Posted on by Mark Movsesian

Seventh Circuit Says Hein Applies to State Funding Decisions

I posted about a Sixth Circuit case last week applying Hein‘s restrictive standing doctrine to dismiss an Establishment Clause challenge to a federal spending decision. Yesterday, the Seventh Circuit applied Hein to dismiss an Establishment Clause challenge to a state spending decision. An Illinois state agency had approved a $20,000 grant to a private organization, “Friends of the Cross,” to help restore the Bald Knob Cross, a local tourist attraction. Plaintiff brought suit, arguing that the grant failed the endorsement test, and claiming standing as an Illinois taxpayer.

The Seventh Circuit dismissed the challenge on standing grounds. Hein limited taxpayer standing to cases alleging specific legislative appropriations, not executive decisions, the court explained, and this limit applied to state as well as federal spending decisions. Here, the legislature had appropriated a $5 million lump sum for “member initiatives”; following Illinois tradition, a single legislator had requested that the executive direct part of the grant to the Friends, and the executive had complied.  Because the ultimate decision to fund the Friends had come from the executive branch, the court ruled, plaintiff lacked standing to challenge it under Hein. The case is Sherman v. Illinois, 2012 WL 1970592 (7th Cir. June 4, 2012).

Posted on by Marc O. DeGirolami

Court Dismisses FFRF Nativity Scene Suit

A federal district court in Michigan has granted summary judgment to the City of Warren in an action involving the display of religious symbols on state grounds brought by the Freedom From Religion Foundation. 

Here’s a quick summary.  The City puts up a holiday display in the atrium of the Warren Civic Center each year, and the display includes “Christmas trees, ribbons, ornaments, a ‘Winter Welcome’ sign, a ‘Merry Christmas’ sign, nutcrackers, elves, reindeer, a Santa’s mailbox, snowmen, wreaths with lights, bushels of poinsettias, candy canes, wrapped gift boxes, a ‘prayer station,’ and a Nativity Scene.”  There was also a small plaque indicating that the display was “sponsored and provided by the Warren Rotary Club.”

FFRF sent several letters to the City objecting to the inclusion of the Nativity Scene and to its placement, and the mayor of Warren responded disagreeing with the objection and stating that the City did not endorse or favor any religion, and that any religion would be permitted to display “their religious holy seasons in our atrium.” FFRF then sought a permit to display a sandwichboard sign alongside the Nativity Scene containing what were claimed to be “nontheist” statements, including the following: “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition that hardens hearts and enslaves minds.”  Finding that the sign was anti-religious and disparaging of religious believers, the City did not allow its display.  FFRF sued the City for violations of the Free Speech Clause, Equal Protection Clause, and the Establishment Clause.  The core of the Establishment Clause claim was that the City “approved” the Nativity Scene by displaying it but disapproved the sandwichboard by excluding it from the display.

The Court rejected the claim.  It found that the secular purpose of excluding the sandwichboard was the avoidance of disruption and the potential for confrontation at City Hall.  The sandwichboard was offensive and promoted ill will among members of the City, the Court concluded.  And the primary objective of the display was not religious but secular, consisting of numerous secular symbols and signs.  The inclusion of the Nativity Scene did not transform the overall effect to one of promoting religion.  As for endorsement, the Court noted that the holiday display, including the Nativity Scene, was displayed by a private group, and when the Nativity Scene was looked at within the full context of the display, it did not convey a message of endorsement to a reasonable observer, as it was a comparatively small feature of the display.

The case is Freedom From Religion Foundation v. City of Warren, 2012 U.S. Dist. Lexis 75464 (E.D. Mich. May 31, 2012).

Posted on by Mark Movsesian · 1 Comment

Eighth Circuit Rules Plaintiffs Have Standing to Challenge Fargo’s Ten Commandments Monument

An interesting decision by the Eighth Circuit Friday suggests a way for plaintiffs who object to public religious displays to get more than one bite at the apple. In 2002, a group called the Red River Freethinkers sued the city of Fargo, North Dakota, alleging that a Ten Commandments monument on city property violated the Establishment Clause. A federal district court applied the endorsement test and ruled against the group in 2005, concluding that a reasonable observer in the circumstances would not perceive an official endorsement of religion. The Freethinkers did not appeal that ruling, but instead petitioned the city to accept a companion monument declaring that the United States Government was “not, in any sense, founded on the Christian religion.” Rather than display both monuments, the city initially decided to remove the Ten Commandments display altogether. That decision caused a public outcry, however, and the city reversed itself. The city decided to retain the Ten Commandments monument and indefinitely table the Freethinkers’ petition for the companion display.

At that point, the Freethinkers sued again, arguing that the city’s decision to retain the Ten Commandments but reject their secularist monument failed the endorsement test. The city objected that the Freethinkers lacked standing to bring this second suit, but on Friday the Eighth Circuit disagreed. The Freethinkers had alleged an actual, concrete injury — the Ten Commandments monument had made them feel alienated and unwelcome in Fargo, they claimed — which could be remedied by the monument’s removal. Moreover, res judicata did not bar the suit, because the Freethinkers had alleged a new injury resulting, not from the city’s initial decision to erect the Ten Commandments monument, but from the city’s decision to retain the monument without placing the Freethinkers’ monument alongside it — a decision which the city took after the initial lawsuit had ended. In a separate opinion, Judge Shepherd argued that, although the Freethinkers did have standing, they were unlikely to prevail on the merits. He would have dismissed the case.

I’m not sure whether the Freethinkers planned it this way, but their strategy of offering the city a secularist memorial has cleverly kept the controversy alive. They can effectively retry the constitutionality of the Ten Commandments monument, get media attention, and impose further litigation costs on the city. (It’s already been 10 years!). Could they do this repeatedly? Assuming they lose this round on the merits, could the Freethinkers wait a while, offer a different secularist monument, and start all over again? I’m not a civ pro maven, but I doubt it. Anyhow, it’s worked for them so far. The case is Red River Freethinkers v. City of Fargo, 2012 WL 1887061 (8th Cir., May 25, 2012).

Posted on by Mark Movsesian

The Memorial Day Prayer for Peace

Monday is Memorial Day in the United States, a national holiday. The day commemorates the men and women who have died serving in the US military. There will be speeches, parades, picnics and wreath-layings across the country.

There will also be an officially-promoted prayer. By law, the President “is requested” each year to issue a proclamation “calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace.” The proclamation is supposed to designate a time on Memorial Day for the prayer and invite the media to participate. This year’s proclamation, issued yesterday, reads in part as follows:

NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim Memorial Day, May 28, 2012, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer. I also ask all Americans to observe the National Moment of Remembrance beginning at 3:00 p.m. local time on Memorial Day.

I’m not sure why, but the Memorial Day Prayer for Peace hasn’t drawn the same attention as the yearly presidential Thanksgiving Day Proclamation. Perhaps this is because the Memorial Day prayer is a more recent phenomenon, dating, like the inclusion of the words “under God” in the Pledge of Allegiance, only from the 1950s. Perhaps people are too busy enjoying their picnics to notice. In any event, notwithstanding the Court’s occasional pronouncements about the need to avoid even generic official endorsements of religion, non-sectarian endorsements like the Memorial Day prayer are very much a part of the American constitutional tradition. Americans, on the whole, seem to like them and want them to continue. Happy Memorial Day.

Posted on by Mark Movsesian

District Court Enjoins Lord’s Prayer at County Council Meetings

Another legislative prayer case, this time from Delaware. For several years, the Sussex County Council has opened its weekly meetings with the Lord’s Prayer. In December, plaintiffs represented by Americans United for Separation of Church and State brought suit to enjoin the practice, arguing that it violated the Establishment Clause. Last week, a federal district court agreed. Although Marsh v. Chambers allows legislative prayers, Judge Stark explained, the prayers must be nonsectarian, in order to avoid the implication that government endorses any particular religion. The Lord’s Prayer was undeniably a Christian, and thus sectarian, prayer; in fact, the version the Council used was a recognizably Protestant version of the prayer. (Comparative religion buffs take note: Jesus Seminar scholar John Dominic Crossan testified in the case that the Lord’s Prayer is not, in fact, exclusively Christian, an assertion Judge Stark dismissed). “The fact that the Lord’s Prayer has been the only prayer recited at the beginning of Council meetings for over six years,” Judge Stark argued, suggests that “the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.” Judge Stark, sua sponte, stayed his injunction for a period of one month’s time in order to give the Council a chance to adopt a practice of nonsectarian prayers that would satisfy the Establishment Clause. The case is Mullin v. Sussex County (D. Del.) (May 15, 2012).

Posted on by Mark Movsesian

Second Circuit Upholds NY’s Kosher Labeling Statute

New York’s Kosher Law Protection Act of 2004 requires sellers who market food products as kosher to label the products “kosher” and identify the person who has made the “kosher” certification. Unlike an earlier statute, which defined “kosher” by reference to Orthodox Jewish kashrut rules, the 2004  act does not define the term or authorize state inspectors to determine whether products satisfy particular kashrut requirements. It simply requires sellers to affix a label and disclose the basis for their assertion that the products are, in fact, kosher.

A New York deli that sells kosher food under the supervision of a non-Orthodox rabbi challenged the 2004 statute under the Establishment and Free Exercise Clauses. The deli pointed out that non-Orthodox interpretations of Jewish law do not require kosher food to bear a label, and argued that the labeling requirement thus amounted to an establishment of Orthodox Judaism. The deli also argued that the labeling requirement burdened its free exercise of a non-Orthodox form of Judaism.

Yesterday, the Second Circuit dismissed these claims. With respect to establishment, the court applied the  Lemon test. It held that the 2004 act had the secular purpose of preventing consumer fraud and did not advance religion. It’s true that the labeling requirement coincided with Orthodox Jewish practice, the court reasoned, but that did not amount to a legislative endorsement of Orthodox Judaism. A reasonable observer would see the labeling requirement as a neutral guide for consumers who wished to purchase kosher food — 70% of whom, the court noted, were not even Jewish, according to market research (who knew?). And, because the statute did not require the government to assess the correctness of a kosher designation, but only required sellers to identify the private persons that had made the designation, the statute did not threaten any entanglement with religion. With respect to the free exercise claim, the court held under Smith that the 2004 act was a neutral and generally applicable consumer protection law that did not violate plaintiff’s rights. The case is Commack Self-Service Kosher Meats v. Hooker, 2012 WL 1633143  (May 10, 2012).

Posted on by Michael Helfand

Litigating Religion Redux

I’ve been editing the latest draft of my forthcoming article “Litigating Religion” in anticipation of presenting the piece at this year’s Stanford/Yale/Harvard Junior Faculty Forum (I’ve also been pleased to have the piece discussed previously on the CLR Forum here and here).  The primary thesis of the article is that the Establishment Clause should not be interpreted to prohibit courts from adjudicating religious questions; instead, it should be interpreted to prohibit courts from adjudicating claims properly within the province of religious institutions.  Put differently, courts should resolve religious disputes where no other religious institution is capable of doing so.

One section of the article is dedicated to discussing court cases that raise religious questions, but where there is no religious institution that has an interest and the authority to resolve the dispute.  Given that I’m always looking for more examples, I was particularly pleased to see a post from Eugene Volokh about a 2007 case (only recently posted on Westlaw) that fits the bill where a court refused to enforce an arbitration provision that called for the appointment of “Three Orthodox Rabbis” as arbitrators.    The court refused to enforce the provision on the grounds that “[t]he Establishment Clause of the First Amendment prohibits a civil court from resolving issues concerning religious doctrine and practice.”  Thus determining whether an arbitrator is Orthodox – so as to satisfy the arbitration agreement – would run afoul of the First Amendment.   Instead, the court severed this provision from the arbitration agreement and authorized each party to select an arbitrator and have those two arbitrators select a third.  As the court noted, “[a]lthough the provision requiring orthodox arbitrators is unenforceable, the parties are free to select arbitrators, who in their own judgment, meet the religious requirement.”

But is this the preferred outcome?

Read more

Posted on by Mark Movsesian · 2 Comments

The Indiana Statehouse Chapel

Last week, I spent a couple of days in Indianapolis at a roundtable on law and the Protestant Reformation directed by my friend and sometime co-author, John McGinnis of Northwestern. During a break, I walked over to the Indiana Statehouse where, much to my surprise, I discovered the Indiana Chapel — that’s its official designation, though the sign on the door (right) says “Meditation Room” — on the fourth floor. It is apparently the first statehouse chapel in the United States, and one of only six, the others being in statehouses  in Arkansas, Florida, Illinois, Kentucky, and Texas. The chapel is a small room without sectarian symbols; to me, it resembles a Victorian parlor. There is, nonetheless, a Protestant feel to the room, no doubt created by the lectern at the front with a King James Bible, the hymnal on the electric organ, and the bookcase filled with Bibles, presumably for the  Bible studies advertised on a bulletin board outside the door (below). According to this website, a private evangelical Christian group called the Capitol Commission of Indiana regularly uses the room, though it doesn’t seem other groups are excluded. I don’t know if anyone has ever thought to bring a lawsuit about the Indiana Chapel, but, assuming the room really is open to everybody on an equal basis,  I don’t think an Establishment Clause challenge  would succeed, either under the Lemon/endorsement test or Marsh v. Chambers, the legislative chaplain case. In 1988, the Seventh Circuit held that a similar non-sectarian chapel/meditation room in the Illinois state capitol did not violate the Establishment Clause.

Posted on by Mark Movsesian

“Big Mountain Jesus” Stays for Now

An update on a story we covered last November. The Forest Service this week approved a permit for the continued display of a six-foot statute, known as “Big Mountain Jesus,” on federal land in Big Mountain, Montana. The statute has been there since 1954. Its sponsor, the Knights of Columbus, says that the statue, which replicates statues seen by American soldiers fighting in Europe in World War II, serves as a war memorial. The Forest Service had decided last August not to renew the permit, but reversed itself this week in response to public outcry. The Freedom from Religion Foundation, which argued that renewal of the permit would violate the Establishment Clause, has announced plans to file a federal lawsuit as early as this week.

Cases about public religious displays are notoriously unpredictable. The Supreme Court has indicated that such displays cannot violate the government’s duty of religious neutrality, but the Justices have defined that duty in various, and not completely consistent, ways. Categorical tests are not very helpful; cases turn on specific facts and historical context. With respect to Big Mountain Jesus, it will be interesting to see which interpretation of the statue prevails: is the statue really a war memorial whose religious associations are only incidental, or is it, as FFRF argues, an unconstitutional sectarian endorsement? Watch this space for further developments.

Posted on by Mark Movsesian

Merry Christmas, Mr. President

At the lighting of the National Christmas Tree on the Ellipse in Washington last week (that’s last year’s tree on the left), President Obama wished Americans a Merry Christmas and Happy Holiday Season. His remarks, in part, were quite sectarian:

More than 2,000 years ago, a child was born to two faithful travelers who could find rest only in a stable, among the cattle and the sheep.  But this was not just any child.  Christ’s birth made the angels rejoice and attracted shepherds and kings from afar.  He was a manifestation of God’s love for us.  And He grew up to become a leader with a servant’s heart who taught us a message as simple as it is powerful:  that we should love God, and love our neighbor as ourselves.

That teaching has come to encircle the globe.  It has endured for generations.  And today, it lies at the heart of my Christian faith and that of millions of Americans.  No matter who we are, or where we come from, or how we worship, it’s a message that can unite all of us on this holiday season. . . .  And this holiday season, let us reaffirm our commitment to each other, as family members, as neighbors, as Americans, regardless of our color or creed or faith.  Let us remember that we are one, and we are a family.

Our readers in Europe (and Rhode Island) might find the first paragraph, which could easily have come from an evangelical preacher, a bit shocking, but official statements like this are very much a part of the American tradition. Did the President violate the Establishment Clause? I hardly think so, even under the endorsement test, given the context of his remarks and the fact that he coupled the sectarian reference with a more universal message of good will to everyone, regardless of creed — a message that is part of the Christmas story, too.   (H/T: First Things).