Federal Court Denies Religious School’s Request for Temporary Restraining Order

A few weeks ago, we reported on a new RLUIPA suit arising in Genoa Charter Township, Michigan, where Livingston Christian Schools is suing the Township over the denial of a special land use permit to operate a religious school. As the story goes, the School entered into a lease with Brighton Church of the Nazarene to use the Church’s property as a religious school. The School claims that the building from which it has operated for the past 9 years can no longer accommodate its size. Denial of its application, according to the School, has substantially burdened its religious exercise, as well as the religious exercise of its students.

Five days after commencing suit, the School filed an emergency motion for a temporary restraining order to allow it to use the leased property to begin the new school year. The School alleged there was an “emergency” insofar as it would not be able to operate in a building capable of meeting its religious needs and those of its students for the new school year. But after filing its emergency motion, the School found another location and entered into a short-term lease. The School stated in a release: “While Livingston Christian Schools prepare for their federal lawsuit against Genoa Township later this month, their students can plan on starting school on Sept. 8 thanks to a short-term lease with Whitmore Lake Public Schools.”

On August 31, the Court denied the School’s emergency motion. According to the Township’s lawyer, T. Joseph Seward, the new short-term lease “played a substantial role in the judge’s decision.” The School’s lawyer, Roger L. Myers, agreed: “it would be irresponsible to just leave all that up in limbo. Unfortunately, the judge weighed that as a factor against issuing the temporary restraining order.”

The case moves forward with no possibility of settlement in sight. The School contends that it will operate in the new leased space while the case is pending and incur damages in the form of rental payments it would not otherwise have to pay. It also claims it has experienced “significant de-enrollment” that has caused a loss in tuition.

The same day that the Court denied the emergency motion, the Township filed its answer and affirmative defenses. Among the Township’s affirmative defenses are lack of standing and ripeness, signaling that a motion to dismiss the School’s lawsuit may be in short order. The Township, like the School, also seeks attorneys’ fees.

RLUIPA Round-up

Original Photography by Pai Shih (Licensed, cropped from original)

Original Photography by Pai Shih (Licensed, cropped from original)

Unfortunately it’s time to say goodbye to the last true week of summer.  But RLUIPA Defense is happy to say hello to fall with another edition of the Round-Up!

  • According to the San Francisco Chronicle, despite an initial denial of the Crossing church’s request, Pike County, Washington will likely rezone a former pellet plant from industrial use in order to accommodate the church’s planned development. The State’s Attorney noted concerns with religious land use protections as the motivating factor for reconsideration of the zoning decision.
  • After a request from the Freedom from Religion Foundation and allegations that the school was violating the Establishment Clause, Royster Middle School in Chanute, Kansas removed The Head of Christ painting that was once hung within the public school’s halls, People
  • Fox News reports that the “Sister Wives,” TLC reality show stars, continue to fight to strike down Utah’s ban on polygamy by filing an opposition to the State of Utah’s appeal from the December 2013 District Court decision that ruled that parts of Utah’s anti-polygamy law are unconstitutional (past RLUIPA Defense post here). The Wives cite the Supreme Court’s recent marriage equality case, Obergefell v. Hodges, to argue that that state may no longer criminalize “unpopular unions.”
  • RLUIPA attorney, author, and occasional guest contributor to RLUPIA Defense, Daniel P. Dalton, received the Alliance Defending Freedom’s Silver Service Award, according to hometownlife.
  • Austin, Texas recently paid $480,000 to settle a lawsuit by five pregnancy resource centers that claimed as unconstitutional the city’s ordinance requiring they post a sign to indicate whether the centers provided medical services, whether they were directed by a licensed health care provider and whether they had a state or federal license, the Texas Lawyer
  • A New Hampshire prisoner is suing the state after he was placed in secure housing and denied parole for refusing to shave his beard, claiming his beard is part of his Taoist beliefs, according to com.

 

East End Eruv Association one step closer to achieving its goal

Last month, we reported on the New York State Supreme Court decision that held the Town of Southampton, New York erroneously applied its sign ordinance to East End Eruv Association’s (“EEEA”) proposed eruv, which EEEA seeks to erect on utility poles through Southampton and nearby municipalities.   An eruv is “a largely invisible unbroken demarcation of an area.” Within an eruv, Jewish residents may push or carry objects in the public domain on Sabbath and Yom Kippur, which they would be unable to do without an eruv.

Original Photography by Author Name (Licensed)

Original Photography by Author Name (Licensed)

In the state court case, Judge Farnetti found as irrational and unreasonable the Town Building Inspector’s decision that lechis are signs subject to the municipality’s sign ordinance (lechis are wooden or PVC strips that form the boundary of the eruv).  Although Southampton filed a notice of appeal in state court, it has now formally voted not to appeal the decision, 27east.com, O’Dwyer’s, and Religion Clause report.  According to Town Supervisor Anna Throne-Holst, the Town felt it was time to “cut its losses.”

“Well, we felt that we had made our point, which was solely based on the interpretation by our Building Department that it represented a violation to our sign code, and that is really the only reason we opposed it….. But the court struck that down, so we made the decision not to appeal and to bring to an end what has been a very long and costly piece of litigation that was, again, solely geared toward the interpretation of our sign laws.”

According to 27east, the Town and EEEA have not yet reached a comprehensive settlement.  Additionally, EEEA’s case against Southampton, Westhampton Beach and the Village of Quogue remains pending in the Eastern District of New York (Case 2:11-cv-00213-AKT).  The Town believes that once the federal case is dropped and a final settlement is reached, it will no longer be at risk to pay EEEA’s attorney fees and costs.  As we have noted in the past, religious land use litigation is costly and time consuming.  When faced with the threat of suit, local governments may wish to think long and hard about whether a legal battle is worth the time, money and effort, or whether a compromise is possible.

Illinois Federal Court Dismisses Some, But Not All, RLUIPA Claims

Original Photography by Kevin Dooley (Some Rights Reserved)

Original Photography by Kevin Dooley (Some Rights Reserved)

A federal court in Illinois, in Church of Our Lord and Savior, Jesus Christ v. City of Markham, Illinois (N.D. Ill. 2015), dismissed some of the Church’s religious land use claims while allowing others to proceed. The case is important for a couple of reasons. First, it serves as a welcome reminder for local governments that “RLUIPA does not authorize any kind of relief against public employees.” Second, its interpretation and application of RLUIPA’s substantial burden provision appears to go against a recent Seventh Circuit decision applying the same provision in a prisoner case, Schlemm v. Wall (7th Cir. 2015).

The Church, which had been operating at its current location for 10 years “without issue,” brought the lawsuit after the City issued a summons for the Church to cease its operations due to safety violations or else obtain a conditional use permit. According to the Church, building and fire inspectors approved the Church’s use of the property, but the City’s Planning Board denied the Church a permit without explanation. The Church alleged violations of RLUIPA’s substantial burden and nondiscrimination provisions, the First Amendment’s Free Exercise Clause, Illinois’ Religious Freedom Restoration Act, and other state law. The City of Markham, its mayor, and several of its aldermen were sued in their individual capacities and were named as defendants.

First, the Court dismissed all RLUIPA claims against the City’s mayor and aldermen because the statute does not authorize relief against public employees. See Vinning-El v. Evans, 657 F.3d 591, 592 (7th Cir. 2011) (citing Nelson v. Miller, 570 F.3d 868 (7th Cir. 2009)). The Court also dismissed the RLUIPA nondiscrimination claim against the City. RLUIPA’s nondiscrimination provision provides that “[n]o government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination.” 42 U.S.C. § 2000cc(b)(2). Because the Church failed to allege any facts to support its nondiscrimination claim, the Court dismissed this allegation.

Next, the Court considered, and declined to dismiss, the Church’s RLUIPA substantial burden claim. The Court noted that the availability of alternative locations for the Church to operate and the City’s reason for denying the Church’s permit were not clear and, therefore, dismissal of the substantial burden claim would be premature.

The Court’s interpretation of RLUIPA’s substantial burden provision is significant. As we reported in our prior post, the Seventh Circuit, in Schlemm, recently appeared to alter the substantial burden standard for courts considering claims within the circuit. Schlemm concluded that the Supreme Court’s decisions in Holt v. Hobbs and Burwell v. Hobby Lobby Stores, Inc., articulated a substantial burden standard “much easier to satisfy” than that used in another RLUIPA case, Eagle Cove Camp & Conference Center, Inc. v. Woodboro (7th Cir. 2013) (“to be substantial, a burden must be ‘one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise … effectively impracticable.’”) (prior post about Eagle Cove available here). It is interesting to note that the Court did not even refer to Schlemm when allowing the Church’s substantial burden claim to proceed, and instead operated under the traditional standard used to assess such claims in the Seventh Circuit.

Because the RFRA and free exercise claims are subject to virtually the same analysis as the RLUIPA substantial burden claim, the Court also allowed those claims to proceed. The Court dismissed the Illinois Open Meeting Act claim as time-barred, but allowed the Church to move forward with its claim that the City’s decision was arbitrary and capricious in violation of Illinois’ constitution.

RLUIPA Round-UP

Original Photography by Pai Shih (Licensed, cropped from original)

Original Photography by Pai Shih (Licensed, cropped from original)

We’ve been monitoring news items involving local government, religion, and land use that may be of interest to our readers.  Below is what has caught our attention.

  • Livingston Daily reports that Genoa Charter Township has replied to a religious school’s emergency motion for a preliminary injunction in a RLUIPA suit in Michigan – Livingston Christian Schools v. Genoa Charter Township (prior post here). The Township argues that its “denial of a special-use permit does not require the school to violate or abandon its religious beliefs, force the school to choose between its religious beliefs and benefits to which it is entitled, or prevent the school from pursuing and carrying out its religious mission.”
  • Advisor & Source Newspapers reports about a controversial mosque proposal before Michigan’s Sterling Heights Planning & Zoning Commission. On August 13, the Commission heard nearly 4 hours of comments concerning the religious group’s special land use application to construct a 20,500 square foot facility on 4.3 acres in a residence zone.  Typical NIMBY concerns, such as parking and traffic overflow, were raised by members of the public to oppose the application.  The Commission has postponed its vote, with one commissioner stating: “It’s a big development that’s going to affect a lot of people. I would like some more time to make sure I’m 100 percent comfortable with my decision.”
  • Comedian John Oliver of HBO’s “Last Week Tonight with John Oliver” recently founded a church called Our Lady of Perpetual Exemption to show how easy it is to create a religious organization that can solicit tax-exempt contributions. The August 16 episode of Last Week Tonight in which Mr. Oliver takes televangelists to task can be viewed hereCBS This Morning reports further on this matter.  Local governments may find this of interest insofar as it could be an example of a situation in which religious beliefs may not be “sincerely” held.  The courts have held that while it is not permissible to question the truth or falsity or religious beliefs, questioning whether an individual or entity sincerely holds those beliefs is fair game.  In zoning, an example of this could be an applicant seeking to use religious as a way to circumvent zoning.  To read about a couple of college fraternity that argued they were religious organizations under local zoning codes, see our prior post – Illinois Federal Court: College Fraternity House Does Not Constitute a Monastery.
  • Mineral Wells Index reports that Texas has lifted its longtime state policy prohibiting inmates from growing beards to now allow inmates ½ inch beards. However, the state remains embroiled in pending litigating involving a Muslim prisoner who wants to grow a 4 inch beard.  Earlier this year, the Supreme Court ruled, in Holt v. Hobbs, that an Arkansas policy prohibiting prisoners from growing beards violated RLUIPA.  See our post about that case – Supreme Court Holds Prison Grooming Policy Violates RLUIPA: Did Local Government Take a Haircut in the Process?
  • The Daily Item reports that a Pennsylvania church, Ridge View Evangelical Free Church, set up a shooting range on its property without first obtaining permission from zoning authorities. After receiving complaints, the church removed the shooting range. Municipal officials have indicated that the range does not appear to be a gun club under the local regulations and there are no safety concerns.  It is not clear if the church claims use of the shooting range is an exercise of its religion.
  • The Volokh Conspiracy reports about a Colorado appellate court decision that found that a Colorado bakery could be liable under the state’s anti-discrimination law for refusing to bake a cake for a same-sex wedding.  The Colorado court rejected the bakery’s religious freedom arguments, because the law at issue is neutral and generally applicable and does not require a religious exemption, as well as the bakery’s free speech arguments.  The decision in Mullins v. Masterpiece Cakeshop, Inc. is available here.

Seventh Circuit Applies Reed v. Gilbert to Strike Down Panhandling Ordinance

Original Photography by Elvert Barnes (Some Rights Reserved)

Original Photography by Elvert Barnes (Some Rights Reserved)

Local governments may now have more to fear following the Supreme Court’s decision in Reed v. Town of Gilbert (prior post here).  While the Reed decision may cause many local governments to question the constitutionality of their sign ordinances, the Seventh Circuit, in Norton v. City of Springfield, (7th Cir. 2015), has extended Reed to local ordinances beyond just signs.

Norton involved a challenge to Springfield’s panhandling ordinance, which prohibited panhandling in the downtown historic district (less than 2% of the City’s area but containing principal shopping, entertainment and government areas).  The ordinance defines “panhandling” as “an oral request for an immediate donation of money.”  Although the ordinance prohibits panhandling, it allows oral pleas for deferred donations and signs requesting money.

Individuals cited under the ordinance argued that barring oral requests for money now but not regulating requests for money later was a form of content discrimination.  Initially, the Seventh Circuit rejected this claim, reasoning that the ordinance regulated according to subject matter instead of content or viewpoint.

Following the Supreme Court’s decision in Reed, the Seventh Circuit granted a petition for rehearing and ruled the Springfield ordinance unconstitutional.  Norton notes that under Reed “regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”  Just as the Supreme Court rejected the Town of Gilbert’s justification that the sign ordinance there was neutral with respect to ideas and viewpoints, the Seventh Circuit rejected the same argument advanced by the City of Springfield.  Because Springfield’s panhandling ordinance regulates by topic (oral requests for donations of money), the Seventh Circuit concluded that the ordinance was content based under the Supreme Court’s new test adopted in Reed.

Further, and perhaps troubling for many local governments, the Seventh Circuit states of Reed:

The majority opinion in Reed effectively abolishes any distinction between content regulation and subject-matter regulation.  Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification.

Following Reed and now Norton, local governments across the country find themselves scrambling to review and revise sign ordinances and other ordinances regulating speech. Because local governments have long regulated by topics such as those at issue in Norton (oral requests for money) and Reed (temporary directional signs), it seems likely that these types of challenges may be more often encountered and problematic.  Certainly, having local government planners and legal counsel work on these issues to get out ahead of potential problems is the obvious first step.  Sometimes local governments may benefit by having “outsiders” – code consultants and lawyers – have a look at local laws to provide a perspective that those too close may not have.

New RLUIPA Suit: Religious School Sues Genoa Charter Township, Michigan

As the end of summer nears, most schools are finalizing courses and preparing for the return of students.  Livingston Christian Schools has much more to deal with – it is suing Genoa Charter Township, Michigan, in federal court following the Township’s denial of its application for a special land use permit to operate a religious school.

The School alleges that for the past 9 years, it has operated its Christian faith-based school in the Village of Pinckney in a building that is now too small.  The School sought to move to a larger facility more geographically centered in Livingston County.  After examining and rejecting several properties, the School found a suitable one at 7669 Brighton Road in Genoa Township.  This 16.5 acre property with a 37,620 square foot building is owned by the Brighton Church of the Nazarene.  It is bounded to the west by another church, to the north by residential uses, and to the east and south by public roads.

On November 25, 2014, the School entered into a lease with the Church for a portion of the property to operate its religious school.  The property already has a special land use permit required for “churches, temples, and similar places of worship and related facilities” in the Suburban Residential zone.  In March 2015, the Church submitted an application to amend its existing special land use permit to allow the School to use its property as a religious school.  The application stated that the school would have up to 32 employees and 250 students.

The Church submitted two traffic engineering studies that showed minimal traffic impacts.  The Township engaged its own consultants and they largely agreed with the conclusions in the Church’s traffic reports.  Further, the Township’s consultants determined that the proposed use would be consistent with the overall goal of the Township’s Master Plan to “accommodate a variety of land uses that are located in a logical pattern and complement community goals, the surrounding land uses, environment, capacity of roads and the sanitary sewer, and public water system capabilities.”

The Township’s Planning Commission and its Community Development Director also recommended that the Township Board approve the application with conditions.  But the Township Board did not agree and denied the application on July 20, 2015, due to concerns about traffic and conflict with the goals of the Master Plan, such as promoting “harmonious and organized development consistent with adjacent land uses” and overburdening public infrastructure.  In addition, the Township Board stated that another reason for denial was the Church’s history of noncompliance with past site plan requirements resulting in negative impact on the surrounding neighborhoods.  According to the Township Board, this history of noncompliance suggests further noncompliance with the application for the religious school.

The School is suing under the Religious Land Use & Institutionalized Persons Act’s (RLUIPA) substantial burden provision.  The School claims that denial of its application has substantially burdened its religious exercise, as well as the religious exercise of its students, and the Township is without a compelling government interest to justify its actions, much less one advanced in the least restrictive means possible.  The Church seeks declaratory and injunctive relief as well as attorneys’ fees.  The Court has scheduled an August 31 hearing to consider the School’s emergency motion for a preliminary injunction.

Livingston Daily reports on this case.

Houston Housing Authority Sued Under Texas RFRA for Taking Church Properties

Original Photography by Kevin Dooley (Some Rights Reserved)

Original Photography by Kevin Dooley (Some Rights Reserved)

Two Houston churches are using the Texas Religious Freedom Restoration Act (“TRFRA”) to challenge the Houston Housing Authority’s actions to acquire their properties by eminent domain as part of an urban renewal project.  The Latter Day Deliverance Revival Center (“Center”) and the Christian Fellowship Missionary Baptist Church (“Fellowship”) are both located in Houston’s Fifth Ward neighborhood, which is known for a history of violence and crime, and has been called the “bloody Fifth.”  The Housing Authority began eminent domain proceedings against the Center, but there is some dispute as to whether it has started the same action against the Fellowship.  The Housing Authority is taking the private property owned by the Center across the street from the Center’s house of worship.  The Center claims in the lawsuit that it uses this land for ministry activities, including youth centers, food pantries, and providing education and assistance to the community.

The Center asserts that the Housing Authority “wants to steal these churches, bulldoze them and use them for a parking lot for a doctor’s office.”  The Housing Authority contests this characterization, noting that it “had not begun any eminent domain process against any church building” and added that it had only sought to acquire two vacant parcels owned by the churches.  It maintains that it is not going to develop a parking lot for a doctor’s office, but instead for an affordable housing project.

It is noteworthy that the churches are using the state RFRA to challenge the eminent domain proceedings, but not surprising given how courts have resolved Religious Land Use & Institutionalized Persons Act (“RLUIPA”) challenges to eminent domain actions.  Most courts have ruled that RLUIPA does not apply to eminent domain proceedings.  RLUIPA’s substantial burden provision applies to any “land use regulation,” which the Act defines as “a zoning or landmarking law, or the application of such a law, that limits or restricts a claimant’s use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest.”  Courts have generally ruled that an eminent domain action is not a “land use regulation” as defined by the Act.  See St. John’s United Church of Christ v. City of Chicago (7th Cir. 2007) (“if Congress had wanted to include eminent domain within RLUIPA, it would have said something.”); Congregation Adas Yerim v. City of New York (E.D.N.Y. Dec. 8, 2009) (eminent domain is not a “land use regulation” under RLUIPA); but see Cottonwood Christian Center v. Cypress Redevelopment Agency (C.D. Cal. 2002) (rejecting city’s argument that eminent domain is not a “land use regulation” under RLUIPA).

Unlike RLUIPA, the TRFRA is not limited to land use regulations, but mirrors the federal Religious Freedom Restoration Act and applies to any law or action.  If the churches are successful in convincing the court that the TRFRA should apply in an eminent domain action, it would mean that the Housing Authority would not only have to justify taking the churches’ properties as a “public use,” but would also have to establish that their actions are “compelling interests” advanced in the “least restrictive means” possible, so long as the churches show substantial burdens on their religious exercise.  No local government wants to be in this position.

President and CEO of the Housing Authority Tory Gunsolley stated that without these properties, its redevelopment plan may have to be abandoned:

The sad thing is, if the outcome is, they win, then I think that block is going to stay decrepit for the foreseeable future.  [The churches] haven’t made any progress on executing a vision on redeveloping that block.  Most of the houses are in extreme disrepair.  It needs help and it needs investment, and we are trying to invest in that community.

The Daily Signal reports on this matter.

RLUIPA Showdown in Woodcliff Lake, New Jersey

Since December 2014, the Woodcliff Lake Zoning Board of Adjustment has been considering Valley Chabad’s application for variances to construct a three and a half story, 18,550 square foot religious facility on 1.27 acres in a residence zone.  The facility will include a temple, social hall and school.  A group calling itself Woodcliff Lake Residents for Reasonable Development opposes the application and has campaigned to raise $50,000 to pay for the lawyer and planner it hired.  At the July 28, 2015 continued hearing, Chabad’s planner cited the Religious Land Use & Institutionalized Persons Act (RLUIPA) in support of the application.  Reference to this statute may cause many local governments to cave in to demands of religious groups to avoid a RLUIPA lawsuit.  Depending on how the Board decides Chabad’s application (the next hearing is scheduled for September 9), it could find itself defending its actions in court.

Chabad states that the facility is needed to bring all elements of its activities together in one place.  Currently, Chabad uses administrative office space in Montvale, holds Hebrew School at a local high school, and hosts larger events at the Hilton Hotel in Woodcliff Lake..  Woodcliff Lake Residents for Reasonable Development have raised a number of the typical NIMBY concerns, including parking, pedestrian safety, traffic congestion, and tree removal.  In addition, the opposition group has complained about the scope of the project, including its proposed 25-foot high retaining wall, which it describes as a “fortress.”  A photograph of an architect’s rendering of the proposed facility can be viewed here.

In an interesting move at an earlier hearing, the lawyer for the opposition group asked members of the Board to respond to a questionnaire to indicate their relationships with the applicant.  Although several members responded that they had some association with Chabad at one point, they were able to render an objective decision.  One member, however, chose to recuse himself because he had attended some services in the past.  As we previously reported, the New Jersey Supreme Court ruled in June 2015 that municipal officials cannot vote on a zoning application for land within 200 feet of the church if they are members of the church, in Grabowsky v. Township of Montclair, 2015 WL 3648741 (2015).  It is not clear if the opposition group will somehow attempt to use this decision to further its interests.  NorthJersey.com reports on this story.

While the time period that the Board has taken to review the application may appear protracted, it is not surprising given the controversy, level of opposition, and scope of the proposal.  Still, local governments reviewing applications of religious groups may wish to review proposed religious uses in a timely fashion, as the Seventh Circuit, in World Outreach Conference Center v. City of Chicago, (7th Cir. 2015), ruled in June 2015 that a two year delay in the granting of required licenses, among other things, could give rise to a RLUIPA substantial burden claim.

Local governments reviewing religious land use proposals may wish to refer to the following resources:

Mother & Daughter’s Challenge to Ten Commandments Monument Dismissed for Lack of Standing

Original Photography by George Bannister (Licensed)

Original Photography by George Bannister (Licensed)

The U.S. District Court for the Western District of Pennsylvania dismissed an Establishment Clause challenge to a Ten Commandments monument located on the lawn outside a local high school, in Freedom From Religion Foundation v. New Kensington-Arnold School District (W.D. PA July 27, 2015).  The monument, six feet tall and weighing 2,000 pounds, sits on a grassy area between two sidewalks in the vicinity of Defendant School District’s (“School District”) high school gymnasium.  The Court found that the plaintiffs in this case, a mother and a daughter living in the School District, only had limited contact with the monument with virtually no injury, and were therefore without standing to pursue the merits of their lawsuit.

Plaintiff mother is an atheist who objects to the Ten Commandments monument on the high school grounds, but had only been to the school a handful of times to see the monument.  She viewed the monument once when dropping off her sister at the high school and again when attending a karate event at the school.  Although she did not stop to read the monument in full, she testified that when she saw the line “I am the Lord thy God,” her “stomach turned and [sh]e just kept on walking.”  Plaintiff mother believes that the presence of the monument signals that she is an outsider, and she does not want her daughter to attend a school that endorses religion.

Plaintiff daughter was a middle school student at the time the lawsuit commenced.  She had never been a student at the high school, but used the swimming pool there with her daycare program in grades three through five, and attended a karate event at the high school with her mother.  She also viewed the monument while driving to the house of a friend who lives near the high school.

Applying the “direct unwelcome contact” standard, the Court concluded that the plaintiffs had not been injured by the presence of the Ten Commandments monument on the high school lawn for purposes of standing.  Specifically, they were not forced to come into “direct, regular, and unwelcome contact” with the monument,  Plaintiff mother’s contact with the monument was only “sporadic and remote” because she could recount only a handful of occasions she observed the monument.  While Plaintiff mother testified that her “stomach turned” when she saw the monument, she also testified that it did not occur to her that the monument was inappropriately placed on school grounds, and the offense caused to her only began to manifest itself after commencing suit.

Plaintiff daughter’s injury was found to be even more tenuous, since she was never a student at the high school.  She testified that when she saw the monument, she “was young so [she] didn’t really know what it meant.”  Although Plaintiff daughter was removed from the School District and placed in a different school system, this “injury” occurred after suit was brought.  Further, to have standing, a plaintiff must demonstrate a real threat of future injury.  The decision to remove Plaintiff daughter from the School District undermined any possible claim of future injury.

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