ISSUES: 2005 WINTER TERM
SYNOPSES OF CASES

On January 17, 2005, the Evergreen Supreme Court granted a writ of certiorari in the following seven cases:

No. W2005-01

McCreary County, Kentucky
v.
American Civil Liberties Union of Kentucky

On a Writ of Certiorari to the
United States Court Of Appeals For The Sixth Circuit

Certain Kentucky courthouses and public school classrooms display framed copies of the Ten Commandments. Prior to the complaint brought by the plaintiff, these were displayed without accompanying documents. After litigation commenced, the defendants modified the displays to include other historical and legal documents.  Then, after the federal district court granted a preliminary injunction, the defendants altered the display once again, this time including such documents as the Star Spangled Banner, the Declaration of Independence, the Mayflower Compact, the Bill of Rights, the Magna Carta, and the National Motto (“In God We Trust”). The schools added a school board resolution; the courthouses affixed a prefatory document titled “The Foundations of American Law and Government Display.”

The Sixth Circuit Court of Appeals affirmed the federal district court’s grant of a preliminary injunction prohibiting the schools and courthouses from displaying the Ten Commandments. The Court of Appeals affirmed the federal district court’s opinion that the location of the displays in the courthouses and public schools had the effect of advancing religion in violation of the Establishment Clause of the First Amendment.  McCreary County petitioned the Evergreen Supreme Court for a writ of certiorari. It was granted on January 17, 2005.

No. W2005-02

Cutter
v.
Wilkinson

On a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

Ohio prisoners alleged that prisons officials violated the Religious Land Use and Institutionalized Persons Act (RLUIPA) by refusing to accommodate their religious beliefs and practices. The relevant provision of the Act [42 U.S.C.A. § 2000cc-1(a)] states that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution” unless the burden “is in furtherance of a compelling governmental interest” and “is the least restrictive means” of furthering that interest.

The defendant prison officials contended that RLUIPA was unconstitutional. Furthermore, they claimed that it had allowed inmate gangs to claim religious status in order to insulate their illicit activities from scrutiny. The United States intervened on the side of the prisoners in order to defend the constitutionality of the statute.  The federal district court denied the defendants’ motion to dismiss. The Sixth Circuit Court of Appeals reversed, concluding that the RLUIPA provision in contention violated the Establishment Clause of the First Amendment because it favored religious rights over other fundamental rights without any showing that religious rights were at any greater risk of deprivation.  The Evergreen Supreme Court granted a writ of certiorari on January 17, 2005.

No. W2005-03

Catholic Charities of Sacramento, Inc.
v.
California

On a Writ of Certiorari to the California Supreme Court

In 1999, the Calfornia legislature enacted the Women’s Contraception Equity Act (WCEA) as a way of eliminating gender discrimination in health care benefits and to improve access to prescription contraceptives. Evidence before the Legislature showed that women during their reproductive years spent as much as 68 percent more than men in out-of-pocket health care costs, due in large part to the cost of prescription contraceptives and the various costs of unintended pregnancies, including health risks, premature deliveries and increased neonatal care. Evidence also showed that, while most health maintenance organizations (HMO's) covered prescription contraceptives, not all preferred provider organization (PPO) and indemnity plans did. As a result, approximately 10 percent of commercially insured Californians did not have coverage for prescription contraceptives.

The Legislature chose to address these problems by regulating the terms of insurance contracts. Under the WCEA, certain health and disability insurance plans that cover prescription drugs must cover prescription contraceptives. Catholic Charities, an organ of the Roman Catholic Church, was subject to that provision. While the statute provided an exemption for “religious employers,” it defined these narrowly as organizations that qualified as nonprofit under the federal tax code, for which the inculcation of religious values was the sole purpose, and which primarily employed and served only adherents of their own faith tradition. Because Catholic Charities did not meet any of these criteria, it was required to include contraceptives in the prescription plan that it provided to its employees.

Catholic Charities challenged the constitutionality of WCEA on a number of grounds, including the claim that the law impermissibly interferes with its autonomy as a religious organization and equally burdens its right of free exercise under the First Amendment. The superior court denied Catholic Charities’ motion for a preliminary injunction. The California Supreme Court upheld the state court of appeals’ denial of Catholic Charities’ petition to review the trial court’s ruling.  On December 1, 2004, Catholic Charities petitioned the Evergreen Supreme Court for a writ of certiorari.  The Court granted it on January 17, 2005.

No. W2005-04

Child Evangelism Foundation of Maryland

v.

Montgomery County Public Schools

On a Writ of Certiorari to the
United States Court of Appeals for the Fourth Circuit

The Child Evangelism Foundation of Maryland (CEF) describes itself as a non-profit "Bible-centered, worldwide organization composed of born-again believers whose purpose is to evangelize boys and girls with the Gospel of the Lord Jesus Christ and to establish (disciple) them in the local church for Christian living."  As one of its functions, CEF establishes Good News Clubs that meet in elementary schools throughout the country. During these meetings, the "children recite Bible verses, sing songs, play games, learn Bible stories, and pray under the leadership of trained staff who primarily are volunteers." Beginning in 1996, the Good News Club began holding after-school meetings in the elementary schools of Montgomery County. 

The School District permits certain governmental and non-profit organizations to use the "take-home flyer forum" in those schools to distribute flyers and permission slips for students to take home to their parents. Community groups must obtain prior administrative approval to use the forum. If approved, the organization is responsible for supplying the requisite number of flyers at its own expense.

CEF sought to have a flyer notifying parents of the Good News Club meetings and requesting permission for their child’s attendance included in the students’ take-home folders. The School District denied CEF’s request due to the "religious nature" of the Good News Club and concerns about separation of church and state. Claiming that the School District engaged in discriminatory treatment in violation of the Free Speech, Free Exercise, Establishment, and Equal Protection Clauses of the United States Constitution and the parallel provisions of the Maryland Constitution, CEF sued. The federal district court denied CEF’s request for a preliminary injunction with respect to the take-home flyer forum. The Fourth Circuit Court of Appeals, disagreeing that permitting CEF access to the take-home flyer forum would violate the Establishment Clause, reversed.  On January 17, 2005, the Evergreen Supreme Court granted the School District’s petition for a writ of certiorari.

No. W2005-05

Scottsdale Unified School District No. 48 v. Hills

On a Writ of Certiorari to the
United States Court of Appeals for the Ninth Circuit

Joseph Hills, an individual with experience teaching after-school programs and summer camps, decided to offer a nonprofit summer camp called the “Desert Mountain Summer Camp,” run by A Little Sonshine from Arizona, an Arizona nonprofit corporation of which Hills was president. He sought to advertise the camp by distributing a multi-page brochure to nine elementary schools in the Scottsdale Unified School District (District). The brochure described nineteen courses that would be offered, including classes in camping, gymnastics, golf, and elementary Spanish. There were also two classes entitled “Bible Heroes” and “Bible Tales.”

The District permits nonprofit organizations to distribute literature through its schools, promoting events and activities of interest to students, but prohibits any flyers of a “commercial, political or religious nature.” After some back and forth, the District ultimately refused to distribute Hills’s brochure. The brochure descriptions of the religious-themed courses included the following language:

…Come take an adventurous ride back into time with us, and learn about some
ordinary people whose faith in GOD helped them accomplish extraordinary
things! …We will explore Bible heroes from both the Old and New
Testaments, and of course we will learn about our Greatest example
JESUS. …[W}e have created this version of our Bible Heroes for the
little Guys and Gals! Did you know that if a child does not come to the
knowledge of JESUS CHRIST and learn of the importance of Bible reading
by the age 12 chances are slim that they ever will in this life?

The District also told Hills that he could resubmit his brochure and that it would be acceptable if he would remove descriptions of the Bible classes, change the spelling of “Sonshine” to “Sunshine,” omit graphics of the Bible, cross and dove, and incorporate a disclaimer into the brochure. Hills elected not to revise his brochure and instead brought suit in district court, alleging violations of his right to Free Speech, Free Exercise of Religion, Equal Protection and Due Process. The Ninth Circuit Court of Appeals reversed the federal district court’s grant of summary judgment to the District.  On January 17, 2005, the Evergreen Supreme Court granted the District’s petition for a writ of certiorari.
 

No. W2005-06

Steele
v.
Industrial Development Board of Metropolitan Government
of Nashville and Davidson County

On a Writ of Certiorari to the
United States Court of Appeals for the Sixth Circuit

David Lipscomb University (University), a Nashville, Tennessee liberal arts university founded in 1891, has an enrollment of approximately 2,500 students. It is affiliated with the Churches of Christ, and its primary mission has been to integrate Christian faith and practice with the pursuit of academic excellence.

During the early 1990s, the University undertook a major redevelopment project on its campus. To finance the project, Lipscomb sought a $15 million, low- interest loan from the Industrial Development Board. That Board approved the loan and financed it by issuing tax-exempt industrial development bonds worth $15 million. The bonds were typical of industrial revenue bonds that are commonly issued for educational or industrial purposes. The Board issued the bonds pursuant to its authority under state law for the financing of projects for "[a]ny nonprofit educational institution in any manner related to or in furtherance of the educational purposes of such institution, including but not limited to classroom, laboratory, housing, administrative, physical education, and medical research and treatment facilities." Tenn. Code Ann. § 7-53-101(11)(A)(vii) (1990 Supp.).

A group of state and local taxpayers’ legal challenge of the validity of the Board’s action alleged that the issuance of tax-exempt bonds for the University provided a benefit to a pervasively sectarian institution, thereby violating the Establishment Clause of the First Amendment to the United States Constitution. The federal district court agreed with the plaintiff taxpayers and issued a summary judgment in their favor. The Sixth Circuit Court of Appeals reversed the district court’s judgment upon finding that “the issuance of industrial revenue bonds to the University were part of a neutral program to benefit education, including that provided by sectarian institutions, and confers at best only an indirect benefit to the school….” On January 17, 2005, the Evergreen Supreme Court granted the taxpayers’ petition for a writ of certiorari.

No. W2005-07 

Jacoby (Bethel School District)
v.
Prince

On a Writ of Certiorari to the
nited States Court of Appeals for the Ninth Circuit

Tausha Prince, an eleventh grade student at Spanaway Lake High School, and other students established a Christian Bible club called the “World Changers.” The purpose of the club is to address issues of interest to students from a religious perspective, including service to the student body and the community, diversity and acceptance of all people, helping students to cope with daily pressures, as well as “celebrating” and “sharing” the Gospel of Jesus Christ.

The School refused to give World Changers official recognition as an Associated Student Body (ASB) non-curriculum-related club and informed the students that under District Policy 5525, religious organizations could be formed only as Policy 5525 clubs.  The benefits enjoyed by each group differ. The School District enacted this policy in an attempt to comply with the Equal Access Act. Modeled on section 4071(c) of the Act, the policy authorizes student sponsored and initiated groups to meet at the school, subject to approval by the principal. The policy provides for approval, so long as the groups 1) remain voluntary and student initiated; 2) are not sponsored by the school or its staff; 3) hold meetings that do not materially and substantially interfere with the orderly operation of the school; 4) require that students, rather than outsiders, be responsible for the direction, control, and conduct of the meetings; 5) do not require students to participate in any religious activity; 6) do not use school funds for other than incidental and/or monitoring costs; 7) do not compel any staff member to attend; and 8) respect the constitutional rights of all persons.

Tausha Prince challenged the school’s refusal to recognize her Bible club as an ASB organization. However, the federal district court ruled that the Equal Access Act and the Establishment Clause forbid offering a religious club the various advantages offered to other student clubs. The Ninth Circuit Court of Appeals disagreed.  Reversing, it held that the School District’s refusal to grant World Changers equal access to the school yearbook, audio-visual equipment, school supplies and school vehicles violated Prince’s rights under the Equal Access Act and the First Amendment.  On January 17, 2005, the Evergreen Supreme Court granted the School District’s petition for a writ of certiorari.