Legal Feature


2007 Year-End Review: TRI Legal Developments



December 14, 2007

The following is a list of legal developments that have arisen over the past year in cases being handled by attorneys for The Rutherford Institute:

Adair v. England, U.S. Court of Appeals for D.C.
The action is a class action challenging the promotion and retention policies of the U.S. Navy with respect to chaplains. In the action filed by TRI, it is alleged that the Navy Chaplain Corps has discriminated against non-liturgical chaplains and in favor of Catholic and liturgical Christian chaplains. Although the plaintiffs initially won a victory when the district court ruled that they could conduct discovery into the proceedings of Selective Early Retirement Boards, in early 2007 the Navy sought reconsideration of that ruling on the basis of "stealth" legislation that was inserted into a defense appropriations bill enacted in 2006. This motion was granted in October 2007.

In a related case, Gibson v. U.S. Navy, TRI filed a similar class action in Florida including new parties and because of adverse rulings by the District of Columbia courts. The Florida district court transferred the case to the D.C. District in 2006, and the cases were formally consolidated by order entered in the D.C. District Court in June 2007. TRI has requested that the D.C. Court of Appeals issue a writ of mandamus requiring that the Gibson cases be sent back to the Florida District Court, arguing that due to adverse rulings in the D.C. District Court it is not a venue where the actions could have been brought in the first instance.

Adkins v. Rumsfeld, U.S. Dist. Ct. for Delaware
Jason Adkins is a decorated U.S. Air Force Airman who was reprimanded by superior officers after he complained about adverse health affects he suffered from mandated anthrax inoculations. In November 2004, TRI filed a complaint on Adkins' behalf alleging that the retaliation violated his First Amendment rights. The government sought to dismiss the case in 2005, but this was denied. It sought reconsideration of that decision, but the district court reaffirmed Adkins' right to proceed with his claims in a ruling issued January 2007. Depositions and other discovery have proceeded during this year and were scheduled to end at the end of November 2007. However, in November, the Air Force agreed to settle the lawsuit, agreeing to restore Adkins' unblemished 15-year record of distinguished service in the Air Force and deeming "to be of no effect" a Letter of Reprimand issued after Adkins challenged the vaccination program.

Bernstein v. Twp. of Freehold, N.J. , U.S. Dist. Ct. for N.J.
In August 2007, Rabbi Avraham Bernstein filed a complaint alleging that the Twp. of Freehold's attempts to prevent him from worshiping in his home with other members of his Orthodox Jewish religion violated the First Amendment and RLUIPA. In September 2007, the Township amended its ordinances in an attempt to define a "church or house of worship" for purposes of land use regulation. In response, TRI attorneys filed an amended complaint alleging that the new ordinance is vague and discriminatory in violation of federal law. In November 2007, a motion for a preliminary injunction was filed requesting that enforcement of the new ordinance be barred.


Borden v. Sch. Dist. of E. Brunswick, N.J. , U.S. Court of Appeals for the 3d Cir.
Marcus Borden is a football coach who was told he could not silently bow his head or "take a knee" with his team while team members conducted student-initiated and student-led prayer. Borden sued asserting that the directive violated his constitutional rights and was successful in the district court. The school district, assisted by Americans United for Separation of Church and State, appealed the decision and TRI was asked to act as co-counsel on the appeal. Briefing was completed in early 2007 and oral argument was held in October 2007.

Bowler v. Hudson High School, U.S. Dist. Ct. for Mass.
TRI filed an action on behalf of high school student Chris Bowler after school officials eliminated a website address for a conservative association of high school clubs from a poster Bowler had posted in school. In April 2007, the school defendants filed a motion for summary judgment and TRI responded in opposition. On October 4, 2007, the district court denied the motion in almost all respects, holding that there was evidence supporting the claim that the school had violated Bowler's First Amendment rights. TRI has filed a motion for reconsideration as to one aspect of the district court's ruling, which granted the individuals summary judgment on their qualified immunity defense. A trial is scheduled for March of 2008

Bowman v. United States, U.S. Court of Appeals for the 6th Cir.
Linden Bowman performed community service as a youth pastor upon taking early retirement from the military in 1996. However, the Department of Defense refused to give him credit towards his military pension for this work under a program intended to provide incentive to retirees to perform community service because no credit could be obtained for work that are engaged in religious activities. In 2006, TRI filed a complaint challenging the validity of this exclusion and seeking to have Bowman given credit under the community service program. The government filed a motion to dismiss the complaint arguing that the action was untimely, that Bowman did not have standing, and that the exclusion of religious work was valid. On August 31, 2007, the court entered an order granting the motion to dismiss. Although the court found that the action was timely brought and that Bowman had the right to challenge the exclusion, it upheld the exclusion. In October 2007, TRI filed a notice of appeal from this decision and a brief in support of the appeal was filed on December 11, 2007.

Busch v. Marple-Newtown Sch. Dist. , U.S. Court of Appeals for the 3d Cir.
Wesley Busch and his mother, Donna, filed an action against Pennsylvania school officials after she was prevented from reading from her son's favorite book, the Bible, during a school program that was intended to spotlight individual student interests and characteristics. TRI filed the action on their behalf in May 2005. After extensive discovery, the parties filed competing summary judgment motions. In May 2007, the district court entered an order granting the school defendants' motion for summary judgment. The district court determined that even though the defendants had engaged in viewpoint discrimination by preventing Donna from reading a Psalm to Wesley's class, this censorship was legal under the First Amendment. In June 2007, TRI filed an appeal from the judgment and briefing was completed in November 2007. The case has drawn great interest nationally, with amicus briefs filed by the Alliance Defense Fund, the Pennsylvania Family Institute, Americans United for Separation of Church and State, the National School Boards Association, and several other interested organizations.

Calvary Temple Assembly v. City of Marinette, U.S. Dist. Ct. for the E.D. of Wisc.
A RLUIPA action in which a church challenged the City's refusal to allow the church to conduct faith-based counseling on church property. After the filing of the complaint and answer in late 2006, a scheduling order was entered and the parties began the discovery process. By mutual agreement, the case was continued and the discovery deadlines extended. At present, TRI's affiliates and counsel for the City are exchanging interrogatories and preparing other discovery requests.

Christ Covenant Church v. Town of Southwest Ranches, FL, U.S. Dist. Ct. for the S.D. of Fla.
A RLUIPA case challenging a Town's denial of a site plan amendment a church needs in order to accommodate religious activity on the church's property. The complaint was filed on April 12, 2007. The Town responded with a motion to dismiss arguing that the amendment denial did not substantially burden the church's exercise of religion. After TRI attorneys responded in support of the claims in the complaint, the District Court entered an order in September 2007 denying the Town's motion to dismiss the complaint. In October 2007 the Town filed its answer to the Complaint and TRI attorneys are negotiating with Town counsel over discovery ground rules and timetables.

Collins v. Shoppers' World, LLC, Va. Supreme Court
Rich Collins, a candidate for the Virginia General Assembly, was charged with trespassing after he refused to stop leafletting at a private shopping center in Albemarle County, Virginia. TRI brought a declaratory judgment action seeking to establish that Collins had a right to engage in this activity under the Virginia Constitution's protection of free expression. Argument on the claim was held in the Virginia Supreme Court on February 14, 2007. Eventually the Virginia Supreme Court affirmed the decision below that the state constitution does not give political candidates the right to engage in leafletting at shopping centers that are otherwise open to the public.

Commonwealth v. Lyster, Circ. Ct. for the City of Charlottesville, Va.
Commonwealth v. Sipe, Circ. Ct. for the County of Albemarle, Va.

TRI filed objections in two separate Virginia cases challenging Virginia's so-called "abusive driver" fees. The fees apply upon the conviction for certain driving-related offenses, but are not imposed upon non-resident offenders. TRI's objections argue that the exclusion of non-resident drivers violates the requirement of equal protection of the law, that the fees bear no reasonable relationship to any actual costs incurred by the state as a result of the offenses, and that the law imposing the fees is an improper attempt to evade a state constitutional provision requiring that fines be used for educational purposes. Argument in the cases is scheduled for December 2007.

Frantz v. Gress, U.S. Dist. Ct. for the E.D. of Pa.
Raymond Frantz, a street preacher in Philadelphia, filed a civil rights action after city police ordered him to stop and cited him for blocking sidewalks in violation of a city ordinance. After discovery was conducted, the parties filed cross-motions for summary judgment. On October 25, 2007, the district court entered an order denying both motions and requiring that the case proceed to trial.

Gee v. Norton, U.S. Dist. Ct. for Dist. of Idaho
Ken Gee filed an employment discrimination claim and civil rights action against the Department of the Interior after he was disciplined for sending out e-mails criticizing the Department's "celebration" of Gay-Lesbian Pride month. The case was scheduled for trial in January 2007, but on the eve of trial the government proposed a settlement on terms favorable to Gee and recognizing his right to free speech in the workplace. A settlement was consummated and the case dismissed in February 2007.

Giarratano v. Johnson, U.S. Court of Appeals for the 4th Cir.
Action filed by a Virginia prisoner challenging the state's refusal to provide information about his treatment for Hepatitis C. The information was sought under the state's Freedom of Information Act, but refused under a FOIA exemption that applies to requests for information by prisoners. The exemption is challenged as violative of the guarantee to equal protection of the law. An appeal was filed from a decision in favor of correction officials and TRI attorneys filed their brief in January of 2007. Argument in the case was held December 6, 2007.

Hale v. Ogden, U.S. Dist. Ct. for the Dist. of Delaware
Derek Hale was a Virginia motorcycle enthusiast who was visiting Wilmington, Delaware, in November 2006 to assist with a Christmas toy drive. While staying at a friends home, he was brutally accosted by numerous state and city police officers who tasered him numerous time, and then killed by gunshot wounds. In March 2007, TRI filed a civil rights action on behalf of Hale's estate alleging that the brutal arrest violated Hale's constitutional rights. Answers were filed by all the defendants, who include individual officers, the City of Wilmington, and the State of Delaware, and discovery is being actively pursued by TRI affiliates.

Heartland Schools v. Ill. Dept. of Taxation, Ill. Court of Appeals
A Christian school sought review of an administrative determination that part of its property is not tax exempt. The state asserts that parts of the school where children five years old and under are instructed does not involve religious instruction. After a state district court reversed the administrative decision in February 2007, the Department of Taxation appealed the decision to the state court of appeals. Briefing in the case was completed in September 2007 and oral argument was held in the court of appeals on November 14, 2007.

Johnson v. Home Depot, Inc. , U.S. Dist. Ct. for the E.D. of Ill.
Lloyd Johnson filed a complaint alleging discrimination on the basis of religion in violation of Title VII in May 2007. The complaint alleges that Home Depot failed to accommodate Johnson's religious practices that prevent him from working on Sundays. TRI also filed a FOIA request with the EEOC requesting the records of its investigation of Home Depot in response to Johnson's complaint. In July, Home Depot filed an answer and shortly thereafter requested that TRI propose settlement terms. In a letter to Home Depot's counsel, TRI requested compensation for Johnson and also that Home Depot eliminate its policy of requiring that all store employees be available to work some time on Sundays. Home Depot refused to consider these terms, and so TRI has proceeded with discovery planning.

Klingenschmitt v. Winter, U.S. Court of Appeals for the D.C. Cir.
Gordon Klingenschmitt was a Navy chaplain who incurred the wrath of superiors for praying to Jesus in accordance with his religious beliefs and those of the service members that he served and for speaking out against Navy policies forbidding chaplain prayers in the name of Jesus. Eventually the Navy brought discharge proceedings against Klingenschmitt, alleging that he had lost his ecclesiastical endorsement required by federal law. Because Klingenschmitt had merely changed endorsers, TRI brought an action on his behalf alleging that the separation proceedings were in violation of Naval regulations and that they were undertaken in retaliation for Klingenschmitt's exercise of First Amendment rights. In January 2007, TRI sought a preliminary injunction to prevent the pending separation of Klingenschmitt. The government filed a motion to dismiss the claim. After the district court refused to grant the preliminary injunction, TRI appealed this decision to the D.C. Court of Appeals and briefing was conducted in the summer of 2007. In the interim, the district court entered a judgment granting the government's motion to dismiss in August 2007, ruling that the separation of Klingenschmitt did not violate Navy regulations and so was "by definition" not retaliatory. TRI appealed this ruling that same month. Thereafter, the D.C. Court of Appeals entered an order dismissing the appeal of the order denying the preliminary injunction as moot. Briefing on the second appeal is scheduled to begin in January 2008.

Larsen v. England, U.S. Court of Appeals for the D.C. Cir.
The case involves four chaplains denied commissions in the U.S. Navy because they represent non-liturgical denominations. The action alleged that the Navy's chaplain selection system is infected with prejudice against and in favor of certain religious denominations. In April 2007, the district court entered judgment granting the government's motion for summary judgment. Although evidence before the court indicated that the Navy did give certain denominations preferences in chaplain corps decision-making, which usually would trigger strict scrutiny of the practice, the district court held that military decisions are to be judged by a less rigorous standard. Using this less demanding standard and accepting the government's claims of military need, the court upheld the challenged practices. In June 2007, TRI filed a notice of appeal from this ruling and briefing is scheduled to begin in December 2007.

Lee v. York County School Div. , U.S. Supreme Court
In 2005, TRI filed a civil rights action on behalf of Spanish teacher William Lee after Virginia school officials selectively removed news articles with religious themes that he had posted in his classroom under a school policy allowing teachers to post matters of personal interest. After the district court granted summary judgment on Lee's claims to the school, TRI appealed to the U.S. Court of Appeals. In May of 2007, the Fourth Circuit affirmed ruling that Lee's personal expression constituted part of the school's "curriculum" and so could be controlled in any way by the school without violating the First Amendment. TRI filed a petition for certiorari with the U.S. Supreme Court arguing that the lower court rulings effectively eviscerate any right of expression for teachers in contravention of Supreme Court precedent establishing that teachers do have First Amendment rights while in school. In October 2007, the Supreme Court entered an order denying the petition.

Mangum v. Coleman, U.S. Dist. Ct. for the Dist. of Maryland
TRI brought an action on behalf of Amber Mangum after a school employee told Amber she could not read her Bible during free time at school. On March 28, 2007, the parties entered into a consent decree in which the school disavowed any authority to prevent students from reading the Bible at school, recognized that any such directive given to Amber was not pursuant to school policy, and recognizing Amber's right to read the Bible.

Mast, et al. v. Cent. Mich. Dist. Health Dept., U.S. Court of Appeals for the 6th Cir.
The action involves claims by Amish farmers who have been ordered to install large septic tanks on their property by local health officials. The Amish allege that this order violates their right to freely exercise their religion because the large tanks constitute a temptation to use worldly appliances and that the large tanks are not necessary in light of the frugal way of life required by Amish religious beliefs. In February 2007, a federal district court in Michigan granted the state officials' motion for summary judgment concluding that the objections of the Amish were not grounded in religious beliefs but were based on secular concerns. TRI filed an appeal from this decision and in September 2007 briefing in the Sixth Circuit was completed. TRI argues that the district court erred because the Amish way of life is intimately tied up with their religious beliefs. Thus, the Amish dedication to frugality is not based upon a desire to save money, but is based upon a religious conviction that abhors waste.

McComb v. Crehan, U.S. Court of Appeals for the 9th Cir.
While delivering a valedictory address at her high school graduation, Brittany McComb was prevented from continuing her remarks concerning the importance of religion in her life to the audience when school officials cut off her microphone. TRI attorneys filed an action on her behalf in July 2006. The district court denied a motion by the school defendants to dismiss the complaint and in June 2007 the district court denied a second motion to dismiss. In response, the individual defendants filed an interlocutory appeal to the Court of Appeals for the Ninth Circuit seeking a ruling that they are entitled to qualified immunity. In July 2007, TRI filed a motion to dismiss this appeal as untimely, but the motion was denied. In the meantime, the defendants successfully sought a stay of discovery in the district court pending the resolution of the appeal. The defendants brief in the Ninth Circuit was filed in early December 2007.

Nurre v. Whitehead, U.S. Court of Appeals for the 9th Cir.
TRI filed an action on behalf of a high school wind ensemble member after the group was forbidden from performing an instrumental piece because its title was "Ave Maria." The complaint alleged that the decision violates the First Amendment rights of ensemble members and evidenced a hostility toward religion in violation of the Establishment Clause. In April 2007, cross-motions for summary judgment were filed. In September 2007, the district court ruled that the decision preventing the performance did not violate the constitution. TRI filed an appeal from this decision and the case is now pending in the Court of Appeals for the Ninth Circuit.

Olsen v. Mukasey, U.S. Court of Appeals for the 8th Cir.
Carl Olsen is a member of the Ethiopian Zion Coptic Church. An essential church sacrament involves the use of marijuana. In the later 1980s and early 1990s, Olsen was involved in litigation that held that federal and state laws barring the sacramental use of marijuana did not violate his right to free exercise of religion. However, after these decisions Congress enacted RFRA, which was applied by the Supreme Court in a 2006 decision to require the government to prove in individual cases that it has a compelling interest in banning the religious, sacramental use of controlled substances. Based upon this Supreme Court decision, Olsen filed a pro se action seeking a declaration that his sacramental use of marijuana is protected by RFRA and other federal laws. The federal district court in Iowa held that Olsen's claims were barred by collateral estoppel because of the previous decisions. TRI agreed to assist Olsen with his appeal, and in October 2007 filed a brief with the Eighth Circuit arguing that the intervening Supreme Court precedent precludes the application of collateral estoppel and requires that Olsen's claims be evaluated under the compelling interest standard set forth in RFRA.

Rhoades v. Penn-Harris-Madison Sch. Dist. , U.S. Dist. Ct. N.D. Ind.
TRI filed an action on behalf of an Indiana family challenging a school's program subjecting the family's daughter to psychological screening and diagnosis without the actual consent of her parents. The case has been proceeding through discovery this year. TRI submitted the report of an expert witness opining that the "TeenScreen" test administered by the school and a local mental health agency was ineffective and inaccurate and results in numerous "false positive" results.

Turner v. City Council of the City of Fredericksburg, Va. , U.S. Court of Appeals for the 4th Cir.
Hashmel Turner, a pastor and member of the City of Fredericksburg City Council, challenged a council policy that allows for the opening of council meetings with a prayer by a council member, but forbids sectarian references in those prayers. TRI filed an action on Turner's behalf, asserting that the policy violates Turner's First Amendment right to invoke the name of Jesus in his prayers. A federal district court granted the city's motion to dismiss the complaint in August 2006, and TRI filed an appeal. Briefing in the Court of Appeals for the Fourth Circuit was completed in late 2006. However, there has been no action on the case in the Fourth Circuit during 2007.

Veitch v. Danzig, U.S. Supreme Court
Philip Veitch, a Navy chaplain stationed in Italy, was railroaded out of the service after he objected to directives that he not preach traditional Protestant doctrine that his superiors deemed "intolerant." In November 2006, the Court of Appeals for the D.C. Circuit affirmed a judgment against Veitch's claims, upholding the ruling below that Veitch had voluntarily resigned from the military, and so could not complain about his separation. TRI filed a petition for certiorari with the U.S. Supreme Court arguing that any resignation of Veitch was forced upon him by the misconduct of his superiors and false charges of disrespect leveled against Veitch. In October 2007, the Supreme Court denied the petition.

Wilkins v. United States, U.S. Supreme Court
Ronald Wilkins is a former Navy chaplain who sued the Navy alleging that he was terminated from the service because of his religious views and because of systematic discrimination in favor of certain religious denominations by the Navy. In May 2007, the Court of Appeals for the Ninth Circuit affirmed a district court decision that had found that there was not systematic discrimination in the chaplain process and that Wilkins did not have standing to challenge other practices. On October 31, 2007, TRI filed a petition for certiorari with the U.S. Supreme Court.