Indiana Law Review State and Federal Constitutional Law Developments Rosalie Berger Levinson* Table of Contents Introduction 1 143 I. Developments Under the State Constitution 1 143 II. Federal Constitutional Law 1 152 A. Federalism 1152 B. Procedural andSubstantive Due Process 1 160 C. Free Speech andAssociation Rights 1 164 1 . Commercial Speech . 1 1 64 2. Anonymity 1 166 3. Free Speech and Association Rights of Government Employees 1 167 D. Freedom ofReligion 1 1 70 1 . Aid to Parochial Education 1 170 2. Official Acknowledgment of Religion 1 172 3. First Amendment Defense to Suits Brought Against Religious Employers 1 176 Introduction This Article explores key state and federal constitutional law developments over the past year. Part I examines state constitutional law cases, while the remaining materials focus on state and federal court cases that raise significant and recurring federal constitutional issues. I. Developments Under the State Constitution For several years. Chief Justice Randall T. Shepard has urged Indiana practitioners to re-examine the Indiana Constitution as a potential source for the protection of civil liberties.' On the other hand, the Indiana Supreme Court is clearly not anxious to usurp the general assembly's legislative role, and it has repeatedly cautioned that state statutes will be presumed constitutional and that the challenger carries a heavy burden ofproof.^ In Martin v. Richey,^ the court, in a 3-2 decision, struck the balance between these competing concerns by leaving intact on its face Indiana's two-year occurrence-based medical malpractice statute of limitations.^ The court held, however, that the statute is * Professor of Law, Valparaiso University School of Law. B.A., 1969, Indiana University; M.A., 1970, Indiana University; J.D., 1973, Valparaiso University. 1 . See Randall T. Shepard, Second Windfor the Indiana Bill ofRights, 22 IND. L. Rev. 575 (1989). 2. See. e.g., Collins v. Day, 644 N.E.2d 72, 80 (Ind. 1994). 3. 71 lN.E.2d 1273 (Ind. 1999). 4. See id at 1284. 1 144 INDIANA LAW REVIEW [Vol. 33: 1 143 unconstitutional as applied to a plaintiffwho suffered from a medical condition with a long latency period that prevented her from discovering the alleged malpractice within the two-year period.^ Martin claimed that Dr. Richey committed malpractice when he told her that a suspicious lump in her breast was benign based on a needle aspiration he performed. He also allegedly failed to tell her that she needed to follow up with an excisional biopsy and, in fact, had her cancel an appointment she had made for this procedure.^ Three years later, when she discovered that she had breast cancer and that it had spread to her lymph nodes, she sued Dr. Richey. The trial court held that her claim was time barred because the two-year statute of limitations for malpractice ran from the date of "occurrence," not discovery.^ The court of appeals reversed, finding that the different treatment of medical malpractice victims from other tort victims who enjoy a discovery-based statute of limitations violates article I, section 23 of the state constitution,* which provides that "[t]he General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities, which, upon the same terms, shall not equally belong to all citizens."^ In addition, the appellate court held that the statute violated article I, section 12 of the state constitution, '° which guarantees that a remedy "by due course of law" is available to anyone "for injury done to him in his person, property, or reputation."" The Indiana Supreme Court agreed that application of the statute of limitations violates both of these constitutional provisions, although it rejected the appellate court's decision to strike the statute as unconstitutional on its face.*^ The decision nonetheless has potentially broad implications because it is the first case in recent years in which either of these constitutional provisions has been successfully invoked. More specifically, all earlier challenges to Indiana's Medical Malpractice statute under the state constitution were soundly rejected.'^ Thus, Justice Selby faced the difficult task of reconciling her decision with past case precedent. Addressing the article I, section 23 claim, Justice Selby turned to Collins v. Day^^^ in which the Indiana Supreme Court rejected federal equal protection analysis in favor of an interpretation more faithful to the text and the express purpose and intent ofthe framers ofthis state provision.^' To pass muster under section 23, the disparate treatment must be (1) reasonably related to inherent characteristics that distinguish the unequally treated classes and (2) the 5. See id. 6. See id. at 1275. 7. Id at 1 278 (construing IND. CODE §34-1 8-7- 1 (b) ( 1 998)). 8. See id. at 1277. 9. iND. Const, art I, § 23. 10. See Martin, 7 1 1 N.E.2d at 1 277. 11. iND. Const, art I, § 12. 1 2. See Martin, 7 1 1 N.E.2d at 1 28 1 . 13. 5ee iV/. at 1283. 14. 644N.E.2d72(Ind. 1994). 15. SeeidzilS. 2000] CONSTITUTIONAL LAW 1 1 45 preferential treatment must be uniformly applicable and equally available to all persons similarly situated.'^ The Indiana Supreme Court in Collins emphasized that substantial deference must be giten to the legislative judgment, which should be invalidated only "where the lines drawn appear arbitrary or manifestly unreasonable.'"^ Until Martin, all attempts to invalidate state legislative enactments under article I, section 23 had been unsuccessful because of this highly deferential approach.'* In Martin, the plaintiffargued that victims ofmedical malpractice are treated differently than other tort victims where the statute of limitations runs from the date that the plaintiff knew or, in the exercise of ordinary diligence, could have discovered that an injury had been sustained as a result oftortious conduct.'^ As to the first prong oi Collins, the Indiana Supreme Court ruled that the disparate treatment was "reasonably related to characteristics" that distinguished the two groups.^° The Indiana Supreme Court reached this same conclusion and upheld the statute in 1 980, finding that the limitations period was rationally related to the legitimate legislative goal of maintaining sufficient medical treatment and controlling medical malpractice insurance costs by encouraging the prompt presentation of claims and shielding providers from having to defend against stale claims.^' Although these rulings preceded Collins, the highly deferential approach applied post-Collins suggested that no more than a rational basis was needed to sustain the law. Thus, the Indiana Supreme Court in Martin concluded, as it did in 1980, that the classification scheme is reasonably related to legitimate state goals. ^^ Although a classification may later cease to satisfy the requirement ofsection 23 because of intervening changes, nothing in the record warranted re-examination ofthe legitimacy ofthe legislative goal underlying the Medical Malpractice Act or its statute of limitations.^^ 16. Seeidat7S-19. 17. Mat 80. 18. See Rondon v. State, 71 1 N.E.2d 506, 513 (Ind. 1999) (refusal to retroactively apply statutory exemption from death penalty for mentally retarded individuals does not violate Equal Privileges and Immunities Clause with regard to defendant convicted of felony murder and sentenced to death before statute's effective date); see also Indiana High Sch. Athletic Ass'n v. Carlberg, 694 N.E.2d 222, 240 (Ind. 1997) (IHSAA Transfer Rule that gives students who change residence with their parents immediate full varsity eligibility at new school while denying such to students who move without their parents is rationally related to the goal of deterring athletically motivated transfers and the prohibitive cost of monitoring the motives of every transfer). 19. See Martin, 71 1 N.E.2d at 1277. 20. A/, at 1281-82. 21. See'Rohrab&ugh v. Wagoner, 413 N.E.2d 891, 894-95 (Ind. 1980); Johnson v. St. Vincent Hosp., 404 N.E.2d 585 (Ind. 1980), abrogated by Collins v. Day, 644 N.E.2d 72 (Ind. 1994). 22. The court initially acknowledged that section 23 applies regardless ofwhether a statute grants unequal privileges or imposes unequal burdens. See Martin, 71 1 N.E.2d at 1280. 23. Seeid.2X\2S\. 1 146 INDIANA LAW REVIEW [Vol. 33:1 143 As to the second prong of Collins, the Indiana Supreme Court agreed with the lower court's observation that victims ofmedical negligence who are unable to discover their injury/malpractice before the expiration date of the two-year statute of limitations are treated differently than those able to do so, but it disagreed that this provided grounds to invalidate the statute on its face.^'* Rather than compare victims of medical malpractice with victims of other tortious conduct, Justice Selby focused on a subclass ofmedical malpractice victims who cannot discover their injury during the statutory limitation period.^^ She notes that on its face, the statutory provisions do not expressly create "the assertedly unfair or disadvantaged subclassiflcation ofmedical malpractice plaintiffs."^^ It is only as appliedto this sub-class who are unable to file any claim at all that the statute fails the "uniformly applicable" standard of Collins}'^ Further, it is only with regard to this subclassiflcation that the statutory goal of lowering medical costs by encouraging the prompt filing of claims becomes irrational.^^ The supreme court thus limited its holding as follows: [P]laintiffcannot be foreclosed from bringing her malpractice suit when, unlike many other medical malpractice plaintiffs, she could not reasonably be expected to discoverthe asserted malpractice and resulting injury within the two-year period given the nature of the asserted malpractice and of her medical condition.^' Although this passage appears to reach only an "unconstitutional as applied" determination. Chief Justice Shepard, in dissent, opines that he cannot envision any cases where the statute could be constitutional.^^ He explains that the very purpose of the statute is "to adopt an event-based limit rather than a discovery- based limit."^* If the majority finds that the law is unconstitutional as to those who cannot promptly discover their injury, in essence it has invalidated the occurrence-based limit and the law cannot stand. This would be clearly contrary to a long line ofcases rejecting this same constitutional challenge. Although the majority purports to limit its decision to the malpractice victim who suffers from a "medical condition with a long latency period" that prevents early discovery, the crux of the holding is the impermissibility of applying the statute to any malpractice victim who could not with due diligence discover the tort at an earlier point in time.^^ On the other hand, by taking an "as applied" approach. Justice Selby leaves intact the 1980 decisions upholding the limitations period, while preventing the arbitrary result of denying Martin the right to pursue her 24. See id. 25. See id. 26. Id 27. Id 28. See id. 29. Id at 1282. 30. See id. at 1286 (Shepard, C.J, dissenting). 31. Id 32. Id at 1277. 2000] CONSTITUTIONAL LAW 1147 claim. As to the article I, section 12 claim, the appellate court ruled that the occurrence-based medical malpractice statute of limitations was an "unconstitutional abrogation ofthe right to a complete tort remedy" guaranteed by this provision." The Indiana Supreme Court rejected this rationale, again refusing to invalidate the statute on its face and declining "to formulate a rule of constitutional law broader than is required by the precise facts at issue."^^ Justice Selby acknowledged a long line of cases allowing the legislature to modify or abrogate common law rights, including cases specifically sustaining the medical malpractice statute of limitations against a facial challenge under section 12.^^ As in the case of its article I, section 23 analysis, the supreme court instead ruled that the statute was unconstitutional as applied to a plaintiff who has "no meaningful opportunity to file an otherwise valid tort claim within the specified statutory time period."^^ The court reasoned that to deny a cause ofaction under circumstances where the "plaintiffdid not know or, in the exercise ofreasonable diligence, could not have discovered that she had sustained an injury as a result ofmalpractice . . . would impose an impossible condition on plaintiffs access to courts and ability to pursue an otherwise valid tort claim."" Under the circumstances ofthis case where plaintiffwas unaware she had a malignancy and Dr. Richey assured her that the mass was just indicative of non-life threatening fibrocystic breast disease, application of the statute of limitations would, in essence, require plaintiff "to file a claim before such claim existed."^* Although the supreme court cautioned that Indiana citizens do not have a "fundamental right"^^ of access to the courts, nor a fundamental right to a complete tort remedy, the decision is significant in that it represents the first case in twenty-two years in which a plaintiffhas successfully invoked this provision. In 1977, in City ofFort Wayne v. CameronJ^^ the Indiana Supreme Court ruled that an occurrence-based notice provision, requiring the city to be placed on notice within sixty days of alleged tortious conduct, was unconstitutional as applied to a plaintiff who was mentally and physically incapacitated during the statutory notice period. Application ofthe law under such circumstances would deprive a litigant of his constitutional right to a remedy by due course of law.*' However, case law since Cameron, including some six decisions cited by Justice Sullivan in a concurring opinion in Martin, specifically rejected the claim that the Medical Malpractice Act's statute of limitations violates article I, section 33. Id. at 1282 (quoting Martin v. Richey, 674 N.E.2d 1015, 1026 (Ind. Ct. App. 1997)). 34. Id. 35. See id. ai\2S3. 36. Mat 1284. 37. Id 38. Id. at 1285. 39. Id at 1283. 40. 370 N.E.2d 338 (Ind. 1 977). 41. See id at 341. 1148 INDIANA LAW REVIEW [Vol. 33:1143 12/^ In fact, three years after Cameron, the Indiana Supreme Court in Rohrabaugh v. Wagoner^^ rejected a similar state constitutional challenge under sections 12 and 23, to the limitations period regarding minors. Justice DeBruler acknowledged the potential arbitrariness of the statute, but nonetheless emphasized that statutes are presumed constitutional."^ It sufficed that the classification scheme was generally accurate: "There can be no doubt that this measure is a stem one and will have harsh application in individual cases. However, a court has no authority to annul a statute because of that fact.'"^^ The same words could have been written to describe the plight of Melody Martin. Thus, despite the majority's reluctance to use sections 12 and 23 to invalidate the statute on its face, its decision breathes new life into these provisions, inviting practitioners to invoke the state constitution in cases where a statute creates irrational distinctions or "imposes an impossible condition" that operates to arbitrarily deny a remedy for the violation ofcommon law rights. On the other hand, it should be noted that only two Justices, Dickson and Boehm, joined in Justice Selby's opinion in Martin. Justice Sullivan concurred in Martin based solely on the existence of fact questions regarding plaintiffs claim that the statute of limitations should be tolled based on the doctrine of active fraudulent concealment."*^ He specifically rejected the state constitutional arguments and contended, together with ChiefJustice Shepard, that case precedent dictates that the statute is valid."*^ Since Justice Selby has stepped down from the court, the future of state constitutional arguments brought under section 12 or section 23 remains in doubt."** The Indiana Supreme Court further explicated its Martin decision in a companion case, Van Dusen v. Stotts.^^ In that case, the plaintiff, William Stotts, was told by a physician that, based on a needle biopsy, his tumor was benign. Two and one-halfyears later, Stotts learned that he had incurable prostate cancer. The doctor told Stotts that the initial biopsy may have been improperly read.^^ Like the plaintiff in Martin, he was unable to discover the malpractice and the resulting injury within the two-year statutory period.^* The supreme court explained that plaintiffs in such circumstances may file their claims within two years of the date when they discover the malpractice and the resulting injury or facts that, in the exercise ofreasonable diligence, should lead to the discovery of 42. See Martin, 71 1 N.E.2d at 1285 (Sullivan, J., concurring). 43. 413 N.E.2d 891, 894-95 (Ind. 1980). 44. See id. at 895. 45. Id. 46. See Martin, 71 1 N.E.2d at 1285 (Sullivan, J., concurring). 47. See id at 1285-86. 48. Newly appointed Justice Robert Rucker, while sitting on the court of appeals, did not participate in any lower court opinions addressing these constitutional provisions. 49. 712 N.E.2d 491 (Ind. 1999). 50. See id. at 494. 5 1 . See id. 2000] CONSTITUTIONAL LAW 1 1 49 the malpractice and the resulting injury .^^ The supreme court acknowledged that its analysis may raise difficult factual questions as to when a plaintiff should have discovered the injury.^^ It noted that "[although] a plaintiffs lay suspicion that there may have been malpractice is not sufficient to trigger the two-year period[,] ... a plaintiff need not know with certainty that malpractice caused his injury."^'* Further, "when it is undisputed that plaintiffs doctor has expressly informed a plaintiff that he has a specific injury and that there is a reasonable possibility . . . that . . . [it] was caused by a specific act at a specific time," the plaintiffwill be "deemed to have sufficient facts to require him to seek promptly any additional medical or legal advice needed to resolve any remaining uncertainty . . . regarding the cause of his injury."^^ In this case, once the doctor informed the plaintiffthat he had prostate cancer and that it was possible that the biopsy ofthe tumor was misread, the two-year period was triggered.^^ Plaintiffs complaint was filed within two years and was therefore timely. In short, Martin and Van Dusen read together mean that as to those who reasonably fail to discover the malpractice within two years, the limitations period will be tolled until discovery, from which point plaintiff is entitled to two years in which to bring a lawsuit. Because "discovery" arguably may not occur until several years after the occurrence of medical malpractice, the Act's stated goal of creating some certainty regarding the duration of liability of doctors and health care providers has been thwarted. On the other hand, several malpractice victims have already benefitted from these rulings. ^^ Although Martin found the statute of limitations to be unconstitutional only as applied to a sub-class of individuals who could not, with due diligence, have discovered the malpractice until after the two years had run, an appellate court has extended this analysis to save a claim brought by a victim who learned ofthe malpractice within the two-year period but who did not file a complaint until after the limitations period lapsed. In KC. Boggs v. Tri-State Radiology,^^ the plaintiff went in for a mammogram in July 1991, and was told there was no abnormality. When she returned for her annual mammogram in July 1992 she 52. See id. at 495. 53. Seeid.2XA99. 54. Id. 55. Id 56. See id. 57. See Harris v. Raymond, 715 N.E.2d 388 (Ind. 1999) (holding that plaintiff who did not discover that her dental implant was defective until years later because her physician failed to inform her that the FDA had issued a safety alert regarding this product, could not, like Martin, have discovered the problem during the limitations period and thus application of the statute of limitations would deprive her of a claim before she had any reason to know it existed); see also Weinberg v. Bess, 717 N.E.2d 584 (Ind. 1999) (holding that because plaintiff had no reason to suspect that her doctor gave her silicone rather than the saline breast implants she requested, her filing of a complaint two months after she discovered the truth in her medical records fell within the statutory period); Halbe v. Weinberg, 717 N.E.2d 876 (Ind. 1999) (same fact pattern as Bess). 58. 716 N.E.2d 45 (Ind. Ct. App. 1999), affd, 730 N.E.2d 692 (Ind. 2000). 1 150 INDIANA LAW REVIEW [Vol. 33:1 143 learned she had Stage IV breast cancer and, in fact, she died one year later at the age of fifty-two.^' Her estate filed a claim in July 1994, within two years of having discovered the malpractice, but three years after the occurrence. The court conceded that applying the limitations period to this claim would not violate section \2.^ Unlike Martin, R.C. was not denied a meaningful opportunity to bring a claim since she had eleven months from the time the malpractice was discovered in which to file her lawsuit.^^ However, the court proceeded to find that application ofthe statute under these circumstances would still violate section 23 .^^ Although application ofthe two-year rule to individuals like R.C. does not harm members of a subgroup who could not discover the malpractice within the statutory period, it nonetheless creates two subclasses who are treated differently without any rational justification.^^ A strict reading of Martin means that only those who cannot discover the malpractice within the statutory period enjoy two years from the actual date of discovery to file a lawsuit. Others, like R.C, who discover the malpractice within the two years, even if it is one day or one hour before the end ofthe two-year period, may lose their claim ifthey fail to act immediately. By focusing attention on victims who discover the malpractice one day before versus one day after the two-year limitations period, the irrationality of denying R.C. relief becomes apparent.^ The general reluctance of the Indiana Supreme Court to explore state constitutional arguments is reflected in its decision in a recent defamation case. In Journal-Gazette Co. v. Bandido 's, Inc.,^^ the supreme court was asked to re- examine Indiana libel law, which mandates that all victims of libelous material which is "newsworthy" must meet an "actual malice" standard, that is, they must prove at minimum that the false material was published with reckless disregard for its truth in order to recover. In 1974, an appellate court in AAFCO Heating & Air Conditioning Co. v. Northwest Publications Inc.,^ rejected the notion that private victims of libel, as opposed to public officials or public figures, should be able to maintain suits based merely on a negligence theory.^^ Six months earlier the U.S. Supreme Court in Gertz v. Robert Welch, Inc.,^^ had held that private victims of libel deserved greater protection and should not be held to the actual malice test.^' The U.S. Supreme Court reasoned that private individuals do not ordinarily voluntarily relinquish their right to be free from defamatory 59. See id. at 46. 60. See id at 48. 61. See id at 47. 62. See id. at 49. 63. See id. 64. See id at 50. 65. 712 N.E.2d 446 (Ind. 1999), cert, denied, 120 S. Ct. 499 (1999). 66. 321 N.E.2d 580 (Ind. Ct. App. 1974). 67. See id. at 586. 68. 418 U.S. 323(1974). 69. See id at 343-44. 2000] CONSTITUTIONAL LAW 1151 material, like public figures or public officials/^ Thus, although states cannot impose strict liability, they may allow private citizens to recover in a libel suit by merely proving negligence.^' Although individual states retained the option of imposing a stricter standard more protective of the press, all but four states adopted the negligence standard for private victims oflibel/^ In Indiana,A4FC0 remained the law. Since 1974, AAFCO^s actual malice rule has been justified by invoking article I, section 9 of the state constitution that broadly guarantees free expression "on any subject whatever," but which also admonishes that speakers may be held accountable "for abuse of that right. "^^ In urging the Indiana Supreme Court to reverse^FCO, plaintiffs relied on the "abuse" clause as well as article I, section 12 of the state constitution, which specifically guarantees a remedy by due course of law for injury to reputation.^'* The majority in Bandido 's refused to enter the quagmire of interpreting these two competing constitutional provisions. Instead, the court in Bandido 's, without invoking section 9, simply acknowledged^FCO as the well-established defamation law of Indiana.^^ Justice Dickson, dissenting in Bandido 's, addressed the constitutional issues. He argued that tortious defamation is an abuse ofthe right to free expression and thus is not protected by section 9 ofarticle I ofthe Indiana Constitution.^^ Further, he relied on article I, section 12 to support his view that private victims of libel should be able to recover on a negligence, rather than an actual malice, standard.^^ 70. See id at 344-45. 71. See id &t346-4S. 72. Other than Indiana, only Alaska, Colorado and New Jersey still use the ''actual malice'' standard for private victims of libel. See Gay v. Williams, 486 F. Supp. 12, 15 (D. Alaska 1979); Diversified Management, Inc. v. Denver Post, Inc., 653 P.2d 1 103, 1 106 (Colo. 1982); Sisler v. Gannett Co., 516 A.2d 1083, 1095 (N.J. 1986), q^don reh 'g, 536 A.2d 299 (N.J. Super. Ct. App. Div. 1987). 73. Near East Side Community Org. v. Hair, 555 N.E.2d 1324 (Ind. Ct. App. 1990). 74. Article I, section 1 2 ofthe Indiana Constitution guarantees a remedy "[for] every person, for injury done to [an individual's] . . . person, property or reputation ... by due course of law." Ind. Const, art. I, § 12. 75. See Journal-Gazette Co. v. Bandido's Inc., 712 N.E.2d 446, 469 (Ind. 1999), cert, denied^ 120 S. Ct. 499 (1999). Justice Sullivan reasoned that stare decisis was his major concern and AAFCO had been the law in Indiana for some twenty-five years. 76. See id. at 489 (Dickson, J., dissenting). 77. See id. Chief Justice Shepard concurred in Justice Dickson's decision that Indiana should join the majority of states that allow private victims of libel to recover on a negligence theory. He also wrote a separate dissent in which he did not, however, address the constitutional issues. Justice Boehm concurred and summarily concluded that adopting an actual malice standard gives appropriate recognition to the balance necessary between the conflicting values found in sections 9 and 12. See id. at 469 (Boehm, J., concurring). 1 152 INDIANA LAW REVIEW [Vol. 33:1 143 II. Federal Constitutional Law A. Federalism The most significant constitutional decisions of the Rehnquist Court this Term further expanded the doctrine ofstate sovereignty. In recent years, the U.S. Supreme Court has invoked the Tenth and Eleventh Amendments to greatly limit Congress' power both to enact laws aimed at states and to subject states to suit for violating federal laws. As to the Tenth Amendment, which reserves power not delegated to the federal government to the states, the Court two years ago in Printz V. United StatesJ^ invalidated the Brady Handgun Act because it impermissibly commanded the states' chief law enforcement officers to search records to ascertain whether a person could lawfully purchase a handgun.^' The Court reasoned that the history and structure of the Constitution prohibit Congress from utilizing the Commerce Clause to compel state executive officers to enforce a federal regulatory program.*^ In a second significant ruling. United States V. Lopez,^^ the Court ruled that Congress exceeded its power in passing a federal criminal statute prohibiting the possession of a firearm within 1000 feet of a school. The Court stated that Congress failed to make clear findings demonstrating that the regulated activity substantially affected interstate commerce, and Congress sought to regulate criminal activity that had nothing to do with commerce.*^ In addition, the statute was not limited to firearms that had traveled in interstate commerce and it governed areas historically left to states, namely criminal law enforcement and education.*^ This Term federalism is revisited regarding three significant federal statutes. The Fourth Circuit in Condon v. Reno,^ addressed the validity of the Driver's Privacy Protection Act (DPPA),^^ which regulates the dissemination and use of information contained in state motor vehicle records and prohibits state departments from disclosing personal information. The Fourth Circuit ruled that this was an unconstitutional exercise ofcommerce power that violated the Tenth Amendment because, as in Printz, it forced state employees to administer a federal regulatory program.*^ Chief Justice Rehnquist delivered the unanimous opinion ofthe Court reversing this holding. The Court ruled that the DPPA does not violate Tenth Amendment federalism principles because it does not "require 78. 521 U.S. 898(1997). 79. See id at 926. 80. See id at 903-34. 81. 514 U.S. 549(1995). 82. See id at 561-63. 83. See id at 562-64. 84. 155 F.3d 453 (4th Cir. 1998), rev 'd, 120 S. Ct. 666 (2000). 85. 18 U.S.C. §§ 2721-2725 (1994 & Supp. III). 86. Note that the Seventh Circuit reached a contrary result, upholding the Act in Wisconsin Department a/Transportation v. RenOy 163 F.3d 1000 (7th Cir. 1998), cert, denied, 120 S. Ct. 93 1 (2000). 2000] CONSTITUTIONAL LAW 1 1 53 the states in their sovereign capacity to regulate their own citizens [but rather] regulates the states as the owners of databases."*^ The Court distinguished** Printz and New York v. United States*^ as follows: [T]he DPPA does not require the states in their sovereign capacity to regulate their own citizens .... It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement offederal statutes regulating private individuals.^ Finding no Tenth Amendment violation, the Court also held that the Act has a valid exercise of congressional power under the Commerce Clause.^' The information that the DPPA regulates is a "'thing in interstate commerce,' and . . . the sale or release of that information in interstate commerce is therefore a proper subject of congressional regulation."^^ The Court this Term will also determine whether Congress exceeded its power in enacting the 1994 Violence Against Women Act that creates a right "to be free from crimes ofviolence motivated by gender."^^ In Brzonkala v. Virginia Polytechnic Institute,^^ the Fourth Circuit, relying on Lopez, ruled that this statute,^^ which creates a private cause of action against anyone who commits gender-motivated crimes, was an unconstitutional exercise of power despite congressional findings that gendermotivated violence adversely affects interstate commerce.^ Finally, in United States v. Jones^^ it will decide whether the federal arson statute^* should be interpreted to apply to a private residence and, if so, whether this application is constitutional. The statute purportedly reaches 87. Condon, 120 S. Ct. at 672. 88. It likened the regulatory requirements ofthe DPPA to those upheld in South Carolina V. Baker, 485 U.S. 505 (1998) (statute that prohibited states from issuing unregistered bonds was constitutional because it regulated state activities and did not seek to control or influence the manner in which states regulate private parties). 89. 505 U.S. 144(1992). 90. Condon, 1 20 S. Ct. at 672. 91. U.S. Const, art. I, § 8, cl. 3. 92. Condon, 120 S. Ct. at 671 (quoting United States v. Lopez, 514 U.S. 549, 558-59 (1995)). 93. 42U.S.C.§ 13981(1994). 94. 169 F.3d 820 (4th Cir.), cert, granted sub nom. United States v. Morrison, 120 S. Ct. 1 1 (1999). The Court's decision in Morrison will be discussed in next year's Survey Issue. 95. § 13981 (1994). 96. See Brzonkala, 169 F.3d at 845-59. Further, the Act could not be sustained as a constitutionally legitimate exercise of power under the Fourteenth Amendment because this Amendment does not permit Congress to make such a "sweeping intrusion" into areas of behavior traditionally regulated by the states. Id. at 867-89. 97. 178 F.3d 479 (7th Cir.), cert, granted, 120 S. Ct. 494 (1999), and rev 'd by 120 S. Ct. 1904 (2000). The Court's reversal will be discussed in next year's Survey Issue. 98. 18U.S.C. §844(i). 1 154 INDIANA LAW REVIEW [Vol. 33:1 143 only arson ofproperty "used in interstate or foreign commerce or in any activity affecting" such commerce.^ The Seventh Circuit sustained a broad reading of the law, reasoning that the collective effect of arsons on buildings or even residences establishes the requisite substantial effect on commerce. '°*^ Despite the unanimity of the decision in Condon, it is likely the Court, which has often split down the middle in the volatile federalism battle, will not reach common ground in these two cases because they address laws reaching non-commercial activity. The Court let stand a Seventh Circuit decision upholding the constitutionality of an amendment to the Gun Control Act of 1968 against a Tenth Amendment challenge. *°' An Indianapolis police officer sought to rely on the Tenth Amendment to invalidate a 1996 amendment to the Gun Control Act of 1968, which prohibits a person who has been convicted in any court ofa misdemeanor claim ofdomestic violence from owning a firearm.^^^ The so-called Lautenberg Amendment applies to law enforcement officers, and it was invoked by the Indianapolis Police Department to terminate a police officer who pled guilty to a misdemeanor battery offense involving his ex-wife. In Gillespie, the Seventh Circuit ruled that this provision does not invade state sovereignty in violation of the Tenth Amendment. ^°^ The court held that the amendment was a proper exercise of Congress' power under the Commerce Clause because, unlike the statute in Lopez, the law contained an express requirement that the prosecution prove the firearm in question was shipped or transported in interstate commerce. '°^ This "jurisdictional nexus" requirement distinguished the case from Lopez}^^ Further, the court ruled that it was not constitutionally significant that the firearms ban happened to include individuals employed in state and local law enforcement. *°^ The law had only an ancillary effect on the employment of such officers and, unlike the law in Printz, it did not force states to administer and enforce a federal regulatory program. *°^ The Supreme Court closed its 1998-99 Term with three major decisions interpreting the EleventhAmendmentthat bars suit against states in federal court. These holdings dramatically curtail the power of Congress to provide ajudicial forum for redress of state infringement of federal rights. One case, Alden v. Maine,^^^ involved a suit broughtby probation officers who claimed that the State of Maine violated the Fair Labor Standards Act (FLSA) by failing to observe 99. Id 100. See Jones, 178 F.3d at 480-81. 101. See Gillespie v. City ofIndianapolis, 185 F.3d 693 (7th Cir. 1999), cert, denied, 120 S. Ct. 934 (2000). 102. See 18 U.S.C. §§ 922(d)(9), 925(a)(1) (Supp. IV 1998). 1 03. See Gillespie, 1 85 F.3d at 697. 104. See id 2A 706. 105. Mat 698. 106. See id ^t 107. 107. See id 3X70^. 108. 1 19 S.Ct 2240(1999). 2000] CONSTITUTIONAL LAW 1155 overtime provisions.'*^ The employees first brought suit in federal district court, seeking compensation and liquidated damages. Because the Supreme Court in Seminole Tribe ofFlorida v. Florida,^^^ held that Congress does not have the power under Article I to abrogate the states' Eleventh Amendment immunity from damage suits in federal court, the case was dismissed. Because, however, the amendment only bars suit in federal court, the employees re-filed their action in state court.''' The U.S. Supreme Court ruled that Congress lacks the power under Article I to subject non-consenting states to private suits in their own courts as well."^ A five-Justice majority reasoned that state sovereign immunity is neither derived from nor limited by the terms of the Eleventh Amendment: "[T]he States' immunity from suit is a fimdamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today ""^ The Courtjustified its landmark decision by relying on the original intent of the framers of the Constitution as well as the common understanding of those who framed and ratified the document. ' ^^ Justice Kennedy inAlden admitted that the "historical record gives no instruction as to the founding generation's intent to preserve the States' immunity from suit in their own courts," but he interpreted congressional silence to mean that the framers never envisioned that Article I would strip states oftheir then-existing immunity from suit. "^ The Court did not invalidate the Fair Labor Standards Act as applied to state employers, nor did it overturn its 1985 holding in Garcia v. San Antonio Metropolitan Transit Authority^^^^ which specifically rejected the state sovereignty argument. What the Alden Court did, however, was to deny a judicial forum in which private citizens can enforce their federal rights. The Court's decision in essence approved complete jurisdictional preclusion—a state employee who feels he is owed back wages or overtime under the FLSA has no forum in which to seek a remedy. The Supreme Court tried to mitigate the apparent harshness of its holding by itemizing several arguments to support its contention that protecting sovereign immunity will not give states carte blanche power to disregard the Constitution or valid federal laws."^ First, the Department of Labor may still pursue FLSA claims on behalf of employees against a non-complying state in either state or federal court (provided it decides to invest resources to do this)."* Neither the Eleventh Amendment nor the broader state immunity doctrine, which it 109. See id at 2246-47. 110. 517 U.S. 44 (1996). 111. See Alden, 119 S.Ct. ^12246. 112. See id. 113. Id at^2246-47. 114. See id at 2260. 115. Id 116. 469 U.S. 528(1985). ' 117. See Alden, U9S,Ctai2269. 118. See id. 1156 INDIANA LAW REVIEW [Vol. 33:1143 purportedly embodies, bars suits against states brought by the United States or federal agencies. ' ^^ Paradoxically, the Court' s approach would mandate creation of a broad federal bureaucracy, contrary to concerns of federalism. Second, the Court noted that sovereign immunity does not bar actions against state officers for injunctive or declaratory relief—^the sovereign immunity concern focuses only on damages. ^^° Third, the Court explained that states are free to enact, and some have indeed enacted statutes consenting to a wide variety of suits. ^^' Throughout the decision, the Court expressed its trust in state officials, proclaiming that ajudicial forum is not necessary because we can trust that states will voluntarily comply with federal law. Obviously this comforting remark rings hollow in Alden where the state has in fact denied its employees a forum in which to vindicate violation of their federal right to overtime pay. Fourth, the Court emphasized that its decision is based on the fact that Congress was exercising Article I powers, leaving intact the notion that when Congress acts under Section 5 of the Fourteenth Amendment, states may be forced to surrender a portion of their sovereignty preserved to them by the original Constitution.'^^ In Fitzpatrickv. Bitzer,^^^ Justice Rehnquist, one ofthe most staunch advocates ofthe states' rights movement, confirmed that Congress may authorize private suits against non-consenting states in federal court pursuant to its Section 5 enforcement power since the Fourteenth Amendment itself fundamentally altered the balance of state-federal power. '^"^ Despite its recognition of Congress' broader power to restrict states' rights when it enacts legislation under Section 5 of the Fourteenth Amendment, the Court, in its two other federalism decisions last term, rejected congressional attempts to justify legislation under this provision. In the process, the Court further refined the limits of Congress' power under Section 5, first pronounced in City ofBoerne v. Floras}^^ In that case, the Court struck the federal Religious Freedom Restoration Act (RFRA),'^^ which subjected state laws to strict scrutiny whenever they interfere with religious liberty. The U.S. Supreme Court had interpreted the Free Exercise Clause to trigger only a rational basis analysis with regard to facially neutral, generally applicable statutes. '^^ The Court reasoned 119. See id. 120. ^ee /fDIANA LAW REVIEW [Vol. 33:1 143 during the night shift. When she returned to the information desk, she was subjected to close surveillance by a supervisor,^^^ her lunch break was reduced from one hour to forty minutes, and she was required to ask a male supervisor for permission to go to the bathroom.^^* Finally, her request to transfer her PERF pension to the police pension fund was delayed.^"*^ Nonetheless, the court rejected plaintiff's claim because she was not disciplined, threatened with discipline, reprimanded, or demoted, nor did she lose any pay.^^^ Despite the litany of harassment, the court concluded that none of this would deter the ordinary person from holding political beliefs.^^^ The court's crabbed reading of the First Amendment ignores the chilling effect retaliatory action has on government employees. It also sends a misconceived message to employers that they may harass with impunity provided the retaliatory action does not deny economically tangible job benefits. Although retaliatory conduct must be significant enough such that it would deter a person from exercising her First Amendment rights, cases in the Seventh Circuit suggest that low performance evaluations and job transfers that dramatically alter tasks, even though not accompanied by salary reduction, may trigger First Amendment protection.^^^ D. Freedom ofReligion 1. Aidto ParochialEducation.—One ofthe most controversial and recurring constitutional issues facing the U.S. Supreme Court is whether parochial education may be funded by government vouchers issued to parents to pay tuition at the school of their choice. The Court in 1998 denied certiorari in the case of Jackson v. Benson^^^ leaving intact the Wisconsin Supreme Court ruling that such voucher systems are constitutional, at least where eligibility criteria are religion neutral. On the other hand, courts in Vermont, Maine, Ohio, and Puerto Rico have invalidated voucher programs.^^* 247. &e id at 1114. 248. See id. 249. 5eeidatll26. 250. Seeid.^\\n\. 251. Seeid.?L\\\l%. 252. See Hulbert v. Wilhelm, 120 F.3d 648, 654-55 (7th Cir. 1997) (lower performance evaluation and lower cost of living salary increase constitute adverse job actions); see also Dahm V. Flynn, 60 F.3d 253, 256-57 (7th Cir. 1994) (dramatic downward shift in skill level required to perform job duties can constitute adverse employment action and thus precludes summary judgment); Glass v. Dachel, 2 F.3d 733, 742 (7th Cir. 1993) (letter ofreprimand may be viewed as retaliatory action). 253. 578 N.W.2d 602 (Wis.), cert, denied, 1 19 S. Ct. 466 (1998). See also Kotterman v. Killian, 972 P.2d 606, 626 (Ariz.) (upholding the use oftax credit to support private and sectarian schools), cert, denied, 120 S. Ct. 283, cert, denied, 120 S. Ct. 42 (1999). 254. See Bagley v. Raymond Sch. Dep't, 728 A.2d 127 (Me.), cert, denied, 120 S. Ct. 364 (1999); Chittenden Town Sch. Dist, v. Department ofEduc, 738 A.2d 539 (Vt.), cert, denied, 120 S. Ct. 626 (1999); Assoc, de Maestros de Puerto Rico v. Torres, 1994 WL 780744 (P.R. Nov. 30, 2000] CONSTITUTIONAL LAW 1171 The increase in voucher statutes has been fueled in part by the U.S. Supreme Court's 1997 decision in Agostini v. Felton^^^ which overturned earlier restrictive decisions and held that it was permissible for the federal government to fund remedial instruction and counseling for disadvantaged students in parochial schools.^^^ In a narrow 5-4 ruling, the majority reasoned that sending publicly-paid teachers into religious schools to help students with such subjects as math, science, and English, does not violate the constitutionally required separation between church and state.^^^ The Court emphasized that providing remedial education pursuant to Title I of the 1965 Elementary and Secondary Education Act^^^ would not supplant the cost of regular education nor would it create a financial incentive to undertake religious education, thus perhaps distinguishing the voucher situation.^^' In addition, no actual dollars flowed into the coffers of the religious schools, whereas voucher checks are signed over to parochial schools by parents without any restrictions as to how the funds will be expended.^^ The mere size of the financial aid could swing one vote to invalidate such programs, at least if offered on a large scale. On the other hand, the Court in Agostini more broadly asserted that aid to parochial schools would not be deemed to impermissibly advance religion if "it does not result in governmental indoctrination, define its recipients by reference to religion, or create an excessive entanglement."^^' Although the U.S. Supreme Court has thus far denied certiorari in the voucher and tax credit cases, it may very likely clarify its position on "paroch- aid" this term. It has agreed to review the constitutionality of Title I (the same statute at issue in Agostini) as applied to the loan of state-owned instructional equipment, including computers and software, to religious schools. In Helms v. Picard^^^ the Fifth Circuit ruled that the assistance violated the Establishment Clause because the equipment could readily be used to advance the sectarian 1994) (unreported). In an Ohio case the U.S. Supreme Court has granted an application to stay a federal district court order, which preliminarily enjoined implementation ofa state's tuition voucher program, whereby scholarship payments could be made by the state to private schools providing education to certain students from kindergarten through eighth grade. The district court ruled that because the overwhelming number of private schools participating in the program were sectarian, financial assistance would not satisfy the Establishment Clause requirement that government action cannot advance religion. See Simmons-Harris v. Zelman, 54 F. Supp.2d 725 (N.D. Ohio), stay granted, 120 S. Ct. 443 (1999) (Justices Stevens, Souter, Ginsburg and Breyer would deny the application for stay). 255. 521 U.S. 203 (1997). 256. See id. at 240. 257. &e/V/. at 226-28. 258. 20 U.S.C. §§ 6301-8962 (1994 & Supp. Ill 1997). 259. See Agostini, 521 U.S. at 229. 260. 5eezV/. at2013. 261. Mat 234. 262. 151 F.3d 347 (5th Cir. 1998), cert, granted sub nom., Mitchell v. Helms, 1 19 S. Ct. 2336(1999). 1 1 72 INDIANA LAW REVIEW [Vol. 33 : 1 143 mission ofthe schools. In recent years, several Justices have vociferously argued that the current test for ascertaining whether the wall between church and state has been breached is too restrictive and should be replaced by a more "accommodationist" approach.^^^ The current standard mandates that any government program have a secular purpose and its primary effect cannot advance religion. In addition, the program cannot create excessive entanglement between church and state.^^ Using this "test," the U.S. Supreme Court in the 1 970s invalidated most forms ofdirect assistance to parochial schools, other than textbooks.^^^ Although never formally overturned, the Court's recent decisions appear to ignore this analysis. Justice O'Connor has tried to persuade her colleagues that the Establishment Clause is violated only where the government has endorsed or demonstrated approval ofreligion.^^ Justices Rehnquist, Scalia and Thomas contend that a violation occurs only when government discriminates among religious organizations or imposes coercive pressure to engage in religious activities.^^^ Justices Ginsburg, Breyer, Souter and Stevens would apparently maintain the stricter separationist approach.^^^ Thus far, no majority position has emerged. Mitchell V. Helms^^^ provides the Court an opportunity to further explicate its Establishment Clause jurisprudence, and this ruling could be critical to the voucher debate. If a majority adopts an endorsement test, it can be argued that facially neutral voucher programs do not send a message that government is endorsing religion. Rather, such programs simply promote parental choice regarding the education of their children. If a majority adopts a coercion approach, it is highly likely that no coercion will be found, although some have argued that because ofthe small number ofprivate non-sectarian schools, parents living in drug and gang infested public school districts may feel coerced into "choosing" a parochial education for their children. In any event, the Court appears ready to drop its earlier analysis and its choice of a new "test" will be extremely important to the broader parochial aid debate. 2. OfficialAcknowledgment ofReligion.—^The Supreme Court let stand two circuit decisions holding as constitutional a state's designation of Good Friday as a paid legal holiday. The key Seventh Circuit decision this past year 263. Lamb's Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 399-400 (1 993) (Scalia, J., concurring). 264. See Lemon v. Kurtzman, 403 U.S. 602 (1971). 265. See Meek v. Pittenger, 421 U.S. 349 (1975). 266. See Wallace v. Jaffree, 472 U.S. 38, 75 (1985) (O'Connor, J., concurring); see also Books V. City ofElkhart, 79 F. Supp. 979 (N.D. Ind. 1999) (the Lemon Test is not helpful in cases involving government display of religious symbols unless applied in the form ofthe endorsement test, and under that analysis a city may acknowledge the importance ofthe Ten Commandments in the moral and legal development of the nation by displaying it on a monument outside the City Municipal Building). 267. See Lee v. Weisman, 505 U.S. 577, 637-44 (1992) (Scalia, J., dissenting). 268. See Agostini v. Felton, 521 U.S. 203, 240-60 (1997). 269. 1 19 S.Ct. 2336(1999). 2000] CONSTITUTIONAL LAW 1 1 73 addressing the Establishment Clause was Bridenbaugh v. O 'Bannon^^^ wherein plaintiff challenged the constitutionality ofa statute that has made Good Friday a paid legal holiday in Indiana since 1941.^^* The Seventh Circuit initially acknowledged X\i2LiAgostini did not alter the Supreme Court's traditional three- part establishment clause analysis, which, as discussed, focuses on whether the governmental action has a secular purpose, whether its principal or primary effect advances religion, and whether it fosters an excessive entanglement with religion.^^^ Indiana justified its Good Friday law as accomplishing the secular purpose of providing a "spring holiday."^^^ Although there is no legislative history explaining the original reason for the Good Friday holiday, the court accepted the State's argument that it continues to recognize it in order to provide a vacation day during the four month period between Martin Luther King, Jr.'s birthday, observed in January, and Memorial Day, observed in May.^^"* More generally, the State presented evidence that it believes generous holidays help to bolster employee efficiency and morale.^^^ In addition, because many schools and many employers are closed for Good Friday, this provides a logical day to accommodate those state employees whose children are out of school and/or spouses who are off work.^^^ Although four years ago the Seventh Circuit invalidated an Illinois statute making Good Friday a legal holiday in the Illinois public school system,^^^ the court distinguished that case based on the different secular interest advanced.^^* Illinois had argued the holiday was justified to save the school the expense of staying open when few teachers and students would be in attendance, but the state failed to present any evidence as to the number ofstudents and teachers who actually would absent themselves on that day.^^^ In contrast, the Seventh Circuit in Bridenbaugh cited two recent cases upholding a Good Friday holiday m Hawaii and Kentucky where the states, like Indiana, justified their laws based on the secular purpose of providing a spring holiday.^^^ The court specifically rejected the argument that this was a "sham" secular purpose.^^^ Further, because it accepted the asserted secular purpose for the holiday, it also concluded that the 270. 185 F.3d 796 (7th Cir. 1999), cert, denied, 2000 WL 240481 (Mar. 6, 2000). 271. See IND. CODE § 1-1-9-1 (1998). 272. Bridenbaugh, 185 F.3d at 798. 273. Id at 799. 274. See id 3X796. 275. See id. 276. See id. (noting that 30% ofschools in Indiana and 44% ofthe employees in a nine-state region, including Indiana, are off on Good Friday). 277. Se6 Metzl v. Leininger, 57 F.3d 618 (7th Cir. 1995). 278. See Bridenbaugh, nS ¥.3d Sit m. 279. See id. 280. See id at 799; see also Koenick v. Felton, 190 F.3d 259 (4th Cir. 1999) (upholding a Good Friday holiday for public schools in Maryland), cert denied, 120 S. Ct. 938 (2000). 281. Bridenbaugh, 185 F.3d at 801. 1 1 74 INDIANA LAW REVIEW [Vol. 33 : 1 143 law did not have the "principal" effect ofadvancing or endorsing religion.^*^ The court explained that the mere fact that the state holiday may make it easier for some people to practice their faith is not dispositive because the government itself"has not used its own activities and influence to advance religion, it has not established a religion by giving a holiday on Good Friday."^*^ The Indiana Court ofAppeals, in Myers v. State,^^^ rejected an Establishment Clause challenge to an Indiana statutory provision that permits institutions of higher learning accredited by the North Central Association ("NCA"), including religiously affiliated institutions, to appoint university police officers.^*^ Bristol Myers, a law student at Valparaiso University, contended that the statute violated the Establishment Clause because the State had conferred significant governmental poweron religious institutions. The U.S. Supreme Court in Larkin V. GrendeVs Den, Inc.,^^ indeed held that the government may not confer sovereign power on churches to veto liquor licenses. The Indiana court distinguished Larkin, finding first that Valparaiso University is neither a church nor even a religious institution because the religious character is not "so pervasive that a substantial portion of its functions are subsumed in the religious mission."^^^ In addition, unlike Larkin, the State of Indiana was not giving Valparaiso University authority to exercise uncircumscribed civic power that could be used to advance its own religious interests.^^^ Applying the three-part establishment clause analysis, the court concluded that the statute had a secular legislative purpose—namely to provide all NCA accredited institutions ofhigher learning with the ability "to protect persons and property located on or near their premises."^^^ Second, the primary effect ofthe statute neither advanced nor inhibited religion. Rather, the primary benefit which flowed from the grant ofthis authority to form a police force was strictly secular in nature.^^ Third, the statute did not foster excessive entanglement with religion, both because the institution is not pervasively religious and because the delegation of power in no way fused religious and governmental functions.^^* The plaintiff also contested the fact that university police officers are not subject to the law enforcement training requirements established by Indiana statute.^^^ Although the court of appeals challenged the wisdom of exempting 282. Mat 802. 283. Id. 284. 7 1 4 N.E.2d 276 (Ind. Ct. App. 1 999). 285. See iND. CODE § 20-12-3.5-1 (1998). 286. 459 U.S. 116(1982). 287. i\/>/gr5,714N.E.2dat282. 288. Seeid.?X2%7,. 289. Mat 281. 290. See id. 291. See id 292. See id. at 283. It was conceded that the arresting officer did not complete the training required of police officers pursuant to Ind. Code § 5-2-1 -9(d) (1998). However, the Code refers only to officers or employees hired by political subdivisions and thus private institutions, like 2000] CONSTITUTIONAL LAW 1 1 75 university officers from this type ofrigorous training, and indeed Judge Sullivan in a concurring opinion suggested that this was due to statutory oversight, the Indiana legislature's failure to mandate training was not itselfunconstitutional.^^^ In short, this was an argument better addressed to the general assembly, not the courts. Although there were no U.S. Supreme Court decisions addressing government acknowledgment of religion last term, this Term the Court has agreed to revisit the controversial question ofprayer in public schools. Since the 1960s, the Supreme Court has closely adhered to the principle that prayer in public schools is prohibited by the Establishment Clause. This is the rule regardless of whether school officials or students deliver the prayer or whether the prayer ceremony is voluntary.^'"* In Lee v. Weisman,^^^ the Court, in a 5-4 decision, held that the Establishment Clause outlaws the practice of public schools inviting clergy to deliver non-sectarian prayers at graduation ceremonies. Justice Kennedy found that graduation prayers bore the imprint ofthe "State and thus put school-age children who objected in an untenable position."^^ He emphasized the heightened concern with protecting freedom ofconscience from subtle, coercive pressure in the elementary and secondary school setting.^^^ Despite Lee, the Fifth Circuit in 1993 sustained a public school district's resolution permitting high school seniors to deliver non-sectarian, non- proselytizing invocations at graduation ceremonies. The court reasoned that its conduct did not coerce students to participate in religion and, therefore, did not violate the Establishment Clause.^^* The Fifth Circuit recently revisited this issue in a case challenging the extension of the policy to permit student led prayers over the public address system at football games.^^ The Fifth Circuit held that the extension violated the Establishment Clause because it could not be argued that the prayer was necessary to solemnize the event, since this was a football game and not a graduation ceremony.^^ Further, "[r]egardless of whether the prayers are selected by vote or spontaneously initiated at these frequently- recurring, informal, school-sponsored events, school officials are present and Valparaiso University, are not regulated by the provision. 293. Seeid.2XlU'%5. 294. See School Dist. of Abington Township, v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962). 295. 505 U.S. 577 (1992). 296. Id. at 590. 297. See id. at 592-96. 298. See Jones v. Clear Creek Indep. Sch. Dist., 977 F.2d 963 (5th Cir. 1992), cert, denied, 508 U.S. 967 (1993). This case was rejected by Harris v. Joint School District, 41 F.3d 447 (9th Cir. 1994). 299. See Doe v. Santa Fe Indep. Sch. Dist., 168 F.3d 806 (5th Cir.), reh 'g en banc denied, 171 F.3d 1013 (5th Cir.), cert, granted in part, 120 S. Ct. 494 (1999), andajfd, 120 S. Ct. 2266 (2000). The Court's holding will be discussed in next year's Survey Issue. 300. Seeid.atSie. 1 176 INDIANA LAW REVIEW [Vol. 33:1 143 have the authority to stop the prayers."^^' In granting certiorari, the Supreme Court has limited its review to the question of "[w]hether petitioner's policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause."^^^ Although the district sought review of its policy regarding graduation ceremonies, the Court has not agreed to review that issue. This is a critical question in that many schools across the country have avoided the Lee decision where the prayer ceremony was student-initiated and student- led. The question is whether this eliminates the subtle coercion referred to in Lee or whether it will still be viewed as government endorsement of a religious message. Lee was a 5-4 decision in which four Justices invalidated the graduation program based on endorsement and Justice Kennedy added the critical fifth vote based on his subtle coercion analysis. Thus, both endorsement and coercion issues will no doubt be addressed by the Court. 3. First Amendment Defense to Suits Brought Against Religious Employers.—The U.S. Supreme Court in Employment Division v. Smith^^^ held that a state may enforce laws of general applicability even where the statutes infringe upon the free exercise of religion, provided such laws are rational.^^ Congress attempted to undo this decision by enacting the Religious Freedom Restoration Act,^°^ which required the government to prove a compelling interest whenever it substantially burdened a person's exercise of religion.^^ This Act, however, was short lived. The Court found it to be unconstitutional in City of Boerne v. Flores?^^ Thus, because state laws prohibiting breach of contract, fraud, as well as federal anti-discrimination laws are generally applicable and rational, religious entities sued under these laws will not be permitted to avail themselves of a meaningful free exercise defense.^°* On the other hand, the courts have long recognized a "ministerial exception" to employment claims, which is grounded not in the Free Exercise Clause, but in the Establishment Clause prohibition against government entanglement in religious matters. For example, the Indiana Court ofAppeals in Brazauskas v. Fort Wayne-South Bend Diocese, Inc?^ held that the ministerial exception precluded claims brought by 301. /£/. at823. 302. Sante Fe Indep. Sch. Dist., 120 S. Ct. at 494. 303. 494 U.S. 872(1990). 304. See id. at 879. 305. 42 U.S.C. §§ 2000bb-l to 2000bb-4 (1994). 306. See id § 2000bb(a). 307. 521 U.S. 507(1997). 308. See, e.g.. Area Plan Comm'n of Evansville & Vanderburgh County v. Wilson, 701 N.E.2d 856 (Ind. Ct. App. 1998) (Evansville zoning code that required property owners to secure a special use permit before using their property as a school or church was a generally applicable, neutral regulation that did not impose an unreasonable burden and thus did not violate the free exercise clause; the ordinance listed 33 "special uses" and it was validly applied to a person who wished to operate a church on his property.), trans, denied, 714 N.E.2d 171 (Ind.), andcert, denied, 120S.Ct. 527(1999). 309. 714 N.E.2d 253 (Ind. Ct. App. 1999). 2000] CONSTITUTIONAL LAW 1 1 77 a pastoral associate against her parish and Diocese. Brazauskas alleged breach ofher employment contract, fraud, promissory estoppel, intentional infliction of emotional distress, and defamation.^ '° The Diocese claimed that it fired Brazauskas for expressing unorthodox views and for engaging in conduct that was offensive to church teaching. The Indiana Court of Appeals reasoned that whenever officials of a religious organization state their rationale for an employment decision "in ostensibly ecclesiastical terms,"^'' here fitness for the clergy, the First Amendment effectively prohibits civil courts from reviewing these decisions.^ '^ To allow courts to ascertain whether statements are defamatory or capable of a religious interpretation would effectively thrust the judiciary "into the forbidden role of arbiter of a strictly ecclesiastical dispute over the suitability of a pastoral employee to perform her designated responsibilities."^ ^^ In sharp contrast, the district court in Guinan v. Roman CatholicArchdiocese ofIndianapolis, ^^^ rejected application of the ministerial exception. Guinan, a fifth grade elementary school teacher employed at a Catholic institution who taught primarily secular courses, contended that although she was not a minister, she was a "Catechist" qualified to teach religion classes by virtue of her having attended a Catholic college and having taken several hours of theology.^ '^ She also organized the Mass at school once a month, which required selecting the music and assigning students to read passages from the Bible.^'^ Nonetheless, the court rejected the institution's First Amendment ministerial defense to Guinan's Age Discrimination in Employment Act lawsuit. Although acknowledging that the ministerial exception is triggered whenever an employee's primary duties consist of spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual or worship, here the vast majority of Guinan's duties involved her teaching secular courses.^ ^^ Non- ministers may sometimes trigger this exception to liability, but this is reserved for those positions that come "close to being exclusively religious based."^'^ Although the court in Guinan focused on the technical status of the employee, arguably an Establishment Clause problem arises only where the rationale given by the employer for the adverse employment action would require a civic court to review church doctrine. The Archdiocese terminated Guinan's contract because it felt her teaching was weak and her classroom was in disorder.^ ^' Because the validity of these assertions can be examined without 310. See id. at 256. 311. Id. at 262. 312. See id. 313. IddLt263. 314. 42 F. Supp.2d 849 (S.D. Ind. 1998) 315. Id at 850. 316. See id sdS50-5l. 317. See id at 852. 318. Id at 853. 319. See id. 1178 INDIANA LAW REVIEW [Vol. 33:1143 regard to church doctrine, Guinan's claim of age bias did not raise an entanglement problem.^^^ Finally, in McEnroy v. St. MeinradSchool ofTheology^^^^ the Indiana Court of Appeals dismissed claims of a theology professor for breach of contract, tortious interference with contract, and breach ofimplied covenant ofgood faith and fair dealing. The professor claimed she was discharged by the Roman Catholic Seminary for having publicly dissented from Pope John Paul IPs position on the ordination of women.^^^ The court held that adjudicating McEnroy's case would require it to interpret and apply religious doctrine and ecclesiastical law in assessing whether the archabbot properly exercised his jurisdiction over the seminary, whetherthe professor's conduct constituted public dissent or caused her to be "seriously deficient," and whether cannon law required the archabbot to remove the professor from her teaching positions. The court reasoned that inquiry into all ofthese questions would excessively entangle the trial court in religious affairs in violation of the First Amendment.^^^ A certiorari petition asking whether a civil court is prohibited from applying neutral principles oflaw solely because a school is a religious institution was denied by the U.S. Supreme Court. 320. See id. at 854. The court subsequently determined that the Archdiocese had not violated the Act. See 50 F. Supp.2d 845 (S.D. Ind. 1999). 321. 713N.E.2d334(Ind.Ct. App. 1999),/ra«5. i/ewW,726N.E.2d313(Ind.)(mem.),fl«t/ cert, denied, 120 S. Ct. 1675 (2000). 322. See id at 336. 323. See id.