Interested Persons Memo on First Amendment concerns with Juvenile Justice Legislation

To: Interested Persons

From: Terri Schroeder, ACLU Legislation Representative

Date: June 16, 1999

Re: Juvenile Justice - First Amendment church/state concerns

The following amendments would violate the separation of church and state:

Prayer/Religious Expression/Fee-Shifting

DeMint, #26, Istook, #27, Tancredo, #24

• These amendments attempt to promote one constitutional viewpoint, while depriving those who hold an opposing viewpoint of their day in court.  

   

• If our Constitution means anything, it means that everyone has equal access to the courts to assert constitutional rights.  

   

• Fee-shifting in civil rights cases is essential to the enforcement of constitutional rights. It is a long-standing policy, which furthers the constitutional rights of all Americans.  

   

• If this were to become law, those who complain of Free Exercise Clause violations by public authorities that exclude religious observances could do so with the benefit of traditional fee-shifting, whereas those who make the opposite claim -- that the Establishment Clause has been violated by an excessive injection of religious observance -- would be disadvantaged.  

   

• This is no different than saying that everyone who wins a civil rights case against the police is entitled to litigation expenses, except if their claim was based on an allegation of racial discrimination.

10 Commandments

Aderholt, #28

• This Amendment says that federal courts (i.e., Article III courts) "shall exercise judicial power in a manner consistent with the foregoing declarations." This language is totally superfluous. It does not restrict the power of the courts, it merely tells the courts to do what courts already do, that is, interpret legislation. At most, the bill's language is a hint to courts (or perhaps a threat) that Congress has the authority to limit its jurisdiction. It is very unlikely that the vague and non-specific language of the bill would be interpreted by the courts as jurisdiction stripping.

Charitable Choice

Souder/English, #29

• This amendment requires governmental agencies to contract with religious institutions for juvenile justice services without regard to their religious nature.  

   

• This amendment violates the First Amendment Establishment Clause because it disintegrates separation of church and state. It does so in three ways:  
  • It allows taxpayer money to flow into the coffers of "pervasively sectarian" religious institutions,  

     

  • It grants governmental discretion to houses of worship in the delivery of juvenile services, including the selection and oversight of government subcontracts, and  

     

  • It allows the government to interfere with the internal operations of the religious institutions by virtue of their contractual relationship, including the government's authority to audit and monitor its contractors. In so doing, it would result in the 'excessive entanglement' of government in church affairs, which is forbidden by the First Amendment.

   

• This amendment violates the First Amendment Free Exercise Clause because beneficiaries of those programs would be subjected to religious indoctrination that may be at variance with their own personal religious convictions. This amendment would subject state and local governments to liability for encroaching upon those individuals' religious freedom for two reasons:  
  • It fails to give individuals the choice whether or not they will be subjected to religious indoctrination, and  

     

  • It fails to set up a mechanism by which beneficiaries could receive alternative services if they objected to the religious content of the services.

   

• This amendment results in government-sponsored discrimination because religious institutions are currently exempt from Title VII's prohibition on employment discrimination. Taxpayer funds should never be used to endorse discrimination. In addition, this Amendment would force individual service providers' religious liberty to choose between their own religious convictions, which may be at variance with the service providers in the area, and their zeal to provide these needed services to disadvantaged juveniles in the community.  

   

• This amendment removes the safeguards against church and state entanglement in the area of juvenile justice thus setting into motion a slippery slope at the detriment of religious autonomy. It does so by creating a cycle of dependence upon government funds as the categories of contracts available to religious institutions increase and incentives for private donations decrease. It would also create a political battleground for competing sects in vying for government funds.