2nd Circuit: Cross At Ground Zero Can Stay In Museum

In American Atheists, Inc. v. Port Authority of New York and New Jersey, (2d Cir., July 28, 2014), the U.S. 2nd Circuit Court of Appeals rejected a challenge by American Atheists to the display in the National September 11 Museum of the 17-foot high "Cross at Ground Zero"-- steel beams in the shape of a cross retrieved from the World Trade Center debris after 9-11. The court summarized its holding as follows:

1. Displaying The Cross at Ground Zero in the National September 11 Museum does not violate the Establishment Clause because:

a. the stated purpose of displaying The Cross at Ground Zero to tell the story of how some people used faith to cope with the tragedy is genuine, and an objective observer would understand the purpose of the display to be secular;

b.   an objective observer would not view the display as endorsing religion generally, or Christianity specifically, because it is part of an exhibit entitled “Finding Meaning at Ground Zero”; the exhibit includes various nonreligious as well as religious artifacts that people at Ground Zero used for solace; and the textual displays accompanying the cross communicate its historical significance within this larger context; and

c.   there is no evidence that the static display of this genuine historic artifact excessively entangles the government with religion.

2. In the absence of any Establishment Clause violation or any evidence of discriminatory animus toward atheists, the Museum did not deny equal protection by displaying The Cross at Ground Zero and refusing plaintiffs’ request to fund an accompanying symbol commemorating atheists.

CNN reported on the decision.

Suit Challenges City's Denial of Equal Public Space To Atheist

The ACLU today announced the filing of a lawsuit against the city of Warren, Michigan on behalf of an atheist who was refused space for a table in the atrium of city hall for a "reason station,"  even though the city has permitted a local pastor to operate a "prayer station" in the atrium since 2009.  The complaint (full text) in Marshall v. City of Warren, (ED MI, filed 7/23/2014), sets out free speech and establishment clause challenges based largely on the letter sent by the city's mayor denying plaintiff's request. The letter reads in part:

It is my understanding that you are affiliated with Freedom from Religion, a group that has objected to the Nativity Scene, the Prayer Station in the atrium and the Annual Day of Prayer in front of city hall.

All of these events are allowed because of the right to freedom of religion constitutional amendment. We cannot and will not restrict this right for any religion to use the atrium, as long as the activity is open to all religions. Freedom from Religion is not a religion. It has no tenets, no place of worship and no congregation. To my way of thinking, your group is strictly an anti-religion group intending to deprive all organized religions of their constitutional freedoms or at least discourage the practice of religion. The City of Warren cannot allow this. 

Also, I believe it is your group’s intention to disrupt those who participate in the Prayer Station which would also be a violation of the freedom of religion amendment.

Court Rules On Various Establishment Clause Challenges To Veterans Memorial

Hewett v. City of King, (MD NC, July 8, 2014), is a challenge to various religious practices at the Veterans Memorial in a King, North Carolina park. The most controversial of the practices were: (1) the flying of a Christian flag along with ten other military, U.S., state and city flags. In a policy that changed over time, ultimately the Christian flag was flown 47 weeks a year on a pole that was designated a limited public forum. And (2) the placing of a stature of a soldier kneeling in front of a cross as part of the memorial. In a 110-page opinion, a North Carolina federal district court ruled that the question of whether these violated the Establishment Clause should proceed to trial on issues of disputed fact.

Plaintiff also objected to various memorial events held at the Veterans Memorial. The court concluded as a matter of law that the city's involvement in arranging and participating in events at which speakers deliver overtly Christian messages violated the Establishment Clause. However the appearance of the city's fire truck at these events, the granting of perpetual permits to host annual ceremonies, installation of pavers, the participation of the mayor in non-religious ways in memorial ceremonies and certain other activities did not amount to endorsement by the city or excessive entanglement. Americans United issued a press release announcing the decision.

Court Enters Settlement Order In Dispute Over State Funding To Religious Child-Care Facility

In Pedreira v. Sunrise Children's Services, Inc., (WD KY, June 30, 2014), a Kentucky federal district court entered an order incorporating terms of a settlement between the parties in an Establishment Clause lawsuit, and retained jurisdiction to enforce the order. At issue was the long-running controversy over the state of Kentucky's funding treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. The settlement requires the state to modify its contracts with child care agencies so that the religious affiliation or non-affiliation of children is respected. (See prior related posting.) The court rejected challenges by Sunrise to the settlement:

Sunrise urges that the Agreement will subject it to a “Hobson’s Choice” – That is, it will have to choose either to accept terms in new PCC agreements which it finds objectionable, or forego contracts with the Commonwealth which provide essential funding for its continued operation. As aptly stated by the Commonwealth defendants however, this is not a “Hobson’s Choice;” it is a business choice....  Sunrise does not suggest that the Commonwealth does not have the right to add to or alter the terms of its future PCC contract offerings, with or without this settlement.

Americans United issued a press release announcing the court's action. AP reports on the decision.

Plaintiff Lacks Standing In Establishment Clause Challenge To ACA Individual Mandate

In Cutler v. United States, (D DC, June 25, 2014), the District of Columbia federal district court dismissed a challenge to the Affordable Care Act's individual mandate.  Plaintiff based his challenge primarily on a claim that the narrow religious exemption in 26 USC Sec. 5000A(d)(2) violates the Establishment Clause by allowing the government to "regulate and track a person’s religion, and . . . to favor one religion over another." The court concluded that plaintiff lacks standing to raise this claim:

Plaintiff is non-observant in his religion and does not assert that a religious exemption should be extended to him.... Plaintiff’s argument is as follows: there is an exemption to the individual mandate for certain religious groups, he is not a member of any of those groups, and, therefore, he is not able to claim that exemption. It follows that Plaintiff’s challenge to the religious exemption solely is based on the general existence of the exemption and not on the exemption’s specific application to him...

... Further, even if the Court were to find that religious exemption violated the exercise of Congress’ Commerce Power in violation of the First Amendment, Plaintiff would be in the same position. He would be subject to the individual mandate and would be required to either obtain health insurance coverage or pay the penalty. The only difference would be that no one else could claim a religious exemption.

The court went on to conclude that even if plaintiff had standing, the religious exemption provisions do not violate the Establishment Clause.

3rd Circuit: No Statute of Limitations For Establishment Clause Challenge To Still-Existing Display

In Tearpock-Martini v. Borough of Shickshinny, (3d Cir., June 23, 2014), the U.S. 3rd Circuit Court of Appeals held that Establishment Clause claims challenging still-existing religious displays are not subject to a statute of limitations defense. At issue was a directional sign on municipal property in a Pennsylvania town pointing the way to a local Baptist church. The sign included a depiction of a cross and a Bible. The court concluded that while the "continuing violation" doctrine does not apply to the display, nevertheless "strict application of the statutory limitations period both serves no salutary purpose and threatens to immunize indefinitely the presence of an allegedly unconstitutional display."

Court Upholds Pennsylvania's Sunday Hunting Ban

In Hunters United For Sunday Hunting v. Pennsylvania Game Commission, (MD PA, June 18, 2014), a Pennsylvania federal district court rejected constitutional challenges by a hunters' group to Pennsylvania's ban on Sunday hunting for fur bearing animals or game.  Plaintiffs had asserted that the ban violates the 2nd Amendment, the 14th Amendment's equal protection clause, and the First Amendment's religion clauses. Rejecting plaintiff's establishment clause claim, the court said in part:

The Court cannot divine Plaintiffs’ injury-in-fact from their allegation that “Defendants [sic] enforcement and prohibition on Sunday hunting no longer has a secular basis but instead a religious basis.”

The court also pointed to Supreme Court precedent upholding Sunday closing laws.  AP reports on the decision. (See prior related posting.)

Christian-Themed Park Turns Down State Economic Grant After Church-State Complaints

In Sioux City, Iowa, developers of a Christian-themed park have decided to turn down a $140,000 state economic development grant after objections were raised by the Freedom From Religion Foundation.  AP reported this week that developers of Shepherd's Garden do not want to be in the middle of lawsuits over the park. While the park is to include a stone path with Bible verses, and prayer spaces, the funding from the state organization, Vision Iowa, was not to go to religious elements of the park.  A member of the park's board said that FFRF's objections stimulated enough private donors to pay for the project.

District Court Enjoins Sectarian Invocations At County Council Meetings

In Hake v. Carroll County Maryland, (D MD, March 26, 2014), a Maryland federal district court granted a preliminary injunction barring Carroll County, Maryland commissioners opening their commission sessions with sectarian prayer.  Currently sessions are opened with a prayer led by one of the commissioners, on a rotating basis. The Board's voluntary guidelines for commissioners calls for them to "refrain from using Jesus, Jesus Christ, Savior, Prince of Peace, Lamb of God and the like."  However, during 2011-2012, at least 40% of the invocations contained sectarian Christian references, while no prayers made non-Christian sectarian references.  In finding that plaintiffs are likely to succeed on the merits of their Establishment Clause claim, the court said in part:

Although the podium guidelines discourage sectarian references, the Board has made no effort to curb the frequent sectarian references made by its own Commissioners.... At this time, the record indicates that the prayers invoked by Commissioners before Board meetings advance one religion to the exclusion of others.

The court ruled that Commissioners can continue to deliver non-sectarian invocations, but are enjoined from invoking the name of a specific deity associated with any specific faith or belief in their opining prayers. The American Humanist Association in a press release calls the decision "a major victory for separation of church and state."  The Baltimore Sun reports on the decision.  The U.S. Supreme Court this term has heard oral arguments in a case raising similar issues, and will decide the case within the next few months. (See prior posting.)

UPDATE: A March 27 release from the American Humanist Association says that a Carroll County commissioner defied the preliminary injunction and delivered a sectarian prayer at a county council meeting one day after the preliminary injunction was ordered. The AHA sent a contempt warning letter (full text) to counsel stating in part: "As a courtesy, we are going to refrain from seeking contempt charges against the commissioner in this one instance, in the hopes that today’s behavior was simply an emotional outburst made without the benefit of serious consideration of the rights of plaintiffs and others. She should understand, however, that any continued defiance of the court order will leave us with no choice but to seek a contempt order."