FFRF Wins “Marriage Savers” Lawsuit (June/July 2000)

Below is the judge’s decision in the Freedom From Religion Foundation’s “Marriage Savers” victory. For background on the case, see the front-page story in the June/July 2000 Freethought Today: “Marriage Meddlers” Law Unconstitutional. Memorandum and Order 99-C-813-S U.S. District Court for the Western District of Wisconsin Freedom From Religion Foundation, Inc., Anne Gaylor, Annie Laurie Gaylor, Dan Barker and Reverend Charles Wolfe, Plaintiffs, v. Joe Leean and Susan Dreyfus, Defendants. Decision By John C. Shabaz District Judge Plaintiffs commenced this 28 U.S.C. ¤ 1983 action on December 20, 1999.

They claim that section 9123 (14g) of the Wisconsin Budget Act, 1999 Wis. Act 9, violates both the United States and Wisconsin constitutions. The litigation is brought under federal question jurisdiction, 28 U.S. C. ¤ 1331 and 1342 (3), and under this Court’s supplemental jurisdiction, 28 U.S.C. ¤ 1367(a). Both parties move for summary judgment under Federal Rule of Civil Procedure 56(c). UNDISPUTED FACTS Plaintiff Freedom From Religion Foundation, Inc. (“FFRF”) is a Wisconsin non-stock corporation whose principal office is in Madison, Wisconsin. The FFRF’s membership includes over 400 Wisconsin taxpayers. Its purpose is to promote and enforce the principle of the separation of church and state. All individual plaintiffs are residents of Madison, Wisconsin and are Wisconsin state taxpayers. Plaintiff Anne Gaylor (“Gaylor”) is President of the FFRF, while plaintiffs Annie Laurie Gaylor and Dan Barker (“Barker”) are members and employees.

Plaintiff Reverend Charles Wolfe (“Rev. Wolfe”) is a pastor of the Plymouth Congregational United Church of Christ in Madison. He acts as a marriage officiant and counselor for members of his congregation. Defendant Joe Leean (“Leean”) is Secretary of the Wisconsin Department of Health and Family Services (“DHFS”). The department’s areas of responsibility include public health and children’s services. Defendant Susan Dreyfus (“Dreyfus”) is Administrator of the Division of Children and Family Services, a division of the DHFS administering programs in support of families and children. Both defendants’ salaries are paid from state tax revenues. The statute, section 9123(14g) (“the Project”), reads: (14g) Community Marriage Policy Project.

The authorized FTE positions for the department of health and family services are increased by 1.0 PR project position, to be funded from the appropriation under section 20.435(3)(kx) of the statutes for the period beginning on the first day of the 2nd month beginning after the effective date of this subsection, and ending on September 30, 2003. The positions are increased under this subsection for the purposes of coordinating the development of, and assisting local members of the clergy to develop, community-wide standards for marriages solemnized in this state by members of the clergy. Pursuant to section 49.175 (1) (ze) (10) of the Wisconsin Statutes the Project has a budget of $105,000–$45,000 for fiscal year 2000 and $60,000 for fiscal year 2001–which includes the salary of the Project Coordinator position created under the Project.

This budget is funded by federal funds provided to Wisconsin under the Temporary Assistance for Needy Families (“TANF”) program. The Project Coordinator would use office facilities, supplies and staff services paid for by state tax revenues. Defendants Leean and Dreyfus will be involved in the administration of the Project and will be ultimately responsible for it.

Pursuant to an agreement between the parties the Project has not yet been implemented. MEMORANDUM Plaintiffs challenge the Project on several grounds. Plaintiffs FFRF, Gaylor, Annie Laurie Gaylor and Barker assert that the Project violates the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. Plaintiff Rev. Wolfe maintains that the Project burdens his religious practices contrary to the First Amendment’s Free Exercise Clause.

The plaintiffs pursue similar claims under the Wisconsin Constitution. Both parties have moved for summary judgment. A motion for summary judgment will be granted where there is “no genuine issue as to any material fact and that the moving party is entitled to judgment as a mater of law.” FRCP 56 (c) Facts are “material” in a summary judgment analysis if they are outcome influencing under the substantive law governing the action, and any disputes over such material facts are “genuine” if from the evidence a reasonable jury could find for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Where no such disputes exist only questions of law determinable by the district court remain. Standing Defendants raise the issue of plaintiffs’ standing to litigate their claims.

The standing doctrine is a part of the Article III requirement that limits federal jurisdiction to the adjudication of actual “cases” and “controversies.” See Allen v. Wright, 468 U.S. 737, 750 (1984). The doctrine requires that the party invoking a federal court’s authority show it has suffered some actual or imminent injury that is fairly traceable to the challenged conduct of the defendant and that is likely to be redressed by the requested remedy.

See Valley Forge Christian College v. Americans United for the Separation of Church and State, 454 U.S. 464, 472 (1982). In response plaintiffs contend that they have standing as Wisconsin state taxpayers. They argue that Wisconsin’s use of federal TANF funds is sufficient for state taxpayer standing. The Project’s proposed budget will utilize state-controlled funds. If used in a constitutional program the TANF funds would displace the use of state tax revenue. The displaced tax revenue would be used to ease taxpayer burdens or to fund additional state programs. Defendants ask the Court to distinguish between state tax revenue and federal grant money in determining state taxpayer standing.

They would strictly confine state taxpayer standing to the spending of state tax revenues. They argue that there is no nexus between plaintiffs’ status as state taxpayers and federal funds used by the state. Because no state taxes are used for the Project’s budget no injury can come to them as state taxpayers. Defendants’ position is contrary to both precedent and common sense. In Doremus v. Board of Educ. of Borough of Hawthorne, 342 U.S. 429 (1952), the seminal precedent on state taxpayer standing, a taxpayer challenged a state statute that provided for the reading in school classrooms of five verses from the Old Testament at the beginning of each school day. The Court held that a “good-faith pocketbook action” was required to challenge the statute. Doremus, 342 U.S. at 434-35.

Such a challenge was established by demonstrating that the “activity is supported by any separate tax or paid for from any particular appropriation. . . .” Id. at 433. Doremus does not limit state taxpayer standing to the expenditure of state tax revenues. Rather, it confers standing where the complained-of activity “is supported . . . from any particular appropriation” by the state. An “appropriation” is a broad term unrelated to the means by which the government attains the funds to be used.1 While subsequent precedent has not examined the issue of state taxpayer standing involving state use of federal grants there is no basis to distinguish TANF grants as not being a “particular appropriation” that Wisconsin has made. The Wisconsin legislature set aside and earmarked funds for use in the Project. See 1999 Wisconsin Act 9, section 9123(14g); see also Wis. Stat. ¤ 49.175(i)(ze)(10). This is sufficient for standing. Such a distinction would have troubling constitutional implications. Defendants’ notion of standing would completely insulate any state legislation from judicial review as long as it was funded by federal money and subjected no person to nonpecuniary injury.

Direct subsidies to religious organizations, for example, would be unreviewable if those state subsidies were appropriated from federal grants. Finding no basis for the distinction defendants urge, the Court holds that plaintiffs have standing as state taxpayers to challenge the Project. Establishment Clause Government action violates the Establishment Clause if it fails any one prong of a three-prong test. First, the government action must have a secular purpose. See Lemon v. Kurtzman, 403 U.S. 602, 612 (1971). Second, the action’s principal or primary effect must be one that neither advances or inhibits religion. See id. Finally, the action must not foster excessive entanglement between government and religion.

See id. While the Project satisfies the first and third prongs, the failure of the statute under the second prong is dispositive of plaintiffs’ Establishment Clause claim. The first prong of the Lemon test examines whether it was the government’s actual purpose to advance or endorse religion. See Fleischfresser v. Directors of School Dist. 200, 15 F.3d 680, 688 (7th Cir. 1994). Namely, did “the government [] intend to convey a message of endorsement or disapproval of religion.” Edwards v. Aguillard, 482 U.S. 578, 585 (1987).

The government’s purpose need not be exclusively secular, see Lynch v. Donnelly, 465 U.S. 668, 681 n. 6 (1984), but rather the action is improper only if it is “entirely motivated by a purpose to advance religion.” Wallace v. Jaffree, 472 U.S. 38, 56 (1985). It cannot be seriously contended that the Project is entirely motivated by religious considerations. Plaintiffs concede that a purpose, if not the purpose, of the Project is to strengthen Wisconsin marriages.

2 That the Project’s scope includes only religiously affiliated officiants is not evidence of a legislative intent to advance religion in light of the undisputed fact that such officiants solemnize 87 percent of Wisconsin marriages. The Project targets the most prolific of the authorized officiants in an attempt to achieve its purpose. The defendants’ articulated secular purpose will be given deference and there are no facts in the record from which to conclude that the articulated secular purpose is a pretext or sham. See Edwards, 482 U.S. at 586.

The third prong in Lemon requires that the government action involve no excessive entanglement with religion. This prong examines the character and purposes of the institutions that are benefitted, the nature of the aid provided by the state, and the resulting relationship between the state and religious authorities. See Cohen v. City of Des Plaines, 8 F.3d 484, 493 (7th Cir. 1993). Entanglement must be excessive–“interaction between church and state is inevitable, and we have always tolerated some level of involvement between the two.” Agostini v. Felton, 521 U.S. 203, 232-33 (1997). The Project would not lead to the entanglements warned against in Establishment Clause precedent.

The problems occurring in other government interactions with religion do not inhere in the Project. The relationship resulting from the Project is innocuous; it is far from the “fusion of governmental and religious functions” found in Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 126-27 (1982).[3] In Lemon, the giving of state aid to church-related schools was found to involve excessive entanglement because of the necessity of state controls and surveillance over religious institutions and state inspections and evaluation involving religious content. See Lemon, 403 U.S. at 619-20. The Project cannot reasonably be read to necessitate any sort of government oversight of religious institutions or the clergy.

Finally, the nature of the Project cannot be said to foster political divisiveness.[4] The second prong of Lemon poses a more difficult question. Under the second prong government action may not have the principal or primary effect of advancing or inhibiting religion. Government action has such an effect when it amounts to an endorsement of religion. See Fleischfresser, 15 F.3d at 688. There is an endorsement when the government action conveys a message that religion is favored, preferred, or promoted over other beliefs.

Cf. Harris v. City of Zion, 927 F.2d 1401, 1411-12 (7th Cir. 1991). Wisconsin law authorizes six categories of persons to solemnize marriages in the state. See Wis. Stat. ¤ 765.16. Three of the six categories of officiants are in some manner affiliated with organized religion while the other three categories are members of the judiciary, a secular governmental body. See id. Of the six categories of authorized officiants the Project targets only one category of officiants–members of the clergy. “A member of the clergy” is a “spiritual advisor of any religion, whether the advisor is termed priest, rabbi, minister of the gospel, pastor, reverend or any other official designation.” Wis. Stat. ¤ 765.002(l). It is this feature of the Project that plaintiffs argue has the impermissible effect of advancing religion. Courts have found that the broader the class of recipients who may be benefitted by a law the greater the likelihood that it has a secular effect. See Widmar v. Vincent, 454 U.S. 263, 274 (1981) (“The provision of benefits to so broad a spectrum of groups is an important index of secular effect.”). In Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (plurality opinion), a majority of the Supreme Court concluded that legislation that confines its benefits solely to religious organizations shows state sponsorship, or preferential support, of religion in violation of the Establishment Clause. See Texas Monthly, 489 U.S. at 11, 28.

A law must have more than just an effect limited to a class defined by its affiliation with religion. The Project will provide participating members of the clergy with coordination and assistance from a government employee who is available to help them. Defendants contend that the Project Coordinator, although not responsible for developing marriage standards, will act to facilitate dialogue and collaboration with clerical officiants on the subject of marriage standards. See Defs.’ Br. at 21. The Coordinator will disseminate information as an “information clearinghouse” regarding various marriage strengthening programs that members of the clergy would be encouraged to incorporate into their prenuptial curricula. See id. The Coordinator will also act to encourage members of the clergy to adopt standards with which prospective married couples must comport before the officiant will preside over their weddings.

See id. According to defendants, if the Coordinator’s efforts are successful clerical officiants will apply the standards or programs to prospective married couples and a chain of beneficial results will follow. Those couples who meet these standards or undertake prenuptial programs will theoretically have stronger marriages. Stronger marriages are less likely to end in divorce, and society will benefit from a lower divorce rate. As the defendants correctly note, the Project involves no monetary payment directed solely to religious organizations. Nevertheless, under defendants’ formulation of the operation and effects of the Project, it constitutes an indirect subsidy to members of the clergy and their religious organizations in the form of state assistance and services.

By providing assistance and coordination of the clergy’s development of community marriage standards, the Wisconsin legislature has attempted to relieve members of the clergy and their religious organizations from incurring costs attendant with performing the activities involved in such development. In contrast, secular officiants who seek to strengthen the marriages they solemnize must expend their own time and money to duplicate any work performed for clerical officiants by the Project Coordinator in gathering and disseminating information, exchanging ideas with other officiants and coordinating the development and adoption of uniform, communitywide marriage standards. The Project premises the receipt of state assistance solely on an officiant’s affiliation with religion.

This is its fatal constitutional flaw.

The Project’s benefits, in the form of an inkind subsidy, are confined to a strictly and necessarily religious class of recipients. Under the language of the statute the Project Coordinator would not provide assistance to secular officiants. Without even considering whether state assistance may be either helpful or necessary, by providing it only to clerical officiants in an attempt to strengthen marriages, the Wisconsin legislature has favored clerical officiants over the secular and has conveyed a message that religiously solemnized marriages are preferred to those secularly solemnized. Such an imprimatur stamped on religion by the state is a violation of the Establishment Clause.

Since the statute violates the First Amendment’s Establishment Clause it is unnecessary to examine its compliance with the Free Exercise Clause, the Equal Protection Clause or any section of the Wisconsin Constitution. ORDER IT IS ORDERED that defendants’ motion for summary judgment is DENIED. IT IS FURTHER ORDERED that plaintiffs’ motion for summary judgment is GRANTED on the grounds that 1999 Wisconsin Act 9, section 9123(14g) is unconstitutional on the grounds that it violates the First Amendment Establishment Clause of the United States Constitution.

IT IS FURTHER ORDERED that judgment is entered in favor of the plaintiffs and against the defendants declaring that the Community Marriage Policy Project is unconstitutional in violation of the First Amendment Establishment Clause, together with costs. Entered this 25th day of May, 2000. BY THE COURT: JOHN C. SHABAZ District Judge Endnotes 1. An appropriation is “[a] legislative body’s act of setting aside a sum of money for a public purpose.” Black’s Law Dictionary 98 (7th Ed. 1999).

2. Plaintiffs recognize a secular purpose behind the Project: “The purpose behind the Project, no doubt, is to support and strengthen marriages in Wisconsin. That is a laudable goal and, if the Project would attempt to reach that goal in a neutral manner, it might pass the purpose prong of the Lemon test. It does not. The Project would only support and strengthen religious marriages in Wisconsin.” Pls. Br. at 9. Plaintiffs’ subsequent argument serves only to confuse the first and second prongs of the Lemon test. If the Project, as written or implemented, has an effect different from its articulated purpose such a feature of the Project must be analyzed under the “effects” prong. The first and second prongs of Lemon must remain distinct. A statute does not fail the purpose prong because of its effects. 3. Larkin involved a Massachusetts statute that granted religious bodies a veto over liquor license applications.

The Project involves no such transfer of governmental authority or power, nor does it grant the state any ability to dictate matters of religion. That the Project gives the Project Coordinator any influence over religious matters is purely conjectural and has no basis in the language of the statute. The Project Coordinator’s involvement can be limited to secular aspects of marriage. Plaintiffs’ argument to the contrary ignores the fact that even marriages conducted by religiously affiliated officiants have secular requirements and characteristics.

4. Plaintiffs argue that the Project has significant potential for political division. Plaintiffs’ efforts to conjure the specter of political divisiveness are not rooted in reality. This scenario is a far cry from that of the explosive situation created by the statutory funding allocation mechanism surrounding payments to private schools in Decker v. O’Donnell, 661 F.2d 598, 616-17 (7th Cir. 1980). Unlike the potentially divisive scheme in Decker, the Project calls for no direct monetary payments to religious organizations, involves a relatively small amount of state funds, requires no public hearings which could foster dissent and leaves few, if any, resource allocation decisions to the discretion of the Project Coordinator. The Project has no realistic potential for political divisiveness.

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