Posted on by Marc O. DeGirolami

Supreme Court Declines to Hear Candy-Cane Case

The Supreme Court yesterday refused to hear a Fifth Circuit case involving the First Amendment rights of public elementary school students to discuss religion with other students and to distribute religious items, including religiously-themed candy-canes and pencils with messages such as “Jesus is the Reason for the Season,” and “Jesus loves me, this I know, for the Bible tells me so.”

The en banc Fifth Circuit held that students do have such rights, but that the public school administrators who had barred the students from exercising their rights had qualified immunity from suit because the rights were not clearly established.

The (rather long) en banc opinion is Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011).

Posted on by Marc O. DeGirolami

Mt. Soledad Cross Case Either Relisted or Held [UPDATE]

This morning’s Supreme Court order list does not mention the Ninth Circuit Mt. Soledad cross case.  Scotusblog is reporting that it has either been relisted for this Thursday’s conference or held for further consideration at some future date.  See this entry for earlier discussion.  More information when it is known.

UPDATE: Lyle Denniston reports that the case is on for Thursday’s conference.

Posted on by Marc O. DeGirolami

Court Reinstates Disenrolled Cadet’s Establishment Clause Claim

A federal court has reinstated the Establishment Clause claim of a West Point cadet who was disenrolled for plagiarism and related honor code violations.  As part of the cadet’s punishment, he had been ordered by a panel to “stand with his body rigid in a military posture and to read aloud the ‘Cadet’s Prayer'”:

Oh God, our Father, Thou Searcher of human hearts, help us to draw near to Thee in sincerity and truth.  May our religion be filled with gladness and may our worship of Thee be natural . . . . Help us . . . in doing our duty to Thee[.]

The Secretary of the Army had dismissed the cadet’s Establishment Clause claim for lack of standing.  The court (DDC) disagreed and reinstated the claim, holding that the cadet had alleged an injury in fact.

The case is Spadone v. McHugh, 2012 WL 2017973 (D.D.C. June 6, 2012).

Posted on by Marc O. DeGirolami

Mt. Soledad Cross Case on Tomorrow’s Supreme Court Conference

One of the cases listed as on for tomorrow’s cert. petition conference is Mt. Soledad Memorial Ass’n v. Trunk, which asks the Court to overturn a  Ninth Circuit decision holding that display of a large cross as part of a war memorial violates the Establishment Clause.  See Trunk v. City of San Diego, 629 F.3d 1099 (9th Cir. 2011).  The opinion by Judge McKeown in that case was, in my opinion, truly exceptional — one of the finest decisions in its style of analysis on the issue of state-sponsored religious displays that I have come across — even if I have some disagreements about the holding and whether it successfully negotiates around Justice Kennedy’s plurality opinion in Salazar v. Buono. 

In a somewhat unexpected move (at least to me), the Solicitor General has joined the cert. petition, making it more likely that the Court might take the case.  More tomorrow.

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 · 2 Comments

The Eighth Circuit on “Substantial Burden”

The Eighth Circuit has held that a defendant with religious objections may have the right under the Religious Freedom Restoration Act to refuse to rise when a judge enters the courtroom.  The defendant in a prosecution for conspiracy and providing material support to terrorist organizations refused on several occasions to stand up when the court convened.  After explaining that the First Amendment did not give the defendant a right not to rise, the judge found the defendant in contempt of court twenty times for refusing to stand up.  On remand, the Eighth Circuit has instructed the District Court to determine whether standing in court is the “least restrictive means” of achieving the concededly compelling interest of “maintaining order in the courtroom.”  The Eighth Circuit also indicates, at the end of the decision, that it will accord considerable deference to the District Court on this score. 

Because there has been a bit of discussion lately in the context of the HHS Mandate about what constitutes a “substantial burden” for RFRA purposes, I thought to highlight that portion of the Eighth Circuit’s discussion.  The District Court had evaluated the issue of substantial burden by comparing the behavior of other Muslims, noting that they had no problem with standing up.  That comparison was rejected by the Court as improper: “such considerations are irrelevant in the RFRA context so long as Ali’s objection to the pretrial order was rooted in her own sincerely held religious beliefs.”

Also important is the issue of “inconsistency.”  Apparently the defendant stood up for the jury and in other contexts, but did not stand up for the judge.  The District Court found this to be evidence of “inconsistent” adherence to her religious belief (even though the defendant explained the difference as being one about outward shows of respect).  The Eighth Circuit again rejected inconsistency as a gauge to measure substantial burden: 

[F]ocusing on Ali’s “inconsistent” application of her belief in refusing to rise to honor the court but standing so that prospective jurors could see her is not appropriate in the RFRA context . . . . [T]he court erred by evaluating the orthodoxy and sophistication of Ali’s belief, instead of simply evaluating whether her practice was rooted in her sincerely held religious beliefs. 

This is relevant language, because one sometimes hears supporters of the mandate say that a burden really cannot be that substantial if either (a) some, or even many, Catholic organizations have provided funding for contraceptives in various other contexts; or (b) the particular Catholic organization in question has inconsistently adhered to its belief that providing funding for contraceptives is wrong.  But if the Eighth Circuit is right, then these sorts of arguments are not relevant to assessing the question of substantial burden for RFRA purposes.

The case is United States v. Ali, 2012 WL 1970776 (8th Cir. June 4, 2012).

Posted on by Mark Movsesian

Sixth Circuit Rules Plaintiff Lacks Standing to Challenge Government’s Bailout of Firm Selling Sharia-Compliant Financial Products

In a recent contribution for a symposium CLR hosted here at St. John’s, Steve Smith argued that the Supreme Court’s restrictive standing doctrine in Establishment Clause cases has helpfully kept many disputes out of court. A Sixth Circuit case handed down on Friday provides a good example. Plaintiff challenged the U.S. Treasury’s provision of $70 billion to American International Group (AIG), which, through its subsidiaries, sells Sharia-compliant financial products, for example, products that avoid returns from “pork, alcohol, interest, gambling, or pornography.” Treasury disbursed the money pursuant to TARP, the Troubled Asset Relief Program, which Treasury established pursuant to the Emergency Economic Stabilization Act of 2008 (EESA). Plaintiff argued that the disbursement amounted to a promotion of Islam in violation of the Establishment Clause and claimed standing as a federal taxpayer.

The Sixth Circuit disagreed. Relying principally on the  Supreme Court’s 2007 holding in Hein v. Freedom from Religion Foundation, the court held that plaintiff lacked standing. Under Hein, the court explained, “a taxpayer-plaintiff has standing to challenge an executive-branch disbursement of funds only if the appropriating statute expressly contemplates the disbursement of federal funds to support religious groups or activities.” EESA did not; Treasury had made the decision to fund AIG on its own. “Neither . . . EESA nor any reasonable inference from its historical context suggest that Congress knew, or much less intended, that TARP funds might support the marketing and sale of” Sharia-compliant products, the court wrote. “It was only through executive discretion that TARP funds were transferred to AIG.”  The case is Murray v. U.S. Dept. of Treasury (6th Cir., June 1, 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

ECtHR Decides Church Autonomy Case

2012 is turning out to be a big year for church autonomy rulings across the world. The rulings don’t all cut the same way. In January, the US Supreme Court handed down a pro-autonomy decision, Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC,  unanimously endorsing a constitutional “ministerial exception” to the federal employment anti-discrimination laws. In February, a section of the European Court of Human Rights handed down an anti-autonomy decision, Sindacatul “Pastoral cel Bun” v. Romania, holding that Orthodox priests could form a union over their church’s objections. Now, a section of the ECtHR has handed down a pro-autonomy decision in a case involving the employment of a laicized Catholic priest.

In Spain, public schools offer classes in Catholicism, taught by instructors approved by the local bishop. In the most recent case, a local bishop had withdrawn approval of one such instructor, a laicized priest who had taken a public stand against mandatory priestly celibacy. When the school dismissed the instructor, he brought suit under the European Convention, arguing that the dismissal violated his rights to privacy, family life, and expression. Somewhat surprisingly, perhaps, a section of the ECtHR ruled against him. In withdrawing approval, the section stated, the bishop had acted “in accordance with the principle of religious autonomy;” the instructor had been dismissed for purely religious reasons, and it would be inappropriate for a secular court to intrude.

It will be interesting to see whether the Grand Chamber reviews this judgment, or the judgment in the Romanian case, which Romania has already referred. The case is Fernandez Martinez v. Spain, available on the ECtHR’s website here (in French). For an interesting analysis of how this case relates to Hosanna-Tabor, check out Stijn Smet’s post on Strasbourg Observers.

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).