This page reviews recent cases in the U.S. courts, at the Federal District (trial), Circuit Appeal Court, and Supreme Court level.
Synopsis:
Congress enacted the Religious Freedom Restoration Act of 1993 (RFRA) in response to Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U. S. 872, where, in upholding a generally applicable law that burdened the sacramental use of peyote, this Court held that the First Amendment's Free Exercise Clause does not require judges to engage in a case-by-case assessment of the religious burdens imposed by facially constitutional laws, id., at 883-890. Among other things, RFRA prohibits the Federal Government from substantially burdening a person's exercise of religion, "even if the burden results from a rule of general applicability," 42 U. S. C. §2000bb-1(a), except when the Government can "demonstrat[e] that application of the burden to the person (1) [furthers] a compelling government interest; and (2) is the least restrictive means of furthering that ... interest," §2000bb-1(b).
Members of respondent church (UDV) receive communion by drinking hoasca, a tea brewed from plants unique to the Amazon Rainforest that contains DMT, a hallucinogen regulated under Schedule I of the Controlled Substances Act, see 21 U. S. C. §812(c), Schedule I(c). After U. S. Customs inspectors seized a hoasca shipment to the American UDV and threatened prosecution, the UDV filed this suit for declaratory and injunctive relief, alleging, inter alia, that applying the Controlled Substances Act to the UDV's sacramental hoasca use violates RFRA. At a hearing on the UDV's preliminary injunction motion, the Government conceded that the challenged application would substantially burden a sincere exercise of religion, but argued that this burden did not violate RFRA because applying the Controlled Substances Act was the least restrictive means of advancing three compelling governmental interests: protecting UDV members' health and safety, preventing the diversion of hoasca from the church to recreational users, and complying with the 1971 United Nations Convention on Psychotropic Substances. The District Court granted relief, concluding that, because the parties' evidence on health risks and diversion was equally balanced, the Government had failed to demonstrate a compelling interest justifying the substantial burden on the UDV. The court also held that the 1971 Convention does not apply to hoasca. The Tenth Circuit affirmed.
Held: The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV's sacramental use of hoasca. Pp. 6-19.
1. This Court rejects the Government's argument that evidentiary equipoise as to potential harm and diversion is an insufficient basis for a preliminary injunction against enforcement of the Controlled Substances Act. Given that the Government conceded the UDV's prima facie RFRA case in the District Court and that the evidence found to be in equipoise related to an affirmative defense as to which the Government bore the burden of proof, the UDV effectively demonstrated a likelihood of success on the merits. The Government's argument that, although it would bear the burden of demonstrating a compelling interest at trial on the merits, the UDV should have borne the burden of disproving such interests at the preliminary injunction hearing is foreclosed by Ashcroft v. American Civil Liberties Union, 542 U. S. 656, 666. There, in affirming the grant of a preliminary injunction against the Government, this Court reasoned that the burdens with respect to the compelling interest test at the preliminary injunction stage track the burdens at trial. The Government's attempt to limit the Ashcroft rule to content-based restrictions on speech is unavailing. The fact that Ashcroft involved such a restriction in no way affected the Court's assessment of the consequences of having the burden at trial for preliminary injunction purposes. Congress' express decision to legislate the compelling interest test indicates that RFRA challenges should be adjudicated in the same way as the test's constitutionally mandated applications, including at the preliminary injunction stage. Pp. 6-8.
2. Also rejected is the Government's central submission that, because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the DMT ban can be made to accommodate the UDV. The Government argues, inter alia, that the Act's description of Schedule I substances as having "a high potential for abuse," "no currently accepted medical use," and "a lack of accepted safety for use ... under medical supervision," 21 U. S. C. §812(b)(1), by itself precludes any consideration of individualized exceptions, and that the Act's "closed" regulatory system, which prohibits all use of controlled substances except as the Act itself authorizes, see Gonzales v. Raich, 545 U. S. ___, ___, cannot function properly if subjected to judicial exemptions. Pp. 8-16.
(a) RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government's categorical approach. RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law "to the person"--the particular claimant whose sincere exercise of religion is being substantially burdened. 42 U. S. C. §2000bb-1(b). Section 2000bb(b)(1) expressly adopted the compelling interest test of Sherbert v. Verner, 374 U. S. 398, and Wisconsin v. Yoder, 406 U. S. 205. There, the Court looked beyond broadly formulated interests justifying the general applicability of government mandates, scrutinized the asserted harms, and granted specific exemptions to particular religious claimants. Id. at 213, 221, 236; Sherbert, supra, at 410. Outside the Free Exercise area as well, the Court has noted that "[c]ontext matters" in applying the compelling interest test, Grutter v. Bollinger, 539 U. S. 306, 327, and has emphasized that strict scrutiny's fundamental purpose is to take "relevant differences" into account, Adarand Constructors, Inc. v. Peńa, 515 U. S. 200, 228. Pp. 9-10.
(b) Under RFRA's more focused inquiry, the Government's mere invocation of the general characteristics of Schedule I substances cannot carry the day. Although Schedule I substances such as DMT are exceptionally dangerous, see, e.g., Touby v. United States, 500 U. S. 160, 162, there is no indication that Congress, in classifying DMT, considered the harms posed by the particular use at issue. That question was litigated below. Before the District Court found that the Government had not carried its burden of showing a compelling interest in preventing such harm, the court noted that it could not ignore the congressional classification and findings. But Congress' determination that DMT should be listed under Schedule I simply does not provide a categorical answer that relieves the Government of the obligation to shoulder its RFRA burden. The Controlled Substances Act's authorization to the Attorney General to "waive the requirement for registration of certain manufacturers, distributors, or dispensers if he finds it consistent with the public health and safety," 21 U. S. C. §822(d), reinforces that Congress' findings with respect to Schedule I substances should not carry the determinative weight, for RFRA purposes, that the Government would ascribe to them. Indeed, despite the fact that everything the Government says about the DMT in hoasca applies in equal measure to the mescaline in peyote, another Schedule I substance, both the Executive and Congress have decreed an exception from the Controlled Substances Act for Native American religious use of peyote, see 21 CFR §1307.31; 42 U. S. C. §1996a(b)(1). If such use is permitted in the face of the general congressional findings for hundreds of thousands of Native Americans practicing their faith, those same findings alone cannot preclude consideration of a similar exception for the 130 or so American members of the UDV who want to practice theirs. See Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547. The Government's argument that the existence of a congressional exemption for peyote does not indicate that the Controlled Substances Act is amenable to judicially crafted exceptions fails because RFRA plainly contemplates court-recognized exceptions, see §2000bb-1(c). Pp. 11-13.
(c) The peyote exception also fatally undermines the Government's broader contention that the Controlled Substances Act establishes a closed regulatory system that admits of no exceptions under RFRA. The peyote exception has been in place since the Controlled Substances Act's outset, and there is no evidence that it has undercut the Government's ability to enforce the ban on peyote use by non-Indians. The Government's reliance on pre-Smith cases asserting a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause is unavailing. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise, but instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. See, e.g., United States v. Lee, 455 U. S. 252, 258, 260. They show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program. Here the Government's uniformity argument rests not so much on the particular statutory program at issue as on slippery slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law, i.e., "if I make an exception for you, I'll have to make one for everybody, so no exceptions." But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to "rule[s] of general applicability." §2000bb-1(a). Congress' determination that the legislated test is "workable ... for striking sensible balances between religious liberty and competing prior governmental interests," §200bb(a)(5), finds support in Sherbert, supra, at 407, and Cutter v. Wilkinson, 544 U. S. ___, ___. While there may be instances where a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA, it would be surprising to find that this was such a case, given the longstanding peyote exemption and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance. The Government has not shown that granting the UDV an exemption would cause the kind of administrative harm recognized as a compelling interest in, e.g., Lee. It cannot now compensate for its failure to convince the District Court as to its health or diversion concerns with the bold argument that there can be no RFRA exceptions at all to the Controlled Substances Act. Pp. 13-16.
3. The Government argues unpersuasively that it has a compelling interest in complying with the 1971 U. N. Convention. While this Court does not agree with the District Court that the Convention does not cover hoasca, that does not automatically mean that the Government has demonstrated a compelling interest in applying the Controlled Substances Act, which implements the Convention, to the UDV's sacramental use. At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting the UDV an exemption, but simply relied on two affidavits by State Department officials attesting to the general (and undoubted) importance of honoring international obligations and maintaining the United States' leadership in the international war on drugs. Under RFRA, invocation of such general interests, standing alone, is not enough. Pp. 16-18.
389 F. 3d 973 [10th Circuit], affirmed and remanded.
Roberts, C. J., delivered the opinion of the Court, in which all other Members joined, except Alito, J., who took no part in the consideration or decision of the case.
Read the complete 24-page Supreme Court opinion here.
Excerpts from the Opinion follow:
I. INTRODUCTION
The issue to be resolved in this case is whether the contractual relationship between the state of Iowa Department of Corrections (“Dept. of Corrections”) and InnerChange Freedom Initiative (“InnerChange” or “IFI”) impermissibly advances religion in violation of the Establishment Clause of the First Amendment.
[ Fn. 2: The Court notes the length of this memorandum and order. In light of the lengthy trial and large quantity of evidence in this case, the Court finds a substantial order necessary in order to give thorough treatment to the complex factual and legal issues.]
At the outset of this case, the Plaintiffs sought a judicial declaration that the state Defendants violated the United States and Iowa Constitutions by authorizing the operation of InnerChange in the Newton Facility and that InnerChange and Prison Fellowship Ministries (“Prison Fellowship”) violated the United States and Iowa Constitutions, acting under the color of law, by discriminating against inmates based on their religious beliefs in the offering and providing of a values-based pre-release program …
The injunctive relief sought by the Plaintiffs is a complete prohibition on InnerChange operating within the Iowa correctional system. Short of that, the Plaintiffs seek a prohibition on any state funding—direct or in-kind—to support the InnerChange program in any manner. In the alternative, the Plaintiffs urge that should InnerChange be allowed to continue in Iowa, then a similar type of values-based program should be made available to non-InnerChange inmates from a secular standpoint and from the standpoint of other faith traditions. …
A decision about whether the Establishment Clause is violated by the Defendants’ actions does not entail a decision about the ultimate truthfulness of religion, nor the truthfulness of the theological underpinnings of the religious denominations and faith groups represented in this case. See Lemon v. Kurtzman, 403 U.S. 602, 625 (1971) (Lemon I) (“The merit and benefits of these [programs], however, are not the issue before us in these cases. The sole question is whether state aid . . . can be squared with the dictates of the Religion Clauses.”). In what appears now to be a bit of theological irony, given that the doctrine of separation between church and state is often viewed as a secular duct, Thomas Jefferson rooted his ideas about that doctrine in the religious belief “that Almighty G-d has created the mind free . . . [and, therefore] the Holy Author . . . chose not to propagate [religion] by coercion . . . as was in his Almighty power to do . . . .” See Virginia Religious Freedom Act, 1786, in The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins 51 (Neil H. Cogan ed., 1997).
This Court makes no such assertions about the ultimate source of the law it must interpret. Just as the Court asserts no theological expertise in this matter, the Court is also not an expert in the field of prisoner rehabilitation. The central issue presented before this Court, therefore, is not whether Iowa inmates can be helped in their rehabilitation by religion, but whether the State of Iowa’s contract with InnerChange shackles the Plaintiff taxpayers and inmates in a way that violates their rights under the United States and Iowa Constitutions. …
* * *
The InnerChange program was developed and is operated by Prison Fellowship, a 501(c)(3) Christian non-profit corporation incorporated in the District of Columbia, “whose mission is to exhort, equip and assist the Church in its ministry to prisoners, ex-prisoners, victims, and their families, and in its promotion of biblical standards of justice in the criminal justice system.” Pls.’ Ex. 73 (Field Guide at 2)….
Prison Fellowship’s own religious commitments can best be characterized as Evangelical Christian in nature. This commitment is most evident in the very specific Prison Fellowship Statement of Faith that all Prison Fellowship and InnerChange employees are required to sign:
We believe in one G-d, Creator and Lord of the Universe; the coeternal Trinity: Father, Son, and Holy Spirit.
We believe that Jesus Christ, G-d’s Son, was conceived by the Holy Spirit, born of the Virgin Mary, lived a sinless life, died a substitutionary atoning death on the cross, rose bodily from the dead, and ascended to heaven where, as truly G-d and truly man, He is the only mediator between G-d and man.
We believe that the Bible is G-d’s authoritative and inspired Word. It is without error in all its teachings, including creation, history, and its own origins, and salvation. Christians must submit to its divine authority both individually and corporately, in all matters of belief and conduct, which is demonstrated by true righteous living.
We believe that all people are lost sinners and cannot see the Kingdom of Heaven except through the new birth. Justification is by grace through faith in Christ alone. We believe in one holy, universal, and apostolic Church. Its calling is to worship G-d and witness concerning its Head, Jesus Christ, preaching the Gospel among all nations and demonstrating its commitment by compassionate service to the needs of human beings and promoting righteousness and justice.
We believe in the necessity of the work of the Holy Spirit for the individual’s new birth and growth to maturity and for the Church’s constant renewal in truth, wisdom, faith, holiness, love, power, and mission.
We believe that Jesus Christ will personally and visibly return in glory to raise the dead and bring salvation and judgment to completion. G-d will to raise the dead and bring salvation and judgment to completion. G-d will fully manifest His Kingdom when He establishes a new heaven and new earth, in which He will be glorified forever and exclude all evil, suffering, and death.
The InnerChange program meshes the Evangelical Christian religious message of its parent organization, Prison Fellowship, with a pre-release correctional model. This produces a unique approach to pre-release prison programming specific to InnerChange, which InnerChange refers to as a transformational, rather than a therapeutic, model. Rather than exclusively relying on and utilizing scientific and medical theories to address criminal behavior, InnerChange incorporates a supernatural approach to an inmate’s recidivist behavior by locating that inmate’s problems in disobedience to G-d, or sin. The only remedy to the problem of sin, InnerChange maintains, is through a miraculous delivery by G-d -- specifically, G-d in Christ. …
… InnerChange and Prison Fellowship, in this case, are not private actors—they are state actors. As a state actor, InnerChange speaks on behalf of the government. It is not simply another voice in a forum opened for a discussion of the best rehabilitation programs for state prisoners. …
There are many factors that drive the conclusion that the InnerChange program is pervasively sectarian. The program requires attendance at worship services, religious community meetings, and weekly revivals, and orders its participants to engage in daily religious devotional practice. Furthermore, participants are required to lead prayers and share, publically, a personal devotional at the weekly community meeting. InnerChange instructors and employees must sign the Prison Fellowship Statement of Faith. The curriculum is restricted and does not stray from the religious beliefs stated in the Statement of Faith. InnerChange teachers and counselors are allowed to teach only a pre-set, imposed religious curriculum authorized by InnerChange and Prison Fellowship. Though an inmate could, theoretically, graduate from InnerChange without converting to Christianity, the coercive nature of the program demands obedience to its dogmas and doctrines. Further, InnerChange is an integral part of the religious mission of Prison Fellowship and is under Prison Fellowship’s complete control. …
Whether considered as an effect of the state contract in this case, or under a separate, traditional Lemon I inquiry, the facts and conclusions drawn above leave no room to doubt that the state of Iowa is excessively entangled with religion through the InnerChange program. For all practical purposes, the state has literally established an Evangelical Christian congregation within the walls of one its penal institutions, giving the leaders of that congregation, i.e., InnerChange employees, authority to control the spiritual, emotional, and physical lives of hundreds of Iowa inmates. …There are no adequate safeguards present, nor could there be, to ensure that state funds are not being directly spent to indoctrinate Iowa inmates.
Given the full record in this case, the entry of a declaration by the Court seems almost anti-climactic. Nonetheless, the Court does so now.
The Court DECLARES that the contractual relationship between the state of Iowa, as managed and directed by the named state Defendants, and InnerChange and Prison Fellowship violates the Plaintiffs’ Establishment clause rights as contained in the Federal and Iowa Constitutions by impermissibly funding the InnerChange treatment program at the Newton Facility. The Clerk of Court is ORDERED to enter a final judgment consistent with this declaration.
… under the factors set out in Lemon II and Cathedral Academy, equity requires no further payments be made to InnerChange by the state of Iowa. …
… state funds were used intentionally to indoctrinate Iowa inmates, by a non-profit religious service provider preferred by the state in its selection process, into a form of the Christian religion in the belief that the indoctrination, combined with the communal rehabilitation model, would be of some help in their rehabilitation.
… The parties to the action have all but promised the Court that an appeal will be forthcoming, regardless of the outcome of this trial in the district court level. In the likely event that either party appeals the judgment in this matter, and to avoid unnecessary litigation, the Court further ORDERS that the injunctive and other equitable relief contained herein be SUSPENDED pending the appeal. Fed. R. Civ. P. 62(c).
Notwithstanding this stay, InnerChange and Prison Fellowship shall post a supersedeas [a writ commanding a stay of legal proceedings - Webmaster ] bond for the amount of $1,529,182.70 with the Clerk of Court.
… The Clerk of Court is ordered to file a judgment consistent with this memorandum and order. Also consistent with this memorandum and order, the parties are given leave to file motions and supporting documents regarding attorneys’ fees and costs. IT IS SO ORDERED.
Read the full 140-page District Court opinion here.
Summary (from religionclause.blotspot.com):
A federal judge ordered an upstate New York school district to return bricks inscribed with evangelical Christian messages to a high school walkway, concluding their removal violated the free-speech rights of the people who paid for them.
U.S. District Judge Norman Mordue ruled the bricks, with engravings like "Jesus Saves" and "Jesus Christ The Only Way!" didn't constitute a Mexico Academy endorsement of that religious view. The bricks containing such engravings were the only ones removed, while others also referred to God and some commemorated Methodist, Episcopal and Catholic churches.
"The undisputed evidence demonstrates that Mexico Academy engaged in viewpoint discrimination when it removed plaintiffs' bricks from the walkway," Mordue wrote. "Further, the bricks at issue, which number 9 among 1,736, literally constitute an insignificant part of the walkway." The dispute arose after the high school class of 1999 in Mexico, a village 30 miles north of Syracuse, sold bricks that could be inscribed with personal messages for $30 each as a fund-raiser. Other inscriptions, for example, included "Semper Fi," "In G-d We Trust," "Best Son Ever" and "Go Yanks-Dolphins," but most had a graduate's name and class year.
Complaints that the evangelical messages constituted public-school endorsement of Christianity, violating separation of church and state, compelled district officials to remove them in February 2000 after consulting with attorneys.
The Rev. Ronald Russell and Robert Kiesinger filed the federal lawsuit, claiming their rights to free speech and freedom of religion had been violated.
In an attempt to quell the controversy, school officials added the disclaimer, "The messages on this walk are personal expressions and contributions of the individuals of Mexico Academy and Central School community."
Mordue found in his ruling that the walkway constituted "a limited public forum" open to public expression, that it was clearly a secular project, and that the nine bricks didn't violate the establishment clause of the Constitution, which prohibits the government from preferring one religion over another.
Instead, he cited the 2001 Supreme Court ruling, Good News Club v. Milford Central School that speech on otherwise permissible subjects "cannot be excluded ... on the ground that the subject is discussed from a religious viewpoint."
Frank Miller, attorney for the school district, said the school board would review Mordue's ruling at its April 20 meeting. The district was being threatened with lawsuits in 1999-2000, and the case law looked much different then, he said.
"The board of education operated in good faith believing that was what it had to do," Miller said. "It was not something the board did with any kind of animus with any groups."
Attorney Thomas Marcelle, who filed the suit, said the district now has to put back Russell's and Kiesinger's bricks. "It's very simple in this sense. The school district basically can't pick and choose which religious expression goes in the walkway," he said.
Read the full 31-page District Court opinion here.
Excepts from the opinion:
This is a taxpayer suit, originally to enjoin a grant by the Secretary of Education of money to the University of Notre Dame to be used for a program called Alliance for Catholic Education (ACE). A congressional appropriation for fiscal year 2000 had earmarked $500,000 to be given Notre Dame for redistribution to several other religious colleges in order to enable them to replicate the ACE program on their own campuses. Consolidated Appropriations Act, 2000, 113 Stat. 1501, 1501A-262 (Nov. 29, 1999). The complaint alleges that the grant violated the First Amendment’s prohibition against Congress’s creating religious establishments, a prohibition that the Supreme Court has interpreted to encompass any direct financial support by the government of religious activities. Notre Dame was permitted to intervene in the case in the district court as a defendant.
ACE is a program for training teachers in Catholic schools. It has three parts—professional development, community life, and spiritual growth. The first part consists of both teacher-training courses and field experience teaching at Catholic elementary and secondary schools. The second consists of the teachers’ residing in faith-based communities while doing apprentice teaching in those schools. The third is encouragement of the teachers to live and work in accordance with the tenets of the Catholic faith. Thus, the program has both secular and religious components.
The district court dismissed the suit as moot because Notre Dame had received and spent the grant, a one-time grant in an appropriations bill. It was too late to enjoin the expenditure and the likelihood of a future such earmark was too remote to warrant injunctive relief.* * *
The suit was dismissed prematurely. VACATED AND REMANDED.
SYKES, Circuit Judge, dissenting. This case is moot. The majority keeps it alive by declaring the availability of a form of restitutionary relief that was not sought by the plaintiff taxpayers and is inconsistent with the doctrine of taxpayer standing under Flast v. Cohen, 392 U.S. 83 (1968), a limited exception to the general rule that citizens lack standing to sue in federal court on generalized grievances about the conduct of government. The Supreme Court has steadfastly refused to expand Flast and has never recognized private party repayment to the Treasury as an appropriate remedy for an Establishment Clause violation in a suit based on taxpayer standing. [numerous cites omitted]
Against this backdrop, the majority holds that a recipient of a federal grant may be ordered to repay the grant as a remedy in a taxpayer lawsuit alleging that the government violated the Establishment Clause in making or insufficiently monitoring the grant. The majority achieves this result by importing the common law doctrine of restitution—a private law concept—into the public law realm of Establishment Clause litigation, vesting taxpayers with a unique sort of qui tam -like authority to sue private parties for reimbursement of the Treasury when the government is alleged to have committed an Establishment Clause violation.
[ Webmaster note: qui tam -- a lawsuit brought by a private citizen (popularly called a "whistle blower") against a person or company who is believed to have violated the law in the performance of a contract with the government, or in violation of a government regulation, when there is a statute which provides for a penalty for such violations.]
And the majority does this even though the claim against the government’s representative is itself moot, making the newfangled remedy against the grant recipient the sole basis for the taxpayers’ standing to pursue the Establishment Clause claim. This is a dramatic expansion of taxpayer standing, and there is no authority for it. I must respectfully dissent.
Read the full 28-page 7th Circuit opinion here.
See which states are affected by this 7th Circuit decision.
Excerpts from the Opinion follow; Omitted citations will be found in the complete opinion.:
WOOD, Circuit Judge. Wisconsin inmate James Kaufman filed this suit under 42 U.S.C. 1983, claiming as relevant here that prison officials violated his First Amendment rights. He raises three unrelated issues. Of the three, the one that has prompted the issuance of this opinion is his claim that the defendants infringed on his right to practice his religion when they refused to allow him to create an inmate group to study and discuss atheism.
We begin with the main event: Kaufman's argument that the prison officials violated his constitutional rights when they refused to give him permission to start a study group for atheist inmates at the prison. The events underlying Kaufman's lawsuit occurred while he was an inmate at Wisconsin's Waupun Correctional Institution.
While at Waupun, Kaufman submitted an official form titled "Request for New Religious Practice," in which he asked to form an inmate group interested in humanism, atheism, and free speaking. The group would work "[t]o stimulate and promote Freedom of Thought and inquiry concerning religious beliefs, creeds, dogmas, tenets, rituals and practices[, and to] educate and provide information concerning religious beliefs, creeds, dogmas, tenets, rituals, and practices." See Kaufman v. McCaughtry, No. 03-C-027-C, 2004 WL 257133, *4 (W.D. Wis. Feb. 9, 2004). Kaufman also submitted a list of atheist groups and literature.
The officials concluded that Kaufman's request was not motivated by "religious" beliefs. Accordingly, rather than evaluating the proposal under the state's relatively more flexible policy for new religious groups, see Wis. Admin. Code DOC 309.61, they considered it under the procedure for forming a new inmate activity group, see Wis. Admin. Code DOC 309.365. Applying the latter standard, they denied the request, stating that they were not forming new activity groups at that time.
Kaufman argues that the defendants' refusal to allow him to create the study group violated his rights under both the Free Exercise Clause and the Establishment Clause of the First Amendment. We note that Kaufman relies only on the First Amendment and at this stage of the litigation has not tried to take advantage of the added protections of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. 2000cc et seq.
We address his claim under the Free Exercise Clause first. An inmate retains the right to exercise his religious beliefs in prison. Tarpley v. Allen County, 312 F.3d 895, 898 (7th Cir. 2002). The problem here was that the prison officials did not treat atheism as a "religion," perhaps in keeping with Kaufman's own insistence that it is the antithesis of religion. But whether atheism is a "religion" for First Amendment purposes is a somewhat different question than whether its adherents believe in a supreme being, or attend regular devotional services, or have a sacred Scripture.
Kaufman claims that his atheist beliefs play a central role in his life, and the defendants do not dispute that his beliefs are deeply and sincerely held. The Supreme Court has recognized atheism as equivalent to a "religion" for purposes of the First Amendment on numerous occasions, most recently in McCreary County, Ky. v. American Civil Liberties Union of Ky., 125 S.Ct. 2722(2005). The Establishment Clause itself says only that "Congress shall make no law respecting an establishment of religion," but the Court understands the reference to religion to include what it often calls "nonreligion." In McCreary County, it described the touchstone of Establishment Clause analysis as "the principle that the First Amendment mandates government neutrality between religion and religion, and between religion and nonreligion." Id. at *10 (internal quotations omitted).
As the Court put it in Wallace v. Jaffree, 472 U.S. 38 (1985): At one time it was thought that this right [referring to the right to choose one's own creed] merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. Id. at 52-53. In keeping with this idea, the Court has adopted a broad definition of "religion" that includes nontheistic and atheistic beliefs, as well as theistic ones. Thus, in Torcaso v. Watkins, 367 U.S. 488, it said that a state cannot "pass laws or impose requirements which aid all religions as against non-believers, and neither can [it] aid those religions based on a belief in the existence of God as against those religions founded on different beliefs." Id. at 495. Indeed, Torcaso specifically included "Secular Humanism" as an example of a religion. Id. at 495 n.11.
Kaufman argues that the defendants' refusal to permit him to meet with other atheist inmates to study and discuss their beliefs violates the Free Exercise Clause. [Citations omitted] "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." In the context of the Free Exercise Clause, Kaufman must first establish that his right to practice atheism was burdened in a significant way. He failed utterly to do so.
Moreover, an inmate is not entitled to follow every aspect of his religion; the prison may restrict the inmate's practices if its legitimate penological interests outweigh the prisoner's religious interests. Accordingly, the district court properly granted summary judgment on Kaufman's claim insofar as it arises under the Free Exercise Clause [denying it]..
The same is not true with respect to Kaufman's Establishment Clause claim. The Supreme Court reaffirmed the utility of the test set forth in Lemon v. Kurtzman,403 U.S. 602 (1971), in McCreary, 125 S.Ct. at 2732-35.Compare Van Orden v. Perry, 125 S.Ct. 2854, 2860-61 (2005) (plurality questions continuing utility of Lemon test).A government policy or practice violates the Establishment Clause if (1) it has no secular purpose, (2) its primary effect advances or inhibits religion, or (3) it fosters an excessive entanglement with religion. Lemon, 403 U.S. at 612-13; Books v. City of Elkhart, 235 F.3d 292, 301 (7th Cir. 2000).
The Establishment Clause also prohibits the government from favoring one religion over another without a legitimate secular reason.
The district court went astray when it evaluated Kaufman's claim on the assumption that he wanted to form a nonreligious group. Based on that premise, it held that the defendants were entitled to assess Kaufman's proposal under the more restrictive set of regulations that applies to normal social groups. Had the premise been correct, the conclusion would have followed: no one says that a person who wants to form a chess club at the prison is entitled under the Establishment Clause to have the application evaluated as if chess were a religion, no matter how devoted he is to the game. In addition, the district court correctly noted that in certain circumstances the government may make special accommodations for religious practices that are not extended to nonreligious practices without violating the Establishment Clause. {Citations omitted] Indeed, RLUIPA requires prisons to do just that, and the Supreme Court has recently upheld its constitutionality. Cutter v. Wilkinson, 125 S.Ct. 2113 (2005); see also Charles, 348 F.3d at 610-11.
The problem with the district court's analysis is that the court failed to recognize that Kaufman was trying to start a "religious" group, in the sense we discussed earlier.
But the defendants have not answered Kaufman's argument that by accommodating some religious views, but not his, they are promoting the favored ones. Because the defendants failed even to articulate -- much less support with evidence -- a secular reason why a meeting of atheist inmates would pose a greater security risk than meetings of inmates of other faiths, their rejection of Kaufman's request cannot survive the first part of the Lemon test. See Lemon, 403 U.S. at 612-13; Books, 235 F.3d at 301. We therefore vacate the grant of summary judgment in the defendants' favor on Kaufman's claim under the Establishment Clause and remand for further proceedings."
Read the full 13-page 7th Circuit opinion here.
See which states are affected by this 7th Circuit decision.
Excerpts from the Opinion follow:
CALLAHAN, Circuit Judge:
"Daniel M. Berry filed this lawsuit alleging that his public employer, the Tehama County Department of Social Services (“Department”), was violating his rights under the First Amendment of the United States Constitution and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e , et seq. by prohibiting him from discussing religion with his clients, displaying religious items in his cubicle, and using a conference room for prayer meetings. The district court granted summary judgment in favor of the Department, Mr. Berry appealed, and we affirm.
"Applying the balancing standard set forth in Pickering v. Board of Education, 391 U.S. 563 (1968), we conclude that the Department has successfully navigated between the Scylla of not respecting its employee’s right to the free exercise of his religion and the Charybdis of violating the Establishment Clause of the First Amendment by appearing to endorse religion.
"Specifically, we hold that the public employer’s interest in avoiding violations of the Establishment Clause of the First Amendment and in maintaining the conference room as a nonpublic forum outweigh the resulting limitations on Mr. Berry’s free exercise of his religion at work. We also further hold that the public employer was not required to further accommodate Mr. Berry’s religious views under Title VII."
Read the full 24-page 9th Circuit opinion here.
See which states are affected by this 9th Circuit decision.
NOTE: This decision is one of several across the country which allowed the display of the Ten Commandments in an appropriate secular setting, e.g., as a source of inspiration for the American legal system, in light of the Supreme Court's ruling last term in Van Orden v. Perry, permitting such a display, as opposed to the Decalogue's display for religious purposes in public facilities, which was prohibited by the Court's companion ruling in ACLU v. McCreary County. Here the facility at issue was the Mercer County courthouse.
Writing for the 6th Circuit Court of Appeals, Judge Richard Suhrheinrich said the ACLU's "repeated reference 'to the separation of church and state' ... has grown tiresome. The First Amendment does not demand a wall of separation between church and state."
Suhrheinrich wrote: "The ACLU, an organization whose mission is 'to ensure that ... the government [is kept] out of the religion business,' does not embody the reasonable person." The court said a reasonable observer of Mercer County's display appreciates "the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American traditions."
Excerpt from the Opinion:
"The Mercer County display has a secular purpose. Unlike McCreary County, there is nothing in the legislative history or implementation that tends to prove a religious purpose. Nor does the display have the effect of endorsing religion. The display is therefore constitutional as a matter of law. There being no genuine issue of material fact, the district court properly granted Mercer County's motion for summary judgment."
Read the full 14-page 6th Circuit opinion here.
See which states are affected by this 6th Circuit decision.
Excerpts from the opinion follow:
No holiday season is complete, at least for the courts, without one or more First Amendment challenges to public holiday displays. At issue in this case is the holiday display policy promulgated by the Department of Education (“DOE”) of the defendant city of New York … for the City’s public elementary and secondary schools. That policy allows the menorah to be displayed as a symbol of the Jewish holiday of Chanukah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but it does not allow a crèche or Nativity scene to be displayed as a symbol of the Christian holiday of Christmas. …
While Skoros’s complaint seeks to enjoin the operation of the DOE holiday display policy, the record suggests that her goal is not so much to preclude defendants’ use of the menorah or the star and crescent as it is to compel inclusion of the crèche in public school holiday displays.
[ The court then provides descriptions of Chanukah, dreidel, menorah and latkes, plus Ramadan, the star and crescent, Kwanzaa and its candleholder, among various holiday symbols. ] …
We do not here decide whether the City could, consistent with the Constitution, include a crèche in its school holiday displays. We conclude only that the defendants do not violate the Establishment Clause when, in pursuing the secular goal of promoting respect for the City’s diverse cultural traditions, they represent Christmas through a variety of well recognized secular symbols at the same time that they represent Chanukah through the menorah and Ramadan through the start and crescent.
With respect to Free Exercise, we conclude that no record of evidence supports Skoros’s claim that the City’s holiday display policy coerced her children to embrace Judaism or Islam or to renounce their Catholic faith.
… the City policy does not violate the establishment and Free exercise analysis articulated by the Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 … that, consistent with the general neutrality objective of the Establishment Clause, government action that interacts with religion (1) “must have a secular … purpose,” (2) must have a “principal or primary effect … that neither advances nor inhibits religion,” and (3) “must not foster an excessive entanglement with religion.” Id. at 612-13 …
As we noted at the outset of this opinion, we do not here decide whether there are any circumstances in which the defendants could constitutionally include a crèche in a public school holiday display. Nor do we ignore the possibility that, in some circumstances, a government’s deliberate exclusion of the religious symbol of one faith from a display that includes the religious symbols of another faith could communicate the official favoritism or hostility among religious sects that is prohibited by the Establishment Clause. … We hold only that where, as in this case, defendants permissibly include a religious symbol in a holiday display that unquestionably serves the secular purpose of pluralism, the Establishment Clause does not necessarily demand that they employ a religious symbol for every holiday that has a religious as well as a secular component.
Read the full 81-page majority 2nd Circuit opinion, and 46-page minority decison here.
See which states are affected by this 2nd Circuit decision.
For reasons noted below, the following account from the November 16, San Francisco Chronicle website, www.sgate.com, describes the Ninth Circuit Memorandum decision:
A Contra Costa County [California] school was educating seventh-graders about Islam, not indoctrinating them, in role-playing sessions in which students used Muslim names and recited language from prayers, a federal appeals court ruled Thursday [Nov. 17, 2005].
The Ninth U.S. Circuit Court of Appeals rejected a lawsuit by two Christian students and their parents, who accused the Byron Union School District of unconstitutionally endorsing a religious practice.
"The Islam program activities were not overt religious exercises that raise Establishment Clause concerns,'' the three-judge panel said, referring to the First Amendment ban on government sanctioning a religion.
During the history course at Excelsior [Middle] School in the fall of 2001, the teacher, using an instructional guide, told the students they would adopt roles as Muslims for three weeks to help them learn what Muslims believe.
She encouraged them to use Muslim names, recited prayers in class and made them give up something for a day, such as television or candy, to simulate fasting during Ramadan. The final exam asked students for a critique of elements of Muslim culture.
U.S. District Judge Phyllis Hamilton ruled in favor of the school district in 2003, saying that the class had an instructional purpose and that students had engaged in no actual religious exercises.
[ "As an initial matter, the Supreme Court has held that public schools bear the responsibilty of educating their students about the history and customs of other countries, which often must include a discussion of religion as well. "[I]t might well be said that one's education is not complete without a study of comparative religion, or the history of religion and its relationship to the advancement of civilization." School District of Abington Townsip, Penn v. Schempp, 374 U.S. 203, 225 (1963); see also Engel v. Vitale, 370 U.S. 401, 434 (1962). ("The history of man is inseparable from the history of religion.")
"All parties agree that the school district is entitled to teach students a basic history of Islamic religion and culture. The parties instead dispute whether role-playing games, and the details of this paricular role-playing game, are a proper way to do so." ]
The appeals court upheld her ruling Thursday [November 17] in a three-paragraph decision that was not published as a precedent for future cases, which generally is an indication that the court considers the legal issue to be clear from past rulings.
The court cited its 1994 ruling rejecting a suit by evangelical Christian parents in Woodland (Yolo County) who objected to elementary school children reading texts that contained tales and role-playing exercises about witches. In that case, the court said classroom activities related to the texts, which included casting a make-believe spell, were secular instruction rather than religious rituals.
Read the full 22-page District Court opinion here.
"This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3." Eklund, p.1(slip opinion)
Excerpts from the Opinion follow:
I.
“This is the Cobb County, Georgia evolution sticker case. It involves a message of thirty-three words on a sticker that the defendant school district and board of education had affixed inside the front cover of some science textbooks used in the public schools of the county.
“The plaintiffs, all of whom had children in those schools, brought suit claiming that the sticker violated the Establishment Clause of the First Amendment. Following a bench trial, the district court agreed with the plaintiffs and entered a permanent injunction ordering the defendants to remove the sticker from the textbooks. After being denied a stay, the defendants complied with the injunction by removing the stickers from the textbooks, but they have appealed asking us to reverse the district court’s judgment.
“Whether we should reverse or affirm the judgment depends on the evidence that was before the district court, and we cannot tell from the record what that evidence was. Everyone agrees that some evidence presented to the district court has been omitted from the record on appeal, but the attorneys have not been able to identify what was omitted. The problems presented by a record containing significant evidentiary gaps are compounded because at least some key findings of the district court are not supported by the evidence that is contained in the record.
“We have concluded that the unfilled gaps in the record, coupled with the problematic nature of some of the district court’s factfindings, prevent proper appellate review of the merits of the important constitutional issues raised in this case. For reasons we will explain, we have decided the best thing to do is remand the case to the district court in order for it to conduct new evidentiary proceedings and enter a new set of findings based on evidence in a record that we will be able to review. …
“Legal counsel drafted a statement to be placed in the textbooks containing material on evolution. By unanimous vote, the school board conditioned the adoption of those new textbooks on the inclusion of that statement in the form of a sticker affixed inside the front cover of the textbooks. The sticker stated:
This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered.
Approved by Cobb County Board of Education
Thursday, March 28, 2002 …
“The court held a four-day bench trial in November of 2004. It issued an order on January 13, 2005, concluding that the sticker adopted by the school board violated the Establishment Clause, as well as the Georgia Constitution, and issued an injunction that required the defendants to remove the sticker from all textbooks and permanently enjoined them from disseminating the sticker in any form. Selman v. Cobb County Sch. Dist., 390 F. Supp. 2d 1286, 1313 (N.D. Ga. 2005).
II.
“… While reiterating its finding that the board members had not adopted the sticker in order to promote or advance religion, id. at 1308, the court nonetheless concluded that “in light of the sequence of events that led to the Sticker’s adoption, the Sticker communicates to those who endorse evolution that they are political outsiders, while the Sticker communicates to the Christian fundamentalists and creationists who pushed for a disclaimer that they are political insiders.” Id.
“… In its analysis of the sticker’s context, the court found that the “message has an overwhelming presence” because it appears in the front of the textbooks, focuses solely on evolution, and is explicitly endorsed by the school board. Id. At 1311. The court noted that the intended audience is impressionable students and observed that stickers do not appear in any other Cobb County textbooks. Id.
“Based on the sticker’s context, the court concluded that regardless of what happens during classroom instruction, “the Sticker has already sent a message that the School Board agrees with the beliefs of Christian fundamentalists and creationists,” and in doing so, has impermissibly entangled itself with religion. Id. at 1312.
“Finally, the court concluded, without additional fact findings or explanation, that the sticker violated article I, section 2, paragraph 7 of the Georgia Constitution because it “aids the beliefs of Christian fundamentalists and creationists,” and the school board had used taxpayer money to produce the stickers and affix them to the textbooks. Id. At 1313.
“Accordingly, the court ordered defendants to remove the sticker from every textbook in which it had been placed and permanently enjoined the defendants from disseminating the sticker in any form. Id. The court directed plaintiffs to file their claims for damages, fees, and costs. Id. It later granted their request for nominal damages. Thereafter, the defendants filed a notice of appeal.
III.
“… Finally, the issues presented by this case are ones of substantial public importance and need to be resolved on their merits based on the facts instead of based upon mutual mishaps, mistakes, and misunderstandings about the evidence.
“We do not mean to imply that anything less than all of these factors would cause us to remand for further evidentiary proceedings. Because all of the factors are present in this case, however, we think that course of action is the appropriate thing to do.
“The district court should take the opportunity to revisit and correct any fact findings that remain without adequate evidentiary support following the additional evidentiary proceedings. It would be helpful if the court issued an entirely new set of findings of fact and conclusions of law. See Fed. R. Civ. P. 52(a).
“VACATED and REMANDED for further fact findings consistent with this opinion.”
Read the full 43-page 11th Circuit opinion here.
See which states are affected by this 11th Circuit decision.
Excerpts from the opinion:
INTRODUCTION:
On October 18, 2004, the Defendant Dover Area School Board of Directors passed by a 6-3 vote the following resolution:
Students will be made aware of gaps/problems in Darwin�s theory and of other theories of evolution including, but not limited to, intelligent design. Note: Origins of Life is not taught.
On November 19, 2004, the Defendant Dover Area School District announced by press release that, commencing in Januiary 2005, teachers would be required to read the following statement to students in the ninth grade biology class at Dover High School:
The Pennsylvania Academic Standards require students to learn about Darwinï's Theory of Evolution and eventually to take a standardized test of which evolution is a part.
Because Darwin's Theory is a theory, it continues to be tested as new evidence is discovered. The Theory is not a fact. Gaps in the Theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations.
Intelligent Design is an explanation of the origin of life that differs from Darwin's view. The reference book, Of Pandas and People, is available for students who might be interested in gaining an understanding of what Intelligent design actually involves.
With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the Origins of Life to individual students and their families. As a Standards-driven district, class instruction focuses upon preparing students to achieve proficiency on Standards-based assessments.
For the reasons that follow, we hold that the ID Policy is unconstitutional pursuant to the Establishment Clause of the First Amendment of the United States Constitution and Art. I § 3 of the Pennsylvania Constitution.
C. Federal Jurisprudential Legal Landscape
As we will review the federal jurisprudential legal landscape in detail below, we will accordingly render only an abbreviated summary of that terrain by way of an introduction at this juncture. The religious movement known as Fundamentalism began in nineteenth century America as a response to social changes, new religious thought and Darwinism. McLean v. Ark. Bd. Of Educ., 529 F. Supp. 1255, 1258 (E.D. Ark, 1982).
Religiously motivated groups pushed state legislatures to adopt laws prohibiting public schools from teaching evolution, culminating in the Scopes "monkey trial" of 1925. McLean, 529 F. Supp. At 1259; see Scopes v. State, 154 Tenn. 105 (1927) (crimainal prosecution of public-school teacher for teaching about evolution).
In 1968, a radical change occurred in the legal landscape when in Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court struck down Arkansas' statutory prohibiltion against teaching evolution. Religious proponents of evolution thereafter championed "balanced treatment" statutes requiring public-school teachers who taught evolution to devote equal time to teaching the biblical view of creation; however courts realized this tactic to be another attempt to establish the Biblical version of the creation of man. Daniel v. Waters, 515 F.2d 485 (6th Cir. 1975).
Fundamentalist opponents of evolution responded with a new tactic suggested by Daniel's reasoning which was ultimately found to be unconstitutional under the First Amendment, namely, to utilize scientific-sounding language to describe religious beliefs and then to require that schools teach the resulting "creation science" or "scientific creationism" as an alternative to evolution.
In Edwards v. Arkansas, 482 U.S. 578 (1987), five years after McLean, the Supreme Court held that a requirement that public schools teach "creation science" along with evolution violated the Establishment Clause. The import of Edwards is that the Supreme Court turned the proscription against teaching creation science in the public school system into a national prohibition.
The overwhelming evidence at trial established that ID is a religious view, a mere re-labeling of creationism, and not a scientific theory. As the Fifth Circuit Court of Appeals held in Freiler, an educator's "reading of a disclaimer that not only disavows endorsement of educational materials but also juxtaposes that disavowal with an urging to comtemplate alternative religious concepts implies School Board approval of religious principles." Freiler, 185 F. 3d at 348.
The classroom presentation of the disclaimer provides further evidence that it conveys a message of religious endorsement. It is important to initially note that as a result of the teachers' refusal to read the disclaimer, school administrators were forced to make special appearances in the science classrooms to deliver it. No evidence was presented by any witness that the Dover students are presented with a disclaimer of any type in any other topic in the curriculum. An objective student observer would accordingly be observant that the message contained in the disclaimer is special and carries special weight. In addition, the objective student would understand that the administrators are reading the statement because the biology teachers refused to do so on the ground that they are legally and ethically barred from misrepresenting a religious belief as science, as will be discussed below�
H. Conclusion
The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the board�s ID policy violates the Establishment Clause. In making this determination, we have addressed the seminal question of whether ID is science. We have concluded that it is not, and moreover that ID cannot uncouple itself from its creationist, and thus religious, antecedents.
"we do not question that many of the leading advocates of ID have bona fide and deeply held beliefs which drive their scholarly endeavors. Nor do we controvert that ID should continue to be studied, debated, and discussed. As stated, our conclusion today is that it is unconstitutional to teach ID as an alternative to evolution in a public school science classroom.
Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board aided by a national public interest law firm eager to find a Constitutional case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.
To preserve the separation of church and state mandated by the Establishment Clause of the First Amendment of the United States Constitution, and Art. I § 3 of the Pennsylvania Constitution, we will enter an order permanently enjoining defendants from maintaining the ID Policy in any school within the Dover Area School District, from requiring teachers to denigrate or disparage the scientific theory of evolution, and from requiring teachers to refer to a religious, alternative theory known as ID.
Defendants' actions in violation of Plaintiffs' civil rights as guaranteed to them by the Constitution of the United Stataes and 42 U.S.C. § 1983 subject Defendants to liability with respect to injunctive and declaratory relief, but also for nominal damages and the reasonable value of Plaintiffs' attorneys' services and costs incurred in vindicating Plaintiffs' constitutional rights.
Read the full 139-page District Court opinion here.
Summary:
The U.S. Court of Appeals for the Fourth Circuit has ruled that Virginia's statute mandating that school boards require the daily recitation of the Pledge of Allegiance in classrooms does not violate the First Amendment's Establishment Clause. The court concluded that the inclusion of the words "under G-d" does not convert the Pledge from a declaration of patriotism to an unconstitutional religious exercise.
Edward Myers, the parent of two Loudoun County Public Schools (LCPS) students, sued in federal district court over the statute and the school district's implementation of the statute. Mr. Myers objected not simply to the phrase "under G-d," but to the Pledge in its entirety, arguing that the statute offends the Establishment Clause by creating and supporting a state sponsored "civic religion" of "G-d and Country" and violates his children's free exercise of religion by requiring them to worship a secular state, which their Anabaptist Mennonite faith forbids as "idolatry."
Rejecting the facial challenge, the lower court applied the test in Lemon v. Kurtzman, 403 U.S. 602 (1971), to conclude that that the Pledge statute is secular in purpose, does not promote religion, and does not create excessive entanglement between religion and government. Nor is the manner in which the statute is implemented by the school board coercive, the court found, because participation is voluntary, children are not psychologically coerced, and hearing the Pledge does not constitute punishment.
The Fourth Circuit affirmed. Before addressing Mr. Myers's claims, the appeals court joined the majority of the federal circuits in holding that non-attorney parents generally are barred from litigating the claims of their minor children in federal court. Noting however that the children and their father now had competent counsel, the court turned to the merits and pointed out that the Establishment Clause was never intended to remove all recognition of religion from the civic arena, as evidenced by a lengthy history of official acknowledgement of religion in public pronouncements, such as legislative prayers, that have withstood constitutional challenge.
Regardless of the Establishment Clause test used, the U.S. Supreme has never concluded that daily recitation of the Pledge is unconstitutional. Citing Elk Grove Unified School District v. Newdow, 542 U.S. 1 (2004), which was decided on the issue of standing, the Fourth Circuit cited the concurring opinions of several Justices who "offered lengthy defenses of a State's policy requiring daily, voluntary, recitation of the Pledge by public school children."
Addressing Mr. Myers's central argument that the Pledge amounts to daily recitation of prayer, the court concluded that the inclusion of the religious phrase "does not alter the nature of the Pledge as patriotic activity." Even assuming that recitation of the Pledge contains a risk of indirect coercion, such coercion does not threaten to establish religion, but patriotism.
Read the full 25-page 4th Circuit opinion here.
See which states are affected by this 4th Circuit decision.
Summary (from religionclause.blotspot.com):
The U.S. 8th Circuit court of Appeals upheld the trial court's civil contempt order against the DeValls Bluff Arkansas School District and its employees for violating an injunction that prohibited them from orchestrating or supervising prayers at school graduation or baccalaureate ceremonies.
A 2004 baccalaureate ceremony included an invocation and benediction by local ministers. While school officials claimed that the baccalaureate service was a student-organized event, the court found that school employees were involved with almost every aspect of the service's preparation. The Associated Press reports that the successful plaintiff in this litigation, Paul Warnock, was eventually fired as a teacher, but lost his suit claiming that his dismissal was because of his complaints about religious discrimination and Christian prayer in the school.
Read the full 4-page 8th Circuit opinion here.
See which states are affected by this 8th Circuit decision.
Summary:
Two families in Selbyville, Delaware, sued Indian River School District (IRSD) over the inclusion of prayer at school board meetings, athletic events, banquets, and graduation ceremonies. The Dobrich family, who are Jewish, and another family identified only as the "Does" out of fear of retaliation, alleged that IRSD's practice of permitting prayer at school functions created "an environment of religious exclusion" , public insults, threats and jeering, and that the district promotes Christianity in the classroom. The families contended that students at Selbyville Middle School who participate in the Bible club receive preferential treatment and that at least two teachers openly espouse their religious beliefs in the classroom. Also, that at least one elementary school in the District had distributed Bibles during the school year.
A Delaware federal district court ruled that individual school board members enjoy absolute legislative immunity from a lawsuit brought by parents alleging that the board had developed, adopted, or implemented policies, practices, and customs permitting religious worship and prayer to in the district's schools in violation of U.S. Constitution's Establishment and Free Exercise of Religion Clauses.
The court found that the parents failed to state proper legal claims against the individual defendants in their individual capacities, including where these claims were based on supervisory liability for actions by teachers and others.
The court rejected the plaintiffs' claim that absolute immunity does not extend to invocations at board meetings because these involve a ministerial or administrative, rather than a legislative, act. Even if absolute immunity did not apply, the court held, the invocations are constitutional under the U.S. Supreme Court's decision in Marsh v. Chambers, 463 U.S. 783 (1983). That case held that the practice of opening a state legislature's session with a prayer does not violate the Establishment Clause.
However, the court left standing the claims by:
(1) the Dobrich family for past damages against the school board and IRSD;
(2) Mr. Dobrich for damages and declaratory and injunctive relief against the school board and the IRSD based upon prayer at school board meetings; and
(3) the Doe family for damages and declaratory and injunctive relief to the extent that those claims are against the school board and IRSD and not based on events for which the Doe family were not present.
[ For an analysis in Delaware's News Journal paper (a/k/a delawareonline.com) as to this initial Dobrich opinion, go to this link.
Subseuently, the School District refused to accept a compromise settlement. That Feb. 28, 2006, News Journal report can be found in www.delawareonline.com by linking here. ]
In turn, that decision did not go over well with the District's insurance agents, who sought an end to further litigation costs. See further discussion in the News Journal here.
Read the full 27-page District Court opinion here.
Excerpts from opinion by District Court Judge Karlton follow, at the conclusion of which will be found a link to the complete 31-page opinion, with full citations..
Pending before the court are motions to dismiss in what is something of a cause celebre in the ongoing struggle as to the role of religion in the civil life of this nation. Below, I conclude that binding precedent requires a narrow resolution of the motions, one which will satisfy no one involved in that debate, but which accords with my duty as a judge of a subordinate court.
As is known by most everyone, plaintiff, Michael Newdow ("Newdow"), is an atheist whose daughter attends school in the Elk Grove Unified School District ("EGUSD"). He and two other sets of parents and their minor children bring suit to challenge the constitutionality of 4 U.S.C. [section] 4, which codifies the wording of the Pledge of Allegiance, and the practices of four California public school districts requiring students to recite the Pledge.
[fn. 4: Plaintiffs bring claims under the Establishment Clause, the Free Exercise Clause, the Equal Protection Clause, and Due Process Clause of the United States Constitution. They also bring claims under Article XVI, Section 5, Article I, Section 4, and Article IX, Section 8 of the California State Constitution. Plaintiffs request the following relief:
a. A declaration that Congress, in passing the Act of 1954, violated the Establishment and Free Exercise Clauses;
b. A declaration that by including "under G-d" in the Pledge, 4 U.S.C. [Section] 4 violates the Establishment and Free
Exercise Clauses;
c. That Congress immediately remove the words "under G-d" from the Pledge of Allegiance, as written in 4
U.S.C. [section] 4;
d. To demand that defendant Peter LeFevre, Law Revision Counsel, immediately act to remove the words "under G-d" from the Pledge of Allegiance as written in 4 U.S.C. [Section] 4;
e. To demand defendant Schwarzenegger and Richard J. Riordan immediately repeal Education Code [Section] 52720 or end its enforcement;
f. To demand that the School Districts forbid the use of the now-sectarian Pledge of Allegiance; and
g. Costs, expert witness fees, attorney fees.]
Plaintiffs bring suit against the United States of America, the United States Congress, and Peter LeFebre, a congressional officer (collectively "federal defendants"). The complaint also names as defendants the State of California, the Governor of California, California's Education Secretary (collectively "state defendants"), and four local California public school districts and their superintendents (collectively "school districts") - but in their opposition, they concede that the superintendents should be dismissed.
The immediate causes of this order are the motions to dismiss filed by the federal and state defendants, as well as the school districts.
In 1942, as part of an effort "to codify and emphasize the existing rules and customs pertaining to the display and use of the flag of the United States of America," Congress enacted a Pledge of Allegiance to the flag. H.R. Rep. No. 2047, 77th Cong., 2d Sess. 1 (1942); S. Rep. No. 1477, 77th Cong., 2d Sess. 1 (1942). It read: "I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one Nation indivisible, with liberty and justice for all." Act of June 22, 1942, ch. 435, [Section] 7, 56 Stat. 380.
Twelve years later, Congress amended the Pledge of Allegiance by adding the words "under G-d" after the word "Nation." Act of June 14, 1954, ch. 297, [Section] 7, 68 Stat. 249. The Pledge of Allegiance now reads: "I pledge allegiance to the Flag of the United States of America, and to the Republic for which it stands, one Nation under G-d, indivisible, with liberty and justice for all." 4 U.S.C. [Section] 4.
The EGUSD allowed students who object on religious grounds to abstain from the recitation [which was deemed an appropriate exercise of what was defined as a patriotic practice to be conducted in the schools.]. Elk Grove, 124 S.Ct at 2306.
The original case was referred to Magistrate Judge Nowinski, who recommended dismissal of the suit, concluding that the Pledge does not violate the Establishment Clause. Judge Schwartz adopted the findings and recommendations and dismissed Newdow's complaint on July 21, 2000. In the course of appeal, the Ninth Circuit issued three separate decisions - [ "Newdow I", "Newdow I", "Newdow III" ]
Supreme Court Case ("Elk Grove"); On June 14, 2004 [in Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1], the Supreme Court considered the Ninth Circuit's decision. It held that, given the California court's order, Newdow lacked prudential standing to bring suit in federal court. The Court also examined Newdow's other claimed bases for standing, which are similar to those claimed here.
It held that Newdow's claim that he attended and will continue to attend classes with his daughter in the future, that he has considered teaching elementary school students, that he has attended and continues to attend school board meetings where the Pledge is recited were insufficient to respond to the court's prudential concerns. The majority also concluded that Newdow's taxpayer standing argument failed because it did not amount to the "direct dollars-and-cents injury" that Doremus v. Bd. of Ed. of Hawthorne, 342 U.S. 429, 434 (1952) requires.
[fn. 13: In Doremus, a taxpayer challenged a state statute that provided for the reading of verses from the Bible at the beginning of each school day. The Supreme Court held that the taxpayer lacked standing because the action was not a "good-faith pocketbook" challenge to the state statute. 342 U.S. at 430.]
Newdow avers that his child is forced to experience teacher led recitation of the Pledge of Allegiance every morning, even though he has requested the principal of his child's school and the EGUSD that the practice be discontinued. Newdow volunteers in his child's classroom, and on some of those occasions, the teacher has led the students in reciting the Pledge of Allegiance. He also alleges that he has attended the EGUSD and SCUSD school board meetings, where the Pledge of Allegiance is recited under the direction of the Boards.
[Similar circumstances apply to co-plaintiffs "Roe" and his children, "RoeChild-1 and Roe Child-2", who are atheists and pantheists.]
OTHER ALLEGATIONS: Each adult plaintiff claims that he or she has been made to feel like a "political outsider" due to the "government's embrace of (Christian) monotheism in the Pledge of Allegiance."
The parents contend that they are deeply involved in the education of their children, and that they have attempted to participate in school matters, but once their atheism becomes known, it interferes with their ability to "fit in" and "effect changes within the political climate of parent-teacher associations,[and] school board meetings." Finally, the adult plaintiffs maintain that they are placed in an untenable situation requiring them "to choose between effectiveness as an advocate for his or her child's education, and the free exercise clause of his or her religious beliefs."
I conclude that Newdow lacks standing and his claim relative to the state and district defendants must be dismissed.
[Roe] Plaintiff has properly alleged that he has custody of his children and thus by reasonable inference decision-making power over them, and defendant has tendered nothing to rebut that inference. The court concludes that plaintiff Roe has sufficientlly pled standing.
Having resolved the standing question, I turn to the substance of the complaint. As I explain below, the court concludes that it is bound by the Ninth Circuit's previous determination that the school district's policy with regard to the pledge is an unconstitutional violation of the children's right to be free from a coercive requirement to affirm G-d. The court also concludes, however, that by virtue of that determination, the claims concerning the Pledge itself are rendered moot.
It is established that there is a distinction between a case being reversed on other grounds and a case being vacated. A decision that is reversed on other grounds may still have precedential value, whereas a vacated decision has no precedential authority.
In Newdow III, the Ninth Circuit applied the "coercion test" formulated by the Supreme Court in Lee v. Weisman, 505 U.S. 577, 580 (1992), and concluded that the district's pledge policy "impermissibly coerces a religious act." The court determined that the school district's policy, like the school's action in Lee of including prayer at graduation ceremonies, "places students in the untenable position of choosing between participating in an exercise with religious content or protesting." The court observed that the "coercive effect of the policy here is particularly pronounced in the school setting given the age and impressionability of schoolchildren . . . ." Newdow III, 328 F.3d at 488.
Finally, the court noted, that non-compulsory participation is no basis for distinguishing it from West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), where the Court held unconstitutional a school district's wartime policy of punishing students who refused to recite the Pledge and salute the flag. [fn. Barnette was decided before the 1954 Act added the words "under G-d" to the Pledge.] The Ninth Circuit concluded that even without a recitation requirement for each child, "the mere presence in the classroom every day as peers recite the statement 'one nation under G-d' has a coercive effect." Newdow III, 328 F.3d at 488. "The 'subtle and indirect' social pressure which permeates the classroom also renders more acute the message to non-believing school-children that they are outsiders." Id. (citing Lee, 505 U.S. at 592-93).
The court then determined that "there can be little doubt that under the controlling Supreme Court cases, the school district's policy fails the coercion test." Accordingly, the court held that "the school district's policy and practice of teacher-led recitation of the Pledge, with the inclusion of the added words 'under G-d,' violates the Establishment Clause." Newdow v. U.S. Congress, 328 F.3d 466, 490 (9th Cir. 2002).
Because this court is bound by the Ninth Circuit's holding in Newdow III, it follows that the school districts' policies violate the Establishment Clause. Accordingly, upon a properly supported motion, the court must enter a restraining order to that effect. Because of that conclusion, however, as I explain below, it follows that the plaintiffs' federal claims [emphasis added] are rendered moot.
C. PLEDGE RECITATION AT SCHOOL BOARD MEETINGS AND OTHER GOVERNMENTAL MEETINGS
Aside from the allegations related to the school districts� compulsory administration of the Pledge to student-plaintiffs, the complaint also alleges that each of the parents have, independent of their relationship to their offspring, cognizable claims. Specifically, the adult plaintiffs assert that they have attended school board meetings where the Pledge has been recited. These parent-plaintiffs submit that when they are faced with the Pledge of Allegiance, "a significant hurdle arises, interfering with an ability to 'fit in' and effect changes within the climate of parent-teacher associations, school board meetings, and the like." In essence, plaintiffs argue that they are branded with a 'political outsider' status. Plaintiffs' arguments must be rejected.
The Pledge itself does not compel recitation anywhere, at any time. Thus, properly understood, plaintiffs are complaining about a school board policy or practice. Yet the present complaint does not seek relief from that practice but attacks the content of the Pledge, which is significant only because of that practice. Even it this were not the case, however, the present status of Establishment Clause jurisprudence compels rejection of plaintiffs' claim in this regard.
It cannot be gainsaid that the practice of reciting the Pledge in the context of adults attending a school board meeting tenders a different question than the recitation of the Pledge in a classroom. In Lee v. Weisman, the case upon which the Newdow III court relied, the Supreme Court explained the inherent differences between religious activity involving students in a public school system and, for instance, a prayer said at the opening of a session of a state legislature, the issue at bar in Marsh v. Chambers, 463 U.S. 783 (1983). In Lee, the court emphasized "recognition [of] the real conflict of consequence by the young student." Lee, 505 U.S. at 596. In contrast the Court explained:
[t]he atmosphere at the opening of a session of a state legislature where adults are free to enter and leave with little comment and for any number of reasons cannot compare with the constraining potential of the [the student's graduation]. . . .
Plaintiffs' [Newdoe and the Roes] claim must be rejected because both the Ninth Circuit and the Supreme Court have applied the coercion test and the "outsiders" status claim with great restraint, recognizing it only in the context of children who are more likely to be pressured and negatively impacted. Here, plaintiffs are adults who, like the legislators in Marsh, are "free to enter and leave" at the opening of a school board session. For all the above reasons, the motion to dismiss the parents' suit relative to school board meetings must be granted.
IV. CONCLUSION
For all the foregoing reasons, the court ORDERS as follows:
1. Defendants' motions to dismiss the claim as to the recitation of the Pledge in a classroom is DENIED; and
2. As to all the other causes of action, the motion is GRANTED.
IT IS SO ORDERED. [fn. 22]
[fn. 22 This court would be less than candid if it did not acknowledge that it is relieved that, by virtue of the disposition above, it need not attempt to apply the Supreme Court's recently articulated distinction between those governmental activities which endorse religion, and are thus prohibited, and those which acknowledge the Nation's asserted religious heritage, and thus are permitted.
As last terms cases, McCreary County v. ACLU, 125 S.Ct. 2722, 2005 WL 1498988 (2005) and Van Orden v. Perry, 125 S.Ct. 2854, 2005 WL 1500276 (2005) demonstrate, the distinction is utterly standardless, and ultimate resolution depends of the shifting, subjective sensibilities of any five members of the High Court, leaving those of us who work in the vineyard without guidance. Moreover, because the doctrine is inherently a boundaryless slippery slope, any conclusion might pass muster.
It might be remembered that it was only a little more than one hundred ago that the Supreme Court of this nation declared without hesitation, after reviewing the history of religion in this country, that 'this is a Christian nation." Church of the Holy Trinity v. United States, 143 U.S. 457, 471 (1892). As preposterous as it might seem, given the lack of boundaries, a case could be made for substituting "under Christ" for "under G-d" in the pledge, thus marginalizing not only atheists and agnostics, as the present form of the Pledge does, but also Jews, Muslims, Buddhists, Confucians, Sikhs, Hindus, and other religious adherents who, not only are citizens of this nation, but in fact reside in this judicial district.]
DATED: September 14, 2005.
/s/Lawrence K. Karlton
LAWRENCE K. KARLTON, SENIOR JUDGE
UNITED STATES DISTRICT COURT, EASTERN CALIFORNIA
Read the full 31-page District Court opinion here.
Summary of Decision:
In the case of Bronx Household of Faith v. Board of Education of the City of New York, a Southern District of New York federal judge held that the New York public schools may not prohibit the use of their buildings for weekly, full-scale, year-round worship services - occurring every Sunday from 9 a.m. to 2 p.m. In other words, if they were going to permit any other groups to use the premises, they had to permit a church to make its buildings into the church's house of worship.
The crux of the decision was that the school district was engaging in "viewpoint discrimination" - forbidden by the First Amendment's free speech clause -- if it forbade the use of its buildings for worship, but permitted it for "social, civic, and recreational meetings." Religious speech and secular speech, the court indicated, must be treated alike - and would not be, if the Sunday meetings were prohibited.
The record, as summarized by the Court, does not indicate that any other organization uses the building as often, and for as many hours, as the church did. Nor does the decision come to terms with the reality, which is that this church appears to have decided to make a public school its permanent house of worship.
The district court judge in the Bronx Household case followed two key Supreme Court precedents. Both embrace the speech-equality principle, which demands that secular and religious speech be treated alike.
In 1995, the Supreme Court held in Rosenberger v. University of Virginia that a college Student Activities Fund had to give out its money equally to secular and religious organizations.
Then, in 2001, the Court held in Good News Club v. Milford Cen. Sch. that schools may not exclude religious viewpoints from student activities. Thus, the Court held, a Christian afterschool club for children had to be allowed to conduct weekly afterschool meetings at a public school.
But two other Supreme Court decisions cut the other way. In 1992, in Lee v. Weisman, the Court held that a school may not endorse religion by hiring clergy [in that particular case, a rabbi] to deliver a prayer at graduation. The reason was that the students who did not share the religious views of the clergy member would be made to feel disenfranchised.
And in 2001, in Santa Fe Independent School District v. Doe, the Court forbade another kind of endorsement of religion: permitting students to say prayers over the loudspeaker at football games. The evil of this endorsement, just as in Lee, is the feeling of disenfranchisement inspired in non-worshipping students (or those who feel compelled to pray along with the leader).
These cases turn on a factual question: whether students would view the religious activity as being endorsed by the school. In the Bronx Household case, there were facts suggesting students would view the Sunday worship just this way: The meetings had been going on for two years, showed no sign of stopping, and were accompanied by proselytizing.
In sum, the Church was a fixture at the public school - and so were its recruitment efforts. It would have been surprising if students had thought that the school did not endorse the Church.
For these reasons, the court should have allowed the school to forbid the Church's Sunday worship from taking place in public school buildings - even though it was required to permit children to have religious clubs that meet after school. The Establishment Clause always rests on nuances in the facts, and the distinction between the two scenarios is no fine point.
The Church-Planting Movement: A Threat to the Establishment Clause
The Establishment Clause, first and foremost, is a mechanism by which the United States keeps the balance of power between church and state - to retain the vitality of each. Neither is supposed to be able to overpower the other, or to turn the other to its own advantage. But in this case, an evangelical movement - the record showed - has embarked on a systematic campaign to exploit public buildings for its own purposes.
The movement is known as "church-planting," and the idea behind it is that churches will be "planted" in public buildings, where they will "grow." Rather than financing their own houses of worship, church-planting religious organizations seek to employ public locations for their weekly services. In some circumstances, they take over the school for much of the weekend. In the Bronx Household of Faith case, the record also indicated an intention to use every public school building possible in this way.
Church-planting not only saves churches the money that it would take to invest in their own bricks and mortar, but also gives them proximity to public school students (and families) - and thus a launching pad to find converts. It also allows churches to fight what they view as the "secularization" (that is, the Constitutionally-mandated inclusion of all faiths) in the public schools.
Public schools are supposed to be havens for all believers. They are the gathering point for the citizens of the United States. One can only imagine the feeling of disenfranchisement engendered in the children of atheists, agnostics, Buddhists, or even mainstream Protestants, when they learn that their school building is the house of worship for those who view their beliefs as false, and thus feel the compulsion to convert them.
The Bronx Household case harnessed each school's children to the political aspirations of a few churches. It did not vindicate the rights of free speech, but rather permitted a new - and admittedly clever -- variation of the establishment of religion.
Commentator Marci A. Hamilton, who wrote the above summary, holds the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Hamilton02@aol.com. Professor Hamilton's most recent work is G-d vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).
Read the complete 40-page District Court decision here.
Four Indiana residents and taxpayers have sued the Speaker of the House of Representatives of the Indiana General Assembly. They allege that most of the prayers the Speaker has permitted to open the House sessions are sectarian Christaian prayers, in violation of the Establishment Clause of the First Amendment to the United States Constitution. Such prayers are deemed government speeches for the purpose of applying the Establishment Clause. Plaintiffs bring this action under 42 U.S.C. §1983.
With the consent of the parties, the court consolidated the trial on the merits with the hearing on plaintiffs' requests for a preliminary injunction. The trial held on October 28, 2005, was devoted to argument on stipulated facts and written submission of evidence. The court now states its finding of facts and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.
To summarize, the evidence showed that the official prayers offered to open sessions of the Indiana House of Representatives repeatedly and consistently advance the beliefs that identify the Christian religion: the resurrection and divinity of Jesus of Nazareth. The Establishment Clause "means at the very least that government may not state a preference for one particular sect or creed (including a preference for Christianity over other religions). "The clearest command of the Establishment Clause is that one particular denomination cannot be officially preferred over another." County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 605 (1989), quoting Larson v. Valente, 456 U.S. 228, 244 (1982).
The sectarian content of the substantial majority of official prayers in the indiana House therefore takes the prayers outside the safe harbor the Supreme Court recognized for inclusive, non-sectarian prayers in Marsh v. Chambers, 463 U.S. 783 (1983). Plaintiffs have standing as Indiana taxpayers to bring their claims, and they are entitled to declaratory and injunctive relief. This relief will not prohibit the House from opening its sessions with prayers if it chooses to do so, but will require that any official prayers be inclusive and non-sectarian, and not advance one particular religion.
Read the full 60-page District Court opinion here.
[ On March 1, 2005, the 7th Circuit refused to issue a stay (halting implementation) of the lower ruling until a full review can occur at the federal appeals court level. Nevertheless, its opinion reviewed prior decisions by other Circuit Courts, the Supreme Court, as well as state courts findings, which overwhelmingly held that a prior Supreme Court decision [ Marsh v. Chambers, 463 U.S. 783 (1983) ] allowing prayers in state legislatures did not apply to heavily sectarian, exclusively Christian, prayers, which were found to violate the Establishment Clause of the First Amendment. ]
"In assessing the Speaker [Bosma]’s chance of success on the merits of his appeal and in balancing the slight and temporary injury he faces absent a stay, we must conclude that the speaker has not met his burden of establishing that a stay ought to be granted.
"MOTION DENIED"
Read the full 22-page 7th Circuit opinion here.
See which states are affected by 7th Circuit decisions.
Summary from Opinion from SIDNEY H. STEIN, U.S. District Judge:
Current and former employees of the Salvation Army bring this action for relief from the Salvation Army's efforts to enforce compliance with its religious mission among its staff. Plaintiffs claim to have been subjected to unlawful religious discrimination and have brought suit against the Salvation Army, as well as against the City of New York and the commissioners of several state and local government entities that contract with the Salvation Army for the provision of social services.
Plaintiffs allege violations of the First and Fourteenth Amendments to the U. S. Constitution, Title VII of the Civil Rights Act, 42 U.S.C. [Section] 2000e et seq., and various provisions of state and local law.
All defendants have moved to dismiss the complaint - As plaintiffs have failed to allege that the discrimination they suffered can properly be attributed to the government defendants, the motion of the government defendants is granted, except insofar as it pertains to plaintiffs' taxpayer-standing-based Establishment Clause claim [regarding improper use of government funds for religious purposes.]
[Boldface emphasis added - Webmaster]
Because the Salvation Army is not a state actor, and because it enjoys statutory exemptions from liability for religious discrimination, its motion to dismiss is granted with respect to all claims against it, except plaintiffs' retaliation claims pursuant to state and city law.
The Salvation Army contends that plaintiffs' belief that they had engaged in a protected activity by complaining of the alleged underlying discrimination was objectively unreasonable, given the express provisions of the relevant antidiscrimination laws that insulate religious organizations from liability for discriminating on the basis of religion in employment. However, plaintiffs need not possess scholarly familiarity with antidiscrimination law in order to satisfy the requirement that they believed in good faith that they had suffered unlawful discrimination. Here, plaintiffs may have reasonably believed that they had been subject to illegal discrimination on the basis of religion, particularly in light of the fact that the relevant laws generally prohibit such discrimination. Moreover, even if plaintiffs had knowledge of the statutory exceptions, they may have believed in good faith that those exceptions were unconstitutional as applied. The Salvation Army has failed to establish that it was objectively unreasonable for plaintiffs to believe that they had suffered unlawful discrimination. Therefore, plaintiffs' retaliation claims pursuant to state and city law are not dismissed. [Emphasis added - Webmaster]
Read the full 48-page District Court opinion here.
Summary (from religionclause.blotspot.com):
The U.S. Seventh Circuit Court of Appeals dismissed an age discrimination suit brought by the 50-year old music director and organist employed by a Roman Catholic Church in Peoria, Illinois and by the Peoria Diocese. In an interesting decision by Judge Richard Posner, the court invoked the principle that courts will not exercise jurisdiction over the internal affairs of religious organizations when it would involve courts in deciding ecclesiastical matters. Rejecting the argument that Tomic did not have religious duties, the court said that moving ahead with the case would involve the court in deciding whether Tomic was dismissed because of church needs rooted in church doctrine, or whether that was a pretext for age discrimination.
The court also rejected the Second Circuit's recent holding [Hankins v. Lyght, (2nd Cir., Feb. 16, 2006), also an age discrimination claim by a church employee] that the Religious Freedom Restoration Act intended to substitute its standard of review for the traditional ministerial exception in ADEA cases. He said that RFRA applies only to cases in which the government is a party.
Selected text follows:
Thus "the First Amendment concerns [with assuming jurisdiction in ecclesiastical cases] are two-fold. The first concern is that secular authorities would be involved in evaluating or interpreting religious doctrine. The second quite independent concern is that in investigating employment discrimination claims by ministers against their church, secular authorities would necessarily intrude into church governance in a manner that would be inherently coercive, even if the alleged discrimination were purely nondoctrinal." Combs v. Central Texas Annual Conference of United Methodist Church, supra, 173 F.3d at 350 (citations omitted). This second aspect of the internal-affairs doctrine is called the "ministerial exception" to the exercise of federal jurisdiction. E.g., Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 702-03 (7th Cir. 2003).
Both aspects govern decision even when--in fact most commonly when--the complaint is not based on and does not refer to religious doctrine or church management (as in most Title VII and other employment-discrimination suits) but it is apparent that a controversy over either may erupt in the course of adjudication. E.g., id.; EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000).
The ministerial exception, and the hands-off approach more generally, do not place the internal affairs of religious organizations wholly beyond secular jurisdiction. If a local congregation of a hierarchical sect seized the local church, changed the locks, and declared itself an independent religious organization, a court would, upon suit by the hierarchy, enjoin the seizure.
... At argument Tomic's lawyer astonished us by arguing that music has in itself no religious significance--its only religious significance is in its words. The implication is that it is a matter of indifference to the Church and its flock whether the words of the Gospel are set to Handel's Messiah or to "Three Blind Mice." That obviously is false. The religious music played at a wedding is not necessarily suitable for a funeral; and religious music written for Christmas is not necessarily suitable for Easter. Even Mozart had to struggle over what was suitable church music with his first patron, Archbishop Colloredo, whom the Mozart family called the "arch-booby." "Music is a vital means of expressing and celebrating those beliefs which a religious community holds most sacred. Music is an integral part of many different religious traditions," including the Catholic tradition. EEOC v. Roman Catholic Diocese of Raleigh, supra, 213 F.3d 795, 802-03; see also Starkman v. Evans, 198 F.3d 173, 176-77 (5th Cir. 1999). Like the plaintiff in the Starkman case, Tomic "performed tasks that were 'traditionally ecclesiastical or religious.'" Id. at 177.
Read the full 13-page 7th Circuit opinion here.
See which states are affected by this 7th Circuit decision.
[FYI: In Celnik v. Congregation B'nai Israel, a New Mexico Court of Appeals in an opinion originally released Feb. 6 and issued in corrected form April 4, 2006, applied the church autonomy doctrine to dismiss a suit by a long-tenured rabbi against his synagogue after his employment was terminated. Describing the case as raising an issue of first impression in New Mexico, the court held that the church autonomy doctrine protects religious institutions from governmental interference. Rabbi Celnik claimed that defendants had disseminated one-sided information about him to sway the congregation to compel him to resign. He claimed his dismissal was actually motivated by his Parkinson's disease, his age, his wife's medical condition and his complaints about the congregation's failure to compensate him in accordance with his contract.]
