Government Liability Update

Because City Allowed Public to Fly Flags at City Hall, Flag Flying Was Not Government Speech, and City Violated First Amendment by Refusing to Fly Religious Flag

In Shurtleff v. City of Boston, published May 2, 2022, a unanimous U.S. Supreme Court reversed a district court and appellate court decision that the defendant city did not violate the First Amendment by declining to fly a religious flag.  The Boston City Hall has three flagpoles.  One flies the American flag, the second flies the Commonwealth of Massachusetts flag, and the third usually flies the city flag.  For years, the city has allowed groups to hold ceremonies on the city hall plaza and fly flags of the groups' choice, without city involvement in choosing or approving flags.  The plaintiff asked to hold an event on the plaza and fly what he described as the "Christian flag"--a red cross on a blue field against a white background.  The city declined, out of concern that flying a flag that favored a particular religion at city hall would violated the First Amendment's Establishment clause.  The plaintiff sued the city, alleging violation of the First Amendment's Speech Clause.  The district court granted the city judgment, and the appellate court affirmed.

The Supreme Court held that the city had violated the plaintiff's free-speech rights.  The Free Speech Clause does not prevent the government from declining to express a view.  The question was whether flying a flag on the third flagpole was government speech or private speech.  The boundary between government speech and private expression can blur when the government invites  people to participate in a program.  In those situations, the court conducts a holistic inquiry to determine whether the government intends to speak for itself, or to regulate private expression.  The court looks to the history of the expression at issue; how the public is likely to perceive who is communicating; and the extent to which the government has actively shaped or controlled the expression.  Applying that analysis here, the court held that a government flying a flag at the seat of government is traditionally seen as government speech.  The public's perception of the flags under the circumstances did not resolve the matter.  The most salient facts were that Boston neither actively controlled the flag raisings nor shaped the messages the flags sent.  The city had never refused to fly a group's flag as part of a ceremony until it refused the plaintiff's.  This led the Court to conclude the third-party flag raisings were private, not public, speech.  The city's refusal to let the plaintiff fly the flag based on a religious viewpoint violated the plaintiff's Free Speech rights by engaging in impermissible viewpoint discrimination.  Six justices joined the majority opinion.  One of those justices, and two others, filed concurring opinions.

Because Permitting Football Coach's Onfield Prayers, under the Circumstances, Would Violate the Establishment Clause, School District Did Not Violate His Rights by Firing Him

In Kennedy v. Bremerton School District, published March 18, 2021, the 9th Circuit Court of Appeals affirmed a district court's grant of summary judgment to the defendant school district.  The plaintiff, assistant coach' to a district high school's varsity football team and head coach to its junior varsity team, had religious beliefs that required him to pray on the field immediately after the game.  Over time, students joined him; at least one felt compelled to participate to avoid having his playing time reduced.  The district informed the plaintiff of its policy concerning religious related activities, which required that school staff neither encourage nor discourage student prayer.  The plaintiff initially complied by giving secular motivational talks.  He then informed the district that he would resume praying on the fifty-yard line immediately after the conclusion of the game.  The plaintiff and his representatives appeared and announced on media what he would do.  At the game, the plaintiff prayed audibly, and a stampede of persons from the audience joined him.  The plaintiff then made numerous media appearances to spread the word of what had happened.  The district offered to allow the plaintiff to pray in a private location, or to pray on the field after the stands emptied.  The plaintiff maintained that he would continue.  The district placed the plaintiff on administrative leave. After they did so, members of the staff felt repercussions from the public because of the attention given to the plaintiff's acts.  At the end of his annual contact, the district recommended the plaintiff not be rehired.  The plaintiff alleged that his rights under the First Amendment and Title VII were violated.

The 9th Circuit first analyzed the plaintiff's free speech claim.  It determined, under the Pickering test, that he had spoken as a public employee, since his job involved communicating on the field.  Further, even if the plaintiff had spoken as a private citizen, the district's treatment of him differently from other members of the public was adequately justified.  An objective observer, familiar with the history of the plaintiff's on-field religious activity coupled with his efforts to generate publicity to gain approval of those activities, would view the district's allowance of that activity as stamped with the district's approval.  Because an objective observer would view that as an endorsement of the plaintiff's faith, the district's interest in avoiding an Establishment Clause violation justified its narrowly-tailored conduct in response, including offering the plaintiff an accommodation process the plaintiff declined to cooperate with.  As to the plaintiff's Title VII claims, the plaintiff failed to establish a prima facie claim of religious discrimination, because similarly-situated employees outside his protected class were not treated more favorably.  While the plaintiff established a prima facie claim for failure to accommodate religious beliefs, the district carried its burden of showing an attempt to accommodate the plaintiff.

Pandemic Order Limiting Church Attendance to 50 or More Subject to Strict Scrutiny

In Calvary Chapel Dayton Valley v. Sisolak, published December 15, 2020, the 9th Circuit reversed a district court's order denying a church a preliminary injunction against the Governor of Nevada's emergency directive prohibiting gatherings of 50 or more people in any indoor or outdoor area, including houses of worship.  The same directive allows retail businesses and various other businesses to cap attendance at 50% of their fire-code capacities.  

The 9th Circuit held that the Supreme Court's decision in Roman Catholic Diocese of Brooklyn v. Cuomo--which "arguably represented a seismic shift in Free Exercise Law"--compelled the result in this case.  The directive treats numerous secular activities and entities significantly better than religious worship services.  It therefore creates a disparate treatment of religion, triggering strict scrutiny.  The directive must be narrowly tailored to serve a compelling state interest.  The directive is not narrowly tailored, because maximum capacity could be tied to the size of the house of worship, instead of imposing a fifty-person cap regardless of size.  The church therefore demonstrated a likelihood of success on the merits and that enforcement of the directive would cause irreparable harm.  The 9th Circuit preliminarily enjoined the state from imposing attendance limits on in-person services in houses of worship that are less favorable than 25% of the fire-code capacity.

Supreme Court Issues Preliminary Injunction in Cases Challenging Pandemic Restrictions on Places of Worship

In Roman Catholic Diocese of New York v. Cuomo, published November 25, 2020, a split Supreme Court granted an application for injunctive relief enjoining the Governor of New York State from enforcing executive orders imposing restrictions on places of worship of from 25 people to 10 people, depending on whether the areas have been classified as "orange" or "red" zones.  The plaintiff religious organizations presented evidence that they have complied with all public health guidance, and have operated at 25% to 33% capacity for months without any COVID-19 outbreaks.  They contended that the restrictions treat houses of worship much more harshly than secular businesses.  The Orthodox Jewish organization plaintiff cited comments the governor had made to argue that the governor had deliberately targeted the Orthodox Jewish community.

The majority opinion, per curiam, granted the injunction.  On the prong of likelihood of success on the merits, the applicants had made a strong showing that the restrictions violate the minimum requirement of neutrality to religion.  Apart from the governor's comments, they single out houses of worship for especially harsh treatment that does not apply to secular businesses deemed essential, which have no limits on the number of people that may be served.  Because the restrictions are not neutral, they must satisfy strict scrutiny, and be narrowly tailors to serve a compelling state interest.  Stemming the spread of COVID-19 is a compelling state interest.  But the restrictions are not narrowly tailored.  They are more restrictive than the other  COVID-19 restrictions that have come before the Supreme Court, are more restrictive than those adopted by other jurisdictions, and more restrictive than necessary.  There was no evidence that the applicants had contributed to the spread of the disease.  There are less restrictive rules that could be adopted, such as tying the cap on attendance to the size of the church or synagogue.  The harm of the restrictions would be irreparable: the loss of First Amendment freedoms, even for a limited time, is irreparable injury.  Since it has not been shown that attendance at the services will spread the disease, the injunction will not harm the public.  The majority rejected the dissent's opinion that the request was moot because the governor reclassified the areas affected to yellow, allowing 25% capacity at services.  Because of the time another application could take, and the possibility the governor will reclassify the areas again, the majority saw no reason to withhold relief.  "Members of this Court are not public health experts," the majority wrote, "and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic,
the Constitution cannot be put away and forgotten."

Justices Gorsuch and Kavanaugh wrote concurring opinions.  Justice Roberts dissented on the ground that he opined the restrictions were moot.  Justice Breyer (with Justices Sotomayor and Kagan joining) opined that there was no need for an injunction; that the requirements for an injunction were not met; and that in light of the health emergency officials should be free to act to impose restrictions.  Justice Sotomayor (joined by Justice Kagan) dissented that under the orders dealing with previous applications for injunctions against COVID-19 restrictions brought by houses of worship, the restriction passed muster as no more restrictive than rules governing concerts, live performances, etc.

Parents May Not Attempt to Control School Curricula on Religion by Bringing Constitutional Challenges

In CAPEEM V. Torlakson, published September 3, 2020, the 9th Circuit Court of Appeals affirmed  judgment in favor of the State Board of Education and State Department of Education against a challenge brought by parents of Hindu children in California state schools.  The state defendants developed model curriculum outlines concerning the history of the world's first major religions.  The plaintiffs contended that the outlines carry a hostile and denigrating message about the origins of Hinduism when compared with similar provisions relating to other religions of the world.  They brought challenges to the outlines as violating their rights under Due Process, Equal Protection, and the Establishment and Free Exercise clauses of the First Amendment.  The district court dismissed all claims except an Establishment Clause claim, and then granted summary judgment on that claim.

The appellate court affirmed.  The Equal Protection claims fail because precedent bars attempts to control school curricula through Equal Protection challenges absent evidence of unlawful discriminatory intent.  The plaintiffs failed to articulate any discriminatory intent. Nor do their challenges to the adoption of the outlines show violation of Equal Protection because the drafters allegedly did not accept their proposed edits while accepting proposed edits from other religions.  Absent discriminatory intent, they cannot challenge the content of the curricula based on Equal Protection.  The court properly dismissed the Free Exercise challenge because the plaintiffs failed to articulate any burden on their exercise or practice of their religion.  They allege no penalty or coerced conduct.  The parents' Substantive Due Process rights to make decisions in their children's upbringing do not extend beyond the school door.  In regard to the Establishment Claim, the district court properly excluded the plaintiffs' expert declaration interpreting the outlines, because the issue was how a reasonable person, rather than an expert, would view them.  The court rejected the argument that the outlines established other religions by treating them better than Hinduism.  An objective reading of the material did not establish anything from the other religions as historically accurate, and did not denigrate Hinduism.

School Board's Policy of Opening Meetings with Prayer Violates Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, published July 25, 2018, the 9th Circuit affirmed the district court's grant of summary judgment and injunctive relief against the defendant school board.  The board instituted a policy of beginning each meeting with a prayer.  A rotating set of presenters, from a list, delivered the invocations.  Usually invited clergy delivered the prayers.  On some occasions, board members led the prayers. School board members made proselytizing remarks concerning Christianity in relation to the invocations.  Minor students, from grade school to high school age, took part in the school board meetings.  The injunction barred the board members from conducting, permitting, or endorsing school-sponsored prayers in board meetings.

The 9th Circuit agreed that under the circumstances the prayer policy violated the Establishment Clause of the First Amendment.  The court ruled that the prayer did not fall under the legislative-prayer tradition that permits certain types of prayers to open legislative sessions:  solemnizing and unifying prayers aimed at the legislators themselves, conducted before an audience of mature adults.  Instead, they are delivered before a group of minor students whose presence is not voluntary and whose relationship to board members (unlike a constituent's relationship to a legislature) is not one of full parity.  Further, the historical tradition of legislative prayer does not apply to school board prayer; at the time of the framing, free public education was virtually nonexistent.  The framers therefore could not have contemplated whether opening prayers at a government-run school board's meeting would violate the Establishment Clause.  The Lemon v. Kurtzman test for determining impermissible establishment of religion therefore applies.  The prayer policy fails that test, because it lacks a secular legislative purpose.  Government action violates that prong of Lemon when the government's predominant purpose is to advance or favor religion.  In evaluating purpose, the court takes the statements of public officials into account.  Shortly after the policy was adopted, a board member stated the policy's purpose was to further Christianity.  Further, there is no secular ground for limiting solemnization of meetings to prayers or presuppose the solemnizers will be religious leaders.  The expressed purpose of demonstrating tolerance for religious diversity fails, because there are many non-Christian faiths in California whose membership lacks a "critical mass" in the district to sustain a community there.  The invocation policy therefore reinforces the dominance of particular religious traditions.  Further, the policy does not embrace nonreligious belief systems.  Further, the policy fosters an impermissible entanglement between religion and government. 

Police Interruption of Prayer for Valid Law Enforcement or Investigation Purpose Does Not Violate First Amendment

In Sause v. Bauer, published June 28, 2018, the U.S. Supreme Court, per curiam, reversed a Circuit Court decision affirming dismissal of a suit against police officers under 42 U.S.C. section 1983.  The plaintiff, suing pro se, alleged that officers investigating a noise complaint gained entrance to her apartment and engaged in abusive behavior.  One allegation was that when the plaintiff knelt and began praying, one of the officers ordered her to stop.  The complaint alleged violation of the plaintiff's rights under the First and Fourth Amendments.  The district court dismissed the complaint based on qualified immunity.  On appeal, the plaintiff, represented by counsel, argued only that the officers interfered with her right to free exercise of religion.  The circuit court affirmed on the ground of qualified immunity.

The court ruled that while prayer is the exercise of religion, there are circumstances where an officer may lawfully prevent a person from praying at a particular time and place.  For instance, a suspect ordered to enter a police vehicle during an arrest cannot delay transport to jail by praying.  Where a police officer's order to stop praying occurs during a police investigation, the First and Fourth Amendment rights may become inextricable.  Here, the plaintiff's complaint did not explain whether the officers were in the plaintiff's apartment with or without her consent, whether they had a legitimate law enforcement ground for being there, or what if anything the officers wanted her to do when they ordered her to stop praying.  Although the plaintiff proceeded only on her First Amendment claim on appeal, that claim could not be analyzed without considering whether the officers had valid grounds under the Fourth Amendment for their actions.

First Amendment Establishment Clause Does Not Bar Sectarian Prayers at City Council Meetings

In Town of Greece v. Galloway (2014) __U.S.__, 134 S.Ct. 1811, published May 5, 2014,   the U.S. Supreme Court upheld summary judgment granted for the defendant town in a lawsuit that challenged the prayers delivered at city council meetings. Because most of the houses of worship in the town were Christian, most of the volunteer clergy who delivered the prayers were Christian. Some of the clergy delivered prayers that were sectarian. The plaintiffs alleged that this conduct violated the Establishment Clause of the First Amendment to the United States Constitution.

All of the justices held that the Establishment Clause permits sectarian prayer at city council meetings. The court applied the Establishment Clause test formulated in Marsh v. Chambers (1983) 463 U.S. 783, which held that opening state legislature sessions with a prayer by a chaplin did not violate the Establishment Clause. Under Marsh, the Establishment Clause is interpreted by reference to historical practices and understandings.

Justices Kennedy, Roberts, Alito, Scalia, and Thomas held that the history of the Establishment Clause does not support barring sectarian prayers, and that involving government as supervisors and censors of religious speech would violate the Clause. Absent a pattern of prayers that over time denigrates other faiths, proselytizes, or betrays an impermissible government purpose, the majority held, a challenge based solely on the content of a prayer is unlikely to establish a constitutional violation. The majority further held that so long as the town maintained a policy of nondiscrimination, and made reasonable efforts to permit any faith to provide a prayer, it did not contravene the Establishment Clause by inviting a predominantly Christian set of ministers to deliver prayers. Kennedy, Roberts, and Alito also rejected the argument that the prayers were unduly coercive because citizens coming before the council who did not participate in prayers might feel singled out. If town board members had directed the public to participate in the prayers, singled out dissidents, or indicated that their decisions might be influenced by whether the person prayed, the result might be different. Offense the dissenters might feel did not equate to coercion. A pattern of prayers might show coercion that might violate the Establishment clause.Justices Alito and Scalia wrote separately to emphasize that the Establishment Clause does not call for generic prayers.

JusticesThomas and Scalia wrote separately to opine that the Establishment Clause does not apply to cities; and that in any event the prayers were not coercive in the sense of the prayers that the founding fathers found objectionable.

Justices Breyer, Kagen, Ginsberg, and Sotomayor, dissenting, opined that the prayers in this case were too sectarian, that too little effort was made to locate non-Christian clergy, and that under the circumstances the prayers were coercive.

It is unclear how Town of Greece will be applied in California courts, in light of the California Constitution’s broader provisions guaranteeing “free exercise and enjoyment of religion without discrimination or preference” (art. I, § 4) and prohibiting governmental aid to religion (art. XVI, § 5.) See Sands v. Morongo Unified School Dist. (1991) 53 Cal.3d 863. Rubin v. City of Burbank (2002) 101 Cal.App.4th 1194, which holds that the First Amendment of the U.S. Constitution bars sectarian invocations at city council meetings, seems unlikely to survive the ruling in Town of Greece.

Ninth Circuit Rules Privately-Led Prayers Opening City Government Meetings That Mention Jesus Do Not Violate First Amendment

In Rubin v. City of Lancaster, published March 26, 2013, the Ninth Circuit Court of Appeals rejected a First Amendment challenge to a city's practice of inviting clergy from the community to lead prayers at the opening of city council meetings.  The plaintiffs argued that a majority of the prayer leaders were Christian, as were the council members, and that a prayer had mentioned Jesus.  After reviewing the history of case law on the subject, the court concluded that in light of the safeguards the city took (inviting prayer leaders without regard to their religion, and asking that they not attempt to proselytize or criticize other religions), neither the invocation of Jesus nor the fact that most of the speakers were Christian (a consequence of the city's demographics) amounted to unconstitutional establishment of religion.  In so ruling, it joined a divide between federal circuits on the subject.  It also ruled that the prayers did not violate the California Constitution.