Church, State, Rock and Roll

Note: This is a monthly update on state and federal litigation concerning the First Amendment's religion clauses.

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February 2001

In one of the longest captioned cases in Florida Intermediate Appellate Court history, it was decided that a church member whose minister called her a "slut" in front of the congregation could maintain an action against the minister, but not the church. The case is The House of God Which is the Church of the Living God, The Pillar and Ground of the Truth Without Controversy, Inc., v. White.

January 2001

On Jan. 31, the Seventh Circuit agreed to stay its mandate requiring the City of Elkhart, Indiana, to "remedy" the placement of a monument inscribed with the Ten Commandments on the lawn of Elkhart's Municipal Building. The City had requested the stay while petitioning the U.S. Supreme Court for a writ of certiorari in the case, William Books, et al. v. City of Elkhart, Indiana.

On Jan. 4, the Arizona Court of Appeal concluded that the rule of Batson v. Kentucky, 476 U.S. 79 (1986), bars peremptory strikes based upon religious membership or affiliation. The case is State v. Purcell and is available from the Arizona Court's site as a .pdf file.

A December to Remember

On December 21, the Supreme Court of California upheld a religion-specific exemption from local landmark preservation laws. The court in East Bay Asian Local Dev. Corp. v. State affirmed the lower court's ruling that "the exemption does not endorse religion. It simply facilitates the efforts of religious organizations to advance their own purposes. The ability of religious organizations to use their property to advance their purposes is no greater by virtue of the grant of an exemption than it was before the landmark preservation law was imposed on them. The law simply restores their ability to use noncommercial property, unencumbered by the restrictions that accompany landmark designation. Thus, the exemption does not provide governmental assistance to religious organizations in carrying out their religious mission. By providing the exemption the state simply stepped out of the way of the religious property owner."

On December 12, yer World Famous Election Cases, which have nothing to do with religion law but who cares, it's not like I'm getting paid to stay on task, came down to this.

So wuzzit mean? I dunno, but from the left, you've got Mark H. Levine's THE "GORE EXCEPTION": A Layman's Guide to The Supreme Court Decision in Bush v. Gore. So, with apologies to Mickey Kaus, I can tell you that although you might need to use a ladder to see it, at the very precarious top of the Positively 4th Street Assignment Desk Memo Pile is this directive, addressed to Anybody on the per curiam side of the fence: Wake up, smell the coffee, & respond to Levine's great Q&A in kind -- i.e., with equal amounts attitude, wit & intelligence. Otherwise, you lose ... by default.

On December 11, the Sixth Circuit finally issued a ruling in the long, long, loooong simmering Ohio voucher case, Simmons-Harris v. Zelman. And the answer is: the Ohio voucher program is unconstitutional. The majority opinion is at times unintentionally amusing. Check out this "stinging" rebuke: "Before concluding, we must pause to briefly address the dissent, not for the purpose of dignifying its hyperbole, but to quash any putatively substantive argument which may have found its way through the gratuitous insults." Oh yeah!

November Follies

Who has time for the First Amendment when all this stuff needs reading? Because, you see, the Supremes are finally facing the Ultimate Cosmic Judicial Issue: What's the diff between interpreting a law and rewriting a law?

Achtung! It's October!

On October 19, the Eleventh Circuit reinstated its judgment vacating the Permanent Injunction entered by the district court in Chandler v. James. The lower court had forbid the school district from "permitting" students to speak religiously in any sort of public context: "We held that this injunction was overbroad to the extent that it equated all student religious speech in any public context at school with State speech. In so doing, it eliminated any possibility of private student religious speech under any circumstances other than silently or behind closed doors. This the Constitution neither requires nor permits. The Establishment Clause does not require the elimination of private speech endorsing religion in public places. The Free Exercise Clause does not permit the State to confine religious speech to whispers or banish it to broom closets. If it did, the exercise of one's religion would not be free at all."

On Oct. 10, the Supreme Court granted cert in The Good News Club v. Milford Central School. A Christian youth group says it has a free speech right to meet in a public school building under a school after-hours policy that has admitted other clubs such as the Girl Scouts, the Boy Scouts and the 4-H Club. The Court told the petitioner to file its brief by Nov. 30.

On Oct. 2, the 9th Circuit ruled that school officials didn't violate students' right to free speech when they refused to allow them to give either a "sectarian, proselytizing valedictory speech" or a "sectarian invocation" at their high school graduation. The case is Cole v. Oroville Union High School

What the Hey Happened to September? To August?

Same thing happened to July (below). Hmmm ... I know, let's just pretend I planned to take 3 months off & that everything's cool. Deal? Great, I feel better already.

What the Hey Happened to July?

In response to literally hundreds of inquiries (well, dozens) (OK, two), yes, a boxcar's worth of stuff did go down in July, and yes, I'll be posting the best of it as soon as I get a chance. Before August is out anyway. My problem: I'm entering Day 15 of no breaks from Evil Deadlines. Ummm, this is where you're supposed to say, poor baby. No? Oh, alrighty then. Here's something to tide you over for a couple weeks: A press release re the July 27 passage of the Religious Land Use and Institutionalized Persons Act of 2000. Now leave me alone. Both of you.

Dubious in June

On June 28, the Supreme Court voted 6-3 in Mitchell v. Helms to reverse a Fifth Circuit decision that had declared a chapter of the 1965 Elementary and Secondary Education Act unconstitutional because it authorizes the government to lend computers to students who are enrolled in religious as well as public schools on a neutral basis that neither favors nor disfavors religion. Highlight 1: Justice Thomas overrules Meek v. Pittenger, and Wolman v. Walter, two school aid cases that had resulted in a rule that while government could give religious schools textbooks, it couldn't give them maps. Now we can finally stop quoting Sen. Moynihan asking what the Court would do with an atlas. (See Cong. Rec. 25661 (1978)). Highlight 2: Thomas drives a stake through the anti-Catholic "pervasively sectarian" doctrine, saying "nothing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it. This doctrine, born of bigotry, should be buried now." Souter, Stevens and Ginsburg dissent.

On June 19, the Supremes voted 6-3 in in Santa Fe Indep. School Dist. v. Doe that the Santa Fe School District violated the establishment clause by adopting a policy that would have permitted student-initiated and student-led prayers before high school football games. It didn't matter that no prayers had actually been delivered under the policy, or that the policy also would permit students to deliver a purely secular message or no message at all. The majority (Stevens, O’Connor, Kennedy, Souter, Ginsburg and Breyer) said the school district's argument that the constitutional challenge to its policy was premature "assumes that we are concerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event. But the Constitution also requires that we keep in mind 'the myriad, subtle ways in which Establishment Clause values can be eroded. ...'" In a dissent joined by Scalia and Thomas, Rehnquist disagreed with that reasoning, but said "even more disturbing than its holding is the tone of the Court’s opinion; it bristles with hostility to all things religious in public life."

On June 19, Scalia, Rehnquist and Thomas dissented from the Court's denial of certiorari in Tangipahoa Parish Bd. of Ed. v. Freiler, a Fifth Circuit decision that held the following resolution violates the establishment clause: "It is hereby recognized by the Tangipahoa Parish Board of Education, that the lesson to be presented, regarding the origin of life and matter, is known as the Scientific Theory of Evolution and should be presented to inform students of the scientific concept and not intended to influence or dissuade the Biblical version of Creation or any other concept. It is further recognized by the Board of Education that it is the basic right and privilege of each student to form his/her own opinion or maintain beliefs taught by parents on this very important matter of the origin of life and matter. Students are urged to exercise critical thinking and gather all information possible and closely examine each alternative toward forming an opinion.” The dissent noted that, "In Epperson v. Arkansas, 393 U.S. 97 (1968), we invalidated a statute that forbade the teaching of evolution in public schools; in Edwards v. Aguillard, 482 U.S. 578 (1987), we invalidated a statute that required the teaching of creationism whenever evolution was also taught; today we permit a Court of Appeals to push the much beloved secular legend of the Monkey Trial one step further. We stand by in silence while a deeply divided Fifth Circuit bars a school district from even suggesting to students that other theories besides evolution–including, but not limited to, the Biblical theory of creation–are worthy of their consideration."

Muttering Through May

On May 25, the Fifth District Texas Court of Appeals ruled in Turner v. The Church of Jesus Christ of Latter-Day Saints that the church was not liable for its alleged failure to properly warn a missionary about the risk of disease and the means for preventing disease while on his mission for the church in Guatemala.

On May 24, the Supreme Court of Ohio ruled in Humphrey v. Lane that a Native American prison guard's free exercise rights under the Ohio Constitution were violated by a prison grooming policy that required him to cut his hair. This is an example of a state constitution's religion clauses doing a better job of protecting religious liberties than the First Amendment does.

On May 22, the Fourth Circuit in EEOC v. Roman Catholic Diocese of Raleigh dismissed an EEOC action brought against a church's Director of Music Ministry on the grounds that the suit was barred by the ministerial exception to Title VII.

On May 12, the D.C. Circuit in Branch Ministries v. Rossotti rejected a free exercise challenge to the IRS' decision to revoke "for the first time in its history" a bona fide church's tax-exempt status because of its involvement in politics. Branch Ministries, a New York church, had placed full-page advertisements in two newspapers in which it "urged Christians not to vote for then-presidential candidate Bill Clinton because of his positions on certain moral issues" -- abortion, gay rights, & distributing condoms to teen-agers in public schools.

On May 2, the First Circuit in Boyajian v. Gatzunis rejected an establishment clause challenge to Massachusetts' zoning-law exemptions for religious groups. The exemptions prohibit municipal authorities from excluding religious uses of property from any zoning area.

On May 1, the Eighth Circuit held in Children’s Healthcare Is A Legal Duty, Inc. v. Nancy-Ann Min De Parle that the 1996 amendments to the Medicare Act and Medicaid Act that permit reimbursement of non-medical expenses for persons who hold religious objections to medical care (and also free the providing institutions from medically based supervision) are a permissible accommodation of religion and thus do not transgress the Establishment Clause. The case involves Christian Scientists; the opinion is a .pdf file.

Looking Askance at April

On April 25, six judges dissented from the Ninth Circuit's refusal to rehear KDM v. Reedsport School District en banc. The denial leaves intact the court's November 1999 decision that it doesn't violate the free exercise clause for a state agency to provide on-site assistance to handicapped kids at private secular schools while withholding that assistance from kids at private religious schools. The April 25 dissenters included Clinton appointees (Tashima and Wardlaw) as well as Reagan/Bush appointees (T.G. Nelson, Kozinski, O'Scannlain, and Kleinfeld).

On April 25, the Sixth Circuit discovered in ACLU v. Capitol Square Review that, unlike the United States' official motto "In God We Trust" (enacted in in 1956), the State of Ohio's official motto "With God All Things Are Possible" (enacted in 1959) violates the establishment clause.

On April 20, the Ninth Circuit held in Gentala v. City of Tucson that the city violated the First Amendment by having a policy of funding all civic events but refusing to fund a national day of prayer event. But first you have to get past the opinion's first sentence: "These appeals require us to navigate carefully the shoal-infested channel between the Scylla of the First Amendment's Free Speech Clause and the Charybdis of the First Amendment's Establishment Clause."

The Supreme Court denied cert April 17 in DiLoreto v. Board of Education, a case in which the Ninth Circuit had ruled that a school district properly refused to accept the Ten Commandments as one of the paid ads it was willing to place on the outfield fence at its high school baseball field. The school district was free to exclude subjects "that would be disruptive to the educational purpose of the school," the appeals court said last November.

A death row inmate got nowhere with his free exercise challenge to California's refusal to let him participate in a sweat lodge ceremony before being executed. But on April 7, Ninth Circuit Justices Reinhardt, Kozinski, and Wardlaw did dissent from the court's refusal to rehear Rich v. Woodford en banc.

Wondering at March

On March 29, the Supreme Court heard arguments in Santa Fe Independent School District v. Doe. The question was whether the Fifth Circuit erred in declaring a school district policy of permitting "student-led, student-initiated" prayer at football games unconstitutional. But the justices gave the school district bad vibes.

On March 15, the Eleventh Circuit upheld the constitutionality of allowing a student-elected graduation speaker to offer a prayer in Adler v. Duval County School Board. To access the opinion from the Eleventh Circuit site, click on day 15, unzip the file, and open 98-2709.

On March 9, the Fifth Circuit ruled in Campbell v. St. Tammany's School Board that a Louisiana school district's policy forbidding religious groups from using school grounds for worship or religious teaching is constitutional.

On March 6, the Supreme Court denied cert in Bridenbaugh v. O'Bannon, a Seventh Circuit case upholding Indiana's designation of Good Friday as a state holiday. "Indiana does not celebrate the religious aspects of Good Friday; for Indiana, the holiday has no religious significance. To Indiana, Good Friday is nothing but a Friday falling in the middle of the long vacationless spring -- a day which employees should take off to rejuvenate themselves."

Skating Through February

On February 24, the Eighth Circuit ruled in Seaworth v. Pearson that an employer did not discriminate against a job applicant on religious grounds when it declined to hire him unless he disclosed his Social Security number as required by the IRS. The applicant had protested that Social Security numbers represent the "mark of the beast."

On February 17, the Eleventh Circuit ruled in Gellington v. Christian Methodist Episcopal Church Inc. that the ministerial exception to Title VII survives the Supreme Court's holding in Employment Division v. Smith.

On February 4, the Seventh Circuit ruled in Freedom From Religion Foundation v. City of Marshfield, Wisconsin that a statue of Jesus standing on .15 acres of private property violates the establishment clause because the private property is not "visibly differentiated" from an adjacent city park.

On February 3, the Second Circuit upheld a New York school district's decision to bar a Christian youth club from using public school facilities in The Good News Club v. Milford Central School.

Shoveling Out of January

The Supreme Court announced that it will hear arguments in Santa Fe Independent School District v. Doe this March. The Court will review a Fifth Circuit decision that found a school district policy of permitting "student-led, student-initiated" prayer at football games unconstitutional.

On January 20, the Texas 14th Court of Appeals reversed and remanded the dismissal of a lawsuit filed by a job applicant who claimed an employer refused to hire her after she objected to training materials that conflicted with her religious beliefs. The plaintiff in Grant v. Joe Myers Toyota is apparently the first to cause a Texas court to consider a claim of religious discrimination under the Texas Commission on Human Rights Act.

Puzzling Through December

On December 30, the FCC issued an order saying that, to retain their educational broadcasting licenses, religious broadcasters must demonstrate that over half their programming is educational, and that "programming primarily devoted to religious exhortation, proselytizing, or statements of personally held religious views and beliefs" generally will not qualify.

On December 20, U.S. District Judge Solomon Oliver Jr. issued a permanent injunction against the City of Cleveland's school voucher program in Simmons-Harris v. Zelman

On December 1, the United States Supreme Court heard arguments in Mitchell v. Helms challenging a Fifth Circuit decision that declared a chapter of the 1965 Elementary and Secondary Education Act unconstitutional because it authorizes the government to provide computers, software, and library books to students who are enrolled in religious schools as well as public schools. A decision is expected by this spring.

On Dec. 1, the Ninth Circuit decided in Bollard v. Society of Jesus that the ministerial exception to Title VII did not bar a former Jesuit novice from bringing a sexual harassment claim against the religious order.

The ACLU also asked the Supreme Court to overturn the Eleventh Circuit's decision in Chandler v. James that DeKalb County, Alabama, needn't ban student-initiated religious speech in its schools. The petition for certiorari is now pending before the Court.