Wake Forest Law Review
22Feb

When the Free Speech, Free Exercise, and Establishment Clauses Collide: Setting the Stage for Kennedy v. Bremerton School District and Its Potential Impact on Public Employees’ First Amendment Rights

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By Jonathon Beatty

What happens when a public-school employee’s free speech and free exercise rights run contrary to the Establishment Clause of the First Amendment?[1]  The Supreme Court will answer that question in Kennedy v. Bremerton School District[2] and shed light on the intersection of the Free Speech, Free Exercise, and Establishment Clauses.[3]  Specifically, the Court granted certiorari on two questions: (1) “[w]hether a public-school employee who says a brief, quiet prayer by himself while at school and visible to students is engaged in government speech that lacks any First Amendment protection”; and (2) “whether, assuming that such religious expression is private and protected by the free speech and free exercise clauses, the establishment clause nevertheless compels public schools to prohibit it.”[4]

Bremerton School District (“BSD”) employed Kennedy as a football coach.[5]  A practicing Christian, he felt an obligation to “give thanks through prayer, at the end of each game.”[6]  He would kneel on the 50-yard line, where spectators could observe, and say a prayer alone.[7]  Over time, students began to join him, eventually growing to “include the majority of the team.”[8]  Although he never explicitly or implicitly required participation, BSD ordered Kennedy to stop for fear that, as a government employee, he was violating the Establishment Clause,[9] which requires government neutrality toward religion.[10]  This culminated in a recommendation against his rehiring due to his “fail[ure] to follow district policy.”[11]

Subsequently, Kennedy filed suit, arguing that BSD had violated his free speech and free exercise rights.[12]  The district court rejected his claims, holding that “BSD’s actions were justified due to the risk of an Establishment Clause violation.”[13]  The Ninth Circuit affirmed, agreeing “that BSD would have violated the Establishment Clause by allowing Kennedy to pray at the conclusion of football games, in the center of the field, with students who felt pressured to join him.”[14]

The free speech right of public employees is a complex legal issue.  As many questions in the law do, it requires striking a balance, this time between the right of the employee to be free from government censorship and the right of the government to ensure its employees act consistent with their duties, including constitutional requirements.  The Supreme Court has made clear, for example, that “[t]he problem . . . is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”[15]  Put differently, their employment necessarily curtails their First Amendment rights in order for them to do their job correctly.  It involves, like many aspects of life, a tradeoff. But striking the right balance is a difficult task.

Start with the free speech rights of public employees.  It is settled law that “a State cannot condition public employment on a basis that infringes the employee’s constitutionally protected interest in freedom of expression.”[16]  State employees have free speech rights, and the use of those rights may not form the basis for which he or she is terminated or otherwise denied employment.[17]  In Pickering v. Board of Education,[18] for example, the Court held unconstitutional the termination of a teacher who overtly criticized the school board for its allocation of funding.[19]  The basis for the teacher’s dismissal ran afoul of democratic norms  epitomizing self-government for which “free and open debate is vital.”[20]  Teachers do not forfeit their rights “at the schoolhouse gate.”[21]

The extent of an employee’s “interest in freedom of expression,” however, is far from absolute and depends on the context in which the right was exercised.  In Garcetti v. Ceballos, for instance, the Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”[22]  As any private employer could, a government employer can mandate or prohibit certain expression within reason.[23]

The idea is that the required or forbidden expression is the product of the employment, not of the employee’s private life and thus the liberties that attach.[24]  As the Court puts it, “It simply reflects the exercise of employer control over what the employer itself has commissioned or created.”[25]  The crucial question is whether the public employee is acting as a citizen or in his or her official capacity.  If the former, the Court has “unequivocally rejected” the notion “that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens.”[26]  And if the latter, employers of all kinds may control the speech of “an employee in his or her professional capacity,” because “[o]fficial communications have official consequences” that impact “the employer’s mission.”[27]

Moreover, the free exercise rights of public employees are equally complex and involve a similar tradeoff between citizen liberty and employer interest.  This time, however, the conflict lies directly in the First Amendment, which prohibits the government’s “respecting an establishment of religion” while simultaneously guaranteeing to citizens “the free exercise thereof.”[28]  The question is at which point a government employee’s “free exercise” constitutes the government’s “respecting an establishment of religion.”

The Court has held “that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice.”[29]  Religion may not excuse citizens from complying with a neutral law that applies generally to everyone.[30]  Otherwise, “professed doctrines of religious belief [would become] superior to the law of the land . . . and . . . permit every citizen to become a law unto himself.”[31]  The Free Exercise Clause, therefore, applies to a non-neutral law that targets expression because it is religious, not simply because the expression falls within the law’s purview.[32]

Even when the government targets religious expression because it is religious, a Free Exercise claim does not necessarily prevail.  The Court has held that “a state interest in avoiding an Establishment Clause violation ‘may be characterized as compelling,’ and therefore may justify content-based discrimination.”[33]  As BSD argued in Kennedy, allowing Kennedy’s prayers to continue as is would constitute government action sufficient to violate the Establishment Clause and thus justify the prohibition on Kennedy’s conduct.[34]  Nonetheless, the Court has underscored on numerous occasions that the mere presence of religious conduct on public-school property is not under all circumstances sufficient to violate the Establishment Clause.[35]

Therefore, the stage is set for the Court.  It will decide (1) whether the speech falls within Kennedy’s “professional capacity” and thus lacks First Amendment protection; and (2) whether, assuming it does not, BSD nevertheless has satisfied strict scrutiny in avoiding an Establishment Clause violation by means “narrowly tailored to advance that [compelling] interest.”[36]  Perhaps Kennedy was acting as a citizen.  And if he was, perhaps this is one of those circumstances where there was no state action sufficient to constitute an Establishment Clause violation.  The Court will soon settle the issue.

[1] U.S. Const. amend. I (“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech . . . .”).

[2] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004 (9th Cir. 2021), cert. granted, 142 S. Ct. 857 (2022).

[3] U.S. Const. amend. I.

[4] Kennedy v. Bremerton School District, SCOTUSblog, https://www.scotusblog.com/case-files/cases/kennedy-v-bremerton-school-district-2/ (last visited Feb. 22, 2022); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 857 (2022) (granting certiorari).

[5] Kennedy, 991 F.3d at 1010.

[6] Id.

[7] Id.

[8] Id.

[9] Id. at 1011.

[10] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) (“[W]e have held that ‘a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.’” (quoting Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995))) (alteration in original).

[11] Kennedy, 991 F.3d at 1014.

[12] Id.

[13] Id.

[14] Id. at 1022–23.

[15] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[16] Garcetti v. Ceballos, 547 U.S. 410, 413 (2006) (quoting Connick v. Myers, 461 U.S. 138, 142 (1983)).

[17] Id.

[18] 391 U.S. 563.

[19] Id. at 566–67.

[20] Pickering, 391 U.S. at 571–72; see Garrison v. Louisiana, 379 U.S. 64, 74–75 (1964) (“For speech concerning public affairs is more than self-expression; it is the essence of self-government.”).

[21] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

[22] Garcetti v. Ceballos, 547 U.S. 410, 421 (2006).

[23] Id. at 418 (“Government employers, like private employers, need a significant degree of control over their employees’ words and actions; without it, there would be little chance for the efficient provision of public services.”).

[24] Id. at 421–22 (“Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen.”).

[25] Id. at 422.

[26] Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968).

[27] Garcetti, 547 U.S. at 422–23.

[28] U.S. Const. amend. I.

[29] Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 531 (1993) (citing Emp. Div. v. Smith, 494 U.S. 872 (1990)).

[30] See Smith, 494 U.S at 878–79 (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct the State is free to regulate.”).

[31] Id. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166–67 (1879)).

[32] Church of Lukumi Babalu Aye, 508 U.S. at 532 (“[T]he protections of the Free Exercise Clause pertain if the law at issue . . . regulates . . . conduct because it is undertaken for religious reasons.”).

[33] Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112–13 (2001) (quoting Widmar v. Vincent, 454 U.S. 263, 271 (1981)).

[34] Kennedy v. Bremerton Sch. Dist., 991 F.3d 1004, 1009 (2021).

[35] See Good News Club, 533 U.S. at 115 (“[W]e have never extended our Establishment Clause jurisprudence to foreclose private religious conduct during nonschool hours merely because it takes place on school premises . . . .”).

[36] Church of Lukumi Babalu Aye, 508 U.S. at 531–32.

Post image by Phil Roeder on Flickr

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9Apr

4th Circuit: Lessons on Islam Don’t Violate Christian Student’s Rights

Categories: 4th Cir. Blog Civil Cases Issues in the 4th Circuit
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By Caroline Hamilton and Alex Prunka

During the 2014­–15 school year, Caleigh Wood was an eleventh grade student at La Plata High School in Charles County, Maryland.[1]  Wood was required to take a world history course as a part of the school’s curriculum, featuring a small, five-day unit entitled “The Muslim World.”[2]  This unit was designed to “explore, among other things, formation of Middle Eastern empires including the basic concepts of the Islamic faith and how it along with politics, culture, economics, and geography contributed to the development of those empires.”[3]  Wood took issue with two aspects of the Muslim World unit: (1) the PowerPoint slide which stated “most Muslim’s [sic] faith is stronger than the average Christian [sic]” and (2) a worksheet summarizing the lesson that required her to complete certain information about the Islamic faith.[4]

Wood sued the defendants Evelyn Arnold, Shannon Davis, the Board of Education of Charles County, and the Charles County Public Schools.  In Wood v. Arnold,[5] she asserted two claims: (1) the defendants violated the Establishment Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion;” and (2) that defendants violated the Free Speech Clause of the First Amendment by requiring her to complete the shahada assignment thereby depriving her “of the right to be free from government compelled speech.”[6]  The United States District Court for the District of Maryland granted summary judgment to the defendants on all claims, and Wood appealed.

Plaintiff’s Arguments

Wood’s first claim was based on the Establishment Clause. She argued that the defendants endorsed a view of Islam over Christianity, which violates the Establishment Clause[7] based on the comparative faith statement that read “Most Muslim’s faith is stronger than the average Christian.”[8]  Wood also believed that the assignment which required to fill in the blanks regarding the lesson plan impermissibly advanced Islam and compelled Wood to deny the existence of her God.[9]  Wood argued that the religious endorsement could not be overcome by the secular purposes alleged by the defendants.[10]

Regarding Wood’s Free Speech Clause challenge, she contended that the defendants violated her right to free speech by requiring her to fill in the sentence “There is no god but Allah and Muhammad is the messenger of Allah”[11] on the after lesson worksheet.  From her position, Wood believed that this worksheet forced her to confess, by written word and deed, her faith in Allah.[12]  Having been raised in a strong Christian household, Wood took offense to what she and her parents perceived as forced proclamation of Islamic beliefs.[13]

Defendant’s Arguments

In response to Wood’s Establishment Clause claim, defendants argued the unit satisfied the first prong of the Lemon test because the purpose of the Muslim unit was primarily secular and that the single statement made on the power point rose to a level of promoting Islam.[14]  In regards to the second prong of the Lemon test, the defendants emphasized the importance of analyzing whether the school was acting to promote a particular religion from an objective standpoint and that the District Court was correct in not taking into account specific, subjective statements made by certain school officials.[15]  Finally, the defendants patently rejected the theory that the comparative faith statement and the fill in the blank worksheet could lead a reasonable juror to find excessive entanglement between the school and religion.[16]  It simply does not rise to the level of requiring Wood to profess Islam or denounce Christianity, nor does it in any way bear resemblance to a statement made by an evangelical.

In response to Wood’s Free Speech Clause challenge, the defendants argue that the classroom is not a public forum worthy of the full battery of First Amendment protections.[17]  Additionally, defendants argue that Wood was never asked to profess her belief in Islam but rather, was asked to showcase her understanding of the Islamic religion in the context of a world history class.  Thus, the forum of the classroom in conjunction with the type of “compelled” speech indicate that the fill in the blank worksheet does not violated her First Amendment rights.[18]

The Court’s Opinion

The Court affirmed the District Court’s granting of summary judgement in favor of the defendants on both counts.  The court acknowledged that the proper analysis for an Establishment Clause issue is the Lemon test,[19] which asks (1) whether the challenged material has some secular purpose; (2) whether the principal effect of government action is to suggest government preference for a particular religious view or for religion in general; and (3) whether the government action created an excessive entanglement between government and religion.[20]  However, the court first had to decide the relevant scope of inquiry—whether the challenged materials should be considered in isolation or whether they should be considered within the broader context of the world history class.  Following circuit court precedent, the court held that it was proper to consider the challenged content in the context of the world history class.[21]  Here, the court found that the challenged religious content did not offend any of the three Lemon test prongs.

The first prong imposes a “fairly low hurdle,” merely requiring the government to show that it had a plausibly secular purpose.[22]  So long as the proffered secular purpose is genuine and not a sham, the purpose will satisfy the first prong of the Lemon test.  Here, the court determined that the purpose of the two pieces of challenged content did have a primarily secular purpose.  The court noted that the Supreme Court has recognized the value in studying religion on a comparative basis.[23]  Neither the comparative faith statement being challenged or the shahada worksheet indicate a religious purpose; rather, the school had a predominantly secular purpose in teaching world history, and the subsequent shahada worksheet was in line with the academic work to be expected after a lesson plan.[24]  Thus, the court was quickly satisfied that the school was acting with a predominantly secular purpose.

Turning to the second prong of the Lemon test, the court asked whether a reasonable, informed observer would conclude that by its actions, the government has endorsed a particular religion.[25]  In analyzing this prong, courts assume that the reasonable observer is aware of the context surrounding the government action.  The court found that neither of the challenged statements indicated that the school endorsed Islam or that the school was forcing its students to endorse and participate in Islamic practices.  It distinguished the challenged content from a situation in which a school forces students to pray, which would offend the Lemon test.[26]  In fact, the challenged content was integrated into the secular curriculum and only constituted a minor part of the Muslim unit, which was only a minor part of the world history class.  Thus, the court concluded that “common sense” indicates that the school was not endorsing any religious beliefs through either of the challenged content.[27]

In dealing with the third prong, the court examined whether the government action led to an excessive entanglement between government and religion.  The court determined that they “need not dwell long on the entanglement prong” because the comparative faith statement and shahada assignment neither advanced nor inhibited religion.[28]  The secular nature of the content, in conjunction with the minor role it played in the context of the world history class, led the court to quickly find there was no entanglement issues caused by the comparative faith statement or the shahada assignment. 

The court then turned to Wood’s Free Speech Clause challenge.  Although the court acknowledged that compelled speech usually gets rigorous scrutiny,[29] this presumption needs to be balanced with the reality that students’ rights in public schools are not “automatically coextensive with the rights of adults in other settings.”[30]  The court here agreed with the Third Circuit’s approach, which stated that, in the educational context, students sometimes are forced to speak when they would rather not and that does not offend the First Amendment.[31]  From this basis, the court went on to find that the shahada assignment did not require Wood to profess or accept the tenants of Islam or take part in any devotion practice related to Islam.  Therefore, Wood’s right against compelled speech was not violated.

Conclusion

The Court of Appeals for the Fourth Circuit, in a relatively short opinion, affirmed the granting of summary judgment in favor of the defendants.  The court did not find merit on either of Wood’s assertions that the comparative faith statement or the shahada worksheet violated the Establishment Clause or the Free Speech Clause.  The content in question was a minor part of a small unit about the Muslim world in the context of a world history class.  The purpose for this content is clearly secular in nature and would not have led a reasonable juror to find that Wood’s rights were violated.

[1] Wood v. Arnold, 915 F.3d 308, 312 (4th Cir. 2019).

[2] Id.

[3] Id.

[4] Id. at 312–13.

[5] 915 F.3d 308 (4th Cir. 2019).

[6] Id. at 313.

[7] The Establishment Clause provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . . .” U.S. Const. amend. I, cl. 1.

[8] Wood, 919 F.3d at 313.

[9] Id.

[10] Id.

[11] Id. at 318.

[12] Id. at 319.

[13] Plaintiff’s Amended Complaint ¶¶ 34–40, Wood v. Arnold, (No. 8:16-cv-00239-GJH), 2016 WL 6136525 (D. Md. Oct. 11, 2016).

[14] Corrected Brief for Defendants-Appellants at 13, Wood v. Arnold, 915 F.3d 308 (No. 18-1430) (4th Cir. 2019).

[15] Id. at 19–21.

[16] Id. at 22–24.

[17] Id. at 25–26.

[18] See id. at 31.

[19] Wood v. Arnold, 915 F.3d 308, 314 (4th Cir. 2019).

[20] Lemon v. Kurtzman, 403 U.S. 602 (1971).

[21] Wood, 915 F.3d at 314–15 (citingLambeth v. Bd. of Comm’rs of Davidson Cty., 407 F.3d 266, 271 (4th Cir. 2005)). 

[22] Id. at 315 (citing Glassman v. Arlington Cty., 628 F. 3d 140, 146 (4th Cir. 2010)).  

[23] Id. at 315 (citing Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 255 (1963)).

[24] Id. at 317.

[25] Id. at 316 (citing Cty. of Alleghany v. ACLU, 492 U.S. 573, 592–94 (1989)).

[26] Id. at 317 (citingLee v. Weisman, 505 U.S. 577, 598–99 (1992)).

[27] Id. at 317–18.

[28] Id. at 318.

[29] Id. at 319 (citingGreater Balt. Ctr. for Pregnancy Concerns, Inc. v. Mayor of Balt., 879 F. 3d 101, 107 (4th Cir. 2018)).

[30] Id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)).

[31] Id. (citing C.N. v. Ridgewood Bd. of Educ., 430 F. 3d 159, 187 (3d Cir. 2005)).

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15Feb

Weekly Roundup – 2/11–2/15

Categories: 4th Cir. Blog Weekly Roundup
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By Thomas Cain and Noah Hock

Wood v. Arnold

In this civil case, Appellant Wood claimed teaching and assessment materials from a high school world history class violated her First Amendment rights under either the Establishment Clause or the Free Speech Clause.  At issue were a statement comparing Islamic and Christian faiths and a worksheet requiring Wood to demonstrate her knowledge of some of the tenets of Islam.  Considering the challenged materials within the context of the world history curriculum, the Fourth Circuit found the materials did not violate the Establishment Clause because they did not impermissibly endorse any religion and did not violate the Free Speech Clause because they did not compel Wood to profess any religious belief.  As such, the Fourth Circuit affirmed the District Court’s ruling granting summary judgment in favor of the defendants.

Rodriguez-Arias v. Whitaker

In this case, Petitioner Rodriguez-Arias sought review of the final order of the Board of Immigration Appeals (BIA) which denied his claim for protection under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).  The Fourth Circuit joined the Ninth and Third circuits in holding that when deciding a CAT case, the risks of torture from all sources should be combined when determining whether a CAT applicant is more likely than not to be tortured in a particular country.  The Court held that the BIA failed to properly aggregate the risks of torture and failed to meaningfully engage with the documentary and additional evidence about the risk of torture that Petitioner faces in El Salvador.  Thus, the Court vacated the BIA’s order and remanded the case for further proceedings consistent with this opinion.

Norfolk Southern Railway Company v. City of Roanoke

In this civil case, Appellant Norfolk Southern Railway sought review of the district court’s order granting summary judgment for the City of Roanoke on Appellant’s claims of discriminatory taxation in violation of the Railroad Revitalization and Regulatory Reform Act of 1976 (4-R Act).  The case hinged on the characterization of the “stormwater management charge” as either a tax or a fee.  After weighing the relevant factors, the Fourth Circuit ultimately held that the charge was a fee, as it was more so a part of a regulatory scheme with the purpose whose purpose is to remedy the environmental harms and to hold stormwater dischargers responsible.  Thus, the Fourth Circuit affirmed the district court’s decision granting summary judgement for the defendants because only taxes are subject to challenge under the 4-R Act.

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21Nov

Fourth Circuit Grants Hearing On New Presidential Proclamation Limiting Immigration

Categories: 4th Cir. Blog Issues in the 4th Circuit
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By Hailey Cleek & Raquel Macgregor

On November 6th, the Fourth Circuit granted a hearing en banc to review President Trump’s third Executive Order iteration on immigration. The new Presidential Proclamation (“Proclamation”), like its predecessors, restricts immigration from several Muslim-majority countries. The case was appealed to the Fourth Circuit after the District Court of Maryland granted in part a preliminary injunction blocking the new Proclamation.[1] Given the past Fourth Circuit and Supreme Court rulings blocking President Trump’s first two Executive Orders, the Fourth Circuit is likely to affirm the injunction in part.

The Fourth Circuit Struck Down the Previous Executive Order

In March of 2017, the Fourth Circuit largely upheld the Maryland District Court’s ruling blocking implementation of an Executive Order signed by President Donald Trump.[2] In the Executive Order, the Trump Administration had temporarily suspended new visas for travelers from six Muslim-majority countries for ninety days and the admission of new refugees into the United States for 120 days.[3] The Fourth Circuit held that the Executive Order violated the Establishment Clause because it was motivated by a discriminatory animus toward Muslims.[4] The Supreme Court then granted certiorari and partially stayed the injunction. Furthermore, because the Fourth Circuit Order had expired by “its own terms” on September 24, 2017, the Supreme Court vacated the judgment, as the appeal no longer presented a “live case or controversy.”[5]

The New Presidential Proclamation

On September 27, 2017, President Trump issued a new Presidential Proclamation. This Proclamation keeps restrictions on five of the six original countries (Iran, Libya, Somalia, Syria, and Yemen), lifts restrictions on visitors from the Sudan, and adds new restrictions on visitors and immigrants from Chad, North Korea, and Venezuela.[6] In both previous executive orders, all banned countries were majority Muslim. However, the Proclamation now includes two non-majority Muslim countries: North Korea and Venezuela.[7]

The new restrictions vary by country. Immigrants and nonimmigrants from Chad, Libya, and Yemen are barred from entry into the United States, on business, tourism, or through business-tourist visas.[8] Likewise, Iranian citizens are barred from entry with an exception for students, provided that they receive extra screening.[9] The Proclamation also bars immigrants and nonimmigrants from North Korea and Syria as well as immigration by citizens of Somalia.[10] Yet, the restrictions placed on Venezuela only impacts Venezuelan government officials and their families.[11]

Despite the changes to the immigration order, the Maryland District Court enjoined Section 2 of the Proclamation. In order to obtain a preliminary injunction, plaintiffs must show that: “(1) they are likely to succeed on the merits, (2) they are likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of equities tip in their favor, and (4) the injunction is in the public interest.”[12] The district court ultimately found that Plaintiffs were likely to succeed on their Establishment Clause claim and that the Proclamation likely violates §1152(a) of the Immigration and Nationality Act (“INA”) which prohibits discrimination based on nationality in issuing immigrant visas. Yet, the court found that the balance of equities only allowed enjoining the Proclamation on behalf of “individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”[13] Thus, the injunction bars the Proclamation’s impact on individuals with immediate family members in the United States. Moreover, the injunction does not apply to individuals traveling from Venezuela or North Korea as Plaintiffs have not demonstrated how individuals from those countries with a bona fide relationship with the United States will be harmed.

Arguments for Upholding the Presidential Proclamation

In the appellant’s opening brief, the government argues that the district court abused its discretion in granting a preliminary injunction because the President’s actions are not subject to judicial review and the elements required to grant a preliminary injunction are not satisfied. Regarding justiciability, the government contends that a denial of a visa is not subject to judicial review.[14] Yet, this argument blatantly ignores that the Supreme Court allowed judicial review of the past two executive orders.[15]

However, the government focuses its brief on its likelihood of success on the merits under both the plaintiff’s statutory and constitutional claims. First, the government argues that the Proclamation is consistent with the INA because the President has broad discretion to suspend entry of aliens whenever they “would be detrimental to the interests of the United States” under 8 U.S.C. §1182(f).[16] The government contends that 8 U.S.C. §1152(a)(1)(A), which prohibits discrimination of nationality in the issuance of immigrant visas, does not in fact conflict with the President’s broad discretion.[17] Instead, the government dubiously claims that the prohibition against nationality discrimination only applies after the President has full discretion to “limit the universe of individuals eligible to receive visas,”[18] which would effectively render §1152(a)(1)(A) meaningless.

The largest hurdle President Trump will face is convincing the court that the purpose of this Proclamation differs from his previous executive orders. In response to plaintiff’s establishment claim, the government claims that because the ban no longer targets only Muslim-majority countries (given the addition of North Korea and Venezuela), the purpose behind the Proclamation is to protect the United States from terrorism. The Proclamation asserts that it has singled out Chad, Iran, Libya, North Korea, Syria, Venezuela, Yemen, and Somalia after a “global review” by the Department of Homeland Security (“DHS”) and Department of State which identified these countries as having “inadequate practices or otherwise present heightened risks.”[19] Thus, by relying on the DHS review, the Proclamation has distinguished itself from previous travel limitation executive orders. Yet, this argument will likely face significant criticism given that the Proclamation included Somalia, a majority Muslim country, in its list of restricted countries even though the DHS report deemed the country to have adequate information-sharing practices.[20]

Arguments against the Presidential Proclamation

Plaintiffs assert that the Proclamation violates various provisions of the INA.[21] Primarily, plaintiffs argue that the Proclamation violates § 1152(a) of the INA,[22] which bars discrimination on the basis of nationality in the issuance of immigrant visas. Specifically, §1152(a) provides that, with certain exceptions: “No person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of his race, sex, nationality, place of birth, or place of residence[.]”[23] The Maryland District Court already considered the “interplay” between § 1182(f) and § 1152(a) and concluded that the President’s authority under § 1182(f) is limited by the § 1152(a) bar on discrimination based on nationality in the issuance of immigrant visas.[24] While the government could argue that the suspension of entry is not analogous to the issuance of visas, Judge Thacker of the 4th Circuit has already suggested that this argument will not be successful.[25] Here, unlike previous travel limitations used by both Presidents Reagan and Carter, the Proclamation has no end date and no requirement of renewal.[26] This creates a permanent ban on immigration from the Designated Countries, thus stopping the issuance of immigrant visas indefinitely. Thus, the bar on entry is equivalent to a ban on issuing immigrant visas based on nationality. Moreover, the Ninth Circuit found that the executive order violated the INA’s prohibition on nationality-based discrimination in the issuance of immigrant visas.[27] Consequently, plaintiffs are likely to succeed on their claim that the Proclamation violates § 1152(a) non-discrimination.

Plaintiffs argue that the Proclamation violates the Establishment Clause. Citing Larson v. Valente, the plaintiffs contend that the “primary effect” of the Proclamation “burden[s] . . . [a] selected religious denomination” through its immigration restrictions which overwhelmingly impact Muslims.[28] Moreover, under the Lemon v. Kurtzman[29] framework, to withstand an Establishment Clause challenge: (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster ‘an excessive government entanglement with religion.’”[30] Challengers argue that this new Proclamation, similar to the last two executive orders, is primarily motivated by religious intolerance. Despite the “changed nomenclature” and selective inclusions of agency recommendations, the very first line of the order identifies the Proclamation as an “outgrowth” of the previous Executive Order attempts to limit travel.[31] Moreover, the Trump administration’s public statements about the new Proclamation indicate that it is the same in substance to the previous executive orders and that changes are “mostly minor technical differences.”[32] Plaintiffs in the Fourth Circuit highlight that “contours of the ban” still reflect a “religious ‘gerrymander.’”[33] Thus, Plaintiffs will argue that the Proclamation is still animated by the desire to ban Muslims, violating the Establishment Clause’s commend that the Government not target or disfavor people based on their religion.

Lastly, the government’s own delay in implementing the Proclamation spurs skepticism. The Trump administration has repeatedly emphasized the need for immediate action in crafting the travel bans.[34] The Proclamation details that the President “act[s] to protect the security and interests of the United States and its people.”[35] Yet, despite the government’s claims for urgency in halting travel, the Executive Order deferred implementation of the bulk of its restrictions for almost a month.[36] Thus, the government has undermined its own claims of urgency by delaying implementation while still not correcting deficiencies that made prior orders unlawful.

Conclusion

The Fourth Circuit is likely to side with Plaintiffs in granting an injunction in part given both the district court’s preliminary injunction as well as the Fourth Circuit and Supreme Court’s past partial injunctions. While the newest rendition of the ban attempts to distance itself from the religious animus that motivated the first two Executive Orders, the new Proclamation is largely still motivated by a non-secular purpose. Following the language of the Supreme Court, the Fourth Circuit’s decision will likely center on whether individuals from the Designated Countries have a “credible claim of a bona fide relationship with a person or entity in the United States.”[37] Thus, the Fourth Circuit will likely enjoin the Proclamation from barring entry to individuals that have immediate family members in the United States.

_______________

[1] Presidential Proclamation No. 9645, 82 Fed. Reg. 45161 (Sept. 27, 2017).

[2] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017), vacated No. 16-1436, 2017 WL 4518553.

[3]  Exec. Order No. 13,780, 82 Fed. Reg. 13209 (Mar. 9, 2017).

[4] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 557 (4th Cir. 2017).

[5] See Trump v. Int’l Refugee Assistance Project, No. 16-1436, 2017 WL 4518553, at *1 (Oct. 10, 2017).

[6] Pete Williams, Trump Restricts Visas From Eight Countries as Travel Order Expires, NBC News (Sept. 25, 2017, 8:35 AM), https://www.nbcnews.com/politics/immigration/trump-restricts-visas-eight-countries-travel-order-expires-n804366.

[7] See Proclamation, supra note 1.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *40 (D. Md. Oct. 17, 2017).

[13] Id. at *88; see Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

[14] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[15] See generally Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017).

[16] First Cross-Appeal Brief for Appellants at 19, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[17] Id. at 34-35.

[18] Id. at 35.

[19] Id. at 1.

[20] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *78 (D. Md. Oct. 17, 2017).

[21] First Cross-Appeal Brief for Appellees at 23, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017).

[22] 8 U.S.C. § 1152(a) (2012).

[23] 8 U.S.C. § 1152(a)(1)(A) (2012).

[24] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *20 (D. Md. Oct. 17, 2017).

[25] Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 637 (4th Cir. 2017), (Thacker, J., concurring) (“Here, the ultimate effect of what EO–2 actually does is require executive agencies to deny visas based on nationality.”).

[26] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *21 (D. Md. Oct. 17, 2017).

[27] Hawaii v. Trump, 859 F.3d 741, 774, 779 (9th Cir. 2017).

[28] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Larson v. Valente, 456 U.S. 228, 255 (1982).

[29] 403 U.S. 602 (1971).

[30] Id. at 612–13.

[31] See Appellee’s Opposition to Motion to Stay at 4, Hawaii v. Trump, (9th Cir. 2017) (No. 17-17168); see Proclamation, supra note 1.

[32] Int’l Refugee Assistance Project v. Trump, No. CV TDC-17-0361, 2017 WL 4674314, at *70 (D. Md. Oct. 17, 2017).

[33] First Cross-Appeal Brief for Appellees at 53, Int’l Refugee Assistance Project v. Trump, No. 17-2231 (4th Cir. Nov. 1, 2017) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533–35, 538 (1993)).

[34] See Donald Trump (@realDonaldTrump), Twitter (June 3, 2017, 7:17 P.M.), https://twitter.com/realDonaldTrump/status/871143765473406976 (“We need the courts to give us back our rights. We need the Travel Ban as an extra level of safety!”); Aric Jenkins, Sean Spicer Says President Trump Considers His Tweets ‘Official’ White House Statements, Time (June 6, 2017), http://time.com/4808270/sean-spicer-donald-trump-twitter-statements (Former Press Secretary Sean Spicer has previously stated that the President’s tweets should be considered official statements).

[35] Proclamation, supra note 1.

[36] See id. (The Proclamation was announced on September 27th, yet many of the restrictions were not set to take effect until October 18th.).

[37] Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017).

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2Nov

Establishment Clause: Government Maintained Latin Cross Unconstitutional

Categories: 4th Cir. Blog Weekly Roundup
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WE, THE CITIZENS OF MARYLAND, TRUSTING IN GOD, THE SUPREME RULER OF THE UNIVERSE, PLEDGE FAITH IN OUR BROTHERS WHO GAVE THEIR ALL IN THE WORLD WAR TO MAKE THE WORLD SAFE FOR DEMOCRACY. THEIR MORTAL BODIES HAVE TURNED TO DUST. BUT THEIR SPIRIT LIVES TO GUIDE US THROUGH LIFE IN THE WAY OF GODLINESS, JUSTICE, AND LIBERTY.
WITH OUR MOTTO, “ONE GOD, ONE COUNTRY AND ONE FLAG,” WE CONTRIBUTE TO THIS MEMORIAL CROSS COMMEMORATING THE MEMORY OF THOSE WHO HAVE NOT DIED IN VAIN.

By: Robert Tucci

On Wednesday, October 18, 2017, the Fourth Circuit issued a published opinion in American Humanist Association v. Maryland-National Capital Park & Planning Commission. Several residents of Prince George’s County, Maryland, along with the American Humanist Association (“AHA”) – a non-profit organization dedicated to upholding the founding principle of separation of church and state – brought suit against a Maryland government agency, claiming that the government’s maintenance of a 40-foot tall World War I Latin Cross monument violated the Establishment Clause. The district court granted summary judgment for the government, and the plaintiffs appealed. The Fourth Circuit reversed and remanded the decision of the lower court, finding that the Cross violated the second and third prongs of the Lemon test.

Facts and Procedural History

On September 28, 1919, several private organizers held a groundbreaking ceremony on land owned by the city of Bladensburg, Maryland, to begin erecting a giant 40-foot Latin Cross memorial. The Cross was built next to a pre-existing plaque which was placed to honor 49 World War I United States soldiers. To fund the construction of the Cross, the private organizers obtained funding from private donors. The donors were required to sign a pledge sheet, which recognized the existence of “one god” (text of pledge sheet above).

The private organizers ran out of money in 1922 to continue funding the project. As a result, a local post of the American Legion stepped in to continue fundraising and construction of the Cross. Several of the Legion’s fundraising and memorial services concerning the Cross, both before and after construction was completed, contained exclusively sectarian Christian activities. Such activities included prayers at invocations and benedictions, Sunday worship service, speaker-led prayers, and singing Christian hymns. The Legion completed construction in 1925, and placed the four-story tall Latin Cross in the median of a three-way highway intersection in Bladensburg.

On March 1, 1961, the Maryland-National Capital Park and Planning Commission (“Commission”), a Maryland government agency, obtained title to the Cross and the land beneath it. The Commission claimed it acquired the Cross for safety reasons due to the proximity of the Cross to a busy highway. Since 1961, the Commission has spent $117,000 to maintain and repair the Cross, with an additional $100,000 set aside in 2008 for future repairs.

The Cross is part of the Bladensburg Veterans Memorial Park. All other monuments in the park are ten feet tall or shorter, devoid of religious iconography, and located at least 200 feet from the Cross. The Legion’s symbol (a small star inscribed with “U.S.”) is attached near the top of the Cross, and an American flag resides near the Cross. The plaque honoring the 49 soldiers sits on an obscured corner on the Cross’s rectangular base, and has been weathered to the point of being illegible.

The AHA and several non-Christian residents of Prince George’s County, who faced multiple instances of unwelcome contact with the Cross while driving, filed suit against the Commission, claiming that the Cross amounts to government affiliation with Christianity. The AHA and residents sought a declaratory judgment that the Commission’s conduct violates the Establishment Clause and the plaintiffs’ constitutional rights, an injunction enjoining the Commission from displaying the Cross on public property, nominal damages, and attorney’s fees and costs.

Both sides filed cross-motions for summary judgment, with the district court granting summary judgment to the Commission. The district court found that the Commission and Cross satisfied the three prong test set out in Lemon v. Kurtzman. The plaintiffs subsequently appealed to the Fourth Circuit.

Do Plaintiffs Have Standing to Sue?

The Court first analyzed the Commission’s argument that the plaintiffs lack standing to bring suit. The Commission contended that the plaintiffs had not “forgone any legal rights” as a result of the Commission’s conduct. The Court rejected this argument, stating that “[a]n Establishment Clause claim is justiciable even when plaintiffs claim noneconomic or intangible injury.” Specifically, the Court found that the non-AHA plaintiffs have standing due to their alleged unwelcome direct contact with the Cross, and that the AHA has standing to sue because an association can sue on behalf of its members if the members would also have standing to sue on their own.

Does Van Orden Control?

The Court then turned to the Commission’s argument that the holding in Van Orden v. Perry, rather than the Lemon test, should control. Van Orden dealt with a similar issue of whether a monument displaying the Ten Commandments on government property violated the Establishment Clause. The Court acknowledged that the plurality opinion in Van Orden is favorable to the Commission, but declined to follow it due to Justice Breyer’s controlling (and limiting) concurrence.

In his concurrence, Justice Breyer lays out several non-exhaustive factors for evaluating monuments eliciting both a secular and non-secular purpose, including: (1) the circumstances surrounding the monument’s placement; (2) its physical setting; and (3) the length of time it remains unchallenged. However, the Court noted that Justice Breyer reaffirmed Lemon by saying that it is a “useful guidepost[],” and remains a “more formal Establishment Clause test[].” Thus, the Court chose to apply the Lemon test, while giving due consideration to the Van Orden factors.

Does the Bladensburg Cross Satisfy the Lemon Test?

Next, the Court analyzed whether the Bladensburg Cross is constitutional under the Lemon test. A government display is constitutional under the Lemon test if it satisfies three prongs: (1) the display has a secular purpose; (2) the display does not have a “principle or primary effect” that advances, inhibits, or endorses religion; and (3) the display does not foster “an excessive entanglement between government and religion.” If the display violates even one prong, it is unconstitutional.

Secular Purpose

The Court held that the Cross satisfied the first prong of the Lemon test. The Court acknowledged that it is a fairly low burden to establish a secular purpose for a government display, because even if the display has “dual legitimate purposes” (one secular and one sectarian), it still satisfies the first prong of the Lemon test. The Commission articulated several secular reasons for displaying and maintaining the Cross, including ensuring safety near a busy highway, and the preservation of a significant war memorial. The Court found these to be legitimate secular reasons, thus finding that the Cross satisfied the first prong of the Lemon test.

Primary Effect

Next, the Court held the Cross violated the second prong of the Lemon test. The Court found the relevant question under the second prong to be “does the practice under review in fact convey a message of endorsement or disapproval of religion?” The Court stated that this question must be answered from the perspective of a “reasonable observer” – someone who “must be deemed aware of the history and context of the community and forum in which the religious speech takes place.” Therefore, the Court found that a detailed factual analysis of the Cross’ meaning, history, and secularizing elements was required to determine its primary effect.

Under the “meaning” inquiry, the Court concluded that the Latin cross is the “preeminent symbol of Christianity,” one that is not a symbol of any other religion. The court went on to say that even the Latin cross’ supposed secular symbology of death and memorialization is tied to the Christian sectarian teaching of Jesus Christ’s death and resurrection. Further, the Court found the Latin cross differed from other religious monuments, like the Ten Commandments, as it is not tied to the United States’ history and government.

Turning to the “history” inquiry, the Court found that, while the history of Latin Cross’ in general favors the plaintiffs, the history of the Bladensburg cross does not favor either party over the other. The Court centered its analysis around the fact that the Cross has a “semisecular” history, as it has been the object of both sectarian Christian activities – including Christian prayers, Sunday services, and fundraising using the donor’s pledge above – and secular Veterans-focused ceremonies.

Finally, the Court determined that, while the Cross does contain a few secular elements, they are easily overshadowed by the sectarian ones. In coming to its conclusion, the Court cited the fact that the Cross is much larger than the rest of the monuments in the Bladensburg Veterans Memorial Park, is 200 feet or more from any of the other monument, and that the “immense size and prominence of the Cross necessarily ‘evokes a message of aggrandizement and universalization of religion, and not the message of individual memorialization and remembrance that is presented by a field of gravestones'” (referencing the Latin crosses in Arlington Cemetery).  Additionally, the Court emphasized the fact that the Christian iconography of the Cross was clearly visible to observers, while the secular symbols were hidden or obscured.

Ultimately, the Court concluded that a reasonable observer would “fairly understand the Cross to have the primary effect of endorsing religion,” as the factors above “collectively weigh in favor of concluding that the Cross endorses Christianity – not only above all other faiths, but also to their exclusion.” Thus, the Court held that the Cross violated the second prong of the Lemon test.

Excessive Entanglement

Lastly, the Court held that the Cross violated the third prong of the Lemon test. In coming to this determination, the Court said that excessive entanglement with religion “is a question of kind and degree,” and may include “pervasive monitoring or other maintenance by public authorities.” The Court found the Cross excessively entangles the government with religion for two reasons: (1) the Commission owns and maintains the Cross and the property it is displayed on, and (2) the Commission is displaying the “hallmark symbol of Christianity” in a very dominant and visible fashion that excludes all other religious iconography and tenants.

Conclusion

The Forth Circuit held that the Commission’s ownership and maintenance of the Bladensburg Cross violates the second and third prong of the Lemon test, and is an unconstitutional government endorsement of religion under the Establishment Clause. The Court reversed the decision of the district court and remanded the case for further proceedings.

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21Oct

Weekly Roundup – 10/14-10/21

Categories: 4th Cir. Blog Weekly Roundup
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American Humanist Association v. Maryland-National Capital Park

In this First Amendment case, the Fourth Circuit reversed the District Court’s ruling that a 40-foot tall Latin cross, established as a monument to fallen soldiers of World War I, did not violate the Establishment Clause. The entire panel found the plaintiffs had standing to challenge the monument’s constitutionality, and a majority found that the Lemon test was satisfied, with one judge dissenting. Consequently, the Fourth Circuit found the Latin cross unconstitutional and reversed.

Borzilleri v. Mosby

In this First Amendment case, the plaintiff was relieved of her position as Assistant State Attorney following the election of her new boss, the defendant-State Attorney. The plaintiff sought damages for violations of her freedom of association and speech. The Fourth Circuit, in upholding the District Court’s dismissal of all claims, found the defendant was entitled to qualified immunity under the theory of political patronage.

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