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CLARKE v. UNITED STATES

December 13, 1988

DAVID A. CLARKE, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant



The opinion of the court was delivered by: LAMBERTH

 ROYCE C. LAMBERTH, UNITED STATES DISTRICT JUDGE

 Plaintiffs in this action challenge the constitutionality of the "Nation's Capital Religious Liberty and Academic Freedom Act," also known as the "Armstrong Amendment," which was enacted October 1, 1988 by Congress as part of the 1989 D.C. Appropriations Act. The Armstrong Amendment reads as follows:

 
Sec. 145(a) this section may be cited as the 'Nation's Capital Religious Liberty and Academic Freedom Act.'
 
(b) None of the funds appropriated by this Act shall be obligated or expended after December 31, 1988, if on that date the District of Columbia has not adopted subsection (c) of this section.
 
(c) Section 1-2520 of the District of Columbia Code (1981 edition) is amended by adding after subsection (2) the following new subsection:
 
"(3) Notwithstanding any other provision of the laws of the District of Columbia, it shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition
 
"(A) the use of any fund, service, facility, or benefit; or
 
"(B) the granting of any endorsement, approval, or recognition,
 
to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief."

 Pub. L. No. 100-462 (Oct. 1, 1988); text printed at 134 Cong. Rec. S9108 (daily ed. July 8, 1988).

 Congress enacted the Armstrong Amendment in response to the decision of the D.C. Court of Appeals in Gay Rights Coalition v. Georgetown University, 536 A.2d 1 (D.C. 1987) (en banc). In that case, a majority of the court construed the D.C. Human Rights Act to require that Georgetown University provide facilities and services to gay student groups equivalent to those provided to other student groups, although the court held that Georgetown need not officially recognize such groups. The court found that requiring such services did not violate the free exercise rights of Georgetown University, which is affiliated with the Roman Catholic religion.

 Plaintiffs are all thirteen members of the D.C. City Council, suing both in their capacities as individual Council members and as municipal taxpayers. Plaintiffs raise five separate challenges to the constitutionality of the Act, three of which concern the means by which Congress has sought to cause the Council to adopt an amendment to the D.C. Human Rights Act, and two of which challenge the substantive constitutionality of the language of the amendment. The plaintiffs first assert that, by conditioning funding for all city operations on the Council's action, the Act coerces political speech by the Council members in violation of their first amendment rights. Plaintiffs further assert that this condition violates Congress' spending power and effects an unconstitutional taking of District funds. Plaintiffs also challenge the Act on its face, alleging that it discriminates among religions in violation of the establishment clause of the first amendment, and that it violates the speech and associational rights of District residents who express particular views concerning homosexuality. The United States has challenged the standing of the plaintiffs to raise these claims and has opposed each claim on the merits.

 Plaintiffs first moved for a preliminary injunction to prevent the law from taking effect on January 1, 1989. The United States responded with a motion to dismiss or, in the alternative, for summary judgment and plaintiffs countered with a cross-motion for summary judgment. The issues have been fully briefed and oral argument has been held. For the reasons stated below, the Court holds that the Act is an impermissible burden on the freedom of speech of the Council members. Because of this holding, the court need not address the four remaining claims ...


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