RLUIPA Round-Up

Original photography by brandi (Licensed)

Original photography by brandi (Licensed)

After a brief summer hiatus, RLUIPA Defense is back with another edition of the Round-Up.  What better way to kick things off than with news about the Satanic Temple of Detroit, which recently unveiled “The Satanic Temple Baphomet monument” at an approximately 700-person party in Detroit, Time reports. According to the Satanic Temple’s website: “The Satanic Temple Baphomet monument is already the most controversial and politically charged contemporary work of art in the world. Weighing one ton and towering at nearly nine feet tall, the bronze statue is not only an unparalleled artistic triumph, but stands as a testament to plurality and the power of collective action. The event will serve as a call-to-arms from which we’ll kick off our largest fight to date in the name of individual rights to free exercise against self-serving theocrats.”

As we previously reported here, there is speculation that the Satanists want to place the statue on public grounds. According to Wikipedia, “Since 1856, the name Baphomet has been associated with a ‘Sabbatic Goat’ image drawn by Eliphas Levi which contains binary elements representing the ‘sum total of the universe’ (e.g. male and female, good and evil, etc.).”

Here are some other stories we have been following:

  • The Herald reports that the Rock Hill South Carolina Zoning Board of Appeals denied the Islamic Center of South Carolina’s variance application to construct a cemetery after neighbors cited concern for depreciating property values, traffic, and the general desire not to live next to a cemetery. The ZBA denied the application even after its own lawyer advised it that doing so could violate federal law (e.g. RLUIPA).
  • DeLand, New Jersey opened the City Commission’s meeting with a secular invocation by reading a quote from Charlie Chaplin’s “The Great Dictator.” The Daytona Beach News-Journal reports on this story and includes a video recording of the invocation.
  • New Haven Register reports on parking issues that have arisen with respect to churches in Hamden, Connecticut, and is threatening the existence of one church, Iglesia Jehova Mi Roca Church, that moved from New Haven to Hamden two years ago after it was found to be in violation of New Haven’s parking regulations (it had only 9 of the required 28 spaces). In a 2012 approval, the church  noted that it had 55 members for worship services, but has since then seen that number rise to 180.  Hamden officials have suggested that the church may need to move to a larger space, but the church is only 18 months into its five-year lease of a converted warehouse.
  • The Garden City Telegram reports that Garden City Commission of Kansas has approved zoning changes for churches to permit churches to locate in any zoning district. The zoning changes come after the January 2015 settlement of a RLUIPA lawsuit brought by Mount Zion Church of God in Christ against the City.  We first reported about the lawsuit here.
  • A North Carolina man was recently jailed for refusing to remove five strands of waist-long voodoo beads while in Judge Talmage Baggett’s courtroom, The Telegraph reports.
  • A Rankin, Mississippi school district was recently fined $7,500, the Christian Science Monitor reports, after a student assembly was opened with Christian prayer. The court found that the district violated a 2013 court-approved settlement issued in an earlier action against the district that ordered it to stop “proselytizing Christianity.”
  • Legal Newline reports on the Little Sisters of the Poor’s attempt to appeal the Tenth Circuit’s decision requiring the Sisters to apply for an exemption from the federal contraception coverage mandate in accordance with their religious beliefs. The Sisters’ petition for certiorari is available here.
  • A funeral home owner in Irondequoit, New York is upset by the town’s decision that a church building associated with the funeral home is a business use and not a religious use, WHEC Rochester reports.
  • Religion Clause reports that the federal prison system has agreed to recognize Humanism as a religious belief. According to Wikipedia, “Humanism is a philosophical and ethical stance that emphasizes the value and agency of human beings, individually and collectively, and generally prefers critical thinking and evidence (rationalism, empiricism) over established doctrine or faith (fideism).”
  • In Storman’s, Inc. v. Wiesman, (9th Cir., July 23, 2015), the 9th Circuit upheld a state mandate requiring pharmacies to fill all prescriptions, including those for emergency contraceptives, despite the religious beliefs of the pharmacy (recall that the Supreme Court ruled that corporations are “people” and can “exercise” religious beliefs, in Burwell v. Hobby Lobby Stores, Inc.). The Olympian reports on this story.

Phoenix, Arizona Wins Religious Land Use Suit

Original Photography by Ms. Phoenix (Some Rights Reserved)

Original Photography by Ms. Phoenix (Some Rights Reserved)

A Phoenix federal court recently issued a decision that may be of interest to local governments for two reasons.  First, the case, Salman v. City of Phoenix (D. AZ 2015), is notable for its finding that RLUIPA claims cannot be brought to challenge building or safety codes, since RLUIPA applies only to zoning or landmarking laws.  Second, for local governments considering criminally prosecuting landowners for violating local land use regulations, the case is noteworthy for its ruling that a federal habeas corpus action is the only mechanism available to challenge the validity of a state criminal conviction.

In 2006, Michael Salman, an ordained minister, and his wife began holding bible study meetings from their Phoenix home.  The following year, neighbors complained about the bible studies, prompting the City to send the Salmans several letters notifying them that, under the City’s building code, they could not use their home as a church.  In 2009, the Salmans built a 2,000 square foot game room in their back yard and began holding bible studies there.  The new game room increased bible study attendance from 15 to 35 people.  After the Salmans refused to comply with the building code, the City prosecuted Mr. Salman in state court.  He was jailed for 60 days, fined $12,000, and put on three years’ probation.

In 2011, the Salmans sued the City and sought to enjoin the City “from implementing and enforcing the Codes and Ordinances against Plaintiffs to prohibit private worship, bible studies, and placement of a reader board with religious messages at their residence and from prosecuting, sentencing, arresting, or incarcerating Plaintiffs.”  On July 15, 2015, after a long procedural history, including a decision by the Ninth Circuit, the federal court dismissed the plaintiffs’ constitutional claims because “[j]ust as a plaintiff is not permitted to attack the validity of his conviction by raising a § 1983 claim that would require him to negate an element of his crime … neither is he allowed to attack his conviction by raising a claim that would require him to prove an affirmative defense to his crime.  Under either scenario, the § 1983 plaintiff is requesting that the court make a finding that would necessarily imply the invalidity of his conviction.”

The court also dismissed the Salmans’ RLUIPA claim, reasoning that RLUIPA applies only to a “land use regulation,” defined as “a zoning or landmarking law, or the application of such law, that limits or restricts a claimant’s use or development of land.”  From the face of the Salmans’ complaint, it was not clear whether the code sections at issue could be deemed “land use regulations” because the amended complaint failed to specify which code sections were actually at issue. Though the court stated that “the few portions of the Amended Complaint that give some small clue as to the nature of the ordinances at issue indicate that they are building and safety codes, not zoning or landmarking laws.”  Because it was “impossible to surmise from the face of the Amended Complaint whether the complained-of sections of the code” are land use regulations, the RLUIPA claim was dismissed.

Webcast — Housing and Takings: A Look at the U.S. Supreme Court’s Inclusive Communities Project and Horne Decisions

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Housing and Takings: A Look at the U.S. Supreme Court’s Inclusive Communities Project and Horne Decisions on Tuesday, August 4, 2015 from 1:00 to 2:30 p.m. ET. Registration is $20 for PLD members, $40 for nonmembers, and $45 for the webinar and PLD membership.

In June, the U.S. Supreme Court decided two cases which are likely to have significance for planners. In Texas Department of Housing and Community Affairs v. Inclusive Communities Project, Inc., the Court upheld the use of disparate impact analysis in Fair Housing Act claims. Among other groups, local governments will continue to have potential disparate impact liability, particularly now that the federal Department of Housing and Urban Development has finalized a rule requiring increased scrutiny of zoning and other local regulatory practices as a condition of local governments’ receipt of funds through HUD grant programs. In Horne v. Department of Agriculture, the Court found that a raisin producer was entitled to compensation for a taking of property where the federal government fined the raisin producer for failing to turn over raisins as required by a price control law. The Court held that the forced turnover of raisins could be considered a physical invasion of property. The Horne decision represents an expansion of takings law, and it could have a ripple effect on other government regulatory programs requiring the turnover of private property as a condition of market participation. The webinar will cover both cases, including a description of each case’s background and holding, the likely consequences for practicing planners.

Speakers include: Brian J. Connolly, Esq., Attorney, Otten Johnson Robinson Neff + Ragonetti, P.C., Denver; David L. Callies, Esq., FAICP, Benjamin A. Kudo Professor of Law, University of Hawaii, William S. Richardson School of Law, Honolulu; Donald L. Elliot, Esq., FAICP, Director, Clarion Associates, LLC, Denver; and Steven G. Polin, Esq., Steven G. Polin Attorney at Law, Washington, D.C.

CLE credits also will be available.

Register here

East End Eruv Association posts win in state court; fight in E.D.N.Y. continues

Original Photography by Author Name (Licensed)

Original Photography by Christopher Sessums (Some rights reserved)

For the past 5-plus years, East End Eruv Association (“EEEA”) has been involved in federal litigation seeking approval to construct an eruv in accordance with its religious beliefs (East End Eruv Association v. Westhampton Village, Village of Quogue, Town of Southampton, et al., complaint available here) (referenced here as the “main case”). According to EEEA, 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. EEEA wants to construct the eruv on existing utility poles and attach lechis, wooden strips no larger than 1”x4”x40,” which would form the boundary of the eruv through three towns within the Hamptons.

In 2013, EEEA filed a similar suit against the Town of Southampton to construct an eruv (the “Southampton case”), after the court in the main case ordered EEEA to engage in the administrative approval process in Southampton in order to exhaust its administrative remedies (complaint available here). In the Southampton case, EEEA claims that instead of facilitating approval of the eruv, “the Town’s representatives initiated a cycle of delay and misinformation that prevented EEEA from obtaining a final decision from the ZBA for more than a year and a half.”

Each case has a long and complicated procedural history, but in short, EEEA claims that it does not need local approve to construct the eruv because it entered private license agreements with owners of the utility poles necessary to erect the lechis. EEEA also claims that the defendants interfered with the agreements by informing the pole owners that municipal approval was required prior to construction. The main case complaint alleges that such action violates the First Amendment, RLUIPA, § 1983, and § 1984, and has caused a tortious interference with EEEA’s license agreements.

After EEEA sought approval in Southampton, it filed a state-court appeal of Southampton’s determination that the lechis were subject to Southampton’s Sign Ordinance. EEEA also challenged the municipality’s denial of a use variance to erect the lechis. The state court found in favor of EEEA, ruling that application of the Sign Ordinance was arbitrary. (state court decision is available here.) EEEA reported the decision in a letter to Judge Tomlinson in the Southampton case, and requested that the court lift the current stay in that federal action. EEEA summarized the state court decision as:

Judge Farnetti held that Southampton’s Chief Building Inspector’s interpretation that lechis are signs “is contrary to the language of the law, irrational and unreasonable in that it does not comport with the Sign Ordinance’s intent.” He further found that:

[T]he boundaries are invisible as the lechis are not discernable. Therefore, unpersuasive is any argument that the lechis are on poles in the public right-of way. Neither drivers nor casual observers would be able to differentiate the poles which have lechis attached from the other poles.

Assuming, arguendo, that the Sign Ordinance applied, the state court also concluded that it was erroneous for the ZBA to deny EEEA’s request for a variance. Although the court recognized that religious uses are not exempt from zoning, it also noted that a municipality is obligated to “make every effort to accommodate” a religious use. Since the ZBA failed to make any effort to accommodate or even to suggest accommodations to EEEA, its denial was deemed an abuse of discretion.

In its letter, EEEA also argues that the state court decision “should also be considered in connection with the parties’ pending submissions on whether the Quogue Village Code applies to lechis,” in the main case. According to EEEA, the decision “compels the conclusion that the lechis do not constitute ‘devices’ or ‘encroachments’ in a public right of way under a rational and reasonable interpretation of the Quogue Village Code.” The City of Quogue’s response to EEEA’s request is available here.

RLUIPA Defense will continue to monitor these federal dockets closely.

Upcoming Reed v. Gilbert Sign Regulation Webinars

Last week, we noted the upcoming webinar on the Supreme Court’s decision in Reed v. Gilbert hosted by the Planning & Law Division of the American Planning Association (prior post here).  There are 2 more webinars about Reed that may be of interest to our readers.

First, is the State & Local Government Section of the American Bar Association’s July 16 webinar “The New World of Sign Regulation: Understanding the Supreme Court’s Reed v. Town of Gilbert Decision.”  Here’s a description of the program:

The recent U.S. Supreme Court decision in Reed v. Town of Gilbert may make it more difficult for local governments to regulate signs in a content neutral manner under the First Amendment. The panel of national experts on sign regulation will:

  • Provide a history of the facts and issues in Reed, including some discussion of Gilbert, Arizona’s complex sign code
  • Examine the Supreme Court’s decision in Reed, identifying their major focal points
  • Analyze the impact the Court’s decision will have on local government, real estate, and land use lawyers

For more information on the ABA’s webinar, including registration, click here.

Second, the International Municipal Lawyers Association is hosting the July 20 webinar “Signs: A Different Kind of Land Use (especially after the Reed decision).”  Robinson & Cole’s own Michael Giaimo will be participating as moderator in this program.

Here is a summary of the program:

The typical paradigm for writing land use regulations (in order to maximize flexibility and discretion) can get your city or county into trouble if it’s used to regulate signs or other expressive conduct.  The presenters, who write and defend sign codes, will explain what strategies and approaches must be abandoned when writing and enforcing sign laws, and why. And in the aftermath of Reed v. Town of Gilbert, the U.S. Supreme Court’s first decision about sign regulation in many years, they will discuss the background of the case, and the unsurprising and surprising aspects of the justices’ various opinions.

More information about this program, including registration, is available here.

Supreme Court Rules in Favor of Government in Confederate Flag Controversy

Original photography by Texas.713 (Licensed)

Original photography by Texas.713 (Licensed)

As promised in our earlier post, Reed v. Gilbert: Impact to municipalities across the nation, this post provides a summary of Walker v. Texas Division, Sons of Confederate Veterans, a case that, coupled with Reed, has led some to comment on the deeply divergent (and confusing) First Amendment precedent from the most recent SCOTUS term. Unlike Reed, Walker is viewed as a victory for state and local government, affirming the well-recognized principle: “When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says.”

In 2009, the Sons of Confederate Veterans (SCV), applied to sponsor a specialty license plate to be approved by the Texas Department of Motor Vehicles. The application included a draft plate design featuring the confederate flag and was denied. In 2010, the SCV renewed its application before the Texas Department of Motor Vehicles Board (Board) and was denied yet again. The Board rejected the proposal in response to public comment showing that many members of the general public found the confederate flag plate design offensive. The Board commented that “a significant portion of the public associate the confederate flag with organizations advocating expressions of hate directed toward people or groups that is demeaning to those people or groups.”

In 2012, the SCV sued the Board, alleging violations of the First Amendment’s Free Speech Clause. The District Court found in favor of the Board and the Fifth Circuit reversed. The Fifth Circuit held that Texas’ specialty license plate designs are private speech and that in refusing to approve the confederate flag design, the Board engaged in constitutionally forbidden viewpoint discrimination. The Fifth Circuit’s decision in Walker is available here.

The Supreme Court’s majority opinion, authored by Justice Breyer, reversed the decision of the Fifth Circuit, First, the Supreme Court concluded that the history of license plates displaying graphics and including logos, shows that license plates have long communicated messages from States. Accordingly, the Court determined that specialty license plates are a form of government speech, not private speech as found by the Fifth Circuit.

Next, the majority found that the governmental nature of the plates is “clear from their faces” because the State dictates the content, display, issuance, design and disposal of every Texas license plate. Texas license plates, according to the Court, are essentially, government IDs, serving the governmental purposes of vehicle registration and identification. Issuers of IDs typically do not permit the placement of messages with which they do not wish to be associated and Texas license plate designs “are often closely identified in the public mind with the State.” Texas maintains direct control over the messages conveyed on specialty plates, which allows it to choose how to present itself and its constituency.

Finally, the Court dismissed the Free Speech claim, stating: “Texas specialty plate designs are meant to convey and have the effect of conveying a government message… [and] constitute government speech.” Governmental statements, actions, and programsthat take the form of speech do not normally implicate the First Amendment. When the government speaks, it is entitled to promote a program, espouse a policy, or take a position. In doing so, the government represents its citizens and carries out duties on their behalf.

Justice Breyer ended the majority opinion by noting that the Court’s decision does not mean that specialty license plate designs do not implicate the free speech rights of private people, and recognized that the First Amendment limits the states’ authority to compel a private party to express a view with which they disagree:

just as Texas cannot require the SCV to convey the State’s ideological message, they cannot force Texas to include a Confederate battle flag on its specialty license plates.

Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy, dissented. Justice Alito argued that, with over 350 varieties, Texas specialty license plates are an expression of individuals as opposed to the government. According to the dissent, license plates are a limited public forum because Texas has allowed state property to be used by private speakers. The dissenting justices argue that under the First Amendment, the rules Texas places on specialty license plates cannot discriminate on the basis of viewpoints. In their view, Texas rejected the confederate flag design because it is a controversial symbol and therefore the rejection was unconstitutional viewpoint discrimination.

RLUIPA Round-Up

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

Here are news items involving local government, religion, and land use that have caught our attention.

  • Religion Clause Blog reports that Indiana’s First Church of Cannabis is using the state’s recently enacted religious freedom law to protect its founder and two members from prosecution for possession of marijuana. The Church alleges that cannabis is the sacrament of the Church, and that laws punishing marijuana possession implicate its members’ religious exercise.  The Complaint in First Church of Cannabis, Inc. v. State of Indiana is available here.  The Indiana Star has more on this story, including a video clip of the Church’s service (notice the American flag next to the giant cannabis leaf).  The sanctuary of the Church includes a painting of two hands passing a joint, in the style of Michelangelo’s The Creation of Adam.  Indiana University law professor David Orentlicher stated the following regarding the Church’s lawsuit: “Is this a genuine religion, or is it a pretext?  Because you can imagine, with anyone who’s using a controlled substance, we can’t let them all say, ‘it’s my religion.’  The court has to draw a line somewhere.”

Oklahoma is a state where we respect the rule of law, and we will not ignore the state courts or their decisions. However, we are also a state with three co-equal branches of government. At this time, Attorney General Scott Pruitt, with my support, has filed a petition requesting a rehearing of the Ten Commandments case. Additionally, our Legislature has signaled its support for pursuing changes to our state Constitution that will make it clear the Ten Commandments monument is legally permissible. If legislative efforts are successful, the people of Oklahoma will get to vote on the issue.

            The Governor’s full statement is available at Ok.gov.

  • Florida Today reports that a coalition of atheist, agnostic and humanist groups is suing Brevard County, Florida in federal court for refusing to allow religious non-believers the opportunity to offer a prayer before the start of County Commission meetings. The complaint, filed by Americans United for Separation of Church and State, the Freedom From Religion Foundation, and the American Civil Liberties Union of Florida, is available here.  The plaintiffs contend that Brevard County’s policy violates the First and Fourteenth Amendments to the U.S. Constitution, as well as the Florida Constitution, following the Supreme Court’s decision in Town of Greece v. Galloway.
  • Texas News reports that a West Texas County Clerk is refusing to issue marriage licenses for same sex couples following the Supreme Court’s decision in Obergefell v. Hodges, and has issued a what she calls a “declaration” to “protect natural marriage from lawless court opinions.”

Upcoming Webinar: A Sign Regulation Apocalypse? Understanding the U.S. Supreme Court’s Decision In Reed v. Town of Gilbert

The Planning & Law Division of the American Planning Association is sponsoring a July 21 webinar on the Supreme Court’s decision in Reed v. Gilbert to discuss some helpful practice pointers on sign code drafting and enforcement.  Read our post Reed v. Gilbert: Impact to municipalities across the nation to prepare for the webinar.

Here is a description of the webinar:

On June 15, 2015, the U.S. Supreme Court struck down the Town of Gilbert, Arizona’s sign code.  In a rare unanimous decision, all of the justices of the Court agreed that the Town’s code violated the core First Amendment requirement of content neutrality, and the majority opinion provided new insight on what it means for a regulation to be “content neutral.”  The Court’s decision is expected to put thousands of sign codes at increased risk of legal challenges, which could mean increased legal costs for local governments, as well as potential negative impacts on communities’ aesthetic concerns.  This program will include presentations by some of the nation’s leading scholars and practitioners on First Amendment and land use issues.  Panelists will discuss the facts of the Reed case, the Court’s rationale for its decision, some of the important questions and unanswered issues stemming from the case, and some helpful practice pointers on sign code drafting and enforcement.

Speakers include Brian J. Connolly, Esq. of Otten Johnson Robinson Neff + Ragonetti, P.C. in Denver, CO; Daniel R. Mandelker, Esq., Howard A. Stamper Professor of Law at Washington University in St. Louis; John M. Baker, Esq. of Greene Espel PLLP in Minneapolis, MN;  and Susan L. Trevarthen, Esq., FAICP of Weiss Serota Helfman Cole & Bierman, P.L. in Fort Lauderdale, FL.

CM credit and CLE credit will be available.  More information, including registration, is available here.

RLUIPA Round Up – Independence Day Special Edition!

Original Photography by dpblrds (license)

Independence Day—no better time to reflect on the numerous (enumerated and unenumerated) rights protected by our United States Constitution. Thanks to Obergefell v. Hodges, those rights are now more clearly focused. However, as reported below, it appears that a battle may be brewing between the right to marriage and religious exercise.  In the spirit of the Fourth of July, RLUIPA Defense salutes our Founding Fathers with another Round-Up!

  • After SCOTUS legalized gay marriage, polygamists Nathan Collier and his wives Victoria and Christine applied for a marriage license in Montana, the Associated Press reports.
  • Texas Attorney General, Ken Paxton, issued an opinion stating that Texas county clerks may refuse to issue same-sex marriage licenses based on their religious beliefs despite the Supreme Court’s ruling in Obergefell v. Hodges.
  • According to the American Civil Liberties Union’s press release, the ACLU of Louisiana filed suit in Louisiana state court challenging Governor Bobby Jindal’s May 19 Marriage and Conscience Order. Jindal’s response is reported by Breitbart.
  • The United States Department of Justice Civil Rights Division issued its June, 2015 edition of “Religious Freedom in Focus,” which includes the following stories:
    • United States’ Suit Alleging Systematic Religious Discrimination by Twin Cities on Utah/Arizona Border May Proceed to Trial, Court Rules
    • DOJ Closes Investigation of Virginia County After Rezoning Allows Church Construction (RLUIPA Defense post, here)
    • Supreme Court Clarifies Religious Accommodation Standard Under Title VII (RLUIPA Defense post, here)
    • Georgia City Changes Zoning Ordinance to Treat Religious and Non-Religious Assemblies Equally (related RULIPA Defense post on Kennesaw, Georgia, here)
    • Florida Must Provide Kosher Meals for Prisoners, Court Rules (RLUIPA Defense post, here)
  • Gawker reports on alleged FOI request-compliance costs in the amount of $79,000 for McKinney, Texas in response to requests for information on the incident where officer Eric Casebolt was filmed pointing his service weapon at unarmed black teenagers at a pool party.
  • The Colorado Supreme Court invalidated Douglas County, Colorado’s school voucher program, which allowed the use of tax-funded vouchers at “23 district-approved ‘private school partners’ — 16 of which were religious,” the New York Times reports.
  • Muslim woman sues after being forced to remove her headscarf at Dearborn police headquarters for a booking photo, Michigan Live
  • The Washington Post reports on the Ninth Circuit Opinion in Jones v. William, which concluded that a prisons “grill cleaning method” did not substantially burden prisoner’s religious beliefs because adequate alternatives to grilled meat were provided.
  • Your Daily Journal reports about a church-run tent ministry, Place of Grace shelter, that is seeking approval for a permanent shelter in Rockingham, North Carolina and may encounter public opposition.

Ten Commandments Monument on Public Grounds Violates Oklahoma Constitution

Original Photography by George Bannister (Licensed)

Original Photography by George Bannister (Licensed)

In a case we have been following, Oklahoma’s Supreme Court has ruled that a Ten Commandments monument on the Oklahoma Capitol grounds is unconstitutional under state law.  We previously reported on the lower court’s decision that the six-foot monument, which was a gift from an Oklahoman, did not violate the state constitution because of its historical value.  Following the Supreme Court’s decision in Prescott v. Oklahoma Capital Preservation Commission, the monument will have to be removed.

In reversing the lower court’s decision, the Supremes rejected the Preservation Commission’s reliance on Van Orden v. Perry, 545 U.S. 677 (2005), a case involving the U.S. Constitution’s Establishment Clause.  The Oklahoma court noted that “the issue in the case at hand is whether the Oklahoma Ten Commandments monument violates the Oklahoma Constitution, not whether it violates the Establishment Clause.” (emphasis in original).

Van Orden involved a Texas Ten Commandments monument placed in a large park containing 17 monuments and 21 historical markers to demonstrate the ideals of those who settled in Texas.  The U.S. Supreme Court found that the monument had “dual significance, partaking of both religion and government.”  The Preservation Commission argued that the Oklahoma monument had some similar historic value.

But the Oklahoma Supreme Court noted that its “opinion rests solely on the Oklahoma Constitution with no regard for federal precedent.”  Article 2, Section 5 of the Oklahoma Constitution states:

No public money or property shall ever be appropriated, applied, donated, or used, directly or indirectly, for the use, benefit or support of any sect, church, denomination, or system of religion, or for the use, benefit, or support of any priest, preacher, minister, or other religious teacher or dignitary, or sectarian institution as such.

Oklahoma’s Supreme Court focused on the use of the word “indirectly” in the state constitution to find the broad and expansive prohibition against using public property to promote religion.

As shown in Prescott, the distinction between state and federal constitutions, although not always obvious, may be substantial.  In light of Prescott, local governments throughout the country may wish to carefully review state constitutions – in addition to federal law – before permitting state or municipal religious displays on public property.

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