UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2328
GUADALUPE ROJAS,
Plaintiff - Appellant,
v.
LAWRENCE FITCH, ET AL.,
Defendants - Appellees.
No. 97-1089
GUADALUPE ROJAS,
Plaintiff - Appellee,
v.
DR. LEE H. ARNOLD, ET AL.,
Defendants - Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
Before
Torruella, Chief Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
John W. Dineen, with whom Yesser, Glasson & Dineen was on
brief for appellant Guadalupe Rojas.
Scott Glabman, Attorney, with whom J. Davitt McAteer, Acting
Solicitor of Labor, Charles D. Raymond, Associate Solicitor for
Employment and Training, Legal Services, and Harry L. Sheinfeld,
Counsel for Litigation, U.S. Department of Labor, Office of the
Solicitor, were on brief for appellee Cynthia A. Metzler, Acting
Secretary of Labor.
Rebecca Tedford Partington, Assistant Attorney General, for
appellee Dr. Lee Arnold, Director, Rhode Island Department of
Labor and Training.
Michael G. Dolan, with whom Cadwalader, Wickersham & Taft,
and Gerard P. Cobleigh were on brief for appellee Salvation Army.
October 9, 1997
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TORRUELLA, Chief Judge. Plaintiff-Appellant Guadalupe
TORRUELLA, Chief Judge.
Rojas, a former employee of the Salvation Army, sought a
declaratory judgment that exemptions for religious employers
under the Rhode Island unemployment tax statute and under the
Federal Unemployment Tax Act ("FUTA"), 26 U.S.C. 3301-3311,
violate the Establishment Clause and the Equal Protection Clause
of the federal Constitution, as well as Article I, 3 of the
Rhode Island Constitution, which protects the Freedom of
Religion. She named as defendants the director of the Rhode
Island Department of Employment and Training ("DET") and the
Secretary of the federal Department of Labor. The Salvation Army
intervened as a defendant. The district court rejected all of
Rojas's substantive arguments for declaratory relief, see Rojas
v. Fitch, 928 F. Supp. 155, 162-67 (D.R.I. 1996), and now, on
appeal, she reasserts her federal Establishment Clause and Equal
Protection claims. We affirm.
BACKGROUND
BACKGROUND
The following facts are not disputed. Rojas was a paid
employee of the Salvation Army, serving as a social case worker
from 1988 to 1994, except for a short interruption in 1990 and
1991 when she worked for Catholic Social Services. Rojas was
not, and was not required to be, a soldier or member of the
Salvation Army when employed as a case worker. The Salvation
Army terminated her employment on March 18, 1994, citing
financial constraints.
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Approximately one month after her termination, Rojas
applied for unemployment insurance benefits from the DET. The
DET found that Rojas was ineligible because her former employer,
the Salvation Army, was exempt from contributing to Rhode
Island's unemployment insurance scheme under sections 28-42-8(4)
and 28-44-11 of the Rhode Island General Laws.1 Pursuant to the
exemption for religious employers under section 28-42-8(4), no
taxes were withheld from Rojas's wages by the Salvation Army, and
her income was not reported to the DET. The DET's denial of
benefits was upheld by a DET referee after a hearing, and later
the referee's determination was upheld by the DET Board of
Review.
On September 9, 1994, Rojas initiated an action in
federal district court against the Director of the DET, seeking
declaratory invalidation of the exemption under either the
Establishment Clause,2 the Equal Protection Clause,3 or Article
I, 3 of the Rhode Island Constitution.4 In an amended
1 In 1987, the DET determined that the Salvation Army is a
"church" and thus entitled to an exemption pursuant to R.I. Gen.
Laws 28-42-8(4).
2 U.S. Const. amend. I ("Congress shall make no law respecting
an establishment of religion, or prohibiting the free exercise
thereof . . . .").
3 U.S. Const. amends. V, XIV.
4 Article I, 3 provides, in pertinent part:
. . . no person shall be compelled to
frequent or to support any religious worship,
place, or ministry whatever, except in
fulfillment of such person's voluntary
contract; nor enforced, restrained, molested,
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complaint, Rojas added the Secretary of the Department of Labor
as a defendant, on the theory that FUTA's allowance of state
exemptions for religious employers in the federal-state
unemployment insurance system was an underlying cause of the
Rhode Island exemption she challenged. See 26 U.S.C. 3309(b)
(FUTA provision listing permissible employer exemptions,
including exemption for religious employers). The Salvation Army
was allowed to intervene, without objection, as a defendant.
FUTA establishes a federal-state unemployment benefit
scheme requiring employers to pay a federal excise tax, see 26
U.S.C. 3301 (computing the tax as a percentage of wages of
covered employees), but encouraging the development of state
unemployment insurance programs in the following ways: first,
employers paying into a qualifying state unemployment fund are
entitled to a credit on the federal tax, see 26 U.S.C. 3302,
and second, a qualifying state is entitled to receive federal
grants toward the cost of administering the state's unemployment
or burdened in body or goods; nor
disqualified from holding any office; nor
otherwise suffer on account of such person's
religious belief; and that every person shall
be free to worship God according to the
dictates of such person's conscience, and to
profess and by argument to maintain such
person's opinion in matters of religion; and
that the same shall in no wise diminish,
enlarge, or affect the civil capacity of any
person.
R.I. Const. art. I, 3. Rojas also appealed the decision of the
DET board in state court, a suit which has been stayed pending
resolution of her federal civil action.
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compensation program, see 42 U.S.C. 503. Rhode Island's
unemployment fund qualified for participation in the FUTA system.
FUTA exempts certain classes of employees from
mandatory state coverage by a qualifying state plan. See 26
U.S.C. 3309(b). The current scope of exemptions reflects
amendments made to FUTA by Congress in 1976. The 1976 Amendments
narrowed the set of employees who were exempt from mandatory
state coverage, by requiring, for example, that previously
exempted school employees be covered. In 1970 as well, the scope
of FUTA exemptions was narrowed significantly by Congress when it
repealed a broad exemption previously available to all nonprofit
organizations. See generally California v. Grace Brethren
Church, 457 U.S. 393, 397 (1982) (describing the 1970 and 1976
FUTA Amendments).
Currently, the segments of the labor force that the
states are not required to cover under FUTA section 3309(b)
include persons "in the employ of (A) a church or convention or
association of churches, or (B) an organization which is operated
primarily for religious purposes and which is operated,
supervised, controlled, or principally supported by a church or
convention or association of churches." 26 U.S.C. 3309(b)(1).
Also exempt are employees of small nonprofit organizations
(having fewer than four regular employees), see 3309(c),
elected state employees, see 3309(b)(3), employees at certain
rehabilitation facilities, see 3309(4)(A), and inmates of
custodial or penal institutions, see 3309(b)(6).
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The Rhode Island Employment Security Act ("RIESA"),
R.I.G.L. 28-42-1 et seq., exempts a variety of kinds of
employment from coverage. See R.I. Gen. Laws 28-42-8 (1995).
Apparently tracking the language of FUTA, Section 28-42-8(4)(i)
exempts service performed "in the employ of: (A) A church or
convention or association of churches, or (B) an organization
which is operated, supervised, controlled, or principally
supported by a church or convention or association of churches."
Other exempted employees under RIESA include certain insurance
brokers, golf caddies, certain rehabilitation center employees,
and certain real estate brokers. R.I. Gen. Laws 28-42-8(11),
(9), (4)(B)(iii), (10).
The defendants raised a number of procedural claims
below, all of which were rejected by the district court. Upon
reaching the merits of Rojas's suit, the district court rejected
all of her claims. On appeal, Rojas argues that the Rhode Island
and FUTA exemptions for religions violate the Establishment
Clause and the Equal Protection Clause of the federal
Constitution, while the appellees reassert their claims that
jurisdiction is lacking because of the Tax Injunction Act, 28
U.S.C. 1341 and that the appellant lacks standing.
DISCUSSION
DISCUSSION
Because we find that the appellant's claims fail on the
merits, we need not reach either the claim put forward by the
federal defendant-appellee that Rojas lacks standing to challenge
FUTA or the claim put forward by the state defendant-appellee
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that the Tax Injunction Act bars federal jurisdiction over the
suit. See Norton v. Matthews, 427 U.S. 524, 530-31 (1976);
Hachikian v. FDIC, 96 F.3d 502, 506 n.4 (1st Cir. 1996) ("'It is
a familiar tenet that when an appeal presents a jurisdictional
quandary, yet the merits of the underlying issue, if reached,
will in any event be resolved in favor of the party challenging
the court's jurisdiction, then the court may forsake the
jurisdictional riddle and simply dispose of the appeal on the
merits.'")(quoting United States v. Stoller, 78 F.3d 710, 715
(1st Cir. 1996)).
I. The Establishment Clause Claim
I. The Establishment Clause Claim
At the core of the Establishment Clause is the idea
that government cannot "favor religion over nonreligion, nor
sponsor a particular sect, nor try to encourage participation in
or abnegation of religion." Walz v. Tax Comm'n, 397 U.S. 664,
694 (1970) (Harlan, J., concurring) (noting that while
disagreements over applications of Establishment Clause are
common, its core ideal is well established). In order to
vindicate this constitutional guarantee, two tests have long
guided judicial review of any challenged legislation: first, the
law must have a purpose other than to advance or inhibit
religion; second, the primary effect of the law must not be to
advance or inhibit religion. See, e.g., Abington School District
v. Shempp, 347 U.S. 203, 222 (1963) ("The test may be stated as
follows: what are the purpose and primary effect of the
enactment? If either is the advancement or inhibition of religion
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then the enactment exceeds the scope of legislative power as
circumscribed by the Constitution."). A third practical concern
under the Establishment Clause is that the net effect of
governmental programs avoid "excessive governmental entanglement
with religion." Walz, 397 U.S. at 674.
These threads were united in the well-known three-part
test in Lemon v. Kurtzman, 403 U.S. 602 (1971), which provides:
"First, the statute must have a secular legislative purpose;
second, its principal or primary effect must be one that neither
advances or inhibits religion; finally, the statute must not
foster 'an excessive government entanglement with religion.'" Id.
at 612-13 (quoting Walz)(citation omitted). The district court
applied the Lemon test in the course of holding that FUTA and the
RIESA did not violate the Establishment Clause. See 928 F. Supp.
at 163-66. This approach was appropriate, for the Supreme Court,
despite criticisms of previous applications of the Lemon test,
essentially confirmed in Agostini v. Felton, 117 S. Ct. 1997
(1997), that the Lemon criteria still apply. See 117 S. Ct. at
2010, 2015.
In Agostini, the Court overruled its Establishment
Clause decision in Aguilar v. Felton, 473 U.S. 402 (1985) --
which had barred the New York City Board of Education from
sending public school teachers into sectarian private schools to
teach remedial classes pursuant to Title I -- but nevertheless
stated that the general tests used in analyzing challenged
legislation under the Establishment Clause had not changed. The
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Agostini decision reaffirmed the need to ascertain that laws have
a secular purpose and a primary effect other than advancing
religion, see 117 S. Ct. at 2010, and explicitly incorporated the
entanglement prong into the effects calculus, thereby making the
third prong of Lemon a part of the second prong, see id. at 2016.
The Court in Agostini noted that what has changed since Aguilar
are certain presumptions regarding the effects of neutral laws
that incidentally confer benefits to religions. See 117 S. Ct.
at 2010-13 (stating that the Court no longer considers the
presence of public school employees on parochial school property
to lead ineluctably to the impermissible effect of advancing or
endorsing religion where their presence is part of neutral
program).
The district court properly found that the FUTA and
RIESA exemptions had neither an impermissible purpose, nor an
impermissible effect on religion. First, both the FUTA and the
RIESA exemption provisions serve the secular purpose of
facilitating the administration of the federal-state unemployment
insurance program by excluding from coverage a variety of workers
whose employment patterns are irregular or whose wages are not
easily accountable. With regard to FUTA, Rojas concedes that the
original purpose of the coverage exemptions was to address
administrability concerns. She contends, however, that the
current 26 U.S.C. 3309, viewed in the wake of the 1970 and 1976
Amendments, reflects the purpose of favoring religion rather than
the secular purpose of providing ease of administration. Rojas
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is unable to direct our attention to, nor can we find, any
indications in the legislative history of the 1970 and 1976
Amendments that suggest an impermissible purpose of advancing
religion in general or any particular religion. See, e.g.,
Wallace v. Jaffree, 472 U.S. 38, 56 (1985) ("[T]he First
Amendment requires that a statute must be invalidated if it is
entirely motivated by a purpose to advance religion.").
Moreover, the current exemption for religious employment, even
after the amendments, still rests within the context of a variety
of other exemptions, all of which appear to share a common
secular purpose. Efficient administration of the unemployment
compensation system is particularly enhanced through the
exemptions for religion because it eliminates the need for the
government to review employment decisions made on the basis of
religious rationales. These considerations are also true of the
exemptions listed in R.I. Gen. Laws 28-42-8(1). The exemption
for religions contained therein, when viewed in context, is
innocuous. It appears to serve the interest in facilitating the
administration of federal and state unemployment benefits
programs, and Rojas can point to no other evidence that the
"purpose that animated adoption" was to advance religion.
Edwards v. Aguillard, 482 U.S. 578, 585 (1987). In Walz, the
Supreme Court upheld property tax exemptions for religious
institutions, arguing that such exemptions, although not required
by the Free Exercise Clause, were valid governmental actions
"productive of a benevolent neutrality which will permit
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religious exercise to exist without sponsorship and without
interference." 397 U.S. at 669. Including religious
institutions within a set of unemployment tax exemption
recipients -- selected on the basis of reducing difficulties in
administering an unemployment insurance program -- reflects less
of a desire to sponsor religion than the direct property tax
exemptions upheld in Walz.
Rojas's brief on appeal places much weight on Texas
Monthly v. Bullock, 489 U.S. 1 (1989), which struck down a narrow
Texas sales and use tax exemption for "'periodicals that are
published or distributed by a religious faith and that consist
wholly of writings promulgating the teaching of the faith and
books that consist wholly of writings sacred to a religious
faith.'" Id. at 5 (quoting Texas statute). Although Texas
Monthly stands for the proposition that a subsidy that is granted
only to religious publications and not to other similar
publications "lacks sufficient breadth to pass scrutiny under the
Establishment Clause," it also stated that "[i]nsofar as [a tax]
subsidy is conferred upon a wide array of non-sectarian groups as
well as religious organizations in pursuit of some legitimate
secular end, the fact that religious groups benefit incidentally
does not deprive the subsidy of the secular purpose and primary
effect mandated by the Establishment Clause." 489 U.S. at 14-15.
The exemption provisions at issue in the instant case fall within
the latter category. We decline Rojas's invitation to read Texas
Monthly as requiring that a provision incidentally benefitting
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religion must grant a like benefit to every group that could also
conceivably fall within the secular rationale for the exemption
provision. Texas Monthly nowhere requires this
underinclusiveness analysis, but instead indicates that when a
"wide array" of groups are benefitted by a provision that pursues
a single, unifying, secular end, one of these groups may indeed
be religious institutions. In Texas Monthly, the other Texas
sales tax exemptions did not serve the same purpose as the narrow
exemption for religious periodicals, and thus their existence
could not rescue the challenged exemption. By contrast, an
adequate array of groups are exempted under the FUTA and RIESA
provisions, reinforcing our conclusion that the religious
exemptions here serve the legitimate secular purpose of
facilitating the administration of the unemployment insurance
system.5
The second basic Establishment Clause concern is that
of avoiding the effective promotion or advancement of particular
religions or of religion in general by the government. Although
5 We therefore need not address the defendants' alternative
legal argument in defense of the exemptions, namely that even
were the exemption provided only to religions, it would still
serve the legitimate secular purpose of decreasing governmental
entanglement with religion. It is well established that "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."
Corporation of the Presiding Bishop of the Church of Jesus Christ
of the Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987)
(upholding exemption for religious institutions from Title VII's
prohibition against religious discrimination in employment for
secular activities of a nonprofit). But again, we do not need to
consider whether the exemptions at issue here are supported on
this accommodation rationale.
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favoritism toward any particular sect is not an issue raised by
this appeal, it is not disputed that religious institutions as a
whole benefit from the FUTA and RIESA tax exemptions. An
incidental benefit to religion does not, however, render invalid
a statutory scheme with a valid secular purpose. See, e.g.,
Agostini, 117 S. Ct. at 2014; Zobrest v. Catalina Foothills Sch.
Dist., 509 U.S. 1 (1993); Witters v. Washington Dept. of Servs.,
474 U.S. 481, 488-89 (1986); Walz, 397 U.S. at 664. It is also
worth noting that while religious employers may be benefitted,
the employees of exempted religious institutions, as the
appellant has discovered, may be ineligible to enjoy the
attendant benefits of the unemployment compensation scheme.
Thus, the primary effect of the exemptions is not to force the
general public to subsidize religion. Rather, the primary
practical effect of the exemptions for religious institutions is
to exclude former employees of such institutions from
participating in the Rhode Island unemployment insurance system.
Finally, as the district court correctly reasoned,
entanglement concerns are in fact reduced through the adoption of
the exemptions in this case. See 928 F. Supp. at 165.
II. Equal Protection
II. Equal Protection
With regard to Rojas's claim that the FUTA and RIESA
tax exemptions for religious employers violate constitutional
equal protection principles, we affirm the district court for
substantially the grounds given in its opinion. See 928 F. Supp.
at 166. Although Rojas recasts her equal protection claim
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slightly on appeal, arguing that the district court erred by
focusing on the difference in treatment of employers rather than
on the difference in treatment of employees of exempt and non-
exempt entities, the rationality requirement under the equal
protection clause is equally lenient from either vantage. The
same considerations that led the district court to find no equal
protection violation with regard to the difference in treatment
of exempt and non-exempt employers applies to exempt and non-
exempt employees as well.
CONCLUSION
CONCLUSION
For the reasons stated above, the decision of the
district court is affirmed.
affirmed
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