UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

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. :

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

**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 -*

[TABLE OF CONTENTS]{.underline}

**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

[TABLE OF AUTHORITIES]{.underline}

**CASES:**

[Alma Motor Co. v. Timken-Detroit Axle Co.]{.underline},

329 U.S. 129 (1946) 5

[Braunfeld v. Brown]{.underline}, 366 U.S. 599 (1961) 14, 16, 17

[Church of Scientology Flag Service Organization]{.underline}

[v. Clearwater]{.underline}, 2 F.3d 1514 (11th Cir. 1993) 19

[Committee for Public Education & Religious Liberty]{.underline}

[v. Nyquist]{.underline}, 413 U.S. 756 (1973) 6

[Corporation of the Presiding Bishop of]{.underline}

[the Church of Jesus Christ of Latter-Day]{.underline}

[Saints v. Amos]{.underline}, 483 U.S. 327 (1987) 7-11, 13, 15, 17, 18

[County of Allegheny v. ACLU]{.underline}, 492 U.S. 573 (1989) 12, 13,
15

[Estate of Thornton v. Caldor, Inc.]{.underline}, 472 U.S. 703 (1985) 12

[Forest Hills Early Learning Center]{.underline}

[v. Grace Baptist Church]{.underline}, 846 F.2d 260 (4th Cir. 1988),

[cert. denied]{.underline}, 488 U.S. 1029 (1989) 9, 10, 16-18

[Forte v. Coler]{.underline}, 725 F. Supp. 488 (M.D. Fl. 1989) 10

[Gillette v. United States]{.underline}, 401 U.S. 437 (1971) 6, 14, 16

[Lemon v. Kurtzman]{.underline}, 403 U.S. 602 (1971) 7, 8

[Lynch v. Donnelly]{.underline}, 465 U.S. 668 (1984) 6, 13

[Marsh v. Chambers]{.underline}, 463 U.S. 783 (1983) 6

[McDaniel v. Paty]{.underline}, 435 U.S. 618 (1978) 13

[Merrill v. Town of Addison]{.underline}, 763 F.2d 80 (2d Cir. 1985) 5

[New York Transit Auth. v. Beazer]{.underline}, 440 U.S. 568 (1979) 5

[School District v. Ball]{.underline}, 473 U.S. 373 (1985) 6

[Selective Draft Law Cases]{.underline}, 245 U.S. 366 (1918) 15

[Texas Monthly v. Bullock]{.underline}, 489 U.S. 1 (1989) 15, 17

[United States v. Lee]{.underline}, 455 U.S. 252 (1982) 14, 16

[Walz v. Tax Commission]{.underline},

397 U.S. 667 (1970) 5, 6, 11, 13, 14, 16

[Zorach v. Clauson]{.underline}, 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

**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

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]{.underline}**

Plaintiff Louis J. Posner commenced this action on behalf of his son,
Daniel J. Posner, alleging, [inter alia]{.underline}, 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 accommodation, including privately owned and operated nursery
schools. 42 U.S.C. § 12181(7)(j).[^2]

Defendants moved for summary judgment arguing, [inter alia]{.underline},
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]{.underline} 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
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]{.underline} 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]{.underline} 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]{.underline}**

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]{.underline}
Affidavit of Livia Thompson, sworn to Nov. 18, 1993 (\"Thompson Aff.\"),
¶ 8. The Sabbath and all major Jewish holidays are integrated and
observed in the Nursery School\'s program. [See]{.underline} 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.]{.underline}) 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.

**[Argument]{.underline}**

**SECTION 307\'S EXEMPTION FOR**

**RELIGIOUS ORGANIZATIONS DOES NOT**

**[   VIOLATE THE FIRST AMENDMENT]{.underline}**[^4][ ]{.underline}

A. The First Amendment\
Permits Legislation that\
[Accommodates Religion   ]{.underline}

The First Amendment\'s Free Exercise Clause prohibits Congress from
acting to [interfere]{.underline} with religious practices. The
Establishment Clause on the other hand prohibits Congress from acting to
[sponsor]{.underline} religion.[^5] The Supreme Court has made clear
that there is also a middle ground within which Congress can properly
act to [accommodate]{.underline} religion. [See]{.underline},
[e.g.]{.underline}, [Walz v. Tax Commission]{.underline}, 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 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]{.underline}, 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]{.underline}, 413 U.S. 756, 772 (1973) (citation omitted); [see
also]{.underline} [School District v. Ball]{.underline}, 473 U.S. 373,
381 (1985). However, reasonable government accommodation of religion, as
is the case here, is not proscribed.

B. Section 307 Does Not\
[Violate the Establishment Clause]{.underline}

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]{.underline}, 483 U.S. 327 (1987), a
statute broadly exempting religious entities from regulation is subject
to the three tests outlined in [Lemon v. Kurtzman]{.underline}, 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]{.underline}, 403 U.S. at 612-613 (citations omitted).[^8]
Section 307 satisfies each of these tests.

1\. Section 307 Serves the Permissible\
Secular Purpose of Preventing\
[Government Interference with Religion]{.underline}

As the Court noted in [Amos]{.underline}, the first test under
[Lemon]{.underline} 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]{.underline} 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]{.underline}, 483 U.S. at 335-36 (citations omitted).

Like the exemption considered in [Amos]{.underline}, 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.]{.underline}, 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 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]{.underline} [Amos]{.underline}, 483 U.S. at 336.
Congress\'s decision here to avoid government interference entirely is
an approach that is entitled to deference. [Id.]{.underline} 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]{.underline}, 846 F.2d 260 (4th Cir.
1988), [cert. denied]{.underline}, 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]{.underline}, 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.\"
>
> 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.]{.underline}, 846 F.2d at 263 (citing [Amos]{.underline}, 483 U.S.
at 335-36); [see]{.underline} [also]{.underline} [Forte v.
Coler]{.underline}, 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]{.underline} [Amos]{.underline}, 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 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        ]{.underline}

The second inquiry under [Lemon]{.underline} is whether the \"principal
or primary effect\" of the statute is to advance or inhibit religion. As
demonstrated below ([see]{.underline} [infra]{.underline} 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]{.underline} test and is plainly permissible under the
Establishment Clause. [See]{.underline}, [e.g.]{.underline}, [Walz v.
Tax Commission]{.underline}, 397 U.S. at 674-77; [Zorach v.
Clauson]{.underline}, 343 U.S. 306, 313-14 (1952).

Again, the Supreme Court\'s decision in [Amos]{.underline} provides the
appropriate analytical framework. In [Amos]{.underline}, the Court
acknowledged that, while exemption statutes always have the facial
appearance of advancing religion, [Amos]{.underline}, 483 U.S. at
336-37, such statutes accommodating religion do not fail the second
[Lemon]{.underline} test, unless the government itself appears to give
its imprimatur to the advancement of religion.

> A law is not unconstitutional simply because it [allows]{.underline}
> churches to advance religion, which is their very purpose. For a law
> to have forbidden \"effects\" under [Lemon]{.underline}, it must be
> fair to say that the [government itself]{.underline} has advanced
> religion through its own activities and influence.

483 U.S. at 337 (emphasis in original); [see also]{.underline}, [County
of Allegheny v. ACLU]{.underline}, 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]{.underline}, a broad exemption statute,
such as that contained in title III of the ADA and the statute at issue
in [Amos]{.underline}, is very different from a statute that provides
the force of law to advance religion. The [Amos]{.underline} Court
distinguished exemption statutes from the state law held
unconstitutional in [Estate of Thornton v. Caldor, Inc.]{.underline},
472 U.S. 703 (1985), which required employers to honor their employee\'s
choice of a day of Sabbath. The [Amos]{.underline} Court observed that
the [Caldor]{.underline} statute was impermissible because it had the
primary effect of advancing the particular religious practice of Sabbath
observance and forced private employers to accommodate this religious
practice without regard to the burden imposed upon them.
[Amos]{.underline}, 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]{.underline}, 465 U.S. at 677-678
(citation omitted); [see also]{.underline} [County of Allegheny v.
ACLU]{.underline}, 492 U.S. at 593; [McDaniel v. Paty]{.underline}, 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]{.underline}, 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 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]{.underline}, 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]{.underline}, 343 U.S. at 313-314.

Similarly, in [Walz v. Tax Commission]{.underline}, 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]{.underline} [United States v. Lee]{.underline}, 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]{.underline}, 401 U.S. 437 (1971) (upholding exemption
from the military draft for conscientious objectors); [Braunfeld v.
Brown]{.underline}, 366 U.S. 599, 608 (1961) (while 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]{.underline}, 245 U.S. 366, 389-390
(1918) (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]{.underline} test so long as
it does not convey a message of \"endorsing\" religious activity to an
objective observer. [County of Allegheny v. ACLU]{.underline}, 492 U.S.
at 592-96 (adopting analysis followed by Justice O\'Connor\'s concurring
opinion in [Amos]{.underline}); [Amos]{.underline}, 483 U.S. at 348-49
(O\'Connor, J., concurring); [see also]{.underline} [Texas Monthly v.
Bullock]{.underline}, 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]{.underline} 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 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 Church and State   ]{.underline}

The third test under [Lemon]{.underline} 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]{.underline}, 455 U.S. 252, 260 & n.11 (1982); [Gillette v. United
States]{.underline}, 401 U.S. 437 (1971); [Walz]{.underline}, 397 U.S.
at 679-80; [Braunfeld v. Brown]{.underline}, 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]{.underline}, 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]{.underline}
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]{.underline}, 483 U.S. at 339; [Forest Hills Early
Learning Center]{.underline}, 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]{.underline}, 489 U.S. 1, 20 (1989).

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]{.underline}, 483
U.S. at 336; [Forest Hills Early Learning Center]{.underline}, 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.

§ 12182(b)(2)(A)(ii); [see]{.underline} [also]{.underline} 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]{.underline}, 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 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]{.underline} 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.

**[Conclusion]{.underline}**

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.

Dated: Washington, D.C.

December 30, 1993

Respectfully submitted,

MARY JO WHITE JAMES P. TURNER

United States Attorney Acting Assistant Attorney

General

By: [                      ]{.underline}
By: [                      ]{.underline}

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

[^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.

[^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.

[^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]{.underline}, [e.g.]{.underline},
    Amended Complaint ¶¶ 29-30.

[^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.]{.underline}, 329 U.S. 129, 136 (1946); [e.g.]{.underline}
    [New York Transit Auth. v. Beazer]{.underline}, 440 U.S. 568, 582
    (1979); [Merrill v. Town of Addison]{.underline}, 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.

[^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]{.underline}, 397 U.S. at 673; [see
    also]{.underline} [Marsh v. Chambers]{.underline}, 463 U.S. 783, 812
    (1983) (Brennan, J., dissenting); [Gillette v. United
    States]{.underline}, 401 U.S. 437, 453 (1971).

[^7]: ^?^ Because there can be no serious argument that section 307
    interferes with religious organizations\' religious practices,
    [but]{.underline} [cf]{.underline}. Pl. ADA Mem. at 14-16 (analyzing
    the Free Exercise Clause), the only issue here is whether section
    307 violates the Establishment Clause.

[^8]: ^?^ In [Amos]{.underline}, 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.]{.underline} 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.]{.underline} at 334-40.

[^9]: ^?^ [See]{.underline} [infra]{.underline} at 12-20.

[^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).

[^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).

[^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]{.underline}, 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]{.underline} 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]{.underline}
    [Forest Hills Early Learning Center]{.underline}, 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).

[^13]: ^?^ Pl. ADA Mem. 18-20.

[^14]: ^?^ In this case, Posner notes that the Nursery School is a
    non-profit organization. Amended Complaint ¶ 3. As two concurring
    opinions in [Amos]{.underline} 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]{.underline},
    483 U.S. at 344-45 (Brennan, J., concurring); [Amos]{.underline},
    483 U.S. at 348-49 (O\'Connor, J., concurring).

[^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.