No. 02-3102
IN THE UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Freedom From Religion Foundation, Incorporated, et al.,
Plaintiffs-Appellants,
v.
Scott McCallum, et al.,
Defendants-Appellees,
and
Faith Works Milwaukee, Incorporated,
Intervening Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin
Judge Barbara B. Crabb (Case No. 00-C-617-C)
Brief Amicus Curiae of Evangelicals for Faith-Based Initiatives,
Prison Fellowship Ministries, and Christian Community Health Fellowship
Gene C. Schaerr
Michael L. Post
Richard H. Menard Jr.
SIDLEY AUSTIN BROWN & WOOD LLP
1501 K Street, N.W.
Washington, D.C. 20005
(202) 736-8000
Attorneys for Amici Curiae
RULE 26.1 DISCLOSURE STATEMENT
Amici curiae Prison Fellowship Ministries and Christian Community Health
Fellowship are section 501(c)(3) non-profit corporations, neither of which has a parent
corporation. No publicly held corporation holds ten percent or more of the stock of
Prison Fellowship Ministries or of Christian Community Health Fellowship. Amicus
curiae Evangelicals for Faith-Based Initiatives is not incorporated.
Amici curiae are represented before this Court by the law firm of Sidley Austin
Brown & Wood LLP. Amici curiae did not appear, through counsel or otherwise, before
the district court in this case.
December 23, 2002
__________________________
Gene C. Schaerr
Michael L. Post
Richard H. Menard Jr.
SIDLEY AUSTIN BROWN & WOOD LLP
1501 K Street, N.W.
Washington, D.C. 20005
Attorneys for Amici Curiae
i
CONTENTS
RULE 26.1 DISCLOSURE STATEMENT ................................................................................... i
TABLE OF AUTHORITIES........................................................................................................ iii
IDENTITIES AND INTERESTS OF AMICI CURIAE.............................................................. v
SOURCE OF AUTHORITY TO FILE....................................................................................... vii
INTRODUCTION .........................................................................................................................1
ARGUMENT..................................................................................................................................2
I. THE FAITH WORKS PROGRAM CANNOT BE INVALIDATED ON THE
GROUND THAT IT INVOLVES GOVERNMENTAL INDOCTRINATION ..........3
A. State Funds Reach Faith Works Only as a Result of Individual Choices............4
B. The Route by Which Funds Reach Faith Works Is Constitutionally
Immaterial ....................................................................................................................7
II. THE FAITH WORKS PROGRAM INVOLVES ONLY PERMISSIBLE
COGNIZANCE OF RELIGION, NOT IMPERMISSIBLE ENDORSEMENT
OF RELIGION ...................................................................................................................9
CONCLUSION............................................................................................................................12
ii
TABLE OF AUTHORITIES
CASES
Agostini v. Felton, 521 U.S. 203 (1997) .................................................................................2, 6, 8
Board of Education of Kiryas Joel Village v. Grumet, 512 U.S. 687 (1994).................................12
City of Boerne v. Flores, 521 U.S. 507 (1997) ..............................................................................11
Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v.
Amos, 483 U.S. 327 (1987) .....................................................................................................11
County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573 (1989) ......................1
Doe v. Village of Crestwood, Illinois, 917 F.2d 1476 (7th Cir. 1990) ...........................................1
Freedom from Religion Foundation, Inc. v. Bugher, 249 F.3d 606 (7th Cir. 2001) ......................2
Freedom from Religion Foundation, Inc. v. McCallum, 214 F. Supp. 2d 905 (W.D. Wis.
2002) ......................................................................................................................................4, 9
Freedom from Religion Foundation, Inc. v. McCallum, 179 F. Supp. 2d 950 (W.D. Wis.
2002) ......................................................................................................................................4, 9
Gillette v. United States, 401 U.S. 437 (1971) .............................................................................11
In re Young, 141 F.3d 854 (8th Cir. 1998) ..................................................................................11
Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766 (7th Cir. 2001) ..................................1
Lemon v. Kurtzman, 403 U.S. 602 (1971)......................................................................................1
Lynch v. Donnelly, 465 U.S. 668 (1984) ........................................................................................7
Marks v. United States, 430 U.S. 188 (1977).................................................................................9
Mitchell v. Helms, 530 U.S. 793 (2000) .................................................................................5, 7, 9
Mueller v. Allen, 463 U.S. 388 (1983)........................................................................................4, 8
Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) ...............7
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000)...............................................1
Sullivan v. Sasnett, 91 F.3d 1018 (7th Cir. 1997) ...........................................................................
iii
Walz v. Tax Commission, 397 U.S. 664 (1970)............................................................................10
Witters v. Washington Department of Services for the Blind, 474 U.S. 481 (1986)..........4, 6, 7, 8
Zelman v. Simmons-Harris, 122 S. Ct. 2460 (2002)..........................................................3, 6, 8, 9
Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993) ...............................................4, 6
Zorach v. Clauson, 343 U.S. 306 (1952).......................................................................................10
STATUTES
26 U.S.C. § 170 .............................................................................................................................11
42 U.S.C. § 2000e-1 ......................................................................................................................11
42 U.S.C. §§ 2000bb – 2000bb-4 .................................................................................................11
42 U.S.C. §§ 2000cc – 2000cc-5 ...................................................................................................11
50 App. U.S.C. § 456....................................................................................................................11
iv
IDENTITIES AND INTERESTS OF AMICI CURIAE
Amici curiae are private, faith-based, non-profit organizations dedicated to serving
persons in need, in part in cooperation with government agencies. Amici1 operate and
support faith-based services that respond to bodily, mental, and emotional needs, as
well as providing spiritual assistance, in a context of respect for the religious liberties of
their clients. By working in cooperation with government agencies, Amici are able to
contribute to the amelioration of societal ills in circumstances in which those agencies
and secular private groups may be unable or unwilling to do so. Amici submit this brief
for the Court’s consideration because the resolution of this case could help to determine
whether such avenues for cooperation remain open or, instead, are closed in service of a
flawed legal theory that does not accommodate the religious autonomy and character of
faith-based organizations.
Evangelicals for Faith-Based Initiatives (EFBI) is a national network of evangelical
intermediary organizations formed to encourage cooperative relationships between
faith-based service providers and federal, state, and local governments, while
preserving the religious liberties of the providers and of their clients. EFBI’s members,
each of which represents or serves multiple faith-based service organizations, include
the Salvation Army, World Vision, World Relief, We Care America, the Center for
Public Justice, Operation Blessing, Evangelicals for Social Action, the National
In this brief, the term Amici refers to amici curiae in support of affirmance; amici curiae
in support of Appellants will be expressly identified as such.
1
v
Association of Evangelicals, Nazarene Compassionate Ministries, and the National
Network of Youth Ministries. EFBI seeks to help eliminate discrimination in
government funding programs against faith-based organizations by furthering policies
that ensure a level playing field at the national, state, and local levels.
Prison Fellowship Ministries is a tax-exempt, charitable religious organization,
founded in 1976 and currently operating in every state and in 95 countries, that
ministers to prisoners, ex-prisoners, crime victims, and their families. It offers seminars
in the tenets of Christianity and such practical skills as how to be a good father and an
honest employee, organizes local churches to provide gifts to prisoners’ children, and
matches inmates with Christian pen pals on the outside. Among Prison Fellowship’s
many programs is Justice Fellowship, an effort to find practical applications of
restorative justice, such as sentencing low-risk offenders to restitution and community
service, enabling them to remain with their families while atoning for their crimes, and
promoting reconciliation between offenders and their victims.
The Christian Community Health Fellowship (CCHF) is a national network of more
than 1,500 health professionals and students concerned about the health care needs of
the poor. Its mission, guided by the biblical mandate to serve the poor, is to provide
quality health care throughout the United States by recruiting and coordinating
Christians to serve underprivileged communities. CCHF members practice a holistic
approach to health, integrating health care with community development and attending
to the physical, mental, emotional, and spiritual needs of those they serve. CCHF
currently administers a federal grant from the Compassion Capital Fund of the
vi
Department of Health and Human Services to provide monetary awards and technical
training to faith-based organizations. CCHF also advises its members on how and
whether to seek government funding and status as government-recognized health care
community facilities.
SOURCE OF AUTHORITY TO FILE
All parties have consented in writing to the filing of this brief.
vii
INTRODUCTION
Contrary to the arguments advanced by Appellants and their amici, the district
court’s decision was plainly correct under Lemon v. Kurtzman, 403 U.S. 602 (1971), and
its more recent progeny. In Lemon, the Supreme Court set forth what remains the basic
framework for resolving Establishment Clause questions: the challenged law or policy
must have a secular purpose, must neither advance nor inhibit religion, and must not
foster excessive entanglement between church and state. In the time since Lemon,
however, it has become clear that the varying factual settings in which such questions
typically arise demand commensurate adjustments to the Lemon test and its application.
As a result, two lines of jurisprudence pertinent here have emerged. The first chiefly
consists of cases involving state-sponsored religious activities and public displays of
religious symbols. In such cases, the first two prongs of the Lemon test are collapsed
(practically if not always technically) into what this Court has called an “endorsement
test,” under which the inquiry is whether the challenged law or policy has the purpose
or effect of endorsing religion. See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 307
(2000) (public school’s providing forum for students’ religious invocation resulted in
“perceived or actual endorsement of the message” by the state); County of Allegheny v.
ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 600 (1989) (creche in county courthouse
conveyed governmental endorsement of Christian message).2
See also Indiana Civil Liberties Union v. O’Bannon, 259 F.3d 766, 773 (7th Cir. 2001)
(public display of Ten Commandments “amounts to the endorsement of religion by the
state”), cert. denied, 534 U.S. 1162 (2002); Doe v. Village of Crestwood, 917 F.2d 1476, 1478
2
1
The second line of cases involves transfers of public aid to religious entities (usually
sectarian schools). In those cases, the emphasis on endorsement is subordinated to an
emphasis on whether it is appropriate to attribute to the government a religious entity’s
mission and work, and the Lemon test is adjusted accordingly. In determining whether
an aid program has constitutionally permissible effects (assuming it has a secular
purpose), courts ask whether any religious indoctrination linked to the aid is
attributable to the government, whether beneficiaries are selected according to religious
criteria, and whether the aid program results in excessive entanglement. See, e.g.,
Agostini v. Felton, 521 U.S. 203, 222-32 (1997); Freedom From Religion Found., Inc. v.
Bugher, 249 F.3d 606, 611-12 (7th Cir. 2001).
The case at bar belongs to this second line of jurisprudence, and therefore the
considerations of perceived “endorsement” on which Appellants dwell are not directly
pertinent. Rather, as the district court recognized, the relevant inquiry is whether the
arrangement between Faith Works and the state of Wisconsin effects “religious
indoctrination” attributable to the state. The district court correctly held that it does
not, and Amici urge this Court to affirm that holding.
ARGUMENT
The Supreme Court has made clear that the Establishment Clause permits “private
choice” programs, under which government aid (in-kind or cash) is directed to religious
(7th Cir. 1990) (Catholic mass at municipal festival “conveys the message of approval or
endorsement” of Catholic faith).
2
entities “only as a result of the genuine and independent choices of private individuals.” Zelman v. Simmons-Harris, 122 S. Ct. 2460, 2465 (2002). The key requisite of such a
program (implicit in the predicate of private choice) is that any religious indoctrination
correlatable with the aid is not attributable to the government. If the decision to transfer the aid is wholly private, indoctrination cannot be ascribed to the government and
the Establishment Clause is not implicated.3 The district court correctly concluded that
the arrangement between Faith Works and the Department of Corrections constitutes a
private choice program, marked by no governmental indoctrination.
Likewise, the district court correctly rejected the argument that state agents’ role in
relation to the Faith Works program effects an unconstitutional endorsement of religion.
The Establishment Clause forbids the state to sponsor or interfere with religion but does
not mandate cold indifference to religion. The posture assumed by DOC and its officers
with regard to Faith Works is well within the bounds of recognition of religion and
spirituality that the governing law has long sanctioned.
I. THE FAITH WORKS PROGRAM CANNOT BE INVALIDATED ON THE
GROUND THAT IT INVOLVES GOVERNMENTAL INDOCTRINATION
The interposition of private choice between the state and an institutional recipient of
state funds is the principal determinant of whether religious activity by the institution is
attributable to the state. See Zelman, 122 S. Ct. at 2467-68 (upholding program providing
Appellants and their amici do not dispute that rehabilitation of penal offenders is a
legitimate secular purpose, nor do they argue that the contract defines beneficiaries by
reference to religion or results in excessive church-state entanglement. Accordingly,
this brief will not address those components of the Lemon-Agostini test.
3
3
vouchers redeemable at religious schools); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S.
1, 10 (1993) (upholding state’s provision of interpreter for deaf students in sectarian
schools); Witters v. Washington Dep’t of Servs. for the Blind, 474 U.S. 481, 487 (1986)
(holding that Establishment Clause permits use of state aid for studies at Christian
college); Mueller v. Allen, 463 U.S. 388, 399-400 (1983) (upholding state tax deduction for
parochial school expenses). As long as there is genuine private choice, it makes no
difference whether the funds actually pass through the individual’s hands or are
transferred by the state at the individual’s direction. The relevant criterion is the
control exercised by the private beneficiary. The district court correctly found that
criterion satisfied here.
A. State Funds Reach Faith Works Only as a Result of Individual Choices
Appellants contend that the differences between Faith Works and non-faith-based
alternatives preclude a genuine choice between treatment programs. They insist, in
essence, that the Faith Works program is too effective, or too attractive, to be considered
comparable to secular alternatives.4 This reasoning is flawed for several reasons.
First, as Appellees have noted, the relevant ground of comparison is whether the
program satisfies the conditions of parole or allows the offender to avoid parole
The chief differences, besides the spiritual component of the Faith Works program,
are its length (nine to twelve months rather than one to three) and its holistic approach
(including responsible parenting, employment skills, and community reintegration).
See Freedom From Religion Found., Inc. v. McCallum (July opinion), 214 F. Supp. 2d 905,
908-09 (W.D. Wis. 2002); McCallum (January opinion), 179 F. Supp. 2d 950, 955 (W.D.
Wis. 2002).
4
4
revocation. In that respect Faith Works is identical to the alternatives. See Brief of
Appellees Scott McCallum et al. (“State Appellees’ Brief”) at 36-37; Brief of Intervening
Appellee (“Faith Works Brief”) at 8, 24-25.
Second, as a matter of simple logic, it is an odd conception of “genuine choice” that
demands indistinguishable alternatives. The features of Faith Works that are absent
from other programs create a genuine choice that was absent before Faith Works was an
option.
Third, as a matter of policy, the absence of a secular program with the same set of
characteristics is hardly ground for an indictment of Faith Works. According to
Appellants’ argument, the inclusion of Faith Works in the list of service providers
would be unobjectionable (or less objectionable) if others on the list offered better
services than they do. Faith Works is suspect, in Appellants’ view, only because it
responds to a concededly legitimate need.
Finally, Appellants’ analysis is untenable as a matter of constitutional law. The
purpose for the rule that religious and secular alternatives be reasonably comparable is
to ensure that the government, while making both of them available, does not create
incentives tilting the field in favor of the religious. As a plurality of the Supreme Court
recently put it, “to say that a program does not create an incentive to choose religious
[institutions] is to say that the private choice is truly ‘independent.’” Mitchell v. Helms,
530 U.S. 793, 813 (2000) (plurality opinion). In other words, the government’s
involvement must not create an artificial preference for the religious over the nonreligious. This is why the governing cases speak in terms of financial incentives: since
5
the government’s main contribution is financial, that is where a potential often exists for
the government to place a thumb on the scale. See Zelman, 122 S. Ct. at 2468 (noting the
absence of “financial incentives that skew the [voucher] program toward religious
schools”) (internal quotation marks omitted); Agostini, 521 U.S. at 231 (state aid program
must not “creat[e] a financial incentive to undertake religious indoctrination”); Zobrest,
509 U.S. at 10 (challenged statute “creates no financial incentive for parents to choose a
sectarian school”); Witters, 474 U.S. at 488 (challenged state aid program “creates no
financial incentive for students to undertake sectarian education”).
In this case, the “incentives” to which Appellants object were not created by the
government, but are simply aspects of the Faith Works program that some prospective
participants can be expected to prefer. See Appellants’ Brief at 46-47 (Faith Works offers
nine- to twelve-month residential treatment, which “is advantageous for some
offenders”); see also Brief Amicus Curiae in Support of Reversal at 16-17 (noting the nineto twelve-month feature and the fact that Faith Works “contains employment readiness
and family reintegration components”). Under Appellants’ approach, a more effective
faith-based program, before it could be offered as an option, would have to be dragged
to the level of the least effective secular alternative. But the availability of Faith Works
as an option to offenders no more creates an incentive in favor of Faith Works than the
voucher program in Zelman, the tax deduction in Mueller, or the vocational assistance
program in Witters created an incentive in favor of religious schools. In each case, the
only “skewing” was in the individual beneficiaries’ preference for the religious alterna-
6
tives. If that were a disqualifying factor, then “private choice” would be meaningless
and no program with a faith-based alternative could pass constitutional muster.
B. The Route by Which Funds Reach Faith Works is Constitutionally Immaterial
Appellants and their amici also emphasize two related aspects of the arrangement
between Faith Works and DOC that they contend make it a “per capita aid” program
and not a “true private choice” program: the amount of funding transferred in a given
payment period corresponds to the number of offenders enrolled, and the funds are
transferred from DOC to Faith Works without first passing through the hands of
individual beneficiaries. Neither of these points has any bearing on the constitutional
inquiry before the Court.
1. Under a per capita aid program, aid is distributed based on the number of
persons served or encompassed by the recipient institution, with no antecedent
discretionary role for the individual beneficiaries.5 By contrast, an individual’s decision
to enroll in Faith Works is an express precondition of the allotment of that individual’s
share of DOC funds. It is therefore entirely up to the participant whether his share of
the funds is directed to Faith Works or to one of a half dozen other service providers.
Amici note, parenthetically, that Appellants’ proffered categorical distinction
between “per capita aid” programs and “true private choice” programs is nowhere to
be found in the controlling jurisprudence. The distinction is drawn from Justice
O’Connor’s concurring opinion in Mitchell, which in turn draws heavily on Justice
O’Connor’s concurring opinions in Lynch v. Donnelly, 465 U.S. 668 (1984), Witters, and
Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995). See Mitchell, 530 U.S.
at 842-44 (O’Connor, J., concurring in the judgment), and citations therein. Amici are
aware of no decision of the Supreme Court or this Court, before or since Mitchell,
adopting the reasoning in the Mitchell concurrence.
5
7
That the calculation of payments is based on a headcount, moreover, is a mere
administrative convenience of no constitutional moment. Nor is there any significance
in the fact that the state exerts a measure of control over the dedication of the disbursed
funds—a consideration that characterizes all “private choice” cases.6 For example, the
tax deduction at issue in Mueller was available only for certain enumerated expenses, see
463 U.S. at 391 & n.2; the vocational assistance in Witters was similarly circumscribed,
see 474 U.S. at 483; and the vouchers in Zelman could be redeemed only at accredited
schools in a limited geographic area, see 122 S. Ct. at 2463-64. In each of these cases, as
here, the individual beneficiaries had some discretion but were required to transfer the
allotted funds to one of an officially predetermined set of institutions.
2. With respect to the mechanism by which DOC funds reach Faith Works, the
relevant instruction of the governing jurisprudence has nothing to do with accounting.
It is that government aid,
before reaching or benefiting any religious [entity, must]
first pass[] through the hands (literally or figuratively) of
numerous private citizens who are free to direct the aid
elsewhere . . . . Although the presence of private choice is
easier to see when aid literally passes through the hands of
individuals . . . there is no reason why the Establishment
Clause requires such a form.
The oft-invoked paycheck analogy (see Agostini, 521 U.S. at 226; Witters, 474 U.S. at
486-87) may be of some heuristic value, in that it highlights the dispositive role of the
private individual. But it is misleading if taken too literally. Unless the beneficiary is
free to spend the allotted funds on groceries, the funds are not like a paycheck in any
real sense.
6
8
Mitchell, 530 U.S. at 816 (plurality opinion) (internal citations omitted).7 The fact, for
example, that the beneficiary parents in Zelman physically laid their hands on stateissued checks is inconsequential. The point is that the parents decided where the
disbursed funds would be spent.
Thus, the difference between Zelman and this case can be likened to the difference
between a check written to party A on the express condition he sign it over to party B
and a check written to B at A’s behest. As a practical matter, there is no difference
between the two. As a constitutional matter, therefore, there should be no difference
either.
II. THE FAITH WORKS PROGRAM INVOLVES ONLY PERMISSIBLE COGNIZANCE
OF RELIGION, NOT IMPERMISSIBLE ENDORSEMENT OF RELIGION
Appellants argue that the role of parole officers in the Faith Works program—
referring offenders to Faith Works and in some cases affirmatively recommending it—
effects a state endorsement of religion. Appellees have ably demonstrated the many
flaws in this argument, and Amici will not restate that analysis here. See State
Appellees’ Brief at 35-36 & n.3, 39 & n.6; Faith Works Brief at 18-23. See also McCallum
(July opinion), 214 F. Supp. 2d at 916-17 and McCallum (January opinion), 179 F. Supp.
Appellants’ amici assert that the passage just quoted is not controlling precedent—as
indeed it is not. Neither, of course, is the concurrence, notwithstanding the amici’s
jurisprudential alchemy (2 parts concurrence + 3 parts dissent = holding), except to the
extent of its consonance with the plurality. See Marks v. United States, 430 U.S. 188, 194
(1977). The relevant point is that the plurality’s reasoning on this score, not yet
endorsed or rejected by a controlling decision of the Court, is persuasive and in keeping
with longstanding precedent.
7
9
2d at 966-67 (noting that an analysis focused on endorsement is not appropriate in the
context of this case).
It bears emphasis, though, that a central part of a parole officer’s job is to assist with
an offender’s transition to becoming a productive member of the community, which
naturally requires a certain awareness of the attributes, needs, and proclivities of the
individual offender. Appellants’ arguments ignore this fundamental reality. According
to their analysis, if the parole officer knows or believes that a treatment program with a
religious component would be more helpful to an offender’s transition than a purely
secular one, the officer is constitutionally proscribed from expressing that judgment.
With regard to that (and only that) set of personal attributes and needs, the offender
must fend for himself.
That approach not only lacks jurisprudential support but distorts an animating
principle of the Establishment Clause. That provision recognizes that, for many
citizens, religion and spirituality are parts of life which, although they are beyond the
power of the government to interfere, at the same time, need not and should not be
subjected to a constitutionally mandated quarantine. See Corporation of the Presiding
Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 336-38 (1987);
Walz v. Tax Comm’n, 397 U.S. 664, 672-73 (1970); Zorach v. Clauson, 343 U.S. 306, 313-14
(1952). Appellants would have this Court decree the spiritual aspects of a person’s life
untouchable. But that position, far from manifesting a salutary neutrality respecting
religion, would convey an affirmative hostility. Cf. Zorach, 343 U.S. at 314 (“we find no
constitutional requirement which makes it necessary for government to be hostile to
10
religion and to throw its weight against efforts to widen the effective scope of religious
influence”); see also State Appellees’ Brief at 39 n.6.
This the law does not require. It is settled that the government may, without
running afoul of the Establishment Clause, not only take cognizance of the religious but
set it apart for special protection. Such statutes have been enacted, and upheld, time
and again. See, e.g., 42 U.S.C. § 2000e-1 (exemption from Title VII proscription of
religious discrimination in employment)8; 26 U.S.C. § 170(a), (c)(2)(B) (federal tax
deduction for contributions to religious organizations); 50 App. U.S.C. § 456(g)
(exemption from military training and service for ministers and seminary students)9; 42
U.S.C. §§ 2000bb – 2000bb-4 (Religious Freedom Restoration Act, prohibiting undue
interference with religious practice)10; see also 42 U.S.C. §§ 2000cc – 2000cc-5 (Religious
Land Use and Institutionalized Persons Act, affording same protection to religious uses
of land and to individuals in state custody).
All of these enactments represent permissible “accommodation, acknowledgment,
and support for religion[, which are] an accepted part of our political and cultural
See Amos, 483 U.S. 327 (rejecting Establishment Clause challenge to Title VII
exemption.
8
Cf. Gillette v. United States, 401 U.S. 437 (1971) (rejecting Establishment Clause
challenge to religious exemption from military draft).
9
See In re Young, 141 F.3d 854, 861-62 (8th Cir.) (rejecting Establishment Clause
challenge to RFRA), cert. denied sub nom. Christians v. Crystal Evangelical Free Church, 525
U.S. 811 (1998); Sullivan v. Sasnett, 91 F.3d 1018, 1022 (7th Cir.) (same), vacated on other
grounds, 521 U.S. 1114 (1997). RFRA was held invalid as applied to the states, see City of
Boerne v. Flores, 521 U.S. 507 (1997), on Fourteenth Amendment grounds. Eight Justices
rejected the petitioners’ Establishment Clause challenge, and the statute remains in
10
11
heritage” and are fully sanctioned by the Establishment Clause. Board of Educ. of Kiryas
Joel Village v. Grumet, 512 U.S. 687, 723 (1994) (Kennedy, J., concurring). The policy
under consideration does no more. In fact, it is more modest in scope, in that it gives
religion no special status. It should be upheld.
CONCLUSION
The district court’s holding that the arrangement between the Wisconsin Department of Corrections and Faith Works is constitutionally valid should not be disturbed.
Respectfully submitted,
December 23, 2002
__________________________
Gene C. Schaerr
Michael L. Post
Richard H. Menard Jr.
SIDLEY AUSTIN BROWN & WOOD LLP
1501 K Street, N.W.
Washington, D.C. 20005
Counsel for Amici Curiae Prison
Fellowship Ministries, Evangelicals for
Faith-Based Initiatives, and Christian
Community Health Fellowship
force as applied to the federal government.
12
CERTIFICATE OF SERVICE
I certify that on this 23rd day of December, 2002, I caused a copy of the foregoing
Brief Amicus Curiae of Evangelicals for Faith-Based Initiatives, Prison Fellowship
Ministries, and Christian Community Health Fellowship to be sent by first-class mail,
postage prepaid, to the following persons:
Richard L. Bolton
Boardman, Suhr, Curry & Field LLP
One South Pinckney Street, Suite 410
Post Office Box 927
Madison, Wisconsin 53701-0927
Bruce A. Olsen, Assistant Attorney General
Wisconsin Department of Justice
17 West Main Street, Room 605
Post Office Box 7857
Madison, Wisconsin 53707-7857
Daniel Kelly
Reinhart, Boerner, Van Deuren, S.C.
100 North Water Street, Suite 2100
Post Office Box 514000
Milwaukee, Wisconsin 53203-3400
Jordan Lorence
Alliance Defense Fund Law Center
14333 North Pima Road, Suite 165
Scottsdale, Arizona 85260
December 23, 2002
DC1 611382v1
__________________________
Richard H. Menard Jr.