When a religion is good, I conceive it will support itself; and when it does not support itself, and God does not take care to support it so that its professors are obliged to call for help of the civil power, 'tis a sign, I apprehend, of its being a bad one.

                           Benjamin Franklin

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ARL goes to Court (January 27, 2006)

ARL Goes to Court

In its quarter century of activism in defense of church-state separation and freedom of conscience, Americans for Religious Liberty has been involved in over 60 actions in the courts. Following is a concise summary of that work.

This action has generally involved participating in or originating amicus curiae (friend of the court) briefs to the U.S. Supreme Court and lower courts. Usually, in the interest of economy and because the Court prefers not to have to deal with duplicative briefs, where possible ARL has worked with other organizations in coalition briefs.

Americans for Religious Liberty is grateful to all of the mostly pro bono attorneys and organizations with which we have collaborated for so many years.

These briefs are divided into several types of cases (e.g., government aid to religious institutions, reproductive rights, etc.) The dates of the briefs refer to the Supreme Court's terms, which begin in October of every year.

One of our most important cases, in which ARL played an important role, Lamont v. Woods, did not reach the Supreme Court but was settled in the U.S. Second Circuit Court of Appeals in New York on September 26, 1991. Unfortunately, the case received almost no media attention. It involved a challenge to U.S. government aid to faith-based schools in other countries. Between 1983 and 1989 the U.S. Agency for International Development (USAID) distributed more than $14 million to faith-based schools in the Philippines, Egypt, Israel, Jamaica, South Korea, and Micronesia.

The suit was a cooperative effort with the American Civil Liberties Union. ACLU provided the attorney, Professor Herman Schwartz of American University, while ARL provided the plaintiffs in New York: philosopher Corliss Lamont, writer Isaac Asimov, Rabbi Balfour Brickner, the Rev. Bruce Southworth, and church-state separation activists Florence Flast and Nina Untermyer.

Second Circuit Chief Judge James L. Oakes wrote in his opinion that, "Where the expenditure of federal tax money is concerned, there can be no distinction between foreign religious institutions and domestic religious institutions - particularly when the former are sponsored and supported by the latter. Religions such as Catholicism and Judaism know no national boundaries, and are strengthened domestically when promoted abroad. Given the primacy of the tax factor in the minds of the Framers, we cannot but conclude that Madison, Jefferson, or any of the supporters of the Establishment Clause would have abhorred - as much as a tax for the support of Christian teachers - the use of federal tax money for the support of foreign sectarian schools."

The ruling added that "recent history supports the view that the religion clauses do have extraterritorial application." Further, "The expenditure of tax dollars for the support of religious institutions or activities offends the 'no taxation' principle regardless of the physical situs of those institutions or activities.  Likewise, the message communicated by direct government funding of religious institutions remains the same whether those institutions are located in the United States or abroad."

In rejecting a central argument put forth by the George H.W. Bush administration, that foreign policy matters are beyond constitutional scrutiny, the court held that "While we recognize the importance of foreign aid programs in promoting United States foreign policy, we do not believe that this warrants freeing all foreign aid programs from all constitutional constraints."

In a concurring opinion, Judge John M. Walker, Jr., observed that "The text of the First Amendment's limitation on Congress' competency to act in regard to religion bears no construction that confines its operation to the United States."

Lamont v. Woods never reached the Supreme Court because the Bush administration decided not to appeal. Nonetheless, the ruling stands as an important but little noticed precedent.

(Note: Before ARL was founded in 1982, ARL's Doerr and Menendez were involved in a number of important church-state cases while working for another organization. Among those cases were Lemon v. Kurtzman, the first successful Supreme Court challenge to tax aid to faith-based schools (1971); Malnak v. Yogi, a successful challenge to the promotion of Transcendental Meditation, with its hidden religious content, in New Jersey public schools; and a challenge to forced "deprogramming" of adults in Maryland.)

Free Exercise of Religion

2005. Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal. ("May the Government satisfy the 'compelling interest/least restrictive alternative' standard that Congress enacted in the Religious Freedom Restoration Act simply by asserting, without case-specific evidentiary support, a compelling interest in the uniform enforcement of the law, and then arguing, tautologically, that a policy of denying any religious exemptions is the least restrictive means of furthering that interest?")

2005. Cutter v. Wilkinson. (Free exercise rights of prisoners.)

Physician-Assisted Suicide

2005. Gonzales v. State of Oregon. (Defense of Oregon's physician-assisted suicide law.)

1996. Vacco v. Quill ("The right of a competent, terminally ill individual to end his or her life with the aid of a physician. . . .")

Religion in Public Schools

1997. Bauchman v. West High School. (Challenge to religious proselytizing in public school.)

1996. Chauduri v. State of Tennessee. (Graduation prayers at Tennessee State University.)

1994. Ingebretsen v. Jackson Public School District. (Prayer at school events.)

1990. Lee v. Weisman. (Challenge to religious exercise in public school.)

1989. Board of Education of the Westside Community Schools v. Mergens. (Challenge to the "Equal Access Act . . . requiring Westside High School to recognize and sponsor a Christian prayer club.")

1988. Barry v. Slaughter. (Challenge to graduation prayers at University of Maryland.)

1988. Virgil v. School Board of Columbia County, Florida. (Textbook censorship.)

1987. Smith v. Commissioners of Mobile County. (Prayer in public schools.)

1987. Mozert v. Hawkins County Public Schools. (Religious opposition to certain textbooks.)

1986. Edwards v. Aguillard. (Challenge to Louisiana law promoting "creationism" in science classes.)

1986. Edwards v. Aguillard. (Brief of 72 Nobel laureates and other scientists. Although ARL's name is not on the brief, it was ARL's idea to have Nobel laureates sign a brief challenging the Louisiana "creationism" law.)

1985. Bender v. Williamsport. (Challenge to "equal access law.")

Religious Displays in Government Buildings

2004. Van Orden v. Perry. (Challenge to Ten Commandments display at Texas state capitol building.)

2002. Freethought Society v. Chester County. (Ten Commandments display in courthouse.)

1994. Capitol Square Review and Advisory Board v. Pinette. (Challenge to placement of religious displays on Ohio State House grounds.)

1987. American Jewish Congress v. City of Chicago. (Challenge to city hall Nativity display.)

Reproductive Rights

2005. Scheidler v. National Organization for Women. ("Whether the Hobbs Act prohibits acts or threats of physical violence that obstruct, delay or affect interstate commerce; Whether RICO authorizes the district courts to grant injunctive relief in private lawsuits.")

2005. Ayotte v. Planned Parenthood of Northern New England. (Challenging lack of health exception in a New Hampshire law restricting reproductive rights.)

2001. Bost v. Low Income Women of Texas. (Challenge to Texas restrictions on Medicaid funding for abortions.)

2000. Stenberg v. Carhart. (Challenge to Nebraska's so-called "partial-birth" abortion ban.)

1993. Madsen v. Women's Health Center. ("Whether, in the context of a pattern of illegal conduct and violations of previous injunctions, a court may constitutionally impose specific time, place and manner restrictions on individuals and organizations and those acting in concert with them to prohibit blocking access to a medical facility, harassing the facility's patients and staff, engaging in activities that threaten patients' health, and harassing and picketing staff members at their homes."

1990. Rust v. Sullivan. (Challenge to gag rule on discussing abortion in federally aided family planning facilities.)

1990. In re: AC. (Are fetal rights superior to those of persons already born?)

1989. Turnock v. Ragsdale. (Defense of rights of clinics and doctors.)

1989. Hodgson v. Minnesota. (Challenge to abortion rights restrictions.)

1989. Ohio v. Akron Center for Reproductive Health. (Challenge to abortion rights restrictions.)

1988. Webster v. Reproductive Health Services. (Though not formally listed on this brief, ARL originated the brief representing twelve Nobel laureates and 155 other distinguished scientists in defense of reproductive choice. The brief challenges the anti-choice position that human personhood begins as early as conception. NOW said that this brief might well be "the most powerful brief" submitted in this case.)

1988. Webster v. Reproductive Health Services. (Coalition brief challenging Missouri restrictions on abortion rights.)

1988. Massachusetts v. Bowen. (Challenge to federal restrictions on reproductive rights.)

1988. Northeast Women's Center v. McMonagle. (Defense of women's clinics for RICO Act violation.)

1985. Thornburgh v. American College of Obstetricians and Gynecologists. (Reproductive rights in Pennsylvania.)

1985. Diamond v. Charles. (Abortion rights in Illinois.)

Tax Aid to Faith-Based Schools

2004-2005. Bush v. Holmes. (Successful challenge to Florida school voucher plan. Florida Supreme Court ruled the plan unconstitutional on January 5, 2006.)

2001. Zelman v. Simmons-Harris. (Challenge to Ohio school voucher plan.)

1999. Mitchell v. Helms. (Challenge to tax aid to religious schools in Louisiana.)

1996. Agostini v. Felton. (Challenge to tax aid to faith-based schools in New York.)

1994. Lipscomb University v. Steele; Americans for Religious Liberty. (Challenge to municipal bonds to aid a pervasively sectarian university.)

1993. Board of Education of the Kiryas Joel Village School District v. Grumet. (Challenge to "the constitutionality of vesting the power to operate a public school district in a municipality that functions as a religious establishment.")

1992. Zobrest v. Catalina Foot Hills School District. ("Whether [Federal Regulation] C.F.R. § 76.532(a) prohibits the government from paying for the sign language interpreter requested by the Petitioners .")

1990. Pulido v. Cavazos. (Challenge to tax-paid services to faith-based schools.)

1990. Southside Fair Housing Commission v. New York. (Challenge to New York turning over city land to a faith-based school.)

1990. Helms v. Cody. (Challenge to public school teachers working in faith-based schools in Louisiana.)

1984. Aguilar v. Felton. (Challenge to tax aid to sectarian schools.)

1984. Witters v. Washington Department of Services for the Blind. (Defense of Washington State constitution prohibition of tax aid to a faith-based school.)

1983. Grand Rapids v.  Ball. (Challenge to school district's operating an extensive program of classes on the premises of faith-based schools.)

1983. Mueller v. Allen. (Challenge to tax deductions for faith-based schools.)


2004. Elk Grove United School District v. Newdow. (Challenge to Congress' inclusion of the phrase "under God" in the Pledge of Allegiance in 1954.)

2002. Kong v. Min de Parle. (Challenge to government support of Christian Science sanatoria.)

1999. Children's Health is a Legal Duty v. Vladek. (Do the 1997 Medicare and Medicaid Amendments violate the First Amendment by creating and defining "religious non-medical health care institutions"?)

1997. Coles v. Cleveland Board of Education. (Challenge to prayers at school board meetings.)

1990. Welsh v. Boy Scouts of America. (Challenge to religious discrimination by BSA.)

1987. Bowen v. Kendrick. ("Does the Establishment Clause permit the Government to pay religious organizations to promote government policies that such organizations teach as articles of religious faith?")

1986. American Baptist Churches in the U.S.A. v. Reagan. (Challenge to establishment of U.S. diplomatic relations with the Holy See.)

1986. Karcher v. May. ("Whether a state legislature may enact a statute requiring state school employees, principals and teachers, to direct group meditation in their public school classrooms.")

State Court Cases

1993. American Academy of Pediatrics v. Lundgren. (California abortion law restrictions.)

1990. Davis v. Davis. (Treatment of frozen embryos in Tennessee.)

1988. In re: Unborn Child. (Challenge to father's veto of a woman's abortion decision.)

Americans for Religious Liberty - P.O.Box 6656 - Silver Spring, MD 20916
Telephone: 301-260-2988 - Fax: 301-260-2989 - Email: arlinc@verizon.net