9th Cirucit Upholds Ban on Christmas Display In Palisades Park

In Santa Monica Nativity Scenes Committee v. City of Santa Monica, (9th Cir., April 30, 2015), the U.S. 9th Circuit Court of Appeals rejected free speech and Establishment Clause challenges to Santa Monica's repeal of a policy that, as an exception to a general ban on unattended displays, allowed  unattended Winter Displays in the city's Palisades Park. Since 1955, during December local residents  (and later the Nativity Scenes Committee) have erected dioramas in the Park depicting the Biblical story of Christmas. A policy enacted in 2003 allocated space on a first-come-first-served basis. However beginning in 2011, atheists who opposed Christmas displays in the Park, flooded the city with requests for their own displays and the city moved to a lottery system for allocating space. Rather than continuing to deal with this, in 2012 the city repealed the exception that allowed Winter Displays, and the Nativity Scenes Committee sued. The court held that the Ordinance repealing the Winter Display exception was a narrowly tailored neutral time, place and manner regulation that serves a substantial governmental interest and leaves open ample alternative channels of communication. The court refused to extend the "heckler's veto" doctrine to this situation. Finally the court rejected challengers' claim that the repeal violated the Establishment Clause by conveying hostility toward Christianity. Thompson/ Reuters reports on the decision.

School Yoga Program Does Not Violate California Establishment Clause

In Sedlock v. Baird, (CA App., April 3, 2015), a California state appellate court held that the yoga program introduced in California's Encinitas Union School District does not violate the Establishment Clause of the California Constitution.  The court concluded:

While the practice of yoga may be religious in some contexts, yoga classes as taught in the District are, as the trial court determined, "devoid of any religious, mystical, or spiritual trappings." 

AP reports on the decision. [Thanks to Bradford Masters and Tom Rutledge for the lead.]

College Admission Denial Because of Religious References In Interview Supports Establishment Clause Claim

In Jenkins v. Kurtinitis, (D MD, March 20, 2015), a Maryland federal district court permitted an unsuccessful applicant to a community college radiation therapy program to move ahead with his Establishment Clause claim, while dismissing his free speech and state free exercise claims. Plaintiff Brandon Jenkins claimed that the program director Adrienne Dougherty denied him admission to the program in part because during his interview in answering a question about the thing most important to him, Jenkins replied "My God."  In an e-mail to Jenkins, Dougherty told him that "this field is not the place for religion."  The court held that:

Jenkins has alleged sufficient facts to state a claim for relief [under the Establishment Clause] because, given the posture of the case, I cannot determine whether defendants acted with an impermissible [religious] purpose.

However, rejecting Jenkins' free expression claim, the court said in part:

the Free Speech Clause does not protect speech expressed in an admissions interview from admissions consequences in a competitive process....

Establishment Clause Challenge To Church Directional Sign Moves Ahead

In Tearpock-Martini v. Shickshinny Borough, (MD PA, March 20, 2015), a Pennsylvania federal district court refused to dismiss an Establishment Clause claim against a municipality whose borough council (of which plaintiff was a member) voted to allow a church to install a sign on rights of way bordering plaintiff's property over her objections. Borough street workers and one of the council members installed the sign which read "Bible Baptist Church Welcomes Your" and had a directional arrow with "1 block" written on it. In allowing plaintiff to move ahead, the court said:

The complaint makes sufficient allegations that the government placed the sign on the public right of way. The sign points in the direction of the church and contains a Bible and a cross. The circumstances surrounding the sign are very fact sensitive. For example, according to the plaintiff’s brief, the township does not permit other directional signs and denied the request of the local post office to place a sign. Depending on the facts that are revealed by discovery, a reasonable observer who is familiar with the history and context of the display may perceive a governmental endorsement of religion.

(See prior related posting.) Citizens Voice reports on the decision.

Suit Challenges County Resolution Recognizing Christian Pregnancy Services Organization

The ACLU of Northern California earlier this week announced the filing of a state court lawsuit against the county of Calaveras, California on behalf of several residents and taxpayers who object to a resolution passed by the county Board of Supervisors.  The Resolution (full text) as passed in July 2014 recognizes the local Door of Hope pregnancy center "for serving the women of Calaveras County and helping to save the lives of our most vulnerable children." The complaint (full text) in Lavagetto v. County of Calaveras, (CA Super. Ct., filed 2/13/2015) objects to language in the resolution recognizing Door of Hope, among other things, for "enlighten[ing] and strengthen[ing]the lives of women and young women in Calaveras County by inviting them to test and see for themselves the many blessings that can come from living the teachings of Christ." Plaintiffs contend that the resolution favors one religon over another in violation of provisions in the California constitution which bar the establishment of religion and the expenditure of public funds to aid any religious sect.

Consideration of Church's Location In Redistricting Does Not Violate Establishment Clause

Harris v. City of Texarkana, (WD AR, Jan. 9, 2015), is a challenge to the drawing of ward boundary lines in a city for election purposes after the 2010 census. While most of the opinion was devoted to rejecting plaintiff's Voting Rights Act challenge, plaintiff also raised an unusual Establishment Clause challenge.  In drawing ward lines, one of the members of the City Board of Directors requested that a particular church be kept within his ward. The court said:

In this case, there was no endorsement of any religion.... The alleged consideration of where the church fell within the ward boundaries was not an attempt to make religion relevant to a citizen’s standing within the community, and there is no evidence that the religion practiced by the members was a consideration.... The church was only relevant insofar as it had members who were of voting age who had a relationship with a member of the Board of Directors. Accordingly, Plaintiff’s First Amendment claims fails. 

Suit Says Police Promoted Prayer Vigil

The American Humanist Association announced this week that it has filed an Establishment Clause lawsuit against the City of Ocala, Florida and its police department over a Sept. 24 community prayer vigil.  The complaint (full text) in American Humanist Association, Inc. v. City of Ocala, Florida, (MD FL, filed 11/24/2014), says that police in their uniforms spoke and preached at the vigil which had been promoted by the police chief on the police department's Facebook page.  The suit seeks a declaratory judgment and injunction.

Man Charged With Criminal Mischief For Placing Protest Stickers On Courthouse Church Directory

The Athens (Ohio) News reports that a pre-trial is scheduled today on criminal mischief charges against 69-year old Eliot Kalman who plastered over a framed glass Church Directory on the Athens (Ohio) County courthouse with stickers. Kalman placed a sticker advocating church-state separation on the glass of the directory that lists some 40 local churches. He has been in communication with the county since 2011 objecting to the Directory which is maintained by the Athens County Ministerial Association. The Directory was first put up in the 1940's by the Athens Christian Education Committee. The directory includes two non-Christian religious groups.

Many Polling Places Are In Houses of Worship

Yesterday's Houston Chronicle explores the widespread practice of using churches and other houses of worship as polling places. Reporting on one Texas county, the paper says:

As Harris County voters Tuesday help select a new governor and other key officials in an unusually contentious mid-term election, many will cast their ballots at places of worship. Almost one-fifth of the county's 1,069 precincts vote in churches. And while election officials say they endeavor to ensure that such venues are neutral, recent studies suggest that even when overt political messages are absent, religious spaces can subtly affect voter choices.

Withdrawal of Land From Uranium Mining Survives Establishment Clause Challenge

In Yount v. Salazar, (D AZ, Sept. 30, 2014), an Arizona federal district court held that the Secretary of Interior's withdrawal of more than 1 million acres of federal land surrounding Grand Canyon National Park from uuanium mining did not violate the Establishment Clause. While one of the government's purposes was "to protect against the impact of uranium mining on cultural and tribal resources," this was a proper secular purpose.

Enforcement of Israeli Child Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected Establishment Clause and equal protection challenges to enforcement of a child support order issued by an Israeli court. While the Israeli civil family court cited Jewish law tradition that makes the father responsible for his daughter's essential support, it went beyond that and applied other considerations as well is setting support.

State Trooper Sued Over Proselytizing After Traffic Stop

Huffington Post reported yesterday on a federal lawsuit filed last month against an Indiana State Police Trooper for proselytizing a driver after stopping her for a traffic violation. The complaint (full text) in Bogan v. Hamilton, (SD IN, filed 9/23/2014), alleges that after stopping driver Ellen Bogan and issuing her a warning ticket for speeding, Trooper Brian Hamilton asked Bogan whether she had a home church and had accepted Jesus as her savior. He then gave her a pamphlet from a Cambridge City, Indiana Baptist church. The suit asks for damages alleging that the trooper's coercive questioning and proselytizing violated the First Amendment.

Enforcement of Israeli Child-Support Order Does Not Violate Establishment Clause

In Jenkins v. Jenkins, (OH App., Oct. 3, 2014), an Ohio Court of Appeals rejected a father's claim that enforcement of an Israeli child-support order would violate his rights because its terms were based on his Jewish religion and his gender. The court noted that the order was issued by an Israeli civil family court, not a religious court.  It went on to conclude that while the family court in Israel cited the Jewish-law tradition that the father is responsible for his daughter’s essential support, the Israeli court went on to consider other factors as well.

Court Rejects 1st Amendment Objections To Required AA Attendance

In State v. Miller, (OH App., Sept. 30, 2014), an Ohio appellate court rejected free exercise and establishment clause claims raised by Johnny Miller, a convicted robber, who as a condition of his community control sentence was required to attend Alcoholics Anonymous. The claim comes in the context of Miller's appeal of his conviction for forging his AA attendance documents. In rejecting the claim, the court noted that Miller only raised the religious claims belatedly.  The court added that, more importantly:

the record is devoid of any evidence showing that appellant ever attended an AA meeting whose primary purpose was to advance religious beliefs rather than to promote sobriety and recovery from addiction and substance abuse. 

Cert. Filed In Ban On Church Use of New York City Schools

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Bronx Household of Faith v. Board of Education of the City of New York, (cert. filed 9/24/2014).  In the case the U.S. 2nd Circuit Court of Appeals, in a 2-1 decision held that the Board of Education of the City of New York did not violate the free exercise clause when in 2007 it changed its rules to bar the use of school facilities by churches for religious worship services. ADF announced the filing of the cert. petition. [Thanks to Jeff Pasek for the lead.]

University Tells Team To Remove Memorial Cross From Helmets

This season, the Arkansas State University football team decided to honor their recently murdered teammate and their former equipment manager who recently died in a car crash by wearing a Christian cross with the men's initials on it on their helmets. However, as reported yesteday by Fox News, University counsel told the team to remove the emblems after receiving a complaint that the team's wearing them violates the Establishment Clause. Counsel said that alternatively the players could change the Christian Cross to a "Plus sign" to eliminate the problem.

7th Circuit Hears Oral Arguments In Parsonage Allowance Challenge

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. Lew. In the case, a Wisconsin federal district court held that the tax code provision that excludes a minister's parsonage allowance from gross income violates the Establishment Clause. Courthouse News Service reports on the oral arguments which focused both on standing and Establishment Clause issues.

11th Circuit Denies Habeas Even Though Murder Victim's Pastor Opened Voir Dire With Prayer

Bates v. Secretary, Florida Department of Corrections, (11 Cir., Sept. 5, 2014), is a habeas corpus action brought by a death row inmate who was convicted of murder, kidnapping, sexual battery and armed robbery.  At issue in this proceeding was a challenge to the trial judge's action at the beginning of the jury selection process in which he asked a Baptist minister-- pastor of the church at which the victim's funeral took place-- to open the proceedings with a prayer. Petitioner claims ineffective assistance of counsel at trial because of his lawyer's failre to object to the prayer. The court unanimously rejected his claim, but with a shaarp split on the reason for the result:

In a 2-1 decision, the majority held that:

Bates’s lawyer could not be ineffective for failing to raise an Establishment Clause claim, because an Establishment Clause claim, by itself, would not help his client anyway....

More generally on the lawyer's failure to object, the majority said:

Good lawyers, knowing that judges and juries have limited time and limited patience, serve their clients best when they are judicious in making objections. In any trial, a lawyer will leave some objections on the table. Some of those objections might even be meritorious, but the competent lawyer nonetheless leaves them unmade because he considers them distractive or incompatible with his trial strategy.

Judge Wilson concurred, only because there was a "dearth of clearly established law" on the issue, so that the previous Florida Supreme Court ruling on the issue was not an unreasonable application of clearly established federal law (the requiement for habeas relief). However, he argued that if he were deciding the case de novo, he would have found a substanital problem:

Bates’s murder trial began with a prayer in the presence of the jury, and the victim’s husband subsequently gave testimony informing the jury that the prayer was delivered by none other than the victim’s own minister. This testimony had no probative value, but it had great potential to prejudice the jury against Bates. The prayer inserted God into Bates’s trial, and the husband’s testimony made clear whose side God was on. 

Jury Questions Remain In Town Hall Bar Mitzvah Challenge

In Whitnum v. Town of Greenwich, 2014 U.S. Dist. LEXIS 115617 (D CT, Aug. 19, 2014), a Connecticut federal district court refused to grant summay judgment to plaintiff who complained that the Town of Greenwich and its First Selectman allowed a bar mitzvah to take place in the Greenwich Town Hall, but denied similar requests from other religious groups. At issue was the ceremony for three Israeli exchange students after an Israeli Independence Day ceremony. In plaintiff's Establishment Clause challenge, the court held that substantial fact questions remain for the jury as to whether the ceremony amounted to an endorsement of religion by the city.

Police Officer States Establishment Clause Claim

In Marrero-Mendez v. Pesquera, 2014 U.S. Dist. LEXIS 116118 (D PR, Aug. 19, 2014), a Puerto Rico federal district court held that a Puerto Rico police force officer had adequately stated an Establishment Clause claim.  Plaintiff Alvin Marrero-Méndez claimed that his commander opened and closed police officer formations with Christian prayers, and when Marrero-Méndez complained and attempted to walk away, he was told to stop until the prayer was completed. Then his commander shouted that Marrero-Méndez was standing apart because "he doesn't believe in what we believe."