Attorney Fee Award to Freedom from Religion Foundation of $342K Recommended.

In another demonstration of the high cost to governmental entities of litigating First Amendment claims, a Texas federal magistrate judge in Freedom from Religion Foundation v. Abbott, (WD TX, Nov. 27, 2023) has recommended an award of attorneys' fees to FFRF of $342,566 (plus costs of $3,957). At issue in the case was the removal of FFRF's "Bill of Right Nativity Exhibit" from the Texas state capitol. The case twice made its way to the 5th Circuit Court of Appeals (see prior postings 1, 2).

New Jersey Will Allow Candidates To File With Secular Alternative To Oath of Allegiance

As previously reported, in early October a suit was filed in a New Jersey federal district court challenging the New Jersey requirement that candidates filing to run for public office sign an Oath of Allegiance that ends with the phrase "so help me God." In response to this lawsuit, on Oct. 24 the Acting Director of the New Jersey Division of Elections circulated a Memo (full text) to County Clerks stating that now candidates have the option of filing a solemn affirmation or declaration in lieu of an oath, and when that option is chosen, the words "so help me God" are to be omitted. This led the Freedom from Religion Foundation which is counsel for plaintiffs in the October lawsuit to file for voluntary dismissal of the suit.  New Jersey Monitor reports on these developments.

5th Circuit: FFRF's Suit Against Texas Governor Is Moot

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., Jan.  27, 2023), the U.S. 5th Circuit Court of Appeals held that FFRF's suit against the Governor of Texas for wrongfully removing its display from the state Capitol became moot when the Texas State Preservation Board repealed the rule that had allowed private displays in the Capitol. The court said in part:

It is not seriously disputed that the Foundation’s exhibit satisfied the requirements for display or that the Board’s removal of the exhibit violated the First Amendment restrictions concerning speech communicated in a limited public forum. ...

Because the Foundation’s injury is premised on exclusion from expressing its message in a public forum, and because the public forum no longer exists, the permanent injunctive relief ordered by the district court cannot remain.

The court, however, refused to vacate the trial court's order and declaratory judgment, saying that "they might provide important guidance to future disputes." (See prior related posting.)

Report On Role Of Christian Nationalism In January 6 Insurrection Released

Yesterday, the Baptist Joint Committee for Religious Liberty (BJC) and the Freedom From Religion Foundation released a report titled Christian Nationalism and the January 6, 2021 Insurrection (full text).  The Introduction to the Report says in part:

This report describes Christian nationalism and recounts its impact on the day itself as well as in the weeks leading up to the insurrection. Drawing on reporting, videos, statements, and images from the attack and its precursor events, this report contains the most comprehensive account to date of Christian nationalism and its role in the January 6 insurrection.

Christian nationalism is a political ideology and cultural framework that seeks to merge American and Christian identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism relies on the mythological founding of the United States as a “Christian nation,” singled out for God’s providence in order to fulfill God’s purposes on earth.

5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., April 3, 2020), the U.S. 5th Circuit Court of Appeals remanded to the district court a lawsuit by Freedom From Religion Foundation which was denied the right to display its "Bill of Rights Nativity Scene" in the Texas State Capitol building.  The court rejected Texas' sovereign immunity defense and held that under the Ex part Young exception an injunction barring future conduct could be issued. However, it said, under the 11th Amendment the district court cannot grant retrospective relief. It went on:

Among out sister circuits, however, “there is broad agreement that, even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.” ...

[W]e hold that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, we REVERSE and REMAND for the district court to apply the correct unbridled discretion analysis in the first instance.

Space Force General Sworn In On Bible Blessed In Controversial Ceremony

As reported by NPR, yesterday, Air Force Gen. John "Jay" Raymond was sworn in as head of the recently created United States Space Force. The swearing-in was unusually controversial because Raymond was sworn in by Vice President Mike Pence using a Bible that was blessed for that purpose at a ceremony last Sunday at the Washington National Cathedral. (Washington Post). Maj. Gen. Steven A. Schaick, chief of chaplains for the U.S. Air Force, held the Bible as it was being blessed.

Yesterday, the Military Religious Freedom Foundation filed a strongly worded letter of complaint (full text) with Secretary of Defense Mark Esper, calling the National Cathedral ceremony "a horrid example of DoD-endorsed, fundamentalist Christian supremacy, ...exclusivity ... and triumphalism...." God and Country blog also has coverage of the controversy.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Missouri AG Supports High School Football Coaches' Prayer Practices

Missouri Attorney General Eric Schmitt this week released a letter (full text) which he sent on Dec. 3 to the superintendent of the Cameron, Missouri School District supporting high school football coaches against charges in a letter (full text) from the Freedom From Religion Foundation . In its Oct. 28 letter, FFRF said in part:

It is our understanding the Cameron High School's head football coach, Jeff Wallace, and assistant football coach, David Stucky, have been holding religious "chapel" services for players before and after football games where coaches pray with players and read and discuss bible verses.  We understand that after games, Coach Wallace holds religious services with players on the fifty-yard line and leads players in prayer.  We understand that Coach Wallace often brings in outside preachers to proselytize to players as well.

It is illegal for public school athletic coaches to lead their teams in prayer or religious worship.

Responding to this, Attorney General Schmitt in his letter said in part:

FFRF is an extreme anti-religion organization that seeks to intimidate local governments into surrendering their citizens' religious freedom and to expunge any mention of religion from the public square....

Our understanding is that no coach or other Cameron official has forced any football player to participate in prayer or taken any action against any player who chose not to participate.   The prayer occurs outside of the football game.  The prayer is not broadcast over stadium loudspeakers, and fans evidently cannot hear any part of the prayer.  The school district reports that it received no complaints from anyone about the prayer, and FFRF does not reference any complainant in their letter.   Evidently, FFRF's threat does not reflect any discomfort with the prayers in the local community.  Rather, it reflects only FFRF's radical agenda. And without a complainant, FFRF lacks standing to sue the school district, no matter how strongly it objects to this voluntary prayer.

 Friendly Atheist blog reports on these developments.

Challenge To Chaplaincy Program Dropped After Changes Are Made

A Stipulation for Dismissal signed by both parties was filed earlier this week in  Freedom From Religion Foundation, Inc. v. Kaul, (WD WI, 11/20/2019). The suit, which was initially filed in state court and was apparently removed to federal court, challenged the constitutionality of a Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. Six chaplains from across the state were appointed initially-- all white males from Christian faiths. The program excluded secular mental health professionals.  According to a press release from FFRF, after a new state attorney general was elected, the chaplaincy program was dropped in favor of an "Employee Support Team". The goal is to create teams with training in counseling, police chaplaincy, and/or empathetic listening.

Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display

In Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, Oct. 13, 2017), a Texas federal district court held that Texas Governor Greg Abbott and the Texas State Preservation Board violated the free speech rights of Freedom From Religion Foundation when, at the governor's order, FFRF's Bill of Rights nativity display was removed from the state capitol rotunda where it had been erected under a limited public forum policy. (See prior related posting.)  The governor claimed that the display did not serve a "public purpose" because of its mocking and satirical tone.  The court held that whether the exhibit was removed because of its satiric tone or because of its non-theistic point of view, either motive constitutes impermissible viewpoint discrimination.

The court went on to deny summary judgment to defendants on FFRF's Establishment Clause claim because material questions of fact remain as to defendants' purpose in excluding the exhibit.  It rejected the governor's claim of qualified immunity as to the free speech claim, but granted it as to the Establishment Clause claim. Friendly Atheist blog has more on the decision.

Court Says Tax Code's Parsonage Allowance Is Unconstitutional

In Gaylor v. Mnuchin, (WD WI, Oct. 6, 2017), a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. That section allows clergy to exclude from income the rental allowance they receive that is used to rent or provide a home.  In a 2013 decision, the same court reached a similar conclusion, but was reversed on appeal on standing grounds.  Plaintiffs cured those standing issues in the present case. The court summarized it holding:

any reasonable observer would conclude that the purpose and effect of § 107(2) is to provide financial assistance to one group of religious employees without any consideration to the secular employees who are similarly situated to ministers. Under current law, that type of provision violates the establishment clause.

As a remedy, however, the court issued only a declaratory judgment, and gave the parties the opportunity to file supplemental briefs on additional remedies such as a tax refund to plaintiffs who were taxed on their housing allowances from their employer (the Freedom From Religion Foundation), or an injunction of some sort.  FFRF issued a press release announcing the decision. [Thanks to Bob Ritter for the lead.]

FFRF Sues To Enjoin Executive Order's Directions On Johnson Amendment

Yesterday the Freedom From Religion Foundation filed suit in a Wisconsin federal district court challenging President Trump's Executive Order on Free Speech and Religious Liberty.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Trump, (WD WI, filed 5/4/2017) seeks an order declaring that the Executive Order violates the Establishment Clause and the equal protection element of the 5th Amendment by providing preferential treatment to churches, and that it exceeds the President's powers under Article II. The complaint also asks for an injunction preventing the Commissioner of Internal Revenue from implementing the Executive Order. The complaint quotes at length Presidential statements, particularly to Evangelical Christian audiences, promising to overturn the Johnson Amendment, and then contends:

The EO, with the President’s annotated interpretation and construction, makes clear that a relaxed and differential standard of enforcement of § 501(c)(3)’ electioneering restrictions shall be applied to churches and religious officials.

An FFRF press release announced the filing of the lawsuit. The suit came as the ACLU announced it would not sue over the Executive Order. (See prior posting).  [Thanks to Norman Buck for the lead.] 

In Settlement, School Will Remove Ten Commandments Monument

The Freedom From Religion Foundation announced yesterday that it has reached a successful settlement with a Pennsylvania school district in FFRF's suit seeking removal of a 6-foot tall Ten Commandments monument from a high school's lawn. The settlement agreement (full text) in Freedom From Religion Foundation, Inc. v. New Kensington Arnold School District provides that the school district will remove the monument within 30 days of the effective date of the settlement agreement.  The school district's insurance company will also pay plaintiffs' attorneys fees and costs of $163,500.  The suit, originally filed in 2012, went to the 3rd Circuit last year which upheld standing of at least some of the plaintiffs to bring the lawsuit. (See prior posting.)

Removal of Secular "Nativity Scene" May Be Viewpoint Discrimination

In Freedom From Religion Foundation v. Abbott, (WD TX, Dec. 20, 2016), a Texas federal district court allowed plaintiff to move ahead with one aspect of its free speech claim in its challenge to the Texas governor's order removing from the Texas State Capitol exhibition area plaintiff's Bill of Rights "Nativity Scene." The display was accompanied by a banner that focuses on the Winter Solstice and separation of church and state.  The Texas State Preservation Board originally approved the display, but Texas Gov. Greg Abbott who is executive director of the Board instructed that it be taken down.  He contended that the display did not meet the requirement of promoting a "public purpose." The court held:

In this case, a genuine issue of material fact exists as to whether Defendants' decision to remove FFRF's exhibit constitutes viewpoint discrimination.

Plaintiff's other 1st and 14th Amendment challenges were dismissed. Dallas News reports on the decision.

Winter Solstice Displays Counter Religious Ones

Again this year, the Freedom From Religion Foundation is erecting Winter Solstice signs and displays to counter religiously themed Christmas displays on public property.  Beginning last weekend, a Bill of Rights "Nativity Scene" was placed in the Iowa State Capitol to counter a traditional Nativity Scene that went up there for the first time. (FFRF press release, Dec. 15).  And in Shelton, Connecticut, a lawsuit was settled allowing a winter solstice "Let Reason Prevail" sign to be placed on city property to counter religious displays by the American Legion (in another park) and the Cub Scouts. Ultimately the American Legion display was also changed to a secular one because light bulbs on the original angel display burned out. (Valley Independent Sentinel, Dec. 14).

UPDATE: Here is the full text of the Shelton, CT settlement agreement.

FFRF Sues House Chaplain Over Invocation Requirements

The Freedom From Religion Foundation yesterday filed suit in federal district court in Washington, D.C. against the U.S. House of Representatives, its Chaplain and other House officials.  The complaint (full text) in Barker v. House of Representatives, (D DC, filed 5/5/2016), challenges the criteria used by the current House Chaplain in approving guest chaplains who deliver some 40% of the invocations opening House sessions. The House Chaplain requires that the guest chaplain be sponsored by a member of the House, be ordained, and deliver an invocation addressed to a "higher power."  Plaintiff Daniel Barker, co-president of the Freedom From Religion Foundation, says he meets all these requirements, but was not permitted to deliver an invocation on the ground that his ordination is not in a religion that he now practices. The complaint alleges more generally that "the guest chaplain requirements are inherently discriminatory against the nonreligious and minority religions." The suit seeks declaratory and injunctive relief.

FFRF issued a press release announcing the filing of the lawsuit, saying in part:

FFRF is asking the ... Court ... to declare that barring atheists and other nonreligious individuals from the position of guest chaplain violates the Constitution and RFRA, and that requiring guest chaplains to invoke a supernatural power violates Article VI. The organization is also bringing an Establishment Clause claim under the First Amendment of the Constitution, pointing out the chaplain's office is showing an unconstitutional preference for religion over nonreligion.

"We take some satisfaction in filing this lawsuit on the National Day of Prayer, an unconstitutional law enacted at the behest of the Rev. Bill Graham in 1952 requiring the president to issue an annual proclamation exhorting citizens 'to turn to God in prayer, at churches,'" says Barker.

Suit Challenges School's Refusal To Publicize Scholarship Essay Contests By FFRF and Freethinkers Group

Last week the Freedom From Religion Foundation and the Antelope Valley Freethinkers filed suit in California federal district court against a Los Angeles county school district after the district refused to publicize scholarship essay contests sponsored by the plaintiff groups.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. Antelope Valley Union High School District, (CD CA, filed 4/12/2016), contends that while the school publishes scholarship opportunities for students, including those offered by religiously-affiliated groups, it refused to publicize those of plaintiffs because the essay contest themes promote anti-religious expression and contain anti-religious undertones. The complaint alleges that plaintiffs' treatment amounts to viewpoint discrimination in violation of their free speech rights and violates the equal protection clause.  FFRF issued a press release announcing the filing of the lawsuit.

Majority of Texas City Council Resign Over Holding of Forum Sponsored By FFRF

12 News this week reports that three members of the China, Texas City Council have resigned over the last month, apparently primarily because the mayor permitted the Freedom From Religion Foundation to hold a public panel discussion in city hall in October.  According to the Facebook page for the panel discussion:

The purpose of this event is to dispel misconceptions, gain accurate information about FFRF's ongoing involvement in SETX [Southeast Texas] school districts, and to discuss local and legal policies surrounding religion in public schools.

The resignations leave city council without a quorum to transact business. The Agenda for the Dec. 22 Council Meeting includes "Nominations for Vacant Council Seats."  Friendly Atheist blog has more on the controversy and a link to a video of the FFRF panel discussion.

School Prayer Lawsuit Settled

The Freedom From Religion Foundation announced Monday the settlement of its lawsuit against the Emanuel County, Georgia school system. (See prior posting.)  The suit challenged prayer in kindergarten and first grade classrooms and the mistreatment of students who objected. FFRF says it is dismissing its suit after the county implemented teacher training on the obligation not to promote religious beliefs in the classroom and paid damages to the complaining family.

Police Departments Adding "In God We Trust" To Patrol Cars

The New York Times, in an article posted yesterday, reviews the growing trend among law enforcement agencies in the South and Midwest to place the national motto "In God We Trust" on their squad cars. The Times reports:

“With the dark cloud that law enforcement has been under recently, I think that we need to have a human persona on law enforcement,” said Sheriff Brian Duke of Henderson County, Tenn. “It gave us an opportunity to put something on our cars that said: ‘We are you. We’re not the big, bad police.’ ”

But critics worry that displays of “In God We Trust” on taxpayer-funded vehicles cross the threshold of constitutionality, even though the courts have repeatedly brushed aside challenges to the motto, which Congress enshrined in 1956. Explanations like the one Sheriff Duke offered have not curbed those frustrations.

“This motto has nothing to do with the problem of police forces’ shooting people, but it’s a great way to divert attention away from that and wrap yourself in a mantle of piety so that you’re above criticism,” said Annie Laurie Gaylor, a co-president of the Freedom From Religion Foundation, a Wisconsin-based group that has demanded that law enforcement officials stop exhibiting the motto. “The idea of aligning the police force with God is kind of scary. That’s the first thing you’d expect to see in a theocracy.”