News 2001

December 17 | November 19 | October 30 | October 15 | October 10 | October 1 | September 25 | September 21 | September 7 | August 30 | June 13 | April 11 | February 13 | February 8

December 17, 2001

    A nurse consultant and a sign language interpreter shared their faith with clients in their capacity as government employees and were reprimanded. The Second Circuit held that the state's interest in preventing disruption in the provision of services outweighed the employees free speech rights, and the risk of an Establishment Clause violation justified a slight burden on their expression. Moreover, the court rejected the employees's argument that their claims merit strict scrutiny under the hybrid claims rule enunciated in Smith, finding this language to be nonbinding dicta. It also rejected their arguments for reasonable accommodation under Title VII. Quental v. State of Conn. Dep't of Pub. Health, Nos. 00-7289, 00-9131, available at
    The Fifth Circuit struck a Louisiana law allowing a brief moment of meditation in public school classrooms at the start of each school day. The panel concluded that the statute lacked a secular purpose as required by Lemon. Doe v. Ouachita Parish Sch. Bd., No. 00-30874 (5th Cir. 2001), available at

    Lexington, Massachusetts, site of the famous Revolutionary War battle, banned a long-standing Christmas nativity scene sponsored by the Knights of Columbus. The First Circuit upheld the ban, stating that the town's restrictions on displays on the historic Battle Green were content-neutral and merely regulated time, place, and manner. Further, it found that the regulation was a neutral law of general applicability that did not violate the Free Exercise clause.
    Knights of Columbus v. Town of Lexington, No. 01-2460 (1st Cir. 2001), available at

    The District Court of Colorado ruled that a school district allowing family and friends of victims of the Columbine High School tragedy to paint commemorative tiles had created a nonpublic forum. The school district's exclusion of tiles with religious content constituted impermissible viewpoint discrimination in violation of the First Amendment. Fleming v. Jefferson County Sch. Dist. No. R-1, 2001 WL 1359554 (D. Colo. 2001), available at

    The Virginia Supreme Court upheld a zoning restriction that prohibited worship services without a special use permit. Because the court found the rules neutral and generally applicable, it found the restrictions on religious activity constitutional. Tran v. Gwinn, 2001 WL 1348721 (Va. 2001), available at

    The Virginia Supreme Court held that it lacked subject matter jurisdiction over a pastor's claim for wrongful termination, tortious interference with contract, and defamation. The pastor had sought full disclosure of the church's finances during his tenure. The church leaders accused him of financial impropriety, and the governing board terminated him. Resolution of the dispute would have required the court to adjudicate matters of internal church governance and church doctrine, and the court declined to do so. Cha v. Korean Presbyterian Church of Washington, 2001 WL 1348795 (Va. 2001), available at

November 19, 2001


    A Washington state community college arrested a pro-life activist for violating the terms of his permission to demonstrate. The Ninth Circuit upheld the prohibitions on creating a public disturbance or interfering with campus activities as content-neutral but struck the restriction on engaging in religious worship or proselytizing.

October 30, 2001

October 15, 2001

October 10, 2001


    The ACLU has asked a Sacramento elementary school to remove the offending patriotic message from their marquee. It claims the message is "hurtful" and "divisive." The school district responds that the message is not religious, but patriotic.

    For the full story, see:

October 1, 2001

September 25, 2001


    The Bush administration carefully has distinguished the terrorists who attacked our country on September 11 from the Muslim community as a whole. The evidence has linked Osama bin Laden and his cohorts with the radical Taliban movement in Afghanistan. The Muslim faith, like Christianity, is not a monolith, and the Taliban are in no way a mainstream sect. Rather, the Muslim community "has largely spurned the Taliban until now." See:

September 21, 2001

  • Faith Under Democracy - Conference Postponed
    The Federalist Society and Ave Maria School of Law planned to host our day long conference, Faith Under Democracy: What Have Religious Believers Gained? What Have They Lost? on Friday September 21st. However, last Tuesday's tragedies have made traveling very difficult and sometimes impossible for many of our speakers and participants. To accommodate our speakers and to ensure that a large audience will be able to hear the ideas discussed, Faith Under Democracy will be rescheduled for the spring of 2002. The new but tentative date is March 22, 2002. Please look for future announcements verifying the new date and visit our Web Site at for other developments. Of course, please call the Federalist Society at (202) 822-8138 if you have any questions.

September 7, 2001

  • The latest salvo in the ongoing dispute over the place of religion in public schools comes from the Fourth Circuit. In 2000 Virginia enacted a statute requiring public schools to begin each day with a moment of silence, during which a student, "in the exercise of his or her individual choice," could "meditate, pray, or engage in any other silent activity . . . ." Va. Code Ann. § 22.1-203 (Michie 2000). In a 2-1 split, the court held that the Commonwealth's statute did not offend the First Amendment's Establishment Clause. Brown v. Gilmore, 258 F.3d 265 (4th Cir. 2001). For more, click HERE.

    August 30, 2001

    • The Religious Liberties Practice Group is sponsoring a conference on September 21 at Ave Maria Law School in Ann Arbor, Michigan, on "Faith Under Democracy: What Have Religious Believers Gained? What Have They Lost?" For more information or to register, CLICK HERE.
    • Federal Court Okays State Aid for Maryland Religious College
      A federal appeals court ruled June 26 that "the State of Maryland infringed on Columbia [Union College’s] free speech rights by establishing a broad grant program . . . for private colleges but denying funding to Columbia Union solely because of its . . . religious viewpoint." Although Maryland’s Sellinger Program funds Catholic and other private colleges, the State had argued that CUC – a Seventh-day Adventist school – was ineligible. Maryland claims that CUC is "pervasively sectarian," i.e., too religious to receive government aid for even secular activities, such as CUC’s math and science courses. The June ruling by the U.S. Court of Appeals for the Fourth Circuit affirms the August 2000 decision of U.S. District Court Judge Marvin Garbis in Columbia Union College v. Oliver. Citing the secular criteria of the Sellinger Program and the likelihood that CUC would not use any state funds for religious activities, the Fourth Circuit concluded that "Columbia Union’s use of Sellinger Program money to fund secular educational programs does not violate the strictures of the Establishment Clause." The court emphasized that the "First Amendment requires government neutrality, not hostility, to religious belief." Moreover, the court added that it cannot "find any reason even under a pervasively sectarian analysis why Columbia Union should be denied Sellinger Program assistance." Columbia Union is represented by CIR, and until recently, was also represented by Hew Pate of Richmond’s Hunton & Williams. Mr. Pate argued the case before the Fourth Circuit. The implications of the decision are far-reaching, because the Fourth Circuit concludes that the pervasively sectarian doctrine has been replaced by a principle of "neutrality plus." This distinction is a crucial one in the debate over the constitutionality of President Bush’s faith-based initiative.

    June 13, 2001

    • The Supreme Court ruled 6-3 in Good News Club v. Milford Central School on Monday, June 11 that public schools may not prevent religious organizations from meeting on school premises. To read the decision, visit . Also see the article in today's Wall Street Journal by Notre Dame Law Professor Rick Garnett, "A Supreme Court Ruling Bodes Well for School Vouchers." See our December 11 listing for copies of several of the amicus briefs filed in the case.


April 11, 2001

  • Becket Fund Joins RLUIPA Suit on Behalf of Akron Unitarian Church

The Becket Fund has joined with local attorneys in a lawsuit on behalf of a church in suburban Akron, Ohio, Unitarian Universalist Church of Akron v. City of Fairlawn. City zoning officials refused to allow the church to build a fellowship hall on its property. The church was established in 1839 in Akron and moved to its present site in 1961, prior to the organization of the Village of Fairlawn, and at a time when church construction was permitted in that area. In 1993, Fairlawn adopted a new zoning ordinance which does not allow church construction as of right anywhere, and permits them in the "M-3" district only after special authorization. The city has refused to rezone the church property from R-2 (where it is now permitted only because it was there before the new law was passed) to M-3. Without the rezoning, the church is not permitted to expand, extend or even restore its existing structure. The lawsuit charges that the city is in violation of the Religious Land Use and Institutionalized Persons Act (RLUIPA). The city has asked that the church’s suit be dismissed on grounds that RLUIPA is unconstitutional. The Becket Fund was invited to join the case because of its experience in RLUIPA litigation. The Becket Fund won the first lawsuit decided under the new law in December, 2000, and has become involved in a number of similar cases since then.

  • School Choice Victory: Illinois Tax Credit

On February 8, 2001, school choice supporters won a major courtroom victory when a three-judge panel of the Appellate Court for the Fourth District for the State of Illinois unanimously upheld the constitutionality of that state’s educational expenses tax credit. In so doing, it affirmed the trial court’s earlier decision rejecting the claims of the Illinois Education Association and its allies that the credit violates four provisions of the Illinois Constitution. IJ defended the constitutionality of the credit on behalf of twelve Illinois families. The teachers’ union and its allies had argued that the law, which provides a credit against state income taxes for twenty-five 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 four provisions of the Illinois Constitution, two of which deal with establishment of religion. The appellate court, however, emphatically rejected these arguments. The opinion written by Justice Rita Garman was a complete victory for school choice supporters. The court first ruled that the tax credit does not violate the Illinois Constitution because no public money is spent at religious schools. Rather, the tax credit allows Illinois parents to keep more of their own money to spend on the education of their children as they see fit. The court went on to say, however, that the tax credit would still be constitutional even if one considered the money claimed through the credit to constitute public funds. This is because the tax credit is fully consistent with both U.S. Supreme Court and Illinois Supreme Court precedent indicating that programs providing general educational assistance are constitutional so long as religious and non-religious options are treated equally and funds are guided by the private and independent choices of parents. This lawsuit is the second attacking the constitutionality of the tax credit. In December 1999, Judge Loren P. Lewis of the Franklin County Circuit Court dismissed a similar suit filed by the Illinois Federation of Teachers, also holding that the credit is fully constitutional. The Institute represents Illinois families in that case as well, and Judge Lewis’ ruling has been appealed to the Appellate Court of Illinois for the Fifth Judicial District. In the litigation so far, three courts have examined the educational expenses tax credit, and all three have affirmed its constitutionality. Despite this record, IJ expects the Illinois Education Association to seek Illinois Supreme Court review of the February ruling.

  • Ordeal of Boston Summer Camp Underscores Legal Obstacles Facing Bush’s Faith-Based Plan

President Bush recently unveiled a program to ensure that faith-based providers of social services can apply for federal funding on an equal footing, and to otherwise promote partnerships between government and religious providers. But the withdrawal of federally-funded counselors from Keys of Life, a Boston summer camp operated by a church, illustrates the legal obstacles faced by the President’s plan, including its promise that government funding will not be accompanied by pressure to de-emphasize religion. The Center for Individual Rights, which has litigated key cases promoting non-discrimination in government funding of religious entities, recently filed suit on behalf of the camp, which serves inner-city youth. Many of the camp’s counselors were employed through SummerWorks, a Boston program which provides summer jobs for low-income teenagers, using federal and state funds. Although Keys of Life is run by Mason Cathedral Church, it complies with all of SummerWorks’s secular requirements. Nonetheless, in the summer of 1999, after a successful 7-year relationship, the City of Boston suddenly objected to the camp’s publicly-funded counselors being exposed to religious symbols and voluntarily participating in the Lord’s Prayer. That summer, Boston officials conducted a series of intrusive inspections and subjected the camp to an ever-changing list of restrictions on religious activity. Ultimately, the City forced the funded counselors to leave Keys of Life. Mason Cathedral’s lawsuit, filed last September, charges Boston officials with First Amendment and equal protection violations.

February 13, 2001

  • Susanna Dokupil wrote an article in the Fall 2001 issue of the Texas Review of Law & Politics entitled, "A Sunny Dome with Caves of Ice: The Illusion of Charitable Choice." She writes: "The government should encourage the participation of faith-based organizations in delivering social services. Religious groups offer a variety of effective programs that assist people in attaining a better life for themselves and their families. Yet, Charitable Choice in its current form has three major weaknesses: (1) the lack of an intervening private choice in the direct funding context; (2) the risk to faith-based institutions that results from receiving money directly from the government; (3) the objection that Charitable Choice uses taxes to support religious institutions in direct violation of the Establishment clause. Thus, in considering future Charitable Choice legislation, such as the bill proposed by Senator Ashcroft, Congress should consider reforming the Charitable Choice structure to answer these criticisms.

The government can and should encourage voluntary giving. It is possible for the government to advance the missions of faith-based social welfare institutions in a constitutional manner that does not harm the religious missions of these organizations. Currently, the law provides income tax deductions for donations to nonprofit organizations. A first step in the road to helping both religious and secular welfare institutions is to increase such deductions and use incentives. As a further measure, Congress should use block grants to the states to construct neutral administrative entities with Section 501 (c) (3) status. To raise funds for these entities, Congress should offer a federal income tax incentive for state residents to donate to these institutions. These nonprofit entities would then, in turn, replace the state as the arbiters of the awards to the beneficiaries. Thus, the government funds the administrative expenses of the nonprofit organization, but the private donations provide money disbursed to the beneficiaries. The beneficiaries meeting the neutral criteria set by the state would receive a voucher for social services from the Section 501 (c) (3) organizations that they could redeem at the faith-based (or non-faith-based) institution of their choice."

February 8, 2001

  • To read the transcripts from the December conference the Manhattan Institute held on school choice in New York, visit: Speakers at their conference included Governor Frank Keating, Mayor Rudy Giuliani, and former U.S. Labor Secretary Robert Reich. The panels focused on what research can tell us about school achievement, the future of school choice, and the constitutionality of vouchers.

2003 The Federalist Society