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
- PUBLIC EMPLOYEES PROHIBITED FROM WITNESSING ON THE JOB
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 http://laws.lp.findlaw.com/2nd/009131.html.
LOUISIANA SCHOOL PRAYER LAW DECLARED UNCONSTITUTIONAL
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 http://www.ca5.uscourts.gov:8081/ISYSquery/IRLF28F.tmp/6/doc.
TOWN OF LEXINGTON BANS CRECHE
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 http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=01-2460.01A
COLUMBINE FAMILIES ALLOWED TO INCLUDE RELIGIOUS CONTENT
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
BUDDHIST MONK PROHIBITED FROM HOLDING WORSHIP SERVICES AT HIS
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
PASTOR BARRED FROM SUING CHURCH
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 http://www.courts.state.va.us/opinion/1003022.doc.
November 19, 2001
- NINTH CIRCUIT PROHIBITS RELIGION-BASED RESTRICTIONS ON PUBLIC
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
- ACLU BELIEVES "GOD BLESS AMERICA" SIGN IS UNCONSTITUTIONAL
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,
For the full story, see: http://www.sacbee.com/news/news/local06_20011006.html
October 1, 2001
September 25, 2001
- TALIBAN'S PRACTICE OF ISLAM CONTROVERSIAL AMONG MUSLIMS
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."
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
- Federal Court Okays State Aid for Maryland Religious
A federal appeals court ruled June 26 that "the State
of Maryland infringed on Columbia [Union Colleges] 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
Marylands 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 CUCs 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 Unions 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 Richmonds 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 Bushs 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 http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=000&invol=99-2036
. 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
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 churchs 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 states educational expenses tax
credit. In so doing, it affirmed the trial courts 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 Bushs 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 Presidents
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 camps 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 SummerWorkss
secular requirements. Nonetheless, in the summer of 1999, after
a successful 7-year relationship, the City of Boston suddenly
objected to the camps publicly-funded counselors being exposed
to religious symbols and voluntarily participating in the Lords
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 Cathedrals
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: http://www.manhattan-institute.org/html/nyc_school_choice2.htm.
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.