A. The first issue is Mayo Taxpayers bringing action to prohibit Agency from granting funds to society. Can the claim be heard by the Federal Court? In order to bring a claim in Federal court the Mayo taxpayers must show that the claim can be heard. They must demonstrate that they have standing, the case is ripe, it is not moot, and not a political question. Standing To satisfy the standing requirement the taxpayers of Mayo must show that they have an injury in fact, the injury can be traced to the defendants, and that the injury is redressable by the federal courts. To show they have an injury in fact they must show that there is imminent injury to them or that they have already suffered an injury. Generally, third party grievances or general grievances as a taxpayer are not allowed. However, there is an exception when taxpayers are bringing a claim for a violation of the establishment clause of the first amendment. Here they are saying that the funds provided to the Society and the Church are in violation of the establishment clause. The funds are provided from the government and are given to an organization established and run by a church. This would be a claim under the establishment clause and thus they would meet this element. Also they would have to show that the injury is caused by the defendant and would be remedied by a judicial ruling in their favor. Here, the government is providing the funds and if they were prohibited from doing so then the injury would be remedied. Thus, likely there is standing. Establishment Clause The funds provided to the Society may violate the establishment clause of the first amendment. Now while the first amendment technically does not apply to the states, it has been judicially incorporated as to apply to the states it does apply. In order to determine if the action violates the establishment clause we must apply the lemon test. 1. The action must have primarily a secular purpose. Here the funds are provided to Society by Agency which administers a state program providing public funds to legal aid organizations. While Society is composed exclusively of church members and was established by the church, they are performing non-church related activities, so it seems. They would argue that they are acting as a legal aid clinic and are taking up cases for all people who are discriminated against. They would argue that they are not acting as a church and not pushing church values on others. The taxpayers would fall back on the argument that they are picking cases that are appropriate for its objectives and thus are furthering their religious objectives. In the end, it seems as if the government is providing them money for a secular purpose and not for a religious one. 2. The action must not have the effect of advancing religion. Again the taxpayers would argue that they are selecting cases that they want to take, and are doing so in a manner that advances their religious objectives. The government would
argue that they are acting as a legal aid clinic and not providing Church services of any fashion. This issue is a closer call and the action may violate the Lemon Test here. 3. It must not require excessive government entanglement to prevent misuse. Here the government will probably have to be too involved to regulate the use of the money. Again, the fact pattern states that the Society chooses its own cases that are appropriate. The government would have to check in on them periodically to make sure they are not furthering religious goals or purposes. Likely this requires excessive government entanglement and will not pass constitutional muster.
B. Jay brings action seeking to require his admission. The first issue here is whether there a constitutional violation when the Society does not allow him membership. The Society is a private actor and in order for their to be a constitutional claim Jay must show state action. State Action State action is a threshold requirement that must be met in order for private discrimination to be regulated under the constitution (unless the 13th amendment is implicated). To determine if there is state action we must look to the nexus between the state and Society. If there is such a great nexus that Society can not exist without the State then there is likely to be State Action. Here, Society was formed without the help of the state and likely operates without much of their help either. The only nexus is the grant of money that helps fund Society. Courts have ruled that providing funds to a school has not been considered state action. Here the decision would likely turn on how much of the funds were provided by the state and how much were provided by church donations. If the Society could not exist without the funds from the state their would likely be state action. If there is state action then Jay could continue with the following issues. Free Exercise Clause Jay can argue that prohibiting him membership because he is not a member of the church violates his right to free exercise. He will claim that he is free to exercise or not exercise any religion he wants and he can not be burdened from doing so. To determine if a law or action violates free exercise we must determine if the burden is purposeful discrimination or an incidental burden from a generally applicable law. Here, we clearly have a purposeful burden where Jay is being singled out for religious purposes. Accordingly the action must be necessary to a compelling state interest to be valid. Here, the banning of non Church members from the Society is likely not necessary to a compelling state interest and will be determined to violate the free exercise clause. The only interest that I can think of is that keeping all the members in Society from the same Church will maintain harmony in Society and will keep them more efficient. This is a nice interest, but probably not a compelling state interest. Also the action must be narrowly tailored in that it must be the least restrictive means of accomplishing the interest. No good here.
Equal Protection Jay can argue that the discrimination against non-church members violates equal protection. Equal protection can be violated when similarly situated people are treated differently. Here, however, there is no suspect class or fundamental right involved so under this analysis the Society would only have to pass the rational basis test. If holding out non-Church members is merely conceivable that it is rationally related to a legitimate government interest then it will pass the test. The burden is on Jay and it is a very hard burden to meet. The Society will simply argue that there is an interest in promoting certain values and being a harmonious group. That way they are most efficient and productive. Keeping non-Church members out is conceivably rationally related to that interest. Very easy test to meet here for and likely pass equal protection muster. Substantive Due Process Jay can argue that he is being prohibited the right to volunteer and help people. Because this is not a fundamental right again we apply the rational basis test. Same analysis as Equal Protection.
C. Bar seeking to enjoin further solicitation of clients by Society. The state Bar would be trying to prohibit speech here. In analyzing this we need to first classify the kind of speech. This speech would be considered commercial speech and in order to regulate this type of speech the government would have to pass the Central Hudson Test. Keep in mind that the Society will argue that this speech is not commercial speech at all. Commercial speech is generally limited to advertisements or speech directly related to acquiring business. In this case, solicitation of clients is commercial speech. If the commercial speech is fraudulent, misleading, or advocating an unlawful activity then the government can regulate the speech quite easily. There are no facts to indicate that here, thus we have generally protected commercial speech. In order to regulate the commercial speech the regulation would have to pass the Central Hudson test. That is, the regulation must be substantially related to an important government interest and be narrowly tailored in that it restricts no more speech than necessary (look to see that it leaves alternative channels of communication open). Here the government would argue that regulation only prohibits direct solicitation because lawyer are in a position of power and may be able to strong arm laypeople in face to face meetings. The government will argue that the regulation leaves open other channels of solicitation, like mailings or radio or commercial. The Society will first argue that this is not commercial speech at all because they are providing free assistance. Thus they should be subject to a greater level of protection and the government regulation must be necessary to advance a compelling state interest. If so, the burden would be on the state and they must show that this is the least restrictive means of advancing the interest. If it is considered commercial speech then Society will argue that the prohibition is not substantially related to that interest because the Society is not soliciting for profit. They do not have an interest in taking advantage of people
because they are not making any money off of it. The regulation will likely be struck down because the Society is not acting for profit.