-to-day activities to government scrutiny with the consequence
of facing potential liability may constitute an impermissible
governmental interference with religious practice. In Forest
Hills Early Learning Center v. Grace Baptist Church, 846 F.2d 260
(4th Cir. 1988), cert. denied, 488 U.S. 1029 (1989), the Fourth
Circuit articulated precisely this concern in rejecting an
Establishment Clause challenge to an exemption from state
licensing requirements afforded to child care centers operated by
churches. Relying on Amos, the court noted that requiring a
church to defend its child care program before the state agencies
or judiciary would appear to be an inappropriate conflict between
church and state that the legislature may properly decide to
avoid.
The government interference to be avoided includes both
positive statutory mandates to which a religious group
would have to conform its practices, and the
"significant burden on a religious organization" caused
by forcing it to defend its beliefs and practices in
extended free exercise litigation before "a judge [who
may] not understand its religious tenets and sense of
mission."
_____________________
9 See infra at 12-20.
9
01-06587
The potential for just the sorts of burdens the Court
is concerned with is very clear in the present case.
Absent the exemption, some church leaders would
immediately be forced to violate their convictions
against submitting aspects of their ministries to state
licensing, or face legal action by the state. This
would be an unseemly clash of church and state which
the legislature might well wish to avoid.
Id., 846 F.2d at 263 (citing Amos, 483 U.S. at 335-36); see also
Forte v. Coler, 725 F. Supp. 488, 490-91 (M.D. Fl. 1989)(also
upholding exemption for religiously-controlled child care
facilities to state licensing requirements). To avoid
interfering with religion, Congress and state legislatures may,
consistent with the Constitution, broadly exempt religiously-
controlled entities from regulation. Even if some of a religious
entity's activities are secular, exempting all of its activities
from regulation does not violate the Establishment Clause. See
Amos, 483 U.S. at 335-36.
Congress's decision to broadly exempt religious entities
from the coverage of title III is appropriate because of the
broad requirements of title III and the investigative and
enforcement mechanisms provided in the statute. As noted above,
title III imposes requirements on the way that public
accommodations design their facilities 10 and conduct their day-
to-day services and activities. In addition, title III may be
enforced by private litigation by any person subject to
_______________________
10 Indeed, for new construction and alterations, the
Department Justice regulations implementing title III requires
strict compliance with the ADA Standards for Accessible Design
set forth in Appendix A to the implementing regulation. 28 C.F.R.
36.406(a).
10
01-06588
discrimination, 42 U.S.C. 12188(a), or by investigation and
litigation by the Attorney General. 42 U.S.C. 12188 (b)(1)(B).11
Given the broad scope of title III's coverage and means of
enforcement, Congress's decision to exempt religion entities was
appropriate.
2. Section 307 Does Not Have
the Effect of Either Advancing
or Inhibiting Religion
The second inquiry under Lemon is whether the "principal or
primary effect" of the statute is to advance or inhibit religion.
As demonstrated below (see infra at 16-20), section 307's
principal effect is to eliminate government interference with
religious organizations altogether. The Supreme Court has
consistently held that this result satisfies the second Lemon
test and is plainly permissible under the Establishment Clause.
See, e.g., Walz v. Tax Commission, 397 U.S. at 674-77; Zorach v.
Clauson, 343 U.S. 306, 313-14 (1952).
Again, the Supreme Court's decision in Amos provides the
appropriate analytical framework. In Amos, the Court
acknowledged that, while exemption statutes always have the
facial appearance of advancing religion, Amos, 483 U.S. at 336-
37, such statutes accommodating religion do not fail the second
_______________________
11 In addition to compensatory damages and injunctive
relief, the Attorney General is authorized to seek civil
penalties in an amount not exceeding $50,000 for a first
violation and not exceeding $100,000 for any subsequent
violation. 42 U.S.C. 12188(b)(2)(C).
11
01-06589
Lemon test, unless the government itself appears to give its
imprimatur to the advancement of religion.
A law is not unconstitutional simply because it allows
churches to advance religion, which is their very
purpose. For a law to have forbidden "effects" under
Lemon, it must be fair to say that the government
itself has advanced religion through its own activities
and influence.
483 U.S. at 337 (emphasis in original); see also, County of
Allegheny v. ACLU, 492 U.S. 573, 601 n.51 (1989) ("[g]overnment
efforts to accommodate religion are permissible when they remove
burdens on the free exercise of religion"). The legislative
determination that religious institutions should be insulated
from this regulatory requirement does not in any way resemble the
government sponsorship of religion prohibited by the
Establishment Clause. If there is any advantage obtained by
religious groups, it is not a product of government compulsion;
the government simply has left these groups free to follow the
dictates of their faiths.
As the Court noted in Amos, a broad exemption statute, such
as that contained in title III of the ADA and the statute at
issue in Amos, is very different from a statute that provides the
force of law to advance religion. The Amos Court distinguished
exemption statutes from the state law held unconstitutional in
Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985), which
required employers to honor their employee's choice of a day of
Sabbath. The Amos Court observed that the Caldor statute was
impermissible because it had the primary effect of advancing the
particular religious practice of Sabbath observance and forced
12
01-06590
private employers to accommodate this religious practice without
regard to the burden imposed upon them. Amos, 483 U.S. at 337-38
n.15. Section 307 of the ADA, by contrast, does not endorse any
specific practice and does not compel any private individual to
take any action regarding religious observance. The provision
thus fosters separation between government and religion rather
than government intervention with respect to religious concerns.
Even if section 307 has the slight or incidental effect of
advancing religion, it is permissible because it merely
"accommodates" the free exercise of religion. Indeed, the
Supreme Court has observed that, "evidence of accommodation of
all faiths and all forms of religious expression" pervades our
Nation's history, and that "[t]hrough this accommodation . . .
governmental action has 'follow[ed] the best of our traditions'
and 'respect[ed] the religious nature of our people.'" Lynch v.
Donnelly, 465 U.S. at 677-678 (citation omitted); see also County
of Allegheny v. ACLU, 492 U.S. at 593; McDaniel v. Paty, 435 U.S.
618, 638-639 (1978) (Brennan, J., concurring). Far from
establishing religion, accommodation by the government of
religious beliefs or institutions produces a "benevolent
neutrality which will permit religious exercise to exist without
sponsorship and without interference." Walz v. Tax Commission,
397 U.S. at 669.
The most obvious means by which government may foster this
"benevolent neutrality" is through the adoption of blanket
exemptions from generally applicable statutes in order to
13
z
01-06591
accommodate individual religious beliefs and protect the autonomy
of religious organizations. The Supreme Court consistently has
recognized that exemptions of this type do not offend the
Establishment Clause. For example, in Zorach, 343 U.S. 306, the
Court upheld a statute permitting the release of students from
public school classes so that they could attend a center for
religious instruction. The Court observed that "[w]hen the state
encourages religious instruction or cooperates with religious
authorities by adjusting the schedule of public events to
sectarian needs, it follows the best of our traditions," and held
that the exemption on religious grounds from the compulsory
attendance requirement did not effect an establishment of
religion. Zorach, 343 U.S. at 313-314.
Similarly, in Walz v. Tax Commission, 397 U.S. 664 (1970),
the Court rejected an Establishment Clause challenge to a statute
creating a state property tax exemption for property owned by a
religious organization and used for religious purposes. The
Court could not "read [the] statute as attempting to establish
religion; it is simply sparing the exercise of religion from the
burden of property taxation levied on private profit
institutions." 397 U.S. at 673; see also United States v. Lee,
455 U.S. 252, 260 & n.11 (1982) (indicating approval of statute
exempting religious objectors from the obligation to pay social
security taxes); Gillette v. United States, 401 U.S. 437 (1971)
(upholding exemption from the military draft for conscientious
objectors); Braunfeld v. Brown, 366 U.S. 599, 608 (1961) (while
14
01-06592
upholding state criminal statute requiring closure of retail
businesses on Sundays, the Court acknowledged that, while not
required to do so, a state could create an exception to the
statute for individuals choosing a different Sabbath); Selective
Draft Law Cases, 245 U.S. 366, 389-390 (1981) (upholding
exemption from the draft for religious objectors).
Where a statutory exemption accommodates the free exercise
of religion, it is permissible under the second Lemon test so
long as it does not convey a message of "endorsing" religious
activity to an objective observer. County of Allegheny v. ACLU,
492 U.S. at 592-96 (adopting analysis followed by Justice
O'Connor's concurring opinion in Amos); Amos, 483 U.S. at 348-49
(O'Connor, J., concurring); see also Texas Monthly v. Bullock,
489 U.S. 1, 28 (1989) (Blackmun, J., concurring) (noting that, "[a]
statutory preference for the dissemination of religious ideas
offends our most basic understanding of what the Establishment
Clause is all about and hence is constitutionally intolerable").
As Justice O'Connor noted in her concurrence in the Amos
decision, "[t]o ascertain whether the statute conveys a message
of endorsement, the relevant issue is how it would be perceived
by an objective observer, acquainted with the text, legislative
history, and implementation of the statute." 483 U.S. at 348
(O'Connor, J., concurring).
Section 307's exemption of religious entities cannot be
objectively characterized as an endorsement of religious
activity. The obligations imposed upon title III covered
15
01-06593
entities are entirely independent and unique to each entity;
unlike a tax exemption operating to subsidize a religious
organization, they do not directly or indirectly subsidize exempt
organizations. The exemption also does not in any way grant any
form of federal financial aid to religious organizations or
directly provide such organizations with a financial advantage
over competitors in the secular economy. The exemption merely
excludes religiously-controlled entities from the prohibitions
against discrimination on the basis of disability.12
3. Section 307 Does Not Entangle the Government
with a Religious Entity, but Instead Fosters
a Complete Separation of Chruch and State
The third test under Lemon is determining whether a statute
fosters an excessive government entanglement with religion. The
Supreme Court repeatedly has approved exemptions from generally
applicable statutes for religious individuals and institutions
similar to the exemption at issue in this case. United States v.
Lee, 455 U.S. 252, 260 & n.11 (1982); Gillette v. United States,
401 U.S. 437 (1971); Walz, 397 U.S. at 679-80; Braunfeld v.
______________________
12 Moreover, even if a direct financial benefit did exist,
that would not automatically render Section 307 violative of the
Establishment Clause. The property tax exemption approved in
Walz, 397 U.S. 664, conferred a far greater financial benefit
than religious organizations could obtain from the exemption
contained in section 307. Yet the Court in Walz upheld the
exemption and did not find that it resembled impermissible
financial aid to religion or could lead to domination of the
economy by religious groups. 397 U.S. at 672-76. See also Forest
Hills Early Learning Center, 846 F.2d at 263-64 (upholding an
exemption relieving church-operated child care centers from state
child care licensing requirements and that provided churches with
slight advantages over secular competitors).
16
01-06594
Brown, 366 U.S. at 608. These decisions make clear that Congress
acted within constitutional bounds in enacting the accommodation
for religious organizations contained in section 307. Indeed,
Congress's decision to prevent any interference with activities
likely to be religious in nature is the statutory approach least
likely to create entanglement between religion and government.
Amos, 483 U.S. at 339. Elimination of the section 307 exemption,
on the other hand, would subject these activities to continuing
supervision by the federal government.
Plaintiff argues that, in order to survive scrutiny under
the Establishment Clause, an exemption for religious entities
should be very narrowly drawn.13 The Supreme Court's decision in
Amos establishes exactly the opposite principle. Where a statute
broadly exempts religious entities from government regulation, it
fosters a separation of the two and cannot be said to entangle
the government and religion. Amos, 483 U.S. at 339; Forest Hills
Early Learning Center, 846 F.2d at 264. By contrast, where a
statute more narrowly exempts certain religious activity from
regulation, as plaintiff urges, it creates the risk of
inconsistent treatment and the perception that a government is
favoring one religious belief over another--- precisely, the type
of entanglement between the sovereign and the church that the
Establishment Clause was intended to preclude. Texas Monthly v.
Bullock, 489 U.S. 1, 20 (1989).
______________________
13 Pl. ADA Mem. 18-20.
17
01-06595
Section 307 excludes from coverage any activity conducted by
a religiously-controlled entity, without requiring the intrusive
and sensitive determination of whether an activity is religious
or secular. Obviously, worship services are religious in nature
and any government regulation of such services would be highly
suspect. Other services, such as operating a homeless shelter or
sponsoring a nutrition program, may not as deeply implicate the
religious nature of an organization. But, as discussed above,
establishing the point at which activities become inherently
religious may be impossible. Amos, 483 U.S. at 336; Forest Hills
Early Learning Center, 846 F.2d 260.14
Governmental evaluation of a church's beliefs and activities
is avoided with the broad exemption contained in section 307. If
a school operated by a religious organization were covered by
title III, the Justice Department and the courts very possibly
would be called upon to examine its religious beliefs and
practices. For example, Section 308(b)(2)(A)(ii) of the ADA
provides that discrimination under title III includes a failure
to make reasonable modifications in policies, practices, or
procedures that are necessary to ensure nondiscriminatory
treatment to persons with disabilities. 42 U.S.C.
______________________
14 In this case, Posner notes that the Nursery School is a
non-profit organization. Amended Complaint P 3. As two
concurring opinions in Amos observe, however, government
entanglement with religious organizations is more likely in such
cases, because non-profit organizations operated by religious
entities are not likely to be secular in nature. Amos, 483 U.S.
at 344-45 (Brennan, J., concurring); Amos, 483 U.S. at 348-49
(O'Connor, J., concurring).
18
01-06596
12182(b)(2)(A)(ii); see also 28 C.F.R. 36.302(a). While a
public accommodation does not have to make modifications that are
not "reasonable" or that would "fundamentally alter" the nature
of the goods or services provided, 42 U.S.C.
12182(b)(2)(A)(ii); 28 C.F.R. 36.302(a), any investigation or
evaluation of these defenses could require scrutiny of religious
practices and beliefs and, as discussed below, would excessively
entangle government with religion.
Title III affords covered entities certain defenses that are
based on financial resources.15 A review of the financial
resources of a religious entity in a title III lawsuit or
investigation by the Department of Justice may impermissibly
entangle the government with religion. The Eleventh Circuit has
held that this type of inquiry into the financial affairs of
religious entities constitutes an impermissible and invasive
government entanglement with religion. Church of Scientology Flag
Service Organization v. Clearwater, 2 F.3d 1514, 1535-38 (11th
Cir. 1993).
Plaintiff asserts that the defendant Nursery School is
"already subject to a myriad of regulations in connection with
________________________
15 For example, Title III requires covered public
accommodations to remove architectural barriers to access in
existing facilities where it is "readily achievable" to do so.
42 U.S.C. 12182(b)(2)(A)(iv). The second factor listed in the
statute to be considered in determining whether a particular
action is readily achievable is "the overall financial resources
of the facility." 42 U.S.C. 12181(9)(B). The same list of
factors is to be applied in determining whether it is an "undue
burden" for a public accommodation to provide a particular
auxiliary aid or service necessary for communication with a
person with a disability. 28 C.F.R. 36.104.
19
the operation of day care services" and that "it is difficult to
see how requiring compliance with ADA would increase the level of
entanglement to the point that it becomes 'excessive' and
therefore unconstitutional." Pl. ADA Mem. at 17. This is not the
relevant inquiry, however. Even assuming for the sake of
argument that Congress could have extended title III to regulate
religiously-controlled schools without excessively entangling
government with religion, the issue is whether Congress's failure
to do so sponsors or creates entanglement with religion in
violation of the Establishment Clause. As demonstrated above, it
does not.
20
01-06598
Conclusion
For the foregoing reasons, the Court should enter an order
rejecting plaintiff's constitutional challenge to section 307 of
the ADA and declaring that section 307 of the ADA is
constitutional.
Respectfully submitted,
MARY JO WHITE JAMES P. TURNER
United States Attorney Acting Assistant Attorney
General
By: By:
PING C. MOY (PCM-3109) JOHN L. WODATCH
Assistant United States Attorney JOAN A. MAGAGNA
100 Church Street, 19th Fl. KEN S. NAKATA (KSN-5615)
New York, New York 10007 Attorneys
(212) 385-4387 Public Access Section
Civil Rights Division
U.S. Department of Justice
P.O. Box 66738
Washington, D.C. 20035
(202) 307-2232
21
01-06599
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SOUTHERN DISTRICT OF NEW YORK
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