Challenge To School Religious Activities Dismissed On Standing Grounds

In American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, Jan. 20, 2016), a Colorado federal district court dismissed for lack of standing a lawsuit by parents of children in the Douglas County School District, and by the American Humanist Association. The suit challenged as violations of the Establishment Clause and the Equal Access Act various religious activities in the school system, including participation in Operation Christmas Child collections for needy children, a trip by the Fellowship of Christian Athletes to Guatemala and faculty participation in the Fellowship of Christian Athletes.  Some plaintiffs did not show any injury in fact, while others did not show that their injury was traceable to the challenged conduct. The court also found no standing for plaintiffs as municipal taxpayers.

Cert. Denied In Challenge To ACA Religious Conscience Exemption

On Monday, the U.S. Supreme Court denied certiorari in Cutler v. Department of Health and Human Services, (Docket No. 15-632, cert. denied 1/11/2016) (Order List).  In the case, the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act which exempts from the individual mandate members of certain traditional religious groups such as the Amish and Mennonites. (See prior posting.)

Court Rejects Establishment Clause Challenge To Bladensburg Cross

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (D MD, Nov. 30, 2015), a Maryland federal district court rejected an Establishment Clause challenge to a 40-foot tall Veteran's Memorial in the shape of a cross. The so-called Bladensburg Cross was erected in 1925 by the American Legion at the intersection of two highways. The original ownership of the land on which it sits was unclear, but the land was eventually transferred to the state.  As Veterans Memorial Park, it is now also surrounded by other monuments. The court concluded that the cross does not have the effect of endorsing religion:

the predominant and nearly exclusive use of the Monument has been for annual commemorative events held on Memorial Day and Veterans Day....  In light of this history and context, of which a reasonable observer would be aware, the Monument "evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles...." The evocation of foreign graves is particularly relevant here because, unlike crosses challenged in other cases, the Monument explicitly memorializes forty-nine servicemen who died in Europe during World War I, and the "cross developed into a central symbol of the American overseas cemetery" during and following World War I....

The Baltimore Sun reports on the decision.

County Tries To Neutralize Courthouse Drawing of Jesus By Hanging Many Other Paintings

The Lexington Herald-Leader on Monday reported that a Kentucky county judge-executive responded to a complaint about a picture of Jesus hanging in the local courthouse by inviting local artists to submit other pictures to hang along side it.  After the Freedom From Religion Foundation sent a letter to Breathitt County Judge-Executive John Lester “JL” Smith in August asking him to remove the drawing of Jesus, Smith's response was to seek other artwork so that the walls now feature everything from landscapes to a portrait of Rachel Maddow to a drawing of Mr. Magoo.  An FFRF attorney argues however that this does not cure the original religious purpose for hanging the charcoal of a man kneeling before Jesus with the caption "In your place what would Jesus do."

Organization Launches 13th Annual "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its 13th annual Friend or Foe Christmas Campaign.  It says the purpose of the campaign is "to make sure Christmas is not censored in public places."  As part of the campaign, Liberty Counsel publishes its Naughty or Nice list of retailers, praising those who use "Christmas" in their products and ads, while panning those which instead use the more generic term "Holiday." The campaign also seeks to encourage governmental organizations to embrace Christmas, saying: "public officials in schools and county offices are often cowering to grinch-like atheist organizations threatening lawsuits."

Arkansas County's Nativity Scene Violates Purpose Prong of Lemon Test

In American Humanist Association v. Baxter County, Arkansas, (WD AR, Nov. 12, 2015), an Arkansas federal district court held that a privately-owned nativity scene that has been erected on the Baxter County Courthouse lawn for the past 40 years violates the Establishment Clause, despite changes made in recent years to attempt to avoid this conclusion.  The display has long been accompanied by a Christmas tree, and in recent years by Santa Claus and reindeer figures. In 2014, the county leased the land on which the display sits for $1 to the Chamber of Commerce for the specific purpose of erecting a nativity display. It also added a sign with a disclaimer saying that the county is saluting liberty, and the display is owned and erected by private citizens.  The court held that whatever the relevance of these details under the Lemon test on whether the display has the effect of promoting religion, these details are irrelevant when the purpose of the display is predominately religious. The court said in part:

The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas." ... [Also] there is no dispute that in December 2013, Judge Pendergrass [the County CEO] denied at least two separate requests to install a banner near the creche stating "Happy Solstice."

The court in its judgment entered a declaratory judgment and injunction, and awarded $1 in nominal damages, against the county and its CEO in his official capacity. It held that the county CEO in his personal capacity had qualified immunity from a damage claim.  The court's injunction provides that  defendants must either

(1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.

Ozarks First reports on the decision.

Texas AG Opinion OK's "In God We Trust" On Police Cars

Texas Attorney General Ken Paxton last week issued Opinion No. KP-0042 (Nov. 4, 2015)  concluding that a police department or sheriff's office may display the national motto, "In God We Trust," on its patrol cars without violating the Establishment Clause.  The Attorney General's Opinion says in part:

[D]isplaying "In God We Trust" on police vehicles is a passive use of a motto steeped in our nation's history that does not coerce Citizen approval or participation.

AP reported on the Opinion.

Senator Hatch Criticizes Supreme Court's Establishment Clause Jurisprudence

In September, Utah Senator Orrin Hatch (former chairman of the Senate Judiciary Committee) delivered the first in a planned series of 8 speeches on the Senate floor addressing Religious Liberty.  This past Wednesday, Hatch delivered the fourth speech in that series, this one on Faith and Public Life.  The full transcript was included in a press release from Hatch's office. The speech broadly attacks the notion that the Establishment Clause creates a wall of separation between church and state. He said in part:

[T]he ratification debates clarify that the ratifiers viewed official establishment of a particular church as direct financial support for a preferred sect, wholly distinct from the non-discriminatory support and encouragement of religion in general, which the Establishment Clause was not thought to limit....  For a century and a half, this understanding of the Establishment Clause endured with little challenge....

Unfortunately, religion was not spared from the destructive judicial activism of a Supreme Court that spun wildly out of control in the mid-twentieth century. A new crop of justices, disinclined to follow the traditional judicial role of applying the law as written, instead sought to remake the law according to their left-wing worldview. From inventing new rights for criminals to mandating nearly unlimited access to abortion on demand, the Court in this period left few stones unturned in its radical rewriting of the Constitution. The longstanding understanding of the Establishment Clause was one of the mid-century Court’s first victims. Abandoning the understanding of the Clause I have previously detailed—an understanding that was clearly supported by text, structure, history, and precedent—the Court turned the Establishment Clause on its head.

Wall of Separation blog criticizes Hatch's remarks.  Video of the three prior speeches in the series by Hatch are available on YouTube: Basic Principles (Sept. 22); Religious Liberty in the U.S. (Oct. 1); Status of Religious Freedom (Oct. 8).

Marine Base Will Not Remove Sign Calling For God's Blessing

AP reported yesterday that the commander of the Marine corps base on Oahu, Hawaii has rejected a call by the Military Religious Freedom Foundation that the military move or take down a sign put up after 9-11 which reads: "God bless the military, their families and the civilians who work with them." MRFF head Mikey Weinstein says the group represents 72 marines on the base, and wants the sign removed or moved to the grounds of the base chapel.  Alternatively Weinstein proposes that other signs be put up alongside this one, reading, for example, "Goddess bless...."  MRFF says that the current sign violates the Establishment Clause.

6th Circuit Reopens Settlement of Suit Challenging Kentucky's Placements In Faith-Based Facilities

In Pedreira v. Sunrise Children's Services, Inc., (6th Cir., Oct. 6, 2015), the U.S. 6th Circuit Court of Appeals in a 2-1 decision essentially reopened an Establishment Clause lawsuit that had been settled after 14 years of litigation. At issue was the state of Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. A Kentucky federal district court entered an order incorporating terms of a settlement between the parties and held that Sunrise had no standing to object to the settlement between Kentucky and plaintiffs challenging the funding.  (See prior posting.) The 6th Circuit however held that the district court's dismissal was effectively a consent decree, and before entering a consent decree the court is required to allow anyone affected by the decree to present evidence and have its objections heard. It emphasized that

the consent decree singles out Sunrise by name for special monitoring by the ACLU and Americans United; and in doing so, Sunrise argues, the decree subjects Sunrise to unique reputational harm. Thus, the decree denies Sunrise a chance to clear its name—and instead, over Sunrise’s objection, imposes the very reputational harm that Sunrise sought to avoid by means of 15 years of litigation. 

Judge Black dissented, saying: "After fourteen years of contentious litigation, the district court judge helped effectuate settlement of this case. His actions should be entitled to our deference."  Courthouse News Service reports on the decision.

Suit Says Proposed Annexation By Hasidic Town Violates Establishment Clause

As reported by the Wall Street Journal, in a lawsuit filed this week in state court in New York, an environmental group charges that the proposed annexation of 507 acres of land (and an alternative proposal to annex 164 acres) in the town of Monroe by the predominantly Hasidic village of Kiryas Joel violates the Establishment Clause. The 89-page complaint (full text) in Preserve Hudson Valley v. Town Board of the Town of Monroe, (NY Sup Ct Westchester County, filed 10/5/2015) alleges, in addition to challenges to the environmental analysis, that:

The Town Board’s and the Village Board’s determinations on the Annexation Petitions would unconstitutionally cede electoral territory and political power to a political subdivision whose franchise is, in effect, determined by a religious test. See Board of Education of Kiryas Joel Village School District v. Grument, et al. ..., 512 U.S. 687, 114 S. Ct 2481 (1994) (holding that legislative action that created a separate school district solely to serve the Village’s “distinctive population” impermissibly delegated political power “to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism”). The unconstitutional result  posed by the Annexation Petitions, in and of itself, renders their form and content noncompliant with Article 17 of the General Municipal Law....

The lawsuit, growing out of petitions by Hasidic Jewish residents of Monroe to have their property annexed by Kiryas Joel, also raises other challenges to the annexation attempt.  In a separate lawsuit filed last week, ten municipalities also challenged the annexation.

School Sued Over Refusal To Allow Religious Allusion On Donor's Plaque

A lawsuit was filed Wednesday against the Colorado School of Mines by an alumnus (a former member of the school's football team) because the school rejected an inscription he chose for his donor plaque.  The complaint (full text) in Lucas v. Johnson, (D CO, filed 9/30/2015), contends that as part of the school's fundraising campaign for a new Athletic Complex, donors could purchase a personalized nameplate to be placed in the new football locker room.  The donor could place a 3-line quote, along with certain other information, on his or her nameplate.  Alumnus Michael Lucas submitted only one line for his quote: "Colossians 3:23 & Micah 5:9."  The school rejected the quote because if one went to the text of the Colossians reference, it included mention of "the Lord." A school faculty member soliciting contributions told Lucas that his nameplate could not use a quote that contained the words God, Lord, or Jesus, but he could choose another Bible verse that did not contain those words.  Plaintiff contends this policy violates his 1st and 14th Amendment rights.  Alliance Defending Freedom issued a press release announcing the filing of the lawsuit.

Suit Challenging Teaching of Evolution Dismissed

In Smith v. Jefferson County Board of Education, (D WV, Aug. 25, 2015), a West Virginia federal district court dismissed a suit, filed pro se by a historically litigious plaintiff, seeking to have the court outlaw the teaching of evolution in public schools. The complaint filed by plaintiff, a parent and taxpayer, is described by the court:

The three page complaint alleges that the Defendants have “fostered the propagation of religious faith” in West Virginia public schools, by way of “denying the Plaintiff’s accurate scientific mathematical system of genetic variations that proves evolution is a religion.”

National Center for Science Education reports on the decision.

Pope's Upcoming Visit To U.S. Generates Church-State Concerns

With Pope Francis' visit to the United States now less than a month away (see prior posting), church-state questions are beginning to surface as they have with all recent Papal visits to the U.S.  Americans United announced Monday that it had sent a letter (full text) to officials in the cities the Pope will be visiting--Philadelphia, New York and Washington, D.C.-- as well as to federal officials expressing Establishment Clause concerns.  Citing reported extensive hosting plans by Philadelphia, the letter cautions:

government bodies must not provide any aid to a Pope’s religious activities that goes beyond the provision of services — such as police, safety, and security — that are regularly given for comparable public events of a similar size. 

DC Circuit Rejects Establishment Clause Challenge To ACA Religious Conscience Exemption

In Cutler v. U.S. Department of Health and Human Services, DC Cir., Aug. 14, 2015), the Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the religious conscience exemption in the Affordable Care Act.  The ACA exempts from the individual mandate members of traditional religious groups such as the Amish and Mennonites who are conscientiously opposed to acceptance of health benefits and whose sect makes provision for their dependent members. Plaintiff Jeffrey Cutler objected for personal, not religious, reasons to purchasing insurance that complies with ACA requirements. The court said in part:

The religious exemption in the Affordable Care Act, like its counterpart in the Social Security Act, accommodates religion by exempting all believers whose faith system provides an established, alternative support network that ensures individuals will not later seek to avail themselves of the federal benefits for which they did not contribute. Cutler is correct that the Affordable Care Act withholds a similar exemption for non-believers. But the Supreme Court has repeatedly held that “the government may accommodate religious practices without violating the Establishment Clause....

Challenge To A.A. Requirerment In Probationary Massage License Survives Motion To Dismiss

In Sundquist v. State of Nebraska, (D NE, Aug. 10, 2015), plaintiff Marvin Sundquist who held a probationary license to practice massage therapy in Nebraska challenged the constitutionality of a requirement that he attend Alcoholics Anonymous meetings in order to keep his probationary license.  He claimed religious objections to AA which has substantial religious components in it.  His licensing probation compliance monitor refused his proposed secular alternative.  A Nebraska federal district court held:

In sum, the Court finds that Sundquist has alleged a plausible claim under the Establishment Clause, and that defendants Vierk and Schuldt are not entitled to qualified immunity. It remains to be seen, of course, whether Sundquist can actually prove his claim and prove that he suffered actual damages—but he should have the opportunity to do so. 

Judge Orders Marriage and Writing Bible Verses As Conditions of Probation

KLTV News reported last week on the July sentencing hearing in Smith County, Texas of  Josten Bundy for assaulting his girlfriend Elizabeth Jayne's former boyfriend. The two got into a fight when the former boyfriend said disrespectful things about  Elizabeth.  At the sentencing hearing, Judge Randall Rogers said he would grant probation instead of 15 days in jail if Bundy married Jayne within 30 days.  The probation terms also included writing Bible verses and getting counseling.  Yesterday Americans United released a letter (full text) that it sent to Judge Rogers arguing that the probation terms violate the Establishment Clause and the right to privacy.

UPDATE: The Freedom From Religion Foundation announced that on Aug. 13 it filed a formal complaint against Judge Rogers with the Texas State Commission on Judicial Conduct.

Suit Proceeds Claiming Admissions Denial Because of Religious Statements In Interview

In Buxton v. Kurtinitis, (D MD, June 25, 2015), plaintiff sued five employees of the Community College of Baltimore County (MD) alleging that he was unconstitutionally denied admission to the school's radiation therapy program.  Dustin Buxton claimed that he was denied admission because of his expression of religious belief during his admissions interview. A Maryland federal district court dismissed Buxton's free speech claim, concluding that the First Amendment does not protect speech expressed in an admissions interview from admissions consequences in a competitive process. However the court permitted Buxton to proceed with an Establishment Clause and and equal protection claim.

Group Challenges Sheriff's Preaching While In Uniform

Lakeland, Florida, which is no stranger to church-state conflicts, is now home to another one. Fox 13 News reports that Polk County Sheriff Grady Judd delivered a sermon last April at the First Baptist Church in Lakeland, wearing his sheriff's uniform. The sermon focused on developing faith based dorms at the Polk County Jail and criminals changing their lives after finding Jesus. The Freedom From Religion Foundation has threatened to sue if Judd continues to wear his official uniform while preaching.

FFRF Objects To Town Sign Reading "Jesus Welcomes You"

KETK News reports today that Freedom From Religion Foundation has written the Hawkins, Texas City Council objecting to a large sign apparently put up by the city on city land reading "Jesus Welcomes You To Hawkins." FFRF says the sign violates the Establishment Clause, and that even if the city leases out  the land on which the sign sits, this will not cure the violation. Hawkins, located in east Texas, has a population of 1,278.