• On December 11, the U.S. Court of Appeals for the Sixth Circuit, in a 2-1 decision, declared a Cleveland school voucher program unconstitutional, upholding a lower court ruling that the use of public money to send thousands of children to parochial schools breaches the First Amendment's separation of church and state. The Institute for Justice believes the Supreme Court will hear the case on appeal. To read the case, visit http://www.ij.org/media/school_choice/ohio/index.html.

• Several amicus briefs have been filed in support of the petitioners in Good News Club, et. al., v. Milford Central School. The Milford Central, New York school district refused a request by the Good News Club to use school facilities for meetings that included Bible readings and the singing of religious songs. The 2nd Circuit sided with the school district, ruling that the club's meetings amounted to religious instruction.

The Becket Fund filed an amicus brief with the Supreme Court in The Good News Club v. Milford Central School, asking that the justices clear up First Amendment law in a critical area. Discrimination of the sort engaged in by the Milford school is always viewpoint discrimination, the brief argues. To read a news release and the brief, visit http://www.becketfund.org/.

Carl Esbeck, Rick Garnett, and Nathan Diament have also filed an amici curiae brief on behalf of the Christian Legal Society and Union of Orthodox Jewish Congregations of America in support of the petitioners. Read the brief here.

Brett Kavanaugh of Kirkland & Ellis and Stuart Roth filed an amicus brief in support of Sally Campbell, who has challenged a local policy in St. Tammany Parish, Lousiana, that is similar to the Milford policy at issues. The school board of St. Tammany Parish allows after-hours use of its building for civic, recreational, and entertainment uses, and for others uses that pertain to the "welfare of the public." Sally Campbell was denied use of school facilities for religious purposes. She plans to file a petition for writ of certiorari in the U.S. Court of Appeals for the Fifth Circuit. Read the introduction here.

• In the lecture “Why America Needs Religion,” Heritage Foundation Trustee William E. Simon Jr. asks, does America need religion? Mr. Simon answers that question with a historic survey of the Founding Fathers views on religious faith and its important for preserving freedom. See. http://www.heritage.org/library/lecture/hl687.html.
• The Center for Individual Rights has filed suit against the City of Boston on behalf of Mason Cathedral Church in Dorchester, MA. CIR seeks to vindicates the church’s rights of free speech and free exercise of religion, which were violated when the city withdrew federally-funded counselors from Keys of Life, the church’s summer camp. City officials objected to voluntary participation by some of the counselors in a short daily prayer and Bible story reading, even though the camp was otherwise non-religious and met all of the requirements for participation in SummerWorks, the Boston program which provides teenagers with summer employment at camps and other sites. CIR is asking a federal district court in Boston to bar the city from “applying a policy of discrimination against plaintiff…on the basis of plaintiff’s speech or…religion.” In addition to First Amendment claims, the suit charges the city with violating the Fourteenth Amendment’s equal protection guarantees. See http://www.cir-usa.org.
• Do You Know The Way From Santa Fe?

In the last two months, two federal appellate courts have sought to apply the U.S. Supreme Court’s recent decision in Santa Fe Independent School District v. Doe, 120 S. Ct. 2266 (2000), in resolving disputes about the propriety of religious speech by public school students.

The Eleventh Circuit, in Chandler v. Siegleman, reaffirmed its earlier holding overturning a district court injunction preventing an Alabama school district from permitting any prayer in a public context at any school function.  The unanimous three-judge panel maintained that such an injunction was overbroad, even in light of Santa Fe.  Referring to the U.S. Supreme Court’s opinion as well as the Eleventh Circuit’s earlier opinion rejecting the district court’s injunction, the panel noted, “Santa Fe condemns school sponsorship of student prayer.  Chandler condemns school censorship of student prayer.” (emphasis in original).  The Eleventh Circuit explained that Santa Fe only stands for the proposition that school districts may not take affirmative steps to create a vehicle for prayer to be delivered at a school function.  Santa Fe does not address under what circumstances religious speech in schools can be considered private, an answer the Eleventh Circuit attempted to provide in Chandler:  “So long as the prayer is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it, the speech is private and it is [constitutionally] protected.”

The Ninth Circuit, on the other hand, appeared to read Santa Fe more broadly in Cole v. Oroville Union High School District.  The case addressed whether a high school principal had violated the First Amendment by refusing to allow one student to give a sectarian invocation at graduation and refusing to allow another student to give a sectarian, proselytizing valedictory speech.  A unanimous three-judge panel had little difficulty concluding that the principal’s actions with respect to the sectarian invocation were necessary to avoid an Establishment Clause violation.  It stated, “an invocation policy by its very terms appears to reflect an impermissible state purpose to encourage a religious message.”  The panel admitted, however, that the religious nature of the valedictory speech presented a more difficult issue, noting, “the valedictorian speech policy neither encourages a religious message nor subjects the speaker to a majority vote that operates to ensure only a popular message is expressed at the graduation.”  Nevertheless, the panel concluded that allowing a student to give a sectarian, proselytizing valedictory speech would have violated the Establishment Clause.  It argued, “Because District approval of the content of student speech was required, allowing [the student] to make a sectarian, proselytizing speech as part of the graduation ceremony would have lent District approval to the religious message of the speech.  Equally important, an objective observer familiar with the District’s policy and its implementation would have likely perceived that the speech carried the District’s seal of approval.

The Eleventh Circuit’s opinion can be found at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=11th&navby=case&no=976898OP2. 

The Ninth Circuit’s opinion can be found at http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9916550.  

• The Cato Institute has released a new report on how school choice often boosts student achievement. To read this report, see http://www.cato.org/pubs/pas/pa-383es.html.
• For excerpts from the Federalist Society's July Conference on Charitable Choice, see the following speakers' remarks:
  • Dr. Stanley Carlson-Thies, Director, Social Policy Studies, Center for Public Justice
  • Dr. Amy Sherman, Senior Fellow, Welfare Policy Center, Hudson Institute
  • Professor Carl Esbeck, Director, Center for Law and Religious Freedom, Christian Legal Society
  • Professor Marci Hamilton, Cardozo Law School
    
    

• In a Milton & Rose D. Friedman Foundation publication titled “Choosing Integration” by Jay P. Greene, the author writes:

“Racial integration has increased since a 1998 Wisconsin Supreme court decision adding religious schools to the Milwaukee Parental Choice Program (MPCP), according to a study by Marquette University’s Institute for the Transformation of Learning (ITL).

‘Adding religious schools has led to substantially more integration in choice schools than in the Milwaukee Public Schools (MPS),’ according to ITL Director Howard L. Fuller, Ph.D. To illustrate, Fuller said ‘half of MPS students attended racially isolated schools in 1999-2000, compared to 30.1% of students at religious choice schools.’Fuller said that about 85% of low-income MPCP students are members of racial or ethnic minority groups. A majority of these choice students have enrolled in schools where, previously, many students were from more affluent white families.”

For more information, see: http://www.friedmanfoundation.org/

• In the Spring 2000 issue of “Texas Review of Law & Politics,” Nicole & Richard Garnett wrote an article on “School Choice, The First Amendment and Social Justice.” They write, “This article is intended to be a primer on the legality and morality of educational choice – ‘School Choice in a Nutshell’ if you will.  We are resigned to being pre-empted by the tireless work of grassroot activists, the choices of voters, and the decisions of judges. Still, we hope, in somewhat polemic fashion, to establish two basic claims. First, school choice, properly understood, is constitutional. And second, school choice is both sensible and just. In the end, we believe “school choice…is essential to achieving equality of opportunity for American children, rich or poor. School choice treats the poor as citizens of equal dignity; it promotes the independence upon which constitutional government depends; and it empowers parents to transmit their values to their children. It is educational choice, not constitutional ideals, its cultural diversity and commitment to pluralism, and its tradition of religious freedom.  It is choice, not monopoly, that “promise[s] to invigorate public life, create more capable citizens, bring together the races, and make good on the Constitution’s promises.”

• Florida's school voucher program, centerpiece of Gov. Jeb Bush's A+ education plan, is constitutional and can stay in effect, an appeals court ruled October 3 in a case being monitored closely across the country.

http://www.herald.com/content/today/news/florida/digdocs/014133.htm

http://www.nytimes.com/2000/10/04/national/04VOUC.html

• The Becket Fund for Religious Liberty filed the first lawsuit asking for relief under provisions of the Religious Land Use and Institutionalized Persons Act (RLUIPA), which was signed by President Clinton Friday, September 22.
• The Becket Fund action comes in the form of an amended complaint in Haven Shores Community Church v. City of Grand Haven, Michigan. The action was originally filed on March 10, 2000, and charges that the City of Grand Haven violated the church's constitutional freedoms of speech, religion and assembly when it refused to allow the church to occupy space in a local shopping center. City zoning officials claimed that the local zoning ordinance does not allow religious meetings and worship in the B-1 business district, even though the ordinance makes no reference to churches or other religious groups. It specifically allows "places of public assembly" in the B-1 district. To find out more information, visit: http://www.becketfund.org/

• THIRD CIRCUIT DECISION IN BEGINNER'S BIBLE CASE
  
• Becket Fund Targets "Separate and Unequal" Standard Supreme Court asked to settle disagreement among federal circuits

  The Becket Fund for Religious Liberty today asked the U.S. Supreme Court to take up a case involving a seriously handicapped child and a state regulation that discriminates against him because he attends a private religious school.

  The case, KDM v. Reedsport School District, is on appeal from the U.S. Circuit Court of Appeals for the Ninth Circuit. A divided three judge panel ruled last fall that an Oregon administrative regulation governing special education services could bar providing the services in private religious schools as long as it did not impose a "substantial burden" on the recipient. The plaintiff, "KDM," is a child who is legally blind and suffers from cerebral palsy. Under the rule being challenged, the state requires him to leave the Harbor Baptist Church School and travel to a nearby firehouse in order to receive state-funded special education help. No such requirement is imposed on a private non-religious school.

  In an amicus curiae brief supporting a petition for certiorari, The Becket Fund argues that in upholding the Oregon rule, the Ninth Circuit has adopted "a dangerous and unprecedented standard for reviewing laws that facially discriminate on the basis of religion." In effect, the brief argues, the appeals court adopted a "separate and unequal" standard in which discrimination against religious exercise is considered constitutional as long as a court decides the discrimination doesn't create a "substantial burden" on free exercise of religion.

  The Becket Fund brief also notes that the appeals court’s logic would permit governments "to discriminate between religions or between religion and irreligion freely, so long as the burden did not amount to a ''substantial'' one." Thus, the brief points out, "a regulation regulating Presbyterians, atheists, or any religious person to the back of a city-operated bus would pass constitutional muster, when adjudged by the Ninth and First Circuit''s standard." [The First Circuit took a position similar to the Ninth Circuit in case decided earlier last year.]

  The brief also notes that the Third, Sixth and Eighth Circuits have all taken the opposite position in such cases, leaving a "sharp disagreement" among the circuits that the Supreme Court should resolve.

  See http://www.becketfund.org for more information.
  

• Pending Pro-Transvestite Regulations Impact Public and Private Schools

Sacramento, CA – The California State Board of Education is entering its last phase of review in adopting regulations which would apply new protections to transvestites, transsexuals, and homosexuals wishing to teach in Kindergarten through 12th grade. This is partially achieved by the redefining of the term gender to include both "actual" and "perceived" sex, including "whether or not that identity, appearance, or behavior is different than that traditionally is associated with the persons sex at birth" (§4910, California Code of Regulations). These new regulations also would grant the same controversial protection for persons serving as counselors to children enrolled in public schools (§§4900, 4901, 4930).

In addition to public schools, these same regulations would apply to many private religious and non-religious schools which receive any form of state or federal financial assistance, including assistance for a handicapped child in need of special education. "I think it is continuing testimony to the aggressive nature of the state capital against religious organizations. It’s clearly becoming a more hostile environment for the Christian community in California," said Rohn Ritzema, Northern California Regional Director for the Association of Christian Schools International (ACSI). The earlier version of the regulations even applied to private schools which receive no state or federal financial assistance. This November Californians will be voting on the School Voucher initiative (Proposition 38) which will repeal all regulations and laws applied to private schools after January 1, 1999.

"These intolerant new regulations will certainly serve as fuel to the fodder for those pushing for the School Voucher’s passage and consequential protection of private schools." said Brad Dacus, president of the Pacific Justice Institute. Proposition 38 will also make it much more difficult for new laws and regulations to be enacted against private schools by requiring, among other things, a ¾ majority by both houses of the state legislature.

The Pacific Justice Institute has filed an opinion letter with the State Board of Education in opposition to the proposed regulations. Pacific Justice Institute is a non-profit organization dedicated to the defense of religious freedom, parents' rights and other basic constitutional civil liberties.

See http://www.pacificjustice.org for further details.

• Eighth Circuit Upholds Prisoner’s Religious Liberty - Love v. Reed, 216 F.3d 682 (8th Cir. 2000)
• For Whom Does the Bell Toll? - Brooks v. City of Oak Ridge, 2000 U.S. App. LEXIS 17510 (6th Cir. 2000)

August 14, 2000

• Louisiana's new anti-abortion license plates were challenged in federal court Monday as an unconstitutional attempt to break the wall between church and state. Read the following article for more details: http://dallasnews.com/texas_southwest/128969_laplates_01tex.html

• Eighth Circuit Upholds Prisoner’s Religious Liberty

Love v. Reed, 216 F.3d 682 (8th Cir. 2000)

Last month, the Eighth Circuit Court of Appeals struck a blow for the religious liberty of prisoners by mandating an accommodation to allow a Jewish inmate to observe the Sabbath. Since his imprisonment in 1982, Kelvin Ray Love has been studying the Old Testament on his own. Though a professed Catholic at the time of his incarceration, Love now professes to adhere to the "Hebrew faith," and though he is without the guidance of a spiritual mentor, has begun to teach himself what he refers to as "traditional Judaism." As part of his observance of the Sabbath, Love cannot eat food prepared by himself or others on the Sabbath, and had requested that the prison guards bring him bread and peanut butter the day before so that he could prepare sandwiches for himself. The prison refused on the grounds that they had important penological concerns regarding the health implications of this practice.

The Court, however, found that the alternative for Love was to observe an enforced fast, which substantially burdened his observance of the Sabbath. The Court further concluded that the prison’s penological concern, the hoarding of peanut butter sandwiches, presented no sanitary concerns that weren’t presented by other practices allowed by the prison. Accordingly, they upheld the district court’s ruling that prison officials had violated his free exercise rights under the First Amendment.

The Eighth Circuit’s decision can be found at: http://caselaw.findlaw.com/data2/circs/8th/993149P.pdf

• For Whom Does the Bell Toll?

  Brooks v. City of Oak Ridge, 2000 U.S. App. LEXIS 17510 (6th Cir. 2000)

  Had a Tennessee city attempted to establish Buddhism as its endorsed religion? That was the question confronted by the Sixth Circuit in an opinion released last month.

  The town of Oak Ridge, Tennessee, known best for country music and nuclear power, erected a "Friendship Bell" in the town square to honor its citizens who had worked on the Manhattan Project. The Friendship Bell was etched with words of friendship between Tennessee and Japan and included images of their respective official flowers, birds, and trees. The bell, made in Japan and housed in a gazebo designed by a Tennessee architect in the style of Frank Lloyd Wright, became the subject of a suit by an Oak Ridge citizen who thought that its similarity to bells in Buddhist monasteries violated the Establishment Clause.

  The Court majority applied the Lemon test, agreeing with the appellant that the bell could be perceived as a religious symbol because of its "strong Buddhist connotations." Nevertheless, it found that no reasonable observer would perceive the bell’s display as a state endorsement of Buddhism. The majority argued that the bell’s plaque and other signs surrounding the bell clearly indicated that the bell had a secular purpose and was not designed to endorse Buddhism. Similarly, the historical background of the bell made it obvious that the bell’s purpose was to endorse peace and friendship with Japan rather than Buddhism.

  Judge Norris concurred in the judgment but wrote separately to state his view that he was not sure the Lemon test should even be applied as he doubted that the Oak Ridge Bell was a religious symbol..

  The Sixth Circuit’s decision can be found at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=6th&navby=case&no=00a0243p

• The following links are to two articles by Net Hentoff giving an update on genocide in the Sudan. http://www.jewishworldreview.com/cols/hentoff1.asp http://www.jewishworldreview.com/cols/hentoff070300.asp

• A Tale of Two Cases by Ronald D. Rotunda

The First Amendment grants us Freedom of Speech. When one compares two recent cases, the courts act as if there are really two free speech clauses: one compels the government to subsidize speech that mocks religion, while the other requires the government to ban free speech that tangentially refers to religion in a non-mocking way. One might think that those who speak favorably about religion should not be given fewer rights than those who smear or besmirch religion. But if you think that, you have not been keeping up with the case law. For the complete report, click here.

• Passing, Punting, But No Praying

  Santa Fe Indep. School Dist. v. Doe, 2000 U.S. LEXIS 4154 (June 19, 2000)

  The U.S. Supreme Court, 6-3, struck down a public school district’s two-step election process for determining whether a prayer would be said before high school football games as violating the Establishment Clause. Under the district’s policy, two elections were held: the first to determine whether "invocations" should be delivered at games, and the second to select the spokesperson to deliver them.

  The majority argued that even though the policy did not specifically say that the speaker would be elected for the purpose of praying, the implications of the policy were that the school district (and therefore the State) was expressing its approval for prayer. The dissent argued that this decision was overbroad; its implication being that merely granting the power to students to vote for student officers now violates the First Amendment because of fears of such students may pray at school events. The dissent argues that speech, even in the form of a prayer, chosen and authored by a student is private speech, rather than public, and thus does not constitute state endorsement of religion.

  The opinion is available at http://supct.law.cornell.edu/supct/html/99-62.ZS.html.

• Court OK’s Computers for Religious School Students

  Mitchell v. Helms, 2000 U.S. LEXIS 4485 (June 28, 2000)

In this victory for school choice and religious liberties advocates, the Supreme Court, 6-3, upheld Chapter 2 of the Education Consolidation and Improvement Act of 1981, which provides government aid in materials and equipment, such as computers, to both public and private schools.

A four-justice plurality emphasized the fact that the program was entirely neutral as to the nature of the educational institution, treating public, private, and religious schools equally. They continued the path took in Agostini v. Felton, 521 U.S. 203 (1997), which modified the test of Lemon v. Kurtzman, 403 U.S. 602 (1971). Under this test, the aid program most importantly could not be said to be indoctrinating, as it was given to a broad range of students. The plurality also restated the premise that the intervention of private citizens in directing the money prevented such support from being inherently unconstitutional. Justice O’Connor’s concurrence, joined by Justice Breyer, agreed with much of the argument that "private choice programs" could be constitutional, but warned against what she perceived as the Court’s overemphasis on neutrality in the context of direct aid. The opinion is available at http://supct.law.cornell.edu/supct/html/98-1648.ZS.html.

• Two Circuit Courts Sustain Religious Accommodations

Children’s Healthcare Is a Legal Duty, Inc. v. Min De Parle, 212 F.3d 1084 (May 1, 2000)
Religious liberty was furthered when the Eight Circuit Court of Appeals upheld by a 2-1 vote exceptions to Medicare and Medicaid allowing individuals with religious objections to receiving medical assistance to instead receive government assistance for nonmedical care they receive in facilities that, for religious reasons, only offer nonmedical services. The court rejected an Establishment Clause challenge to the statute on the basis that overturning the exceptions would amount to an unconstitutional burden on certain religious individuals, forcing them to choose between their convictions and all government-provided health care. In so doing, the court expanded the power of Congress to alleviate "government-imposed burdens on religion . . . without transgressing the Establishment Clause," by creating a permissive accommodation under the Free Exercise Clause.The opinion is available at http://www.ca8.uscourts.gov/opndir/00/05/983521P.pdf.

Boyajian v. Gatzunis, 212 F.3d 1 (May 2, 2000)
The First Circuit Court of Appeals upheld by a 2-1 vote a zoning statute in the state of Massachusetts that prohibits municipal authorities from excluding religious uses of property from any zoning area, holding that this was a permissible accommodation under the Free Exercise Clause. The statute was challenged as violating the Establishment Clause by favoring religious organizations in the zoning process, but the Court found that this statute was a constitutional method of preventing discrimination against religious organizations consistent with recent U.S. Supreme Court opinions furthering protection of religious liberties. The opinion is available at http://www.ca1.uscourts.gov/pdf.opinions/99-1760-01A.pdf.

• The Becket Fund for Religious Liberty won a significant victory June 26 in ACLU-NJ v. Township of Wall, N.J. The ACLU had sued Wall Township, New Jersey in an attempt to force them to remove a Christmas display from township property. The Becket Fund defended Wall Township in federal district court in Newark.

  Judge Alfred Wolin dismissed the ACLU lawsuit with prejudice. It's the second defeat for ACLU-NJ on Christmas display lawsuits. The first involved the display in Jersey City. The Becket Fund, which also defended Mayor Schundler and Jersey City, is now 2-0 on this issue against ACLU-NJ.

  See http://www.becketfund.org/ for further details.

  For immediate release: **** Friday, June 23, 2000

  BECKET FUND SCORES VICTORY IN HOLIDAY DISPLAY CASE

  Wall Township case is Becket Fund's second win in a row over ACLU-NJ http://www.becketfund.org/

  U.S. District Court Judge Alfred M. Wolin today ruled in favor of the Township of Wall, New Jersey and found that "the Township's [holiday] display does not offend the Establishment Clause of the First Amendment." After arriving at that conclusion, Judge Wolin dismissed a lawsuit brought by the ACLU-NJ.

  Wall Township was defended in the lawsuit by The Becket Fund for Religious Liberty, which had also successfully defended Jersey City, New Jersey and Mayor Bret Schundler in a similar suit brought by ACLU-NJ. The ACLU had sued Wall Township just one day after its defeat in the Jersey City case.

  Judge Wolin referred frequently to the decision by the Third U.S. Circuit Court of Appeals in the Schundler case, noting that "the Christmas display upheld in Schundler II bears unmistakable parallels to the display defended by the Township," although he also found that there were "differences [that] result in the Township's display lying nearer to the constitutional boundary." Much of his decision consisted of an analysis of what a "reasonable observer" would conclude about the nature of the display. And he found that such an observer would not conclude that the display, in its total context, constituted an endorsement of religion by the Township. Becket Fund President and General Counsel Kevin J. Hasson said that the decision should be welcomed "by all who value and respect our nation's rich cultural heritage, including its religious elements. Clearly, communities like Wall Township can constitutionally celebrate the significance of holidays and observances from Christmas to Hanukkah, St. Patrick's Day to Ramadan, Columbus Day to Passover, and Independence Day to Molly Pitcher Day. By now, after two consecutive defeats on this issue, perhaps even the ACLU-NJ will concede that fact, and move on to other things."

  Hasson added that today's decision "should reassure communities all across the country that such holidays can be celebrated constitutionally and in good taste, and that's good news for all of us."

• The Becket Fund for Religious Liberty won a significant victory June 26 in ACLU-NJ v. Township of Wall, N.J. The ACLU had sued Wall Township, New Jersey in an attempt to force them to remove a Christmas display from township property. The Becket Fund defended Wall Township in federal district court in Newark.
• Judge Alfred Wolin dismissed the ACLU lawsuit with prejudice. It's the second defeat for ACLU-NJ on Christmas display lawsuits. The first involved the display in Jersey City. The Becket Fund, which also defended Mayor Schundler and Jersey City, is now 2-0 on this issue against ACLU-NJ. See http://www.becketfund.org/ for further details.

  For immediate release:

  Friday, June 23, 2000

  BECKET FUND SCORES VICTORY IN HOLIDAY DISPLAY CASE

  Wall Township case is Becket Fund's second win in a row over ACLU-NJ

  http://www.becketfund.org/

  U.S. District Court Judge Alfred M. Wolin today ruled in favor of the Township of Wall, New Jersey and found that "the Township's [holiday] display does not offend the Establishment Clause of the First Amendment." After arriving at that conclusion, Judge Wolin dismissed a lawsuit brought by the ACLU-NJ.

  Wall Township was defended in the lawsuit by The Becket Fund for Religious Liberty, which had also successfully defended Jersey City, New Jersey and Mayor Bret Schundler in a similar suit brought by ACLU-NJ. The ACLU had sued Wall Township just one day after its defeat in the Jersey City case.

  Judge Wolin referred frequently to the decision by the Third U.S. Circuit Court of Appeals in the Schundler case, noting that "the Christmas display upheld in Schundler II bears unmistakable parallels to the display defended by the Township," although he also found that there were "differences [that] result in the Township's display lying nearer to the constitutional boundary." Much of his decision consisted of an analysis of what a "reasonable observer" would conclude about the nature of the display. And he found that such an observer would not conclude that the display, in its total context, constituted an endorsement of religion by the Township. Becket Fund President and General Counsel Kevin J. Hasson said that the decision should be welcomed "by all who value and respect our nation's rich cultural heritage, including its religious elements. Clearly, communities like Wall Township can constitutionally celebrate the significance of holidays and observances from Christmas to Hanukkah, St. Patrick's Day to Ramadan, Columbus Day to Passover, and Independence Day to Molly Pitcher Day. By now, after two consecutive defeats on this issue, perhaps even the ACLU-NJ will concede that fact, and move on to other things."

  Hasson added that today's decision "should reassure communities all across the country that such holidays can be celebrated constitutionally and in good taste, and that's good news for all of us."

• The State of Ohio's motto reads, "With God All Things Are Possible." The United States Court of Appeals for the Sixth Circuit, however, recently concluded it was not possible for the State of Ohio to defend the constitutionality of its motto. A divided panel of the Court ruled on Tuesday April 25th that the motto, which quotes Jesus from Matthew 19:13-26, violates the First Amendment's establishment clause because it constitutes an endorsement of the Christian religion.

The Court concluded, "While the words of the motto may not overtly favor Christianity, as the words of Jesus they, at a minimum, demonstrate a particular affinity toward Christianity in the eyes and ears of a reasonable observer - a person knowledgeable about the Christian Bible and particularly the New Testament."

Dissenting, Judge David Nelson argued that Ohio's motto was similar to the national motto of "In God We Trust," the constitutionality of which has been upheld by three federal circuit courts. Judge Nelson argued that a reasonable observer would not take the motto to be an endorsement of Christianity and indeed would likely not know the source of the quotation.

The Sixth Circuit's opinion may be found at: http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=00a0148p.06

• Ninth Circuit Applies Rosenberger to Tucson's Civic Events Fund On April 20th, a divided panel of the U.S. Court of Appeals for the Ninth Circuit held that the City of Tucson violated the free-speech rights of local sponsors of the National Day of Prayer by denying them taxpayer funds from the City's Civic Events Fund to reimburse the cost of city services provided for the event. The Fund provides support for events relating to the historical, cultural, and ethnic heritage of the City and the nation, or that educate the public regarding important issues.

The Court held that the City's policy of denying religious groups access to the Fund was impermissible viewpoint-based discrimination in violation of the First Amendment's free speech clause. Citing the U.S. Supreme Court's case in Rosenberger v. Rector and Visitors of the Univ. of Va., 515 U.S. 819 (1995), the Court further concluded that the use of the Fund to support the National Day of Prayer would not run afoul of the Establishment Clause.

The Court's opinion can be found at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=971706

• No Accommodation for Jehovah's Witness
  

  In Weber v. Roadway Express, Inc., the Fifth Circuit ruled that a trucking company does not need to accommodate a Jehovah's Witness driver's request not to be assigned runs with a female partner. The driver's religion prohibited him from traveling overnight with a woman other than his wife. The court found that compliance with the request would have resulted in more than a de minimis expense to the employer because it would unduly burden other employees with respect to compensation and time off. It therefore

  reject the truck driver's claim that the company had failed to accommodate his religious beliefs in violation of Title VII of the 1964 Civil Rights Act.

  The Fifth Circuit's opinion can be viewed at:

  http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=5th&navby=case&no=981146

• No Good News for the Good News Club
  

  In The Good News Club v. Milford School District, a divided Second Circuit panel upheld a New York school district's right to refuse access to school facilities to an after-school religious program.

  The court found that because the group's teachings were "quintessentially religious" the First Amendment's establishment clause barred its use of school facilities.

  In 1992, Milford School District adopted a policy on community use of school buildings that expressly forbade use for religious purposes. Although the community-use policy allowed groups such as the Girl Scouts and the 4-H Club, school officials rejected the application of the Good News Club, which offers religious instruction to children ages 6 through 12.

  The club, one of several throughout the country, is affiliated with the Child Evangelism Fellowship, a Christian missionary organization.

  The Second Circuit, with Senior Circuit Judge Roger J. Miner and Judge Fred I. Parker in the majority, upheld the school district's refusal to allow the club to use its facilities.

  "The activities of the Good News Club do not involve merely a religious perspective on the secular subject of morality," said Miner, writing for the court. "The Club meetings offer children the opportunity to pray with adults, to recite biblical verse, and to declare themselves 'saved.'"

  Both sides in the case conceded, and the appeals court agreed, that the district, in issuing its policy on community use of school facilities, had created a "limited public forum," meaning that the school cannot discriminate against different groups who want to use school grounds.

  But the two sides differ on whether allowing the club access would constitute the school district's endorsement of religion, which would violate the First Amendment's establishment clause.

  In dissent, Judge Dennis G. Jacobs said that "the area of my agreement with the majority is substantial," but that he would side with the club.

  Citing the Supreme Court in Rosenberger v. Rector of University of Virginia, 515 U.S. 819 (1995), Jacobs said that in a limited public forum, content discrimination is allowed if it preserves the purpose of that forum, but viewpoint discrimination is "impermissible when directed against speech otherwise within the forum's limitations."

  "In my view, when the subject is morals and character, it is quixotic to attempt a distinction between religious viewpoints and religious subject matters," he said.

  The Second Circuit's opinion can be viewed at: http://caselaw.findlaw.com/cgi-bin/getcase.pl?court=2nd&navby=case&no=989494dis

• Seventh Circuit Says Jesus Must Go
  

  In Freedom from Religion Foundation, Inc. v. City of Marshfield, the Seventh Circuit recently ruled that a statue of Jesus in a Wisconsin city park violates the First Amendment’s establishment clause. The interesting thing about the case is that the statue does not stand on state-owned property. After the suit had originally been brought, the City sold a small piece of the park (including the portion the statue stood on as well as access to a public road) to a private foundation for $3.30 a square foot (the highest amount ever received by the city per foot for sale of its land).

  Despite the sale of the land, the Court concluded:

  "Although the sale of the land . . . ended any direct government action that would constitute endorsement, the sale has given this sectarian message preferential access to Praschak Wayside Park, a public forum. The statue is an unattended object fifteen feet in height and made of marble. For this reason alone, citizens who wish to endorse other religions or sects on "equal terms" would find it exceedingly difficult to erect an object of equal expressive power or to maintain it on government property."

• Movement to Display The Ten Commandments Gains Ground
  

  Legislation to permit Indiana public schools to post the Ten Commandments as part of a larger display of historical documents overwhelmingly passed the Indiana House on February 7, and will likely soon be signed into law by Governor Frank O’Bannon. This victory is just the latest for forces seeking to display the Ten Commandments on the walls of public buildings nationwide. A similar bill has passed the South Dakota Senate, and the U.S. House of Representative passed legislation last year empowering states to allow the display of the Ten Commandments in public places. Legislation on the topic is currently pending in Florida, Georgia, Missouri, Mississippi, and Oklahoma. A Washington Post article examining this nationwide movement can be viewed at http://www.washingtonpost.com/wp-srv/WPlate/2000-02/08/054l-020800-idx.html.

• Tuition Tax Credit Survives Illinois Court Challenge
  

  In a significant victory for school choice supporters, an Illinois state trial court recently dismissed the Illinois Federation of Teachers' lawsuit challenging the constitutionality of the Illinois educational expenses tax credit law. The teachers' union had argued that the law, which provides a credit against state income taxes for 25 percent of tuition, book fees, or lab fees incurred by K-12 students at public or private schools up to a maximum of $500 per family, violated two provisions of the Illinois Constitution dealing with religious establishment. The court, however, rejected these arguments, citing the U.S. Supreme Court’s decision in Mueller v. Allen upholding the constitutionality of Minnesota’s educational expenses tax deduction. The Illinois Federation of Teachers has announced that it will appeal this decision. More information on the court’s decision can be found at http://www.ij.org/media/school_choice/illinois/index.html.