Premium Attorney Newsletter – The Religion Case Reporter – October 2008

_________________________________________________________________

Jewish plaintiff alleged that her stepson, a member and employee of Jews for Jesus, had caused to be published in a Jews for Jesus newsletter false statements to the effect that plaintiff had converted to Christianity. The newsletter was posted on the internet, where it was seen by a relative of plaintiff. The Florida Supreme Court declined to recognize the tort of false light. However, the Court held that Florida recognizes a cause of action for defamation by implication and held that a communication can be considered defamatory if it “prejudices” the plaintiff in the eyes of a “substantial and respectable minority of the community,” as set forth in comment e of the Restatement (Second) of Torts § 559.

Background

Plaintiff, who, along with her late husband, led a traditional Jewish life, alleged that her stepson, a member and employee of Jews for Jesus, had caused to be published in a Jews for Jesus newsletter statements to the effect that plaintiff had converted to Christianity. The newsletter was posted on the internet, where it was seen by a relative of plaintiff. Plaintiff denied that the events described in the newsletter took place and claimed that Jews for Jesus falsely, and without her permission, portrayed her as a convert to the organization. Plaintiff sued Jews for Jesus.

Background: Opinion of the Florida District Court of Appeal

In Case # 2658, the Florida District Court of Appeal held, inter alia: (1) The trial court did not abuse its discretion in striking redundant, immaterial, or scandalous content from the complaint. The stricken paragraphs detailing the theological animosity between the plaintiff and Jews for Jesus were redundant, bellicose, and unnecessary to state the causes of action alleged.

(2) The First Amendment did not bar plaintiff’s tort actions. This was not a case where plaintiff was a member of the defendant and hence the court would not have to become involved in an evaluation of the interaction between a church and its parishioner.

(3) The complaint failed to state a cause of action for defamation, because the “common mind” reading the newsletter would not have found plaintiff to be an object of “hatred, distrust, ridicule, contempt or disgrace.” Under the “common mind” rule, the newsletter portrayed plaintiff in the most positive light. The newsletter was intended for group members who would have viewed the information (i.e., plaintiff’s conversion) in a positive light. The posting of the newsletter on a Jews for Jesus internet site was similarly addressed to an audience with an interest in the group’s message.

The District Court of Appeal refused to adopt the approach of Comment e to section 559 of the Restatement (Second) of Torts that language need not prejudice the plaintiff in the eyes of a majority of the community (here being defined as Christians, or the Jews for Jesus community, to whom the newsletter was primarily addressed) to be defamatory, but is defamatory if the plaintiff is prejudiced in the eyes of a substantial and respectable minority of the community (here defined as the Jewish community, a member of whom saw the posting on the internet). As noted infra, the Florida Supreme Court disagreed with the District Court of Appeal and held that Florida recognizes a cause of action for defamation by implication and that a communication can be considered defamatory if it “prejudices” the plaintiff in the eyes of a “substantial and respectable minority of the community,” as set forth in comment e of the Restatement (Second) of Torts § 559.

(4) The District Court of Appeal held that the newsletter publication fell short of conduct required to support the tort of intentional infliction of emotional distress. The language in question occurred in a praise report primarily intended for the eyes of like-minded individuals who would view the subject matter in a positive light. The subjective response of plaintiff, the target of the defendant’s conduct, did not control the question of whether the tort occurred.

(5) The District Court of Appeal held that plaintiff stated a cause of action for false light invasion of privacy. According to Section 652E of the Restatement (Second) of Torts,

“[o]ne who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of his privacy, if (a) the false light in which the other was placed would be highly offensive to a reasonable person, and (b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

Although the District Court of Appeal said that were it writing on a blank slate it would be inclined to reject false light invasion of privacy as a recognized tort, it felt constrained by what it believed to be the implicit recognition of the tort by the Florida Supreme Court and by its own previous decisions. However, in light of what it perceived to be uncertainty in the area, the District Court of Appeal certified to the Florida Supreme Court the question: “Does Florida recognize the tort of false light invasion of privacy, and if so, are the elements of the tort set forth in section 652E of Restatement (Second) of Torts?” As noted infra, the Supreme Court answered this question in the negative.

Opinion by Florida Supreme Court

The Florida Supreme Court declined to recognize the tort of false light and hence answered the certified question in the negative. In declining to recognize the tort of false light, the Supreme Court resolved two additional issues raised by this case. (1) It concluded that Florida recognizes a cause of action for defamation by implication. (2) It held that a communication can be considered defamatory if it “prejudices” the plaintiff in the eyes of a “substantial and respectable minority of the community,” as set forth in comment e of the Restatement (Second) of Torts § 559 (1972). The case was remanded for further proceedings consistent with the Court’s opinion.— Jews For Jesus, Inc. v. Rapp, 997 So.2d 1098 (Fla. 2008), No. SC06-2491. Dated October 23, 2008. Opinion by J. Pariente. Concurring in part and dissenting in part, J. Wells.    Case # 3335

 

The parish church of All Saints Protestant Episcopal Church held its real and personal property in trust for the benefit of the Episcopal Diocese of Rochester and the Protestant Episcopal Church of the United States of America (the “National Church”), such that upon the parish’s separation from the Rochester Diocese its property reverted back to the Rochester Diocese or the National Church.

Applying the neutral principles of law approach, the Court found that there was nothing in the deeds that established an express trust in favor of the Diocese or National Church. Further, All Saints’ certificate of incorporation did not indicate that the church property was to be held in trust for the benefit of either the Diocese or the National Church. Nor did any provision of the N.Y. Religious Corporation Law governing Protestant Episcopal Parishes or Churches conclusively established a trust in favor of the Diocese or National Church. However, All Saints expressly agreed to abide by the Constitution and Canons of the Diocese, which in turn subjected All Saints to the Canons of the National Church, which clearly, in the “Dennis Canons” adopted in 1979 by the General Convention of the National Church, established an express trust in favor of the Diocese and the National Church. All Saints agreed to abide by this express trust either upon incorporation in 1927 or upon recognition as a parish in spiritual union with the Diocese in 1947. In agreeing in 1947 to abide by all “canonical or legal enactments,” it was unlikely that the parties intended that the local parish could reserve a veto over every future change in the Canons. Moreover, All Saints never objected to the applicability or attempted to remove itself from the reach of the Dennis Canons in the more than twenty years since the National Church adopted the express trust provision in 1979.— Episcopal Diocese of Rochester v. Harnish, 2008 NY Slip Op 07991, 11 N.Y.3d 340, 870 N.Y.S.2d 814, 899 N.E.2d 920 (N.Y. 2008), No. 152. Dated October 23, 2008. Opinion by J. Jones.    Case # 3334

 

Home schooling versus public school where parents sharing legal custody cannot agree.

When separated or divorced parents have been granted shared legal custody with an equal right to control and to share in making decisions of importance in the life of their children, including educational and religious decisions, and the parents cannot agree on home schooling versus public schooling, the court, in resolving the dispute, is to apply the well-established best interests of the child standard. There is no presumption in favor of public schooling over home schooling. A disagreement between public and home schooling is no different than a disagreement between public and parochial schooling. Here, the trial court mistakenly applied a presumption in favor of public schooling and mistakenly required the Mother, who had been home schooling the children, to establish extraordinary circumstances to overcome the presumption. Nevertheless, the trial court correctly ruled that the Mother was entitled to continue home-schooling her children.— Staub v. Staub, 2008 Pa. Super. 251, 960 A.2d 848 (Pa. Super. Ct. 2008), No. 1636 MDA 2007. Filed October 21, 2008. Opinion by J. Shogan.    Case # 3333

 

Christian newsletter/publication plan through which medical costs were voluntarily spread among its Christian subscribers did not constitute an insurance contract and the plan was therefore not subject to regulation by the state. Further, Kentucky law excluded religious publications such as the one in issue from regulation under the Insurance Code.

The American Evangelistic Association (AEA) and the Christian Care Ministry (CCM) distributed Medi-Share, a publication designed to help subscribers with medical expenses. To join the Medi-Share plan a prospective subscriber had to affirm and verify his/her commitment to Christianity. Upon acceptance, subscribers had to pay a monthly subscription fee. When subscribers submitted a request for financial assistance with their medical expenses, Medi-Share created a subaccount, similar to an escrow account, for the claim. Donors sent contributions directly to Medi-Share, which placed the donations in the subaccount created for the specific claim. Medi-Share did not guarantee that any request would be matched by donors and subscribers were warned that Medi-Share was not an insurance policy and did not guarantee payment of any claim; it merely facilitated the donation process. The Medi-Share plan through which medical costs were voluntarily spread among its Christian subscribers did not constitute an insurance contract under Ky. Rev. Stat. § 304.1-030 and the plan and its sponsors were not guilty of engaging in the unauthorized sale of insurance. Although there were many similarities between the Medi-Share plan and the business of insurance (for which see the court’s opinion), the plan did not constitute insurance under Kentucky Law because all risks and obligations to pay ultimately remained with the subscriber; there was no distribution of risk between the plan and its subscribers. Further, the majority was of the opinion that Kentucky law excluded religious publications such as Medi-Share from regulation under the Kentucky Insurance Code. See Ky. Rev. Stat. § 304.1-120.

The concurring opinion, although strongly urging the legislature to consider adopting legislation regulating the form of health care protection provided by such plans as Medi-Share, reluctantly agreed with the majority’s holding that Medi-Share was not insurance under the current statutory definition, and hence not subject to regulation. However, the concurring opinion disagreed with the majority’s dicta that even if Medi-Share were deemed insurance under Ky. Rev. Stat. § 304.1-030, it would be exempt from state regulation because it met the statutory requirements of a religious publication. However, because Medi-Share was not insurance under the current statutory definition, whether Medi-Share qualified for the religious publication exemption contained in KRS 304.1-120 was a moot issue.

The dissent argued that Medi-Share was insurance under the current statutory definition, and hence subject to state regulation. The dissent also argued that Medi-Share was not within the religious publication exemption contained in KRS 304.1-120.— Commonwealth of Kentucky v. Reinhold, __ S.W.2d ___ (Ky. Ct. App. 2008), No. 2007-CA-000661-MR. Dated October 10, 2008. Opinion by J. Rosenblum. J. Nickell concurred in the result only and filed a separate opinion. Dissenting opinion by J. Thompson.    Case # 3332

 

Father – who contractually agreed with his ex-wife to raise the parties’ children in the “Protestant” faith, but who changed his church membership from Southern Baptist to Mormon and who exposed the children to his Mormon faith – was held in contempt for failing to follow his express agreement with his ex-wife, which agreement had been incorporated in the divorce decree.

At the father’s insistence, the parties had agreed to raise their children in the “Protestant” faith, and each party was enjoined from promoting another religious belief system/faith to the minor children unless both parties should consent. The agreement was incorporated in the divorce decree. Based upon testimony by the father’s present wife, a statement by the president of the Mormon Church publicized on the church’s website, and testimony by the father, the circuit court found the LDS/Mormon church was not of the Protestant faith and found that the father had promoted the Mormon faith to his sons without his ex-wife’s consent, thereby violating the agreement/court order. Custody was changed to the mother based upon the trial court’s finding of a material change in circumstances, including the factor of the father’s changing his church membership from Southern Baptist to LDS/Mormon and the father was enjoined from continuing to promote his Mormon religious faith to his children. Without addressing the best interests of the children, the Court of Appeals upheld the circuit court’s decision. The Arkansas Court of Appeals held that parents can agree as a contractual matter about their children’s religious upbringing and that an agreement enjoining each party from promoting a non-Protestant religion to their children unless the other party consents is neither criminal nor void as against public policy. The Court of Appeals held that the circuit court did not abuse its discretion by refusing to clarify specific and future acts of religious conduct that the father was contractually prevented from performing in the presence of the children.— Rownak v. Rownak, 103 Ark. App. 258, 288 S.W.3d 672 (Ark. Ct. App. 2008), No. CA08-193. Dated October 8, 2008. Opinion by J. Sam Bird.    Case # 3331

 

Plaintiff employee asserted that various “religious displays” in the Bursar’s Office at a city college constituted a governmental endorsement of religion in violation of the establishment clause. Plaintiff also asserted that defendants retaliated against him for his complaints about the aforementioned religious displays and violated Title VII by allowing a co-worker to leave work without loss of pay or leave time in order to attend church functions while criticizing plaintiff for leaving work early.

Plaintiff brought suit against his employer, Hunter College, and six individuals employed by the college. (1) Plaintiff asserted that various “religious displays” in the Bursar’s Office at the college constituted a governmental endorsement of religion in violation of the Establishment Clause. Plaintiff complained (a) that his supervisor kept a collection of small “statues” or “figurines” of angels on a ledge in his cubicle that were visible to anyone entering the Bursar’s Department and that there were no other similar figurines anywhere else in the office; that (b) that his supervisor also hung up “religious posters” “all over” the area immediately outside the Bursar’s Office around St. Patrick’s Day, Thanksgiving, and Christmas; (c) that the Bursar’s Office held a party each winter at which a Christmas tree and a menorah were displayed, that the Christmas tree was on display in the front office “for quite some time before and after Christmas” and that the menorah was “very old and in disrepair”; and that (d) the supervisor placed a copy of Time magazine, the cover of which featured a photograph of the Pope, on a desk where the office printer was located and that the magazine remained on the desk for months. Plaintiff also alleged that (2) defendants violated his First Amendment rights by retaliating against him for his complaints about the aforementioned religious displays by transferring him to another position at the college; and (3) defendants engaged in employment discrimination in violation of Title VII by permitting plaintiff’s co-worker to leave work without loss of pay or leave time in order to attend church functions while criticizing plaintiff for leaving work early. Plaintiff also asserted various causes of action under the N.Y. State Constitution and under N.Y. State and New York City Human Rights Laws based on the same events. On defendants’ motion for summary judgment each of plaintiff’s claims were dismissed for the reasons articulated in the court’s opinion. Although the court declined to exercise pendent jurisdiction over plaintiff’s state and municipal claims, it expressed its doubts about the viability of said claims.— Menes v. City University of New York Hunter College, 578 F. Supp. 2d 598 (S.D.N.Y. 2008), No. 06 Civ. 6358 (RJH). Opinion by J. September 25, 2008. Opinion by J. Richard J. Holwell.    Case # 3330

 

Entitlement of Catholic registered student organizations (RSO) at the University of Wisconsin to funding from student fees fund for activities considered by the university to be worship, proselytizing or sectarian religious instruction.

Registered student organizations (RSOs) at the University of Wisconsin in Madison were eligible to apply for grants from the student government. The grant money was derived from mandatory student activity fees deposited into the General Student Services Fund (GSSF). Once an RSO’s proposed budget was approved by the student government, which applied certain “eligibility criteria” established primarily by the student government, the proposed budget had to go to the University chancellor who decided whether to recommend to the Regents that the budget be included in the University’s budget and then the budget was sent to the Regents for final approval. When an RSO’s budget was approved, the RSO did not receive the budget monies in advance. Instead the funding was distributed on a reimbursement basis by submitting receipts and invoices for activities listed in the budget.

The Roman Catholic Foundation (RCF) at the University of Wisconsin in Madison was an RSO. The University generally approved RCF’s 2006- 2007 and 2007-08 budgets but denied funding for activities that it considered worship, proselytizing or sectarian religious instruction. The disputed 2007-08 expenditures included: (1) A mentoring program in which participating students met with a spiritual director for spiritual mentoring/counseling and to talk about anything they wanted for a half-hour. The spiritual directors included Catholic nuns and priests who would offer guidance or prayer if requested by the student. (2) The Evangelical Catholic Institute, which the University described as “a primary training institute for [RCF’s] leaders to learn from a Catholic perspective how to talk to people about prayer, worship, and the Catholic faith.” The Institute’s agenda included a variety of activities, including masses, prayer, and worship sessions. Besides the mass and worship sessions, the Institute included speakers that discussed Christian faith and belief. RCF claimed that although the funding would have supported the Institute, it would not have directly paid for the masses and worship sessions. (3) A drum shield, a device that helped control the sound of a set of drums, which RCF’s praise and worship band used at programs which helped “undergrads explore their faith.” (4) Printing costs for pamphlets aimed at assisting students in learning about the Rosary prayer and how to pray the Rosary. (5) The Evangelical Summer Training Camp, which the University described as "essentially a retreat that serves as training for the organization’s leaders" and whose daily schedule included three masses and four communal prayer and worship programs. RCF claimed that the expenditures paid for students to attend the program did not directly support the prayer and worship elements. (6) An expenditure for a program bringing nuns from Italy to Madison, Wisconsin to meet with RCF students “in an effort to help students look more closely at their path in the world,” including helping students choose a major and to determine whether they were “meant to be a priest, or religious, or to be married.”

In addition to challenging the University’s funding decisions, RCF contended that one component of the University’s GSSF eligibility criteria was unconstitutionally vague.

In Case # 3087, U.S. District Court Judge John C. Shabaz granted a preliminary injunction enjoining the University “from enforcing any policy that prohibits or prevents plaintiffs from applying for or obtaining reimbursement for activities listed in plaintiffs’ 2007-08 approved budget because the activities are or involve religious speech considered prayer, worship and/or proselytizing.” Judge Shabaz held that plaintiffs had shown a reasonable likelihood of success on the merits of their claim that their First Amendment free speech rights had been violated. Judge Shabaz said that the university’s mandatory fee system created a limited public forum in which the principles of viewpoint neutrality had to be respected. Here defendants were refusing to reimburse plaintiffs for certain activities of religious expression and/or speech based solely on the religious nature of the speech. Judge Shabaz rejected defendants’ defense that funding religious speech considered prayer, worship and/or proselytizing would violate the Establishment Clause. He commented that the student fee fund was open and available to a diverse list of other groups and plaintiffs could not be discriminated against on the basis of their viewpoint. In addition, Judge Shabaz said that defendants’ practice of examining and interpreting plaintiffs’ activities to determine if they were indeed prayer, worship and/or proselytizing ran the risk of fostering a pervasive bias or hostility toward religion, which could undermine the very neutrality the Establishment Clause required. Moreover, mandatory segregated student fees paid to a university and provided to student groups is not speech of the university or its agents. Subsidized student organizations at public universities are engaged in private speech, not spreading state-endorsed messages. Judge Shabaz said that RCF, as a subsidized student organization engaged in private speech at a public university, would not be assumed to be a mouthpiece for the university. Providing monies from mandatory segregated student fees to student groups, even religious student groups, does not make the groups’ speech the university’s speech, i.e. government speech.

As noted, plaintiff had also challenged the standards used by the student government in deciding whether to recommend approval of an RSO’s funding request as too vague and as granting the student government unbridled discretion. Here, the court denied plaintiffs’ request for a preliminary injunction.

The case was reassigned from Judge Shabaz and eventually randomly assigned to District Judge Lynn Adelman who authored the present opinion. On the parties' cross-motions for summary judgment, Judge Adelman held that the Establishment Clause did not compel the University to categorically exclude worship, proselytizing or sectarian religious instruction from its segregated fee forum. However, nothing in the Constitution required the University to fund all such activities. The question was whether or not such activities were outside the purposes of the forum. The purpose of the student fund forum was to sustain an open dialogue for the purpose of ensuring that students have the means to engage in dynamic discussions of philosophical, religious, scientific, social, and political subjects in their extracurricular campus life. Speech that was not “dialogue,” or “discussion,” or “debate” was not within the boundaries of the program of financially-supported student expression that the University created.

The issue in the present case was not whether activities that could reasonably be labeled in the abstract as worship, proselytizing or sectarian religious instruction served the forum’s limited purposes, but whether the specific activities that RCF actually engaged in served such purposes. Worship, proselytizing and sectarian religious instruction, and dialogue, discussion and debate, are not mutually exclusive. An activity can integrate elements of worship and discussion, proselytizing and debate, and instruction and dialogue. An activity that includes some worship cannot be excluded on the ground that it is not “dialogue, discussion or debate” if that activity in fact includes some dialogue, discussion, or debate. In short, before excluding an activity from the segregated fee forum pursuant to a content-based distinction, the University had to explain specifically why that particular activity, viewed as a whole, was outside the forum’s purposes. However, the court noted that in deciding how to best utilize a finite amount of segregated fees, the University will inevitably have to make funding decisions that depend on value judgments that cannot be explained with absolute precision. It cannot fund all activities that serve the intentionally broad purposes of the forum, and thus it will have to decline to fund some activities that might in some sense do so. In deciding whether to fund a particular activity, the University is entitled to assess the degree to which the activity would further the purposes of the forum. In Part II.A.3 of her decision Judge Adelman provides an important explication of a number of the criteria that the University may use in deciding not to fund an activity that fits within the purposes of the forum and the reader is strongly urged to consult the court’s opinion.

Although the University may adopt reasonable, content-based restrictions that reserve segregated fee funding for those activities that in its judgment best serve the forum’s limited purposes, Judge Adelman found that the University had not established any reason that justified its exclusion of RCF’s activities in 2006-07 and 2007-2008. However, because labels such as worship, proselytizing or sectarian religious instruction were unhelpful and the University’s future funding decisions had to be made on a case-by-case basis, Judge Adelman found that it would not be in the public interest to enter a permanent injunction that compelled the University to fund, or prohibited the University from refusing to fund, any particular category of activity. Consequently, Judge Adelman dissolved the preliminary injunction issued by Judge Shabaz. Instead, Judge Adelman said that a remedy that better balanced plaintiffs’ First Amendment interests against the University’s need to make funding decisions was a declaratory judgment stating that the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral.

Judge Adelman denied plaintiffs’ request for monetary relief to compensate them for RCF’s non-reimbursed 2006-07 and 2007-08 expenditures, as well as their request for a refund of the segregated fee payments made by the student-plaintiffs during the 2006-07 and 2007-08 academic years. Plaintiffs could only obtain monetary damages against those University defendants sued in their personal capacities and those defendants were entitled to qualified immunity. See court’s opinion for details.

Plaintiffs’ challenge to the standards used by the student government in deciding whether to recommend approval of an RSO’s funding was dismissed as moot. See court’s opinion for details.— Roman Catholic Foundation, UW-Madison, Inc. v. Regents of the University of Wisconsin System, 578 F. Supp. 2d 1121 (W.D. Wis. 2008), No. 07-C-0505. Dated September 24, 2008. Opinion by J. Lynn Adelman.    Case # 3329

 

Public library meeting room. Elements of plaintiff’s “Politics in the Pulpit” seminar involving “[a] time of prayer petitioning God for guidance on the Church’s proper role in the political process” and “[a] time of singing praise and giving thanks to God for the freedom we have in this country to participate in the political process” could not be excluded from the Library’s meeting rooms which had been opened up to the public for the discussion of public questions and social issues, despite a policy and practice of barring “religious services.”

A public library made its meeting rooms available to the public, free of charge, for cultural activities and discussion of public questions and social issues. However, its meeting room policy provided that: “The use of the meeting rooms for commercial, religious or political campaign meetings is not permitted. However, committees affiliated with a church (such as a church board of trustees) will be allowed to use the meeting rooms provided no religious services are involved.” Although the policy stated that religious meetings were not permitted in the meeting rooms, the Library did not enforce this policy, and permitted a wide array of religious meetings; however, the Library consistently enforced its other use restrictions, including the prohibition of religious services. Plaintiff, a nonprofit charitable, educational and religious corporation, which strove to promote Judeo-Christian moral values for civil government, sought to use one of the Library’s meeting rooms for a seminar entitled “Politics in the Pulpit,” to be held just prior to the primary election in Ohio. Although stating that no “religious services” would be held, plaintiff indicated that its program would address the following topics: (1) A discussion of what the Bible teaches regarding involvement by Christians, Pastors, and Churches in politics; (2) A discussion of the current status of the law regarding political involvement by Christians, Pastor, Churches; (3) A time of prayer petitioning God for guidance on the Church’s proper role in the political process; and (4) A time of singing praise and giving thanks to God for the freedom we have in this country to participate in the political process.

The Library took the position that while the first two items on the list were not “inherent elements of a religious service” and were therefore not in conflict with the Library’s stated policy, the last two of the proposed activities were “inherent elements of a religious service” and could not be conducted in the Library’s meeting room. The Court concluded that the First Amendment entitled plaintiff to use the Library’s meeting room for its entire “Politics in the Pulpit” event, including those elements defendant labeled as “inherent elements of a religious service.”

The court found that the Library intended to make the meeting rooms a limited public forum and because the forum had been opened to just certain categories of speakers and subjects the Library’s restrictions on speech had to be viewpoint-neutral and reasonable in light of the purpose of the forum. The court proceeded to find that the Library’s prohibition of those portions of plaintiff’s event that it concluded were “inherent elements of religious services” constituted viewpoint discrimination. The court did not reach the questions of whether a religious worship service can be prohibited and if so what constitutes “mere worship.” Even assuming “mere religious worship” could be precluded, the court found that the proposed elements of plaintiff’s event that the Library sought to bar did not consist of mere religious worship, divorced from any discussion of public questions or social issues and that “mere religious worship” that is not “divorced from” otherwise permissible speech cannot be excluded from a limited public forum. In the instant case, plaintiff never described its event or even elements of its event as “pure religious worship.” Plaintiff’s representative described plaintiff’s event as a “community focus group,” and when specifically asked if any religious services would be conducted during the event, responded “no.” It was the Library, rather, which made that distinction and attached those labels to the prayer and singing activities. But the prayer and singing elements that the Library sought to exclude were permissible because they conveyed a religious perspective on otherwise permissible subject matter. To permit the Library to draw the distinctions necessary for it to sever out and exclude those activities it concluded were “inherent elements of a religious service,” would inevitably entangle it with religion in a manner forbidden by the Constitution. The court rejected the Library’s contention that its practice of severing out and excluding activities it concluded were “inherent elements of a religious service” was required to avoid violating the Establishment Clause.— Citizens for Community Values, Inc., v. Upper Arlington Public Library Board of Trustees, ___ F. Supp. 2d ___(S.D. Ohio 2008), No. C-2-08-223. Filed August 14, 2008. Opinion by Magistrate Judge George C. Smith.    Case # 3328

 

This case concerns the right of a public high school student religious club to disseminate information about the club’s activities, including a weekly morning prayer event, through the school’s public address system and through the distribution of leaflets on the school’s campus.

Morning announcements were made each day to the entire student body of a public high school over a public address (PA) system which included a video feed. Any student club could submit a request for an announcement. Approved student club announcements were read over the PA system by a member of the school’s administration or student leadership. If the announcement included a video presentation, the video was shown during the announcement. Printed materials could be distributed on campus only after approval from the school administration. Even with prior approval, in order to control litter on the campus, the distribution of leaflets was limited to 17 designated days during the school year, during the 2 days of “club rush,” when student clubs solicited members, and during student elections held during one week in the Fall and two weeks in the Spring.

Plaintiff submitted a video to be played during the morning announcements. The video, which was created by Common Cause, a religious student club, sought to encourage students to participate in the club’s weekly prayer at the school flagpole which took place before the start of school. The video consisted of photographs of students participating in the weekly prayer activity. The audio portion of the video consisted of music with Christian-themed lyrics, albeit without express Christological references. However, a small symbol of a cross appeared on the screen. Defendants declined to show the videotape, contending that doing so would violate the Establishment Clause. On plaintiff’s motion for a preliminary injunction the court concluded that plaintiff established a probability of success on the merits of her Equal Access Act claim and ordered that defendants display the video at the same time and in the same manner as other student club promotional videos were displayed. The court found that plaintiff’s video was analogous to the promotional video for the “Young Democrats of America,” another school club, that defendants had allowed to be played. The court, after an extended analysis, found that providing the religious club access to the school’s PA system for promoting the club and its activities would not violate the establishment clause.

Plaintiff also sought to distribute a leaflet containing a cross inviting students to participate in the weekly prayer at the flagpole. School officials denied permission for distribution on the basis of the school policy allowing leaflet distribution only during club rush and election weeks. Defendants had no objection to distribution of the leaflet during said time frames. Plaintiff contended that defendants’ leaflet distribution policy violated her First Amendment rights because it limited distribution to only 17 days of the school year and vested unlimited discretion in the school administration to decline leaflets submitted for approval by students. On plaintiff’s motion for a preliminary injunction, the district court refused to enjoin defendants’ limitation of leaflet distribution to 17 days each year. Defendants’ policy restricting the distribution of leaflets to 17 days each year was found content neutral, as it applied to all student-created literature. The restriction was also reasonable in light of the purpose served by the forum. The court found that defendants’ littering concerns provided a reasonable basis for restricting the distribution of leaflets. See court’s opinion for details. The court also held that plaintiff had not shown that she was entitled to injunctive relief on defendants’ pre-approval policy.

Defendants had also declined to read, inter alia, an announcement over the PA system for a Common Cause meeting announcing “We will be discussing pride and character in Psalms and Matthew. Make sure you bring your bibles!” Defendants asserted that reading the announcement over the PA system would constitute an improper establishment of religion in violation of the Establishment Clause. On plaintiff’s motion for a preliminary injunction, the court ordered that defendants read the announcement at the same time and in the same manner as other student club announcements were read. The court found the announcement under discussion to be a somewhat closer question than plaintiff’s proposed video. Unlike the video, this announcement would be read by administration officials or student leaders. It also contained a direct exhortation to “[m]ake sure you bring your bibles!” Students arguably could interpret an administrator’s or student leader’s reading of this announcement as an official endorsement of plaintiff’s religious views. On balance, however, the court concluded that defendants were unlikely to prevail on their Establishment Clause argument and that plaintiff was likely to prevail on the merits of her claim that reading of the announcement was required by the Equal Access Act.— Krestan v. Deer Valley Unified School District No. 97, 561 F. Supp. 2d 1078 (D. Ariz. 2008), No. CV-08-194-PHX-DGC. Dated May 9, 2008. Opinion by J. David G. Campbell.    Case # 3327

 

The free speech rights of a public school kindergarten student, assigned to create a poster depicting ways to save the environment, were not violated when, prior to having his poster displayed along with those of other students, the teacher, with the approval of the principal and district superintendent, folded the poster so that a kneeling figure of Jesus could not be seen.

Background

Plaintiff Antonio Peck, a public school kindergarten student, was assigned to make a poster depicting ways to save the environment. The student’s initial poster depicted a robed figure (described by the parties as “Jesus”) praying and other pictures with religious themes, accompanied by, inter alia, the handwritten words “the only way to save our world,” “prayer changes things,” “Jesus loves children,” “God keeps his promises,” and “God’s love is higher than the heavens.” Upon request by the school, plaintiff prepared a second poster. The second poster depicted children picking up trash and placing it in a trash can in front of a church, adults placing items in a recycling bin, the earth and clouds, and a kneeling, robed figure with a beard, taken by the teacher to represent Jesus. Prior to displaying the second poster in the school cafeteria along with other posters, the teacher folded the poster so that the kneeling figure of Jesus could not be seen.

In Case # 910, the district court held that the kindergarten classroom and the cafeteria wall where the children’s posters were exhibited were, as a matter of law, a non-public (or closed) forum and plaintiff’s First Amendment rights to freedom of expression and free exercise of religion were not violated. Nor, according to the district court, was the First Amendment’s establishment clause, or equal protection under the Fourteenth Amendment, violated. The Court of Appeals, without addressing the substantive issues, vacated and remanded the judgment of the district court on the ground that the district court had, sua sponte, converted defendants’ pre-answer motion to dismiss for failure to state a cause of action into one for summary judgment without affording plaintiff the opportunity for conducting discovery.

On remand, following discovery, the district court granted defendants’ motion for summary judgment as to all claims. On appeal, the Court of Appeals, in Case # 2057, vacated the district court’s dismissal of plaintiff’s free speech claim, but affirmed the summary judgment dismissal of plaintiff’s establishment clause claim. Plaintiffs abandoned their equal protection and free exercise claims on appeal.

As to the free speech claim, the Second Circuit, in Case # 2057, found that the undisputed facts showed that the school facilities, including Antonio’s classroom and the school cafeteria, were a non-public forum. In such a forum, the government may exclude a speaker (such as plaintiff student) if he wishes to address a topic not encompassed within the purpose of the forum. However, the government violates the First Amendment when it excludes a speaker “solely to suppress the point of view he espouses on an otherwise includible subject.” Addressing the nature of, and level of, constitutional protection to be accorded to the student expression represented by Antonio’s poster, the Second Circuit concluded that Antonio’s poster was school-sponsored speech and fell within the framework of Hazelwood School District v. Kuhlmeier, i.e., the school’s actions were justified so long as censorship of the student’s poster was reasonably related to legitimate pedagogical concerns. The poster was school-sponsored speech because, in addition to being displayed at a school-sponsored assembly, the poster was prepared by Antonio pursuant to a class assignment, an assignment that was given under highly specific parameters: to depict ways to save the environment and to reflect what had been taught in the kindergarten environment unit. The poster was indisputably part of the school curriculum, supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.

The relevant “pedagogical concerns” proffered by the School District were (a) that the portion of the poster depicting the robed figure was not responsive to the assignment; (b) that the placement of that image on the poster was not the student’s own work, but that of his mother; and (c) that showing the image risked creating the impression that the kindergarten environmental unit had included the teaching of religion. Unquestionably, these were all legitimate pedagogical concerns. And it did not matter that the teacher and principal may have incorrectly determined that the mother, rather than the student, was responsible for the poster’s content. The teacher and principal made a reasonable determination that the mother was responsible for the poster’s content and the Court of Appeals declined the invitation to assess the accuracy of this determination.

Nevertheless, the Court of Appeals found that there remained troubling questions of fact pertaining to the viewpoint neutrality of the school district’s action with respect to plaintiff’s poster. There were disputed factual questions, which could not be resolved on summary judgment, as to whether the second poster offered a “religious viewpoint,” and whether, if the poster had depicted a purely secular image that was equally outside the scope of the teacher’s environmental lessons, it would similarly have been censored. The school defendants argued that, even assuming that there was evidence that its decision was based on the viewpoint, rather than the content, of the poster, dismissal of the free speech claim was still proper because schools are permitted to discriminate on the basis of viewpoint – so long as such discrimination is, itself, reasonably related to a legitimate pedagogical interest. But although the First and Tenth Circuits had expressly held that educators may make viewpoint-based decisions about school-sponsored speech, the Second Circuit panel refused to join them and concluded that a manifestly viewpoint discriminatory restriction on school-sponsored speech is, prima facie, unconstitutional, even if reasonably related to legitimate pedagogical interests.

Present Opinion by District Court Upon Remand

On remand, the district court, after conducting a bench trial, granted judgment to defendants on plaintiff’s free speech claim. The court found that defendants censored Antonio’s poster because it was non-responsive to the class assignment and not because it offered a religious perspective on the topic of how to save the environment. Even when prompted by the teacher to explain how the censored image related to the environment, Antonio gave no explanation. Plaintiff failed to prove that defendants would have treated another poster with an equally non-responsive secular image differently. Defendants also had a legitimate concern that parents might think, based on Antonio’s poster, that the kindergarten teacher was teaching religion. See court’s findings of fact and conclusions of law for details.— Peck v. Baldwinsville Central School District, 2008 U.S. Dist. LEXIS 76361 (N.D.N.Y. 2008), No. 99-CV-1847. Dated September 30, 2008. Opinion by J. Norman A. Mordue.    Case # 3326

 

Two sets of plaintiffs – (i) an advocacy group for the homeless and hungry and (ii) a church and its pastor –challenged a City of Orlando ordinance requiring anyone conducting a “large group feeding” – defined as an event intending to attract, actually attracting, or likely to attract 25 or more people within the city’s Greater Downtown Park District – to first obtain a permit from the City and limiting the number of permits any group could receive within a 12 month period to two per park. Held: (1) The ordinance, as applied, violated the advocacy group’s free speech rights. (2) Although the ordinance did not violate the rights of the church and pastor under Florida’s Religious Freedom Restoration Act, it did violate their First Amendment free exercise rights. (3) The ordinance did not violate plaintiffs’ right to free assembly.

Factual Background

For more than a year, plaintiff Orlando Food Not Bombs (OFNB) and its members had been sharing food with the homeless and hungry at Lake Eola Park, the City of Orlando’s “signature” park, in order to draw attention to “society’s failure to provide food and housing to each of its members.” Lake Eola Park was within the Greater Downtown Park District (GDPD), a circular area extending out a 2 mile radius in all directions from City Hall. Plaintiff First Vagabonds Church of God and its pastor, as part of their religious services and mission, also participated in the feeding of the homeless and hungry in Lake Eola Park.

Plaintiff church and pastor also held services catering to the homeless every Sunday in Langford Park, which was also located within the GDPD. Langford Park was ideal for plaintiffs’ purposes because it was centrally located adjacent to public transportation and provided a serene setting equipped with a pavilion, grill, potable water and restrooms.

Plaintiffs challenged the constitutionality of a recently enacted City ordinance, the Large Group Feeding Ordinance. The Ordinance required anyone conducting a “large group feeding” – defined as an event intending to attract, actually attracting, or likely to attract 25 or more people within the GDPD – to first obtain a permit from the City. The number of permits any group could receive was limited to two per park within the GDPD within a 12 month period. There were approximately 42 public parks within the GDPD, including Lake Eola and Langford parks. Because the number of permits any group could receive was limited to two per park within a 12 month period, to comply with the Ordinance, plaintiffs either had to limit their feeding services to twice per year, rotate them every third week to another park within the GDPD, or move them to a park outside of the GDPD. The apparent purpose of the Ordinance was to discourage the homeless from congregating in downtown Orlando, and more particularly, the Thornton Park and Lake Eola neighborhoods.

Background: The District Court’s Two Prior Opinions

In Case # 3167, the district court refused to grant summary judgment dismissing the following claims: plaintiffs’ free assembly claim; the church’s and pastor’s claims based on Florida’s Religious Freedom Restoration Act and their claim under the free exercise clause of the First Amendment; and the OFNB plaintiffs’ as-applied free speech challenge to the ordinance. (Plaintiffs’ facial challenge to the Ordinance was held to be without merit because although the conduct regulated by the ordinance – a large group feeding – was, in the case of the OFNB plaintiffs, an expressive activity, a large group feeding is not, on its face, an expressive activity. ) The court granted summary judgment dismissing plaintiffs’ equal protection claim and their due process claim that the ordinance was unconstitutionally vague.

In Case # 3235, the district court held that the Ordinance did not violate Florida’s Religious Freedom Restoration Act (FRFRA). Although the Ordinance placed a burden on plaintiff church’s and pastor’s religious practice, the court found that the burden imposed was not “substantial” for purposes of FRFRA. In support of the argument that the Ordinance amounted to a substantial burden, plaintiffs produced some evidence that, given the limited means of communication and transportation available to the homeless, there was at least a possibility that the Ordinance’s limitations would prevent some members of the church congregation from learning of and traveling to a constantly changing venue within the GDPD. However, the district court found that the evidence showed that communication with the congregants was possible and transportation available to the members of the congregation. The evidence was that word of mouth had been an effective way of communicating to the members of congregation in the past and that several members of the congregation had access to cell phones and the internet. Furthermore, other forms of communication were available (i.e. flyers, posters, etc.). There was also evidence that transportation to other parks within the GDPD was not a problem.

The Present Opinion of the District Court

In the present opinion, after reiterating that the group feedings held by OFNB qualified as expressive conduct under the First Amendment, in that they were intended to convey the message that society can and should provide food for all of its members, regardless of wealth, the district court held that Ordinance, while content neutral, violated the OFNB plaintiffs’ right to free speech, because the Ordinance did not further a substantial governmental interest. The court rejected the City’s argument that the Ordinance advanced the government’s interests in controlling crime, in controlling litter and excess garbage in the area, and in limiting overuse of the City’s parks. See court’s opinion for details. And even assuming that the Ordinance did further a substantial governmental interest, the restrictions placed on plaintiffs’ First Amendment freedoms were much greater than that which were essential. Again, see the court’s opinion for details.

The district court also held that the application of the Ordinance violated the First Amendment free exercise of religion rights of the pastor and his church. While the court had previously held that plaintiffs failed to show that the Ordinance placed a “substantial burden” on their religious activity for purposes of Florida’s Religious Freedom Restoration Act, to succeed on their First Amendment free exercise claim plaintiffs were not required to show that the Ordinance placed a “substantial burden” on the exercise of their religion. To survive a First Amendment free exercise challenge, the Ordinance, as a content neutral law of general applicability, only had to have a rational basis. However, the district court found no rational basis for the Ordinance. The court held that none of the legitimate government interests proffered by the City were served by the Ordinance, which burdened, more than incidentally, the religious exercise of the pastor and his congregation. Therefore, application of the Ordinance violated the First Amendment free exercise rights of the pastor and his church.

Finally, the district court held that the Ordinance did not implicate the First Amendment right to freely assemble, as plaintiffs were free to assemble so long as they did not serve food.— First Vagabonds Church of God v. City of Orlando, Florida, 578 F. Supp. 2d 1353 (M.D. Fla. 2008), No. 6:06-cv-1583-Orl-31KRS. Dated September 26, 2008. Opinion by J. Gregory A. Presnell.    Case # 3325

 

A United Methodist Church was a remainder beneficiary under the terms of a testamentary trust. Because the Church was in existence when the Trust terminated upon the death of the trust beneficiary the remainder interest vested in the Church, even though, at the time of distribution, the Church was no longer in existence. Moreover, the Kansas East Conference of the United Methodist Church, as the parent entity of the Church, took the Church’s vested remainder interest upon its dissolution.

A United Methodist Church was a remainder beneficiary under the terms of a testamentary trust. In the event the Church was not in existence upon the termination of the Trust, the Trustee, in its sole discretion, was to pay the remainder interest “to similar charitable organizations.” The Church was in existence when the trust terminated (termination having occurred upon the death of the trust beneficiary). Because the Church was in existence when the Trust terminated the remainder interest vested in the Church, even though, at the time of distribution, the Church was no longer in existence. Moreover, the Kansas East Conference of the United Methodist Church, as the parent entity of the Church, took the Church’s assets upon its dissolution. Accordingly, the Kansas Court of Appeals reversed the lower court’s order that the Conference was not entitled to the Church’s remainder interest from the Trust. Where a local religious group of church members have affiliated with similar religious groups in a general conference in conformity with the rules and ordinances constituting the ecclesiastical law of that denomination, the right of dominion, control, and disposal of church property no longer used or useful for local church purposes is governed by church law. Under the facts of this case, upon the dissolution of the church, its parent entity was entitled to its assets, including the vested remainder interest in the trust proceeds. While a vested remainder may be subject to complete defeasance, nothing in the Will suggested that the interests of the remainder beneficiaries were defeasible after termination of the Trust.— In re Testamentary Trust Created Under the Last Will and Testament of Rosebud E. Keys, (UMB Bank, N.A. V. Kansas East Conference of the United Methodist Church, Inc.), 40 Kan. App. 2d 503, 193 P.3d 490 (Kan. Ct. App. 2008), No. 99,142. Filed October 3, 2008. Opinion by J. Buser.    Case # 3324

 

Father – excommunicated from the mother’s church and subject to shunning by church members – awarded legal custody of his two youngest children, with the right to make all major educational and religious decisions. The award of legal custody to the father was aimed at preventing the mother, who retained physical custody of the children, from taking the children to the church from which the father had been excommunicated and from sending the children to said church’s school, thereby interfering with the maintenance of a healthy relationship between the children and the father.

With respect to the two youngest children, the mother was awarded physical custody with the right to make all major health care decisions, but the father was awarded legal custody with the right to make all major educational and religious decisions. The award was based on evidence that if mother were granted legal custody with regard to education and religious training, she would take her children to the Baptist Church in which she was a member and enroll the children in a school run by her church. However, the father had been excommunicated from the very same church and the church had a policy whereby members of the congregation were to “shun” anyone who had been excommunicated. The evidence was that allowing the mother to take the children to the church from which the father was excommunicated, and allowing her to enroll the children in the church school, would interfere with the maintenance of a healthy relationship between the children and the father.— Gonzalez v. Gonzalez, 893 N.E.2d 333 (Ind. Ct. App. 2008), No. 64A04-0712-CV-733. Dated September 12, 2008. Opinion by J. Najam.    Case # 3323

 

Parent of children in the California public schools whose religious belief was that religion and a belief in evolution are incompatible did not have standing to challenge, on the basis of the establishment clause, a website maintained by a state university which took the position that religion and a belief in evolution are not in conflict.

Plaintiff alleged that she was the parent of children in the California public schools and was actively involved in elections and debates about the selection of instructional materials for science classes and that to participate as an informed citizen in these elections, debates, and processes she used the website, “Understanding Evolution” developed and maintained by the University of California at Berkeley, a state University, and partially funded by a grant from the National Science Foundation. Plaintiff complained that the website violated the First Amendment establishment clause because the site endorsed the view that evolution did not conflict with properly understood Christian or Jewish religious beliefs. Plaintiff asserted that this position set up a preference for certain religious beliefs over others, as plaintiff’s view was that evolution and religious doctrine were in conflict. Plaintiff claimed that she was “offended” and made to feel like an “outsider” when she viewed the website.

In Case # 2235, the district court, after striking plaintiff’s prayer for “nominal” damages from the complaint on the basis of Eleventh Amendment immunity, proceeded to dismiss the complaint with prejudice for lack of both federal and state taxpayer standing. The issue of plaintiff’s taxpayer standing was not appealed.

In addition, the district court held that plaintiff failed to state a cognizable injury in fact. The district court said that plaintiff’s claim could not be analogized to those cases in which plaintiffs alleged an inability to use a public or municipal park because of an overt religious symbol or message placed in the public park. The district court said that there is a vast difference between a citizen’s inability to use a public park due to the presence of an overtly religious symbol, and a citizen’s viewing of a purportedly offensive website. The court said that it is simply inconceivable that the mere viewing of certain web pages that do no more than make plaintiff feel “offended” and like an “outsider” is sufficient to give rise to an injury in fact.

On appeal, the Ninth Circuit held that plaintiff’s action against the National Science Foundation (NSF) was moot, as the NSF funding had expired and was not likely to occur in the future.

The Ninth Circuit then proceeded to affirm dismissal of plaintiff‘s claim against those officials of the University of California at Berkeley, sued in their official capacities, who developed the website’s content and administered it, for lack of standing. The panel concluded that plaintiff’s asserted interest – informed participation as a citizen in school board meetings, debates, and elections, especially with respect to selection of instructional materials and how teachers teach the theory of evolution in biology classes in the public schools – was not sufficiently differentiated and direct to confer standing to challenge the University of California’s treatment of religious and anti-religious views on evolution. There was too slight a connection between plaintiff’s generalized grievance, and the government conduct about which she complained. Plaintiff’s interest in informed participation in public discourse was one held in common with other citizens and her offense at the website was no more than an “abstract objection” to how the University’s website presented the subject. That plaintiff was a parent of school-age children did not make her position less remote. Her connection to the University of California website was not similar to the relationship between parents whose children are directly exposed to unwelcome religious exercises in the classroom and the school district. See also the comments of the concurring opinion.— Caldwell v. Caldwell, 545 F.3d 1126 (9th Cir. 2008), No. 06-15771. Filed October 3, 2008. Opinion by J. Pamela Ann Rymer, joined by JJ. Kevin Thomas Duffy and Betty B. Fletcher. Concurring opinion by J. Betty B. Fletcher.    Case # 3322

 

The U.S. government was preliminarily enjoined from commencing or continuing construction of a 43,000 square acre Training Support Center south of Medicine Bluffs at the Fort Sill, Oklahoma military installation. Medicine Bluffs – a natural landform which was listed on the National Register of Historic Sites because of its historical importance, its role in the founding of Fort Sill, and its religious and cultural significance to Native Americans – was the focus of sacred Comanche traditional religious practices.

The southern approach to the Bluffs was the traditional route to ascend the Bluffs for Comanches making the trek to the peaks for spiritual purposes; camps were made there to support those who desired to ascend the Bluffs; sweat lodges were established along the southern approach; plants used for religious and healing practices were gathered among the trees and vegetation below and on the southern slopes of the Bluffs; and the unobstructed view of all four Bluffs was central to a spiritual experience of the Bluffs, as the number four had particular spiritual significance. The traditional religious practice of the Comanche people was an intensely private spiritual experience that was inextricably intertwined with the natural environment and traditional practitioners resisted disclosing the location of their particular individual sacred sites, and generally treated such information as confidential. The individual plaintiff testified that his traditional religious practice as it related to the Bluffs involved a physical and spiritual “centering” requiring him to stand at the precise location of the Training Support Center site.

Plaintiffs asserted two claims for relief: (1) a violation of the Religious Freedom and Restoration Act, 42 U.S.C. § 2000bb et seq., based on the allegation that construction of the Training Support Center at its current site substantially interfered with the exercise of plaintiffs’ religious beliefs; and (2) a violation of the National Historic Preservation Act of 1966 (NHPA), 16 U.S.C. § 470 et seq., based on the contention that defendants failed to make a reasonable and good faith effort to consult with the Comanche Nation to identify and resolve any adverse effects on Medicine Bluffs resulting from construction of the Training Support Center.

In granting the preliminary injunction to plaintiffs, the district court observed, inter alia, that plaintiffs established a substantial likelihood of success on the merits on both claims. As regards plaintiffs’ RFRA claim, the evidence showed that construction of the Training Support Center at its current location would impose a substantial burden on the traditional religious practices of the Comanche people in the area of the southern approach to the Bluffs. And although the defendants substantially demonstrated that the construction of the Training Support Center was in furtherance of a compelling governmental interest, the record was devoid of facts tending to demonstrate that construction of the Center on current location was the least restrictive means of furthering the compelling governmental interest. In fact, the evidence established that a much less restrictive alternative – constructing the Center at an alternate location – was not seriously considered by defendants.

In reaching its decision, the district court operated on the assumption that for purposes of RFRA a “substantial burden” on a person’s religious exercise is action which significantly inhibits or constrains conduct or expression or denies reasonable opportunities to engage in religious activities. The court refused to adopt the position of the Ninth Circuit that a “substantial burden” is imposed only when individuals are “forced to choose between following the tenets of their religion and receiving a governmental benefit . . . or coerced to act contrary to their religious beliefs by the threat of civil or criminal sanctions.”

Plaintiffs also established a substantial likelihood of success on the merits on their claim that defendants violated the National Historic Preservation Act. See court’s opinion for details.— Comanche Nation v. United States of America, ___ F. Supp. 2d ___ (W.D. Okla. 2008), No. CIV-08-849-D. Dated September 23, 2008. Timothy D. Degiusti.    Case # 3321

 

Illinois nonprofit corporation which helped churches develop and train student leaders was not entitled to tax exemption for condominium office space. Plaintiff failed to establish by clear and convincing evidence that it used the property for “religious purposes” and that the property was not used primarily with a view to profit.

Plaintiff’s property was not used exclusively for religious purposes. There is a distinction between nonprofit organizations that engage directly in religious activities, such as worship, missionary work, and religious education, and secular organizations that merely supply religious entities with materials to conduct such activities. Here plaintiff, an Illinois nonprofit corporation that owned condominium office space, sent staff members to train and advise church youth to develop into student leaders of the church either at church sites or on religious trips. The materials distributed were written and produced by plaintiff. However, plaintiff submitted no evidence establishing the background of its employees, how they were formally associated with their clientele, or the qualifications of those who developed its curriculum. No evidence indicated that ministers, seminary graduates, or people with any religious training led the trips or taught in the churches. Plaintiff’s stated purpose was “to plan, organize, and lead short-term mission trips, within the United States and abroad, for high school and college age students”; its focus was on domestic and international trips, with a religious component, not on the education of individuals who either were in the process of becoming or had already become teachers, instructors, or professors of religious studies. The “purposes” section of plaintiff’s incorporation and bylaws stated nothing about religious educational studies or teaching youth about religious education as a career. Rather, the main focus of every one of plaintiff’s trips or “leadership training” events was teaching and learning “leadership” so that students could become the future leaders of the church. However, leadership training does not necessarily mean that it cultivates future pastors or ministers; leadership development is not per se a religiously imbued undertaking.

Under the tax exemption statute, plaintiff also needed to introduce evidence that its primary activities on the property in question, in addition to being “religious,” were not conducted “with a view to profit.” The fact that plaintiff had a 2.7% loss in 2004 and that its president stated that no profits were realized in its endeavors, did not permit an inference that in 2005 it did not use the subject property with a view to profit, especially given that plaintiff relied primarily on fees and not on contributions to finance its operations. Plaintiff needed to introduce some specific evidence regarding how the property was not used with a view to profit in 2005. This it failed to do. Although plaintiff did present evidence of missionary activities that it conducted, this evidence was irrelevant to the determination of whether its primary activities on the subject property were conducted with a view to profit. The primary use of the subject property was be evaluated, not plaintiff’s activities in other locations. The fact that profits were not distributed to any individual was not a factor to be taken in consideration.— Leadertreks, Inc. v. Department of Revenue, 385 Ill. App. 3d 442, 324 Ill. Dec. 188, 895 N.E.2d 683 (Ill. App. Ct. 2008), No. 2-07-0686. Filed September 19, 2008. Opinion by J. Burke.    Case # 3320

 

In action against defendant Yeshiva, a religious corporation, for specific performance of a contract for the sale of real property, defendant Yeshiva was directed to sell the subject real property to the plaintiff for the contract price of $ 185,000.

As required by statute, the consideration and the terms of the transaction were fair and reasonable to the corporation and the purposes of the corporation or the interests of the members would be promoted.— Scher v. Yeshivath Makowa Corp., 54 A.D.3d 839, 864 N.Y.S.2d 113 (N.Y. App. Div. 2d Dept. 2008), No. 2007-01810. Dated September 16, 2008. Opinion by JJ. Robert A. Spolzino, Fred T. Santucci, Randall T. Eng, and John M. Leventhal.    Case # 3319

 

A school district program listing 40 “positive factors” that parents were encouraged, but not mandated, to “work to build” in their children listed as positive factor No. 19, “Faith community – Young person spends one or more hours per week in activities in a religious institution.” Plaintiffs’ complaint objecting to the program failed to state a claim under the establishment clause of the First Amendment.

A school district adopted a program listing 40 “Assets” or “positive factors” that parents were encouraged, but not mandated, to “work to build” in their children. Claiming that there was a strong correlation between a student possessing a high number of Assets (30 or more) and exhibiting positive behavior, the school district held an optional 5-week “parenting workshop” to allow parents to study the research and the theory behind the 40 developmental assets. The school district also posted in school buildings a series of placards, each referring to one of the Assets by means of a relevant photograph and a first-person statement of the Asset’s accompanying goal. Asset, or positive factor, No. 19 read: “Faith community – Young person spends one or more hours per week in activities in a religious institution.” Plaintiffs objected that Asset No. 19 constituted an establishment of religion in violation of the First Amendment as well as a violation of Colorado Const. Art. IX, § 8, providing that “No sectarian tenets or doctrines shall ever be taught in the public school.” The district court, applying the Lemon test, dismissed plaintiffs’ federal constitutional claim for failure to state a claim; however plaintiff was granted leave to replead. From the court’s opinion it appeared that plaintiff’s complaint was asserting that the adoption and promulgation of the 40 Developmental Assets program as a whole was unconstitutional as a result of the inclusion of Asset No. 19. As to Colorado Const. Art. IX, § 8, the court, noted, as a matter of dicta, that for purposes of the state constitution the prohibition on the teaching of sectarian tenets or doctrines” in the public schools means the teaching of a belief that is peculiar to one or more Christian sects, e.g. a Baptist’s belief in the necessity of immersion, and that nothing in the complaint indicated that Asset No. 19 purported to teach anything, much less that it purported to teach sectarian principles peculiar to Christianity. Rather Asset No. 19 was entirely neutral as to what type of religious instruction children should receive.— Freedom From Religion Foundation, Inc. v. Cherry Creek School District, 2008 U.S. Dist. LEXIS 76938 (D. Colo. 2008), No. 07-cv-02126-MSK-CBS. Dated September 8, 2008. Opinion by J. Marcia S. Krieger.    Case # 3318

 

Previously, a Virginia Circuit Court had held that breakaway Episcopal Church congregations, having split over doctrinal issues from the Protestant Episcopal Church in the Diocese of Virginia, the Protestant Episcopal Church in the United States of America (ECUSA), and the Anglican Communion associated with the Church of England through the See of Canterbury, could invoke Va. Code § 57-9(A) governing how property rights are to be determined upon the division of a church or religious society. The sole issue addressed in the court’s opinion had been whether Va. Code § 57-9(A), by its terms, could be invoked by the breakaway congregations. The court left unresolved issues relating to the constitutionality of § 57-9(A), the validity of the various votes taken by breakaway congregations to disaffiliate, and the merits of the ECUSA’s and the Virginia Diocese’s declaratory judgment actions claiming that that the continued occupancy, possession and use of church properties by the breakaway congregations resulted in a trespass, conversion and illegal alienation of such properties in violation of the Constitution and Canons of ECUSA and the Virginia Diocese, the deeds to such real property, and applicable Virginia law. Subsequently the Circuit Court ruled that § 57-9(A) was constitutional and did not violate the free exercise and establishment clauses of the First Amendment, the religious freedom provisions of the Virginia Constitution, the Equal Protection Provisions of the Fourteenth Amendment, or the Takings Clauses of the U.S. Constitution. Now the court ruled that application of § 57-9 in the instant case would not violate the Contracts Clause of the U.S. Constitution.

Background

This case arose out of profound discord within the Protestant Episcopal Church in the Diocese of Virginia [the Virginia Diocese], the Protestant Episcopal Church in the United States of America [ECUSA], and the Anglican Communion itself. Although the internal conflict had been brewing for many years, the ultimate catalyst of the present litigation was the ECUSA 2003 General Convention which, inter alia, (1) confirmed the election of the Rev. Gene Robinson, an openly practicing homosexual, as a Bishop within ECUSA and (2) approved a resolution recognizing the blessing of same-sex unions. In Case # 3157, the court described the structural nature of ECUSA, the Diocese, and the Anglican Communion, and set forth in chronological order an account of key events that occurred within all levels of the Anglican Communion, the ECUSA, and the Diocese. The opinion also included excerpts from letters and correspondence between clergy and other leaders within the Anglican Communion, ECUSA, and the Diocese. The dispute over homosexuality led to a number of congregations within ECUSA voting to withdraw from the Virginia Diocese and association with ECUSA and to associate themselves with the recently incorporated (August 2, 2005) Convocation of Anglican Nigerians in America (CANA), which operated as a convocation or association of North American Anglican churches under the authority of the Anglican Church of Nigeria, which rejected, inter alia, any approval or tolerance of homosexuality. The attempt by a number of Virginia congregations to place their real and personal property under the authority of CANA and the Church of Nigeria was resisted by the Diocese of Virginia. A number of the congregations who affiliated with CANA filed a “Petition for Approval of Report of Congregational Determination Pursuant to Va. Code section 57-9.Va. Code § 57-9(A) (2007) provided (emphasis added):

A. If a division has heretofore occurred or shall hereafter occur in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority of the whole number, determine to which branch of the church or society such congregation shall thereafter belong. Such determination shall be reported to the circuit court of the county or city, wherein the property held in trust for such congregation or the greater part thereof is; and if the determination be approved by the court, it shall be so entered in the court’s civil order book, and shall be conclusive as to the title to and control of any property held in trust for such congregation, and be respected and enforced accordingly in all of the courts of the Commonwealth.

The Virginia the Diocese filed complaints against each of the CANA Congregations that had filed § 57-9 petitions, as well as complaints against three other CANA Congregations, alleging that “[t]he continued occupancy, possession and use of the properties of [the individual CANA Congregation churches] by [their Rectors] and the Vestry defendants have resulted in a trespass, conversion and illegal alienation of such properties in violation of the Constitution and Canons of The Episcopal Church [ECUSA] and the Diocese, the deeds to such real property, and applicable Virginia law.” ECUSA filed its own separate complaint against 11 CANA Congregations and their rectors, vestry members, and other leaders.

In Case # 3157, the sole issue addressed in the court’s opinion was whether Va. Code § 57-9(A), by its terms, could be invoked by the CANA congregations. In answering the question in the affirmative, the court, after a lengthy analysis of the applicable case law, held: (1) that the terms “church” and “religious society,” as used in § 57-9(A) applied to the Protestant Episcopal Church in the Diocese of Virginia, to ECUSA and the Anglican Communion. (2) The term “attached” as used in § 57-9(A) applied to the CANA congregations in that they were for purposes of the statute “attached” to the Virginia Diocese, to ECUSA, and to the Anglican Communion. (3) The term “branch,” as used in § 57-9(A) applied to, inter alia, CANA, and hence CANA, for purposes of the statute was to considered a “branch” of the Virginia Diocese, the ECUSA, and the Anglican Communion. (4) Most importantly, for purposes § 57-9(A) a “division” – i.e., a “split . . . or rupture in a religious denomination that involve[s] the separation of a group of congregations, clergy, or members from the church, and the formation of an alternative polity that disaffiliating members could join” – had occurred in a “church or religious society” to which the CANA Congregations were attached. Hence, by its terms § 57-9(A) applied to the present case and could be invoked by the CANA congregations.

Left unresolved by the court’s opinion in Case # 3157 were issues relating to the constitutionality of § 57-9(A). The court also did not address the validity of the various votes taken by the CANA Congregations to disaffiliate from the ECUSA and the Virginia Diocese. Finally, the court’s opinion did not address the merits of the ECUSA’s and the Diocese’s declaratory judgment actions. All these issues were still to be decided.

In Case # 3232, the court held that § 57-9(A) did not violate the free exercise and establishment clauses of the First Amendment, the religious freedom provisions of the Virginia Constitution, the Equal Protection Provisions of the Fourteenth Amendment, or the Takings Clauses of the U.S. Constitution. The court left for another day the question whether § 579(A) violates the rights of ECUSA and the Diocese under the Contracts Clause.

Present Opinion

In the present opinion, the court held that application of § 57-9 in the instant case would not violate the Contracts Clause of the U.S. Constitution.

The ECUSA/Diocese respondents asserted that applying § 57-9(A) to the instant dispute would impair their contractual rights as guaranteed by the Contracts Clause – U.S. Const. art I. § 10, cl. 1, stating, “No State shall . . . pass any . . . Law impairing the Obligation of Contracts . . . .” – by not giving appropriate weight and significance to the contractual relationships between the local congregations and the hierarchical church. In rejecting this claim the court held that: the Contracts Clause protected only “contractual rights” that existed prior to February 18, 1867, the effective date of the predecessor statute to § 57-9. The only “contractual rights” that were even possibly subject to the protection of the Contracts Clause in the instant case were the contractual rights that ECUSA/Diocese possessed in property of a CANA congregation that had vested in the CANA congregation prior to February 18, 1867. Thus, although the Contracts Clause protected ECUSA/Diocese’s alleged contractual rights in property as to congregations that were founded or that “existed” prior to February 18, 1867, that was so only as to actual parcels of property possessed by the local congregation prior to February 18, 1867. Any property acquired by a CANA congregation, or its predecessor, on or after February 18, 1867 was acquired subject to § 57-9 and thus was not subject to a Contracts Clause claim by ECUSA/Diocese. But even if a local CANA congregation possessed property prior to February 18, 1867, the Contract Clause did not bar the § 57-9 petition because under Virginia law in effect on February 18, 1867, denominations and dioceses could not own, hold, or otherwise acquire an enforceable contractual interest in, property in the Commonwealth of Virginia unless expressly so authorized by statute. Indeed, until 2002, Virginia denominational bodies or dioceses could not incorporate and could not hold a parcel of property, or obtain enforceable contractual rights in property, unless expressly authorized by statute.— In re Multi-Circuit Episcopal Church Property Litigation, http://www.fairfaxcounty.gov/courts/cases/in_re_multi-circuit_episcopal_church_litigation/pdfs/opinion_contracts_clause_081908.pdf  (Va. Cir. Ct. Fairfax Co. 2008), No. CL 2007-0248724. Dated August 19, 2008. Opinion by J. Randy I. Bellows.    Case # 3317. See also the letter opinion issued the same day holding, inter alia, that the CANA congregations had not contracted away, waived, abandoned or relinquished their right to assert rights under § 57-9. See http://www.fairfaxcounty.gov/courts/cases/in_re_multi-circuit_episcopal_church_litigation/pdfs/opinion_waiver_081908.pdf

 

Statute of limitations barred claims for intentional infliction of emotional distress and negligent supervision against diocese arising out of sexual abuse of plaintiff 30 years before; neither the doctrine of fraudulent concealment or the discovery rule tolled the statute of limitations.

Plaintiff, alleging that, as a minor, he was abused by a Catholic priest, sued the defendant diocese, the priest’s employer, claiming the diocese knew of and concealed the priest’s propensity to commit sex crimes against adolescent boys. Approximately 30 years after the abuse, plaintiff filed a complaint alleging that the diocese’s actions constituted outrageous conduct (i.e., intentional infliction of emotional distress) and negligent supervision leading to the plaintiff’s abuse. The statute of limitations barred such actions as they were brought more than one year after plaintiff reached the age of majority. Plaintiff unsuccessfully argued that defendant’s fraudulent concealment of plaintiff’s cause of action and/or the discovery rule tolled the statute of limitations. Plaintiff had sufficient knowledge to discover his cause of action against the defendant diocese before the statute of limitations expired. Tennessee law.— C.S. v. Diocese of Nashville, 2008 Tenn. App. LEXIS 582 (Tenn. Ct. App. 2008), No. M2007-02076-COA-R3-CV. Filed April 9, 2008. Opinion by J. Patricia J. Cottrell.    Case # 3316

 

Official symbol of the City of Las Cruces, New Mexico, consisting of three crosses, as well as the use of a symbol very similar to the City’s seal on the school district’s maintenance vehicles, held constitutional. Sculpture located at the school district’s Sports Complex and a mural hanging in a Las Cruces elementary school, both incorporating the symbolism of the three crosses, also held constitutional. School district policy providing guidance to employees on “religion in the schools” held constitutional on its face and as applied.

Background: The District Court’s Three Opinions

In Case # 2649, the district court held that the official symbol of the City of Las Cruces, New Mexico, consisting of three crosses surrounded by a sunburst, did not violate the establishment clause. The symbol appeared on Las Cruces public property, including signs, flags, buildings (such as City Hall and the City library), official uniforms (such as those of the City’s police and firefighters), and vehicles. Moreover, the symbol appeared on public documents including the City’s letterhead, notices, maps, brochures, and advertisements. In some cases, the words “City of Las Cruces-For Official Use Only” attended the symbol. The court found that the choice of the symbol was driven by the name of the city, “The Crosses.” Although the exact circumstances surrounding the adoption of the symbol were unclear, the district court found that none of the putative designers of the symbol was motivated by a religious purpose and there was no evidence that the symbol was ever associated with a religious purpose.

In Case # 2650, plaintiff, a taxpayer who lived within the boundaries of the Las Cruces Public Schools (LCPS) and who had a child enrolled in a LCPS school, was held to have standing to assert against the LCPS and the Las Cruces School Board a number of claims relating to display of the ‘three crosses” by the school system.

Plaintiff’s first claim related to an emblem affixed to defendants’ fleet of, approximately 35 maintenance vehicles. The circular emblem featured a sunburst with three “Latin crosses.” Immediately surrounding this symbol was a blue band with thin, white, capital-letter text that read: “FOR OFFICIAL USE ONLY.” A second, exterior blue band featured larger capital-letter text that read: “LAS CRUCES PUBLIC SCHOOLS.” The School District asserted that it used the symbol to identify school district vehicles, in part because of the safety implications of having unauthorized or unidentified vehicles on school property. They submitted that the challenged “three crosses” emblem was used for the secular purpose of identifying its maintenance vehicles as belonging to LCPS and explained that the inclusion of three crosses in the emblem’s design was “hardly surprising” since Las Cruces, translated into English, meant “the crosses” and that the use of crosses to represent the city and community of Las Cruces was quite common and well known. However, in Case # 2650, the district court denied defendants’ motion for summary judgment on plaintiff’s vehicle emblem claim, because the court was unable to determine whether defendants’ “predominate” purpose regarding the emblem was secular. The court found that the record did not contain any admissible evidence regarding why, when, or by whom the emblem was first adopted by defendants. Nor was there any evidence that such information did not exist. The record provided no information about defendants’ efforts to trace the emblem’s origins and use by LCPS. Consequently, the district court said that the inquisitive, “reasonable observer” was left to wonder about the emblem’s history. The court was obligated to verify that defendants’ stated secular purpose was genuine, not a sham, and not merely secondary to a religious objective. The court recognized the possibility that evidence regarding the circumstances of defendants’ adoption of the emblem may no longer exist and that the lack of such evidence did not mean that defendants could not satisfy the purpose prong. But as this was a summary judgment proceeding, the burden was squarely on defendants, as the moving party, to come forward with admissible evidence as to its purpose. This they did not do.

Subsequently, the matter was tried before the court and although defendants’ research was not as exhaustive as the court would have expected, in Case # 2471, the court found that there was no historical evidence that suggested that anything other than defendants’ stated secular purpose precipitated the emblem’s adoption and its continued use on the motor vehicles. Plaintiff also did not prove that the emblem had the primary effect of endorsing religion or that it fostered excessive government entanglement. Accordingly, plaintiff failed to prove that LCPS’ maintenance-vehicle emblem violated the Establishment Clause, as a reasonable observer would “perceive [defendants] to be acting neutrally” toward religion in its use of the maintenance-vehicle emblem. See court’s opinion for details.

Plaintiff’s second claim addressed by the district court in Case # 2650 concerned a sculpture – depicting, inter alia, “three stylized crosses” – that was displayed at the LCPS Regional Sports Complex. The artwork was commissioned following a competitive design competition. The sculpture featured a 7.5 feet-diameter steel ring overlaid by three stainless-steel stylized crosses. The longest vertical beam of the three crosses was 8.396 feet long, extending slightly above and slightly below the ring. The two shorter vertical steel beams of the shorter crosses were situated entirely within the circle. The cross beam – measuring 2.885 feet in length – bisected all the three vertical beams. All four stainless steel beams comprising the three crosses were shiny and reflective. The bottom portion of the ring was symmetrically inscribed with Latin text that read, in all-capital letter text, “UNITAS, FORTITUDO, EXCELLENTIA,” meaning “unity, strength, and excellence.” The sculpture was mounted on the exterior, south wall of the football stadium. The district court held that defendants did not violate the Establishment Clause by selecting and displaying the Sports Complex sculpture and were entitled to summary judgment on this claim. Notwithstanding the fact that plaintiff’s claims arose out of a public school setting, the court analyzed the purpose and effect of the sculpture from the perspective of an objective, reasonable adult observer.

Plaintiff’s third claim was that LCPS Policy # 424, “Religion in the Schools,” providing guidance to LCPS employees “on the topic of religion in schools,” was unconstitutional on its face and as applied. In Case # 2650, the district court held that the Policy, as written, was constitutional and defendants were entitled to summary judgment dismissing plaintiff’s facial challenge to the Policy.

To the extent that plaintiff claimed the Policy was unconstitutional as applied to the maintenance vehicle emblem, the court withheld its decision pending trial on the constitutionality of that symbol. See supra. At the same time, the court found Policy # 424 constitutional as applied to the Sports Complex sculpture. See supra. As to plaintiff’s claim that Policy # 424 was unconstitutional as applied to a mural featuring three crosses hanging in an LCPS elementary school, the court stated that the record was presently inadequate to analyze the constitutionality of said display. For more on the mural, see infra.

In Case # 2471, the district court, after a bench trial, ruled on the constitutionality of Policy # 424, as applied to the emblem on the maintenance vehicles and to a permanent mural displayed inside the Booker T. Elementary School (BTW). The mural in question consisted of five tiled panels. The mural’s center panel depicted three crosses. The other panels depicted chile and chile fields, which were common in the Las Cruces vicinity; a yucca plant; drawings of the local mountain range; a Black child holding a book; and a drawing of Booker T. Washington, for whom the BTW school was named. A plaque noted that the mural was created by the students (third, fourth, and fifth graders) enrolled in a “Safe After School Program” run by a non-profit youth center, and which was funded by the U.S. Department of Education in partnership with the Las Cruces Public Schools. The plaque noted that the mural was created with the assistance of a noted visual artist and also identified the school principal and the lead teacher on the project. The mural, which was not accompanied by other artwork, was prominently displayed at BTW in a location selected by BTW students. The role of the aforementioned visual artist was to facilitate the students’ ideas and help create the artwork; he did not generate the artwork’s design. All of the images incorporated in the mural, including the crosses, were consistent with either the Las Cruces area’s geography, culture, and history, or BTW. The mural’s design did not require School District approval. The principal and the project’s Lead Teacher, who were subject to Policy # 424, provided site-based management and oversight of the mural created by the BTW students. Defendants’ stated secular purpose in displaying the mural was to provide educational assistance to students enrolled in the after-school program, which provided “latch-key” children with an educational environment after school and on weekends.

In Case # 2471, the district court, after the bench trial, held that plaintiff did not prove that the mural lacked a genuine, secular purpose; did not prove that the mural’s creation or display had the primary effect of endorsing religion; and did not prove that the mural’s creation or display fostered excessive government entanglement. Thus Policy # 424, which was constitutional on its face, was also constitutional as applied to the mural.

The district court also held that Policy # 424 was constitutional as applied to the maintenance-vehicle emblem.

Tenth Circuit Court affirms

As a threshold matter, the Tenth Circuit held that plaintiffs had standing to mount the above described challenges. One plaintiff was a resident of the Las Cruces area and a parent of a student in the Las Cruces public school system. He sued both the City and the School District. He alleged that the City’s use of its symbol directly affected him because of its conspicuous, public use. The essence of his claim against the school district was that he suffered a cognizable injury under the Establishment Clause because the district’s actions infringed on his right to direct the religious education of his daughter, thereby directly violating his First Amendment rights.

Applying the Lemon test as modified by Justice O’Connor’s endorsement test, and viewing the actions of the defendants through the eyes of an “objective observer,” the Tenth Circuit affirmed the district court’s holdings that the seal of the City of Las Cruces, the use of a symbol very similar to the City’s seal on the school district’s maintenance vehicles, the sculpture located at the school district’s Sports Complex, the mural, and Policy # 424 were all constitutional.

In applying the Lemon/endorsement test, the Tenth Circuit agreed with the district court’s holding in Case # 2471 and Case # 2650 that as to those Establishment Clause challenges arising out of the elementary and primary school context, the “reasonable/ objective observer” was not a student, but an adult member of the community.— Weinbaum v. City of Las Cruces, New Mexico, 541 F.3d 1017 (10th Cir. 2008), No. 06-2355, No. 07-2012. Filed September 12, 2008. Opinion by J. Ebel.    Case # 3315

 

Sexual abuse; statutes of limitations; tolling provision for “insanity”; New York law, CPLR 208; operation of statute.

Plaintiff claimed that while a minor he was sexually abused by a Rabbi who was a teacher at the Jewish school attended by plaintiff. Plaintiff’s claims were barred by the applicable statutes of limitation. Assuming the last date of abuse was October 30, 1997, absent tolling, the latest that plaintiff could commence his action was three years after accrual of his claims, that is October 30, 2000. However, plaintiff’s action was not commenced until March 31, 2008. Even given the fact that the running of the limitations period was tolled during plaintiff’s minority by N.Y. CPLR 208, plaintiff’s action was untimely. See court’s opinion for details. The interesting aspect of the case was the court’s discussion of those provisions of CPLR 208 allowing for a tolling of the limitations period where the plaintiff is under a disability of “insanity” at the time his cause of action accrues. The statute provides that in such case the limitations period in a personal injury action is extended to three years after the disability ceases, but that “[t]he disability toll cannot result in an extension of more than 10 years from the accrual of the claim.” The court assumed that, as a result of the alleged abuse, plaintiff, beginning in his minority, and at the time of the accrual of his causes of action, was under the disability of “insanity,” incapable of managing his general business and social affairs, and unable to function in society, and that such disability persisted into adulthood. Even so, the action was still untimely given that the action was commenced more than 10 years after the last date of abuse. Although the statute was far from clear, and, in some respects, plaintiff’s argument seemed to flow from the statutory language, the court rejected plaintiff’s argument that either (1) the ten-year limitation did not apply to causes of action accruing during infancy or (2) that the ten-year period was to be added onto the period of infancy and was first to begin running when the plaintiff reached his majority. Rather, the ten-year limitation applied notwithstanding plaintiff’s infancy and it ran from accrual of the causes of action. See court’s opinion for complete discussion.— Doe No. 6 v. Yeshiva & Mesivta Torah Temimah, Inc., 21 Misc. 3d 443, 863 N.Y.S.2d 891 (N.Y. Sup. Ct. Kings Co. 2008), Index # 10545/08. Dated September 9, 2008. Opinion by J. Jack M. Battaglia.    Case # 3314

 

Noise ordinance forbidding transmission of noise beyond 75 feet and ordinance creating an eight-foot “bubble zone” around individuals located within a 100-foot radius of an abortion clinic did not operate to violate the First Amendment free speech and free exercise rights of an anti-abortion protestor, or his rights under Pennsylvania’s Religious Freedom Protection Act.

The City of Pittsburgh’s noise ordinance prohibited the transmission of noise via portable, hand carried, audio amplification or reproduction devices beyond a range of 75 feet. In addition, a separate ordinance created an eight-foot “bubble zone” around individuals located within a 100-foot radius of a medical clinic/hospital/abortion clinic, meaning that a person wishing to engage in anti-abortion speech could not approach within 8 feet of another person, without such other person’s consent, even on a public sidewalk, for the purpose of passing literature to, displaying a sign to, or engaging in oral protest, education or counseling with such other person so long as such other person was within a radius of 100 feet from the abortion clinic. Defendant, an anti-abortion protester convicted of violating the City’s noise ordinance while in front of an abortion clinic, argued that the two ordinances, working together, operated to violate his free speech rights because without the use of the amplification equipment enabling him to transmit beyond the range of 75 feet he would be compelled to shout his message to those within the 100 foot zone of the abortion clinic, which would, in turn, invite further arrest and cause his intended audience to reject both him and his message. Defendant also argued that the two ordinances operated to violate his First Amendment right to the free exercise of religion and his rights under Pennsylvania’s Religious Freedom Protection Act. The Court rejected defendant’s arguments and upheld his conviction for violation of the noise ordinance.— Commonwealth of Pennsylvania v. Parente, 956 A.2d 1065 (Pa. Commw. Ct. 2008), No. 1575 C.D. 2007. Dated September 9, 2008. Opinion by J. James R. Kelley.    Case # 3313

 

Plaintiff’s action to enjoin enforcement of the federal and State of Iowa controlled substances acts against his religious use of marijuana dismissed.

Plaintiff claimed to adhere to the teachings of the Ethiopian Zion Coptic Church advocating the use of marijuana. In 1982, the First Circuit, on appeal from plaintiff’s conviction for possession of marijuana with intent to deliver, rejected plaintiff’s free-exercise-of-religion defense. In 1984, the First Circuit again rejected plaintiff’s free exercise defense, this time on his appeal from a conviction for taking part in an operation to distribute marijuana. And in 1989, the D.C. Circuit affirmed the Drug Enforcement Administration’s denial of plaintiff’s request for a religious-use exemption from the federal laws proscribing marijuana. In this action, plaintiff sought to enjoin the enforcement against him of the federal and Iowa controlled substances acts (CSAs). Plaintiff claimed that enforcement of the CSAs would violated his free exercise and equal protection rights, as well as his rights under the federal Religious Freedom Restoration Act of 1993 (RFRA) and the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). The Eighth Circuit affirmed dismissal of the claims, holding: (1) The Iowa CSA was a state law, not subject to RFRA. (2) Plaintiff’s claim that enforcement of the federal CSA against his religious use of marijuana would violate the RFRA was barred by collateral estoppel. (3) Plaintiff’s RLUIPA claim was dismissed because RLUIPA applies only to land use regulations and to persons in an institution and plaintiff did not allege any facts indicating that he was an institutionalized person for purposes of RLUIPA. (4) Plaintiff’s claims that enforcement of the federal and state CSAs against his religious use of marijuana would violate his free exercise and equal protection rights were also barred by collateral estoppel.— Olsen v. Mukasey, 541 F.3d 827 (8th Cir. 2008), No. 07-3062. Filed September 8, 2008. Opinion by J. Benton.    Case # 3312

 

Court dismisses plaintiff’s claims against pastor for breach of fiduciary duty and intentional infliction of emotional distress arising out of defendant’s alleged revelation to congregation of plaintiff’s criminal record.

Plaintiff claimed that defendant minister, while acting as plaintiff’s pastor, learned of plaintiff’s criminal record, which was a public record, and then, along with a church employee, intentionally distributed that information to the church congregation in a deliberate attempt to humiliate her and intimidate her so that she would cease criticizing defendant pastor’s financial management of the church. The trial court held: (1) Plaintiff failed to state a claim against the pastor for breach of fiduciary duty, because the complaint and summary judgment record failed to assert facts establishing a fiduciary relationship. What was missing were the kinds of facts and other evidentiary support establishing that plaintiff, as a congregant, became uniquely vulnerable and incapable of self-protection as a result of her relationship with defendant pastor. The trial court noted that in New York the clergy-penitent privilege does not give rise to a fiduciary duty subjecting members of the clergy to civil liability for disclosure of confidential communications. (2) Plaintiff failed to establish a claim for intentional infliction of emotional distress. First, plaintiff’s criminal record was a public document and while its distribution may have been embarrassing, it carried no constitutional right to privacy. Second, plaintiff remained unable to form the requisite causal link between defendants and the actual distribution of the document. Plaintiff’s own deposition testimony indicated that she did not know who had obtained her criminal record, who had distributed the copies, or how the information retrieval and dispersion had been accomplished.— Guice-Mills v. Forbes, 21 Misc. 3d 599, 863 N.Y.S.2d 874 (N.Y. Sup. Ct. N.Y. Co. 2008), Index # 124735/02. Dated September 4, 2008. Opinion by J. Walter B. Tolub.    Case # 3311

 

Copyright © 2008 by Paradigm Publications, Inc., 1358 East 24th Street, Brooklyn, NY 11210. All rights reserved. No part of this publication may be reproduced in any form or incorporated in any information retrieval system without the written permission of the copyright owner.

ISSN 1527-0645

 

Home
Attorneys • Law Schools
Universities • Public Libraries
The Online Database
About the Newsletters
Samples
Cumulative Index
Please Have Someone Contact Me
Subscribe • Credit Card Payment

© Copyright 1998-2018
Paradigm Publications, Inc.