Courthouse Renovation Discovery Creates Church-State Concern

A church-state controversy may be in the making in Nelson County, Virginia where $5 million renovation of a century-old historic courthouse has uncovered a religious inscription in the courtroom.  Today's Lynchburg News & Advance reports that as four coats of paint were stripped from the wood structure resting on columns supporting a courtroom balcony, the inscription "Virtus — Keep God’s Commandments — Veritas" was revealed.  Historians say the inscription may date from the 1830's when newly-formed Protestant denominations used the courthouse for worship services.

Suit Says Indiana Charter School Act Violates Establishment Clause

Indiana's Charter School Act names, among the institutions that may authorize public charter schools, some 30 non-profit colleges and universities-- public, private and religious. Charter schools they authorize must be non-sectarian and non-religious.  Yesterday a non-profit advocacy organization supporting public schools filed suit against Indiana education officials contending that the Charter School Act violates the Establishment Clause as well as the no-aid cause of Indiana's constitution. The complaint (full text) in Indiana Coalition for Public Education v. McCormick, (SD IN, filed 4/25/2017) focuses on the authorization of a charter for Seven Oaks Classical School by Grace College and Seminary, an evangelical Christian college. It contends that the Act violates the Establishment Clause by delegating government power to authorize charter schools to a religious institution and by authorizing payment of public funds as an administrative fee to that religious institution. Indiana Lawyer reports on the lawsuit.

Judge Sued Over Opening Prayers In Courtroom

Freedom From Religion Foundation filed suit last week in a Texas federal district court against a Montgomery County, Texas Justice of the Peace who opens his court sessions with a chaplain-led prayer.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Mack, (SD TX., filed 3/21/2017), contends that the practice violates the Establishment Clause. FFRF issued a press release announcing the filing of the lawsuit. (See prior related posting.)

Religious Exemptions In ACA and FICA Upheld

In Olson v. Social Security Administration, 2017 U.S. Dist. LEXIS 41469 (D ND, March 22, 2017), a North Dakota federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 41468, March 3, 2017) and dismissed plaintiff's challenge to the constitutionality of the religious exemptions in the Affordable Care Act and FICA.  In rejecting plaintiff's Establishment Clause claim, the magistrate judge said in part:

Religious sects whose members qualify for the ACA's religious exemption have made reasonable provision for their dependent members for a substantial period of time; that is designed to protect other taxpayers, not to improperly favor or target any religion.

Catholic Fringe Group Pushes Right-Wing Agenda

Yesterday's Detroit Free Press carries a lengthy feature article on the Ferndale, Michigan-based organization "Church Militant" which the report describes as:

a growing, Catholic fringe group hoping the forces that elected President Donald Trump will tear down the wall between church and state.

The report continues:

Church Militant broadcasts pro-life, anti-gay, anti-feminist, Islam-fearing, human-caused-climate-change-denying orthodox Catholic news on its website churchmiltant.com and through social media using high-tech, professional production studios that rival those at local TV news stations. It has 35 full-time employees (and is hiring more) who publish about 10 stories and three videos every weekday.

Its leader, Michael Voris, has compared Trump with Constantine, the Roman emperor whom he says was "not a moral man" but a "power-hungry egomaniac," but who saw it desirable to end the persecution of Christians. He was a human vessel who elevated Catholicism to the state religion, Voris said.

Washington Federal District Court Issues TRO Against Travel Ban; Appeal Filed-- Here Are Links To Primary Sources [UPDATED]

As widely reported, a Washington federal district court yesterday issued a nation-wide temporary restraining order against key portions of President Trump's Executive Order that temporarily banned entry of individuals from seven Muslim-majority countries and restricted entry of refugees, particularly those from Syria. (See prior posting.) The temporary restraining order (full text) in State of Washington v. Trump, (WD WA, Feb. 3, 2017), does not set out which of plaintiffs' arguments were persuasive to the court.  Those arguments, as set out in the complaint (full text), include establishment clause, due process and equal protection claims as well as statutory claims. Washington's Attorney General has provided links to all documents in the case. The court has posted a video of the full oral arguments and judge's ruling in the case.  Americans United filed an amicus brief (full text) with the district court setting out at length the Establishment Clause arguments. As reported by The Hill, this evening the Justice Department filed a notice of appeal (full text) in the case with the 9th Circuit. According to CNN, focusing on the court's designation of the motions panel for February:

The three judges who will likely hear the appeal -- assuming no one has to step aside over any conflicts -- are: Judge William Canby, who was appointed by President Jimmy Carter; Richard Clifton, who was appointed by Bush; and Michelle Friedland, a President Barack Obama appointee.

UPDATE: On Saturday night (2/4) the 9th Circuit denied an immediate stay of the district court opinion pending briefing by Monday on the emergency motion. (Full text of 9th Circuit's order). The order was issued by Judges Canby and Friedland.

UPDATE2: Also on Feb. 3, a Massachusetts federal district court refused to renew a temporary restraining order that had prevented detention and/or removal of individuals with approved refugee applications who would be legally admitted to the United States in absence of President Trump's Executive Order. The original TRO expired Feb. 5.  The court in Louhghalam v. Trump, (D MA, Feb. 3, 2017) held that rational basis review applies to equal protection challenges to federal government categorizations with respect to non-resident aliens.  It held that plaintiffs raising establishment clause objections lacked standing to do so.  It added:

Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs submit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group.

ACLU has links to all the pleadings in the Louhghalam case.

CAIR Sues Over Trump Executive Order

CAIR announced yesterday that it has filed a lawsuit challenging the constitutionality of President Trump's recent Executive Order on refugees and on those entering the U.S. from any of seven Muslim-majority countries. The complaint (full text) in Sarsour v. Trump, (ED VA, filed 1/30/2017) alleges that a hidden purpose of the Executive order (which the complaint calls a Muslim Exclusion Order) is to initiate the mass expulsion of Muslims lawfully living in the U.S. by denying them the ability to to renew their lawful status or receive immigration benefits. Plaintiffs claim that the order violates the Establishment and Free Exercise clauses and denies plaintiffs equal protection of the laws.  Politico reports on the lawsuit.

Lawsuit Challenges Trump Executive Order As Establishment Clause Violation

A direct Establishment Clause challenge to President Trump's Executive Order on immigration and refugees was raised in a lawsuit filed Saturday in a California federal district court in a suit brought on behalf of the People of the United States and of California.  The brief complaint (full text) in People of the United States of America and the State of California v. Trump, (ND CA, filed 1/28/2017) contends that the Executive Order violates separation of powers and is facially unconstitutional under the Establishment Clause because it bars "entry of persons to the United States based on their adherence to religious beliefs shared in certain countries." Politico reports on the lawsuit.

3rd Circuit: Church Welcome Sign Does Not Violate Establishment Clause

In Tearpock-Martini v. Shickshinny Borough, (3d Cir, Jan. 4, 2017), the U.S. 3rd Circuit Court of Appeals rejected an Establishment Clause challenge to a church sign put up by a Pennsylvania town on a right-of-way near plaintiff's home.  The sign depicts a cross and a Bible and reads "Bible Baptist Church Welcomes You!", and has an arrow pointing toward the church.  The court concluded that plaintiff failed to show that the Borough treated the Church more favorably than others.

State Sends Religious Publication To Families of Auto Accident Victims

The American Humanist Association in a press release yesterday called attention to an unusual state government practice of disseminating a religious publication. The South Carolina Department of Public Safety sends to families of individuals killed in auto accidents a book titled "A Time To Grieve."  The book is published by a Christian ministry, and contains numerous Bible passages and religious messages offering religious comfort to those who have lost a loved one.  In a letter to the Department of Public Safety, the Appignani Humanist Legal Center sets out at length its Establishment Clause objections to the Department's practice.

UPDATE: As reported by The State (Jan.5), in response to the complaint, the Department of Public Safety has decided to stop the distribution, saying:

We regret that any family member would have misunderstood our intentions or was offended by our effort to offer compassion during such a difficult time. Since this concern was brought to our attention, we have re-evaluated the 'A Time to Grieve' and will no longer send those particular pieces of literature to families following the death of a loved one in a motor-vehicle collision.

Church-State Gadfly Rob Sherman Dies In Small Plane Crash

Robert Sherman, a leading atheist activist and prolific litigant over church-state issues, died this weekend in the crash of a small plane he was piloting.  The Poplar Grove, Illinois resident hosted a popular radio talk show for 22 years; the final show was broadcast in 2007.  As reported by the Chicago Sun-Times:

In the 1980s and 1990s, Mr. Sherman was constantly in the headlines for atheism activism.

As Sun-Times columnist Richard Roeper put it in 1998, “He has battled towns from South Holland to Deerfield to Zion to Palatine to Highland, Ind., and Wauwatosa, Wis., over public displays of religious symbols on water towers, on government property and on official village seals.”...

Mr. Sherman’s philosophy, on matters from the practical to the ecclesiastical, was summarized on robsherman.com, a website created to drum up donations for his planned 2018 [Green Party] congressional run in the 12th district....

And, he emphasized the issue that brought him to public attention. “I will sponsor legislation to get ‘In God We Trust’ off of our money, remove ‘One Nation Under God’ from our Pledge of Allegiance, eliminate the National Day of Prayer and repeal Christmas as a federal holiday,” he wrote next to his likeness on a coin proclaiming “In Rob We Trust.”

Discussion of a number of cases brought by Sherman can be found at this link to past Religion Clause postings.

7th Circuit Hears Oral Arguments Over State Regulation of Bible Colleges

The U.S. 7th Circuit Court of Appeals on Thursday heard oral arguments in Illinois Bible Colleges Association v. Anderson (audio of oral arguments).  In the case, an Illinois federal district court rejected constitutional challenges by a group of Bible Colleges to three Illinois statutes that regulate institutions of higher education in the state, including religiously-affiliated ones. (See prior posting.) [Thanks to James Robideau for the lead.]

4th Circuit Hears Oral Arguments In Two Religion Cases

Yesterday the U.S. 4th Circuit Court of Appeals heard arguments in American Humanist Association v. Maryland-National Capital Park and Planning Commission (audio of oral arguments). In the case, a Maryland federal district court rejected an Establishment Clause challenge to the 90-year old Peace Cross, a 40-foot tall Veteran's Memorial in the shape of a cross. (See prior posting.) Reporting on the oral arguments, the Washington Post said in part:

Two appeals court judges clearly stated that there is no way to view the Peace Cross in Bladensburg other than as a symbol of Christianity.

The third judge on the appeals panel just as strongly said that the marble-and-cement monument is a secular war memorial honoring the death and sacrifice of those lost in battle.

Yesterday the 4th Circuit also heard oral arguments in EEOC v. COMSO: Energy, Inc. (audio of oral arguments). In the case, a West Virginia federal district court awarded damages to an Evangelical Christian mine employee who who objected to biometric hand scanning to track time and attendance, believing that it involves the Mark of the Beast forbidden in the Book of Revelation. (See prior posting.)

Court Approves Contentious Annexation By Kiryas Joel

As reported by the New York Law Journal, a New York state trial court judge last week, in a 97-page decision, upheld actions by the municipalities involved to allow the Village of Kiryas Joel-- inhabited almost entirely by Satmar Hasidic Jews-- to annex 164 acres of land from the Town of Monroe. Respondents contended that opposition to the annexation was motivated by anti-Semitism. Petitioners argued that the annexation reflected Kiryas Joel's desire to engage in religious segregation and to encourage an in-migration of residents from the Hasidic Jewish community in Brooklyn.  While much of the court's opinion dealt with the adequacy of the environmental review involved, the court also dealt with Establishment Clause claims and allegations of discrimination.  In Village of South Blooming Grove v. Village of Kiryas Joel Board of Trustees, (Orange Cnty. Sup. Ct., Oct. 11, 2016), the court held that the individual and organizational challengers lack standing to raise an Establishment Clause claim, and even if they had standing their claim would fail on the merits, saying in part:

The fact that most of the Village's residents belong to the same religious community does not extinguish the secular purpose of the annexation.

The court also rejected petitioners' claim that the annexation violated a provision in the Town of Monroe Ethics Code that prohibits causing voluntary segregation, saying that this is a provision that only applies to recruitment of personnel.

Suit Challenges Veterans' Memorial Featuring Cross

A suit was filed yesterday in a New Jersey federal district court challenging on Establishment Clause grounds a war memorial erected outside the Veterans Memorial public library in Roselle Park, New Jersey.  As pictured and described in a report on the lawsuit by NJ Advance Media, the memorial depicts a soldier kneeling over a grave marked by a cross. The complaint (full text) in American Humanist Association v. Borough of Roselle Park, (D NJ, filed 9/30/2016) alleges in part:

When the government displays an iconic religious symbol – the symbol of Christianity – on its property, it sends a strong message of endorsement and exclusion. This message of religious favoritism is even more problematic because the cross display purports to be a government memorial honoring war dead. No such monument should honor just one religious group, but the cross at issue here does exactly that: it exalts Christian veterans and excludes everyone else.

UPDATE: NJ Advance Media reports that on Oct. 6, in light of the litigation, the Roselle Park Borough Council voted unanimously to dismantle the statue outside the library.

No Taxpayer Standing To Challenge NC Magistrate Opt-Out Law

In Ansley v. Warren, (WD NC, Sept. 20, 2016), a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates to recuse themselves from performing same-sex marriages on the basis of sincerely held religious beliefs. Plaintiffs, asserting taxpayer standing, pointed to expenditures involved in implementing the opt-out provisions.  The court held, however:

Plaintiffs have not pointed to the establishment of any specific appropriation of funds by the legislature to implement the allegedly unconstitutional purpose of S.B. 2. The funding provisions that Plaintiffs challenge here—travel expenses for magistrates and retirement contributions—are not “expenditures made pursuant to an express [legislative] mandate and a specific [legislative] appropriation,” ... but are “incidental expenditure[s] of tax funds in the administration of an essentially regulatory statute,” which is not sufficient for the purposes of standing.

Dealing with a separate due process concern, the court said:

Because a magistrate’s “sincerely held religious objection” is secret, a person appearing before a state magistrate on a matter in said magistrate’s jurisdiction will not be aware of a potential bias against them. A law that allows a state official to opt out of performing some of the duties of the office for sincerely held religious beliefs, while keeping it a secret that the official opted out, is fraught with potential for harm that could be of constitutional magnitude.... But such matters must be dealt with as they arise.

2nd Circuit: Students Lack Standing To Challenge Diversion of Dollars To Religious Schools

In Montesa v. Schwartz, (2d Cir., Sept. 12, 2016), the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision, held that plaintiffs-- dozens of students in the East Ramapo Central School District in New York state-- lack standing to sue over funds allegedly diverted by the school board to Orthodox Jewish schools.  The students claim that the diversion-- in part through manipulation of payments under the Individuals With Disabilities Education Act-- led to less funding for the public schools they attend.  In denying standing, the majority said in part:

We have not found a case ... where an appeals court has recognized [plaintiffs'] theory of direct exposure—where the plaintiffs’ exposure is the loss of a favored governmental service or benefit caused, in part, by a diversion of public resources away from such service or benefit to support a preferred religion....  The Student‐Plaintiffs’ injury arises out of being enmeshed in an underfunded school system, not out of being directly exposed to the alleged unconstitutional IDEA Settlements themselves. An alleged causal connection between the underfunding of the school district’s budget and the alleged unconstitutional expenditures is insufficient to give rise to a direct injury. To hold otherwise would impermissibly expand the concept of direct exposure to include injuries that are unrelated to the challenged governmental act but which flow in fact from a government’s decision to fund one program or service at the expense of another.  This is a theory of indirect injury and recognizing it would allow plaintiffs who are only incidentally affected by a challenged governmental expenditure to assert Establishment Clause claims.

Judge Reiss dissented. Courthouse News Service reports on the decision.

Suit Says Arizona Charter School Teaches Religious Curriculum

Yesterday Americans United filed a federal court lawsuit alleging that an Arizona public charter school teaches a religiously-based required American Government course, and interjects religion in a number of other parts of its curriculum. The complaint (full text) in Doe v. Heritage Academy, Inc., (D AZ, filed 9/7/2016), alleges that the taxpayer-funded charter school with three campuses in Arizona violates the Establishment Clause as well as the Arizona constitution by providing religious education to its students.  The required American Government class is taught by the school's founder and principal, Earl Taylor, Jr., and uses materials from the National Center for Constitutional Studies-- an organization founded by Taylor. The complaint alleges in part:

In class, Taylor teaches the students that the Ten Commandments — including those that mandate worship of God — must be obeyed in order to attain happiness; that socialism violates God’s laws; and that true patriots believe in the “universal religion of all mankind,” the tenets of which ...  incorporate the beliefs of some Christian denominations.

AU issued a press release announcing the filing of the lawsuit. [Thanks to Jeff Pasek for the lead.]

Suit Charges Discriminatory Application of Driver's License Photo Accommodation

The ACLU yesterday filed a federal lawsuit against the Lee County, Alabama officials in charge of issuing drivers' licenses claiming that they are unconstitutionally administering the state's religious accommodation provision allowing head coverings in license photos.  The complaint (full text) in Allen v. English, (MD AL, filed 8/30/2016, alleges that plaintiff Yvonne Allen is a devout Christian who as part of her religious practice covers her hair with a headscarf.  When Allen requested to wear her head covering for her license photo, officials told her that the religious accommodation for head coverings only applies to Muslims.  The suit alleges that this practice violates the religion clauses of the federal and state constitutions. ACLU issued a press release announcing the filing of the lawsuit.

Legislative Scorecard On Issues Important To Non-Theists Released

The Center for Freethought Equality last week released its scorecard for U.S. House members in the 114th Congress on seven votes of importance to secular and non-theistic Americans. In releasing the scorecard, CFE said in part:

Representatives were scored based on their voting records on legislation that either bolstered or weakened the separation of church and state. The scorecard included legislators’ co-sponsorship for the Darwin Day Resolution (H.Res. 548), which would recognize February 12 as a celebration of the accomplishments of naturalist Charles Darwin while opposing the teaching of creationism and intelligent design in public schools....

Of all the legislators ranked, Rep. Judy Chu (CA-27) and Rep. Mike Honda (CA-17) had the highest scores.