Ninth Circuit Forbids School Board Invocations and Censors Private Citizens


Tyler & Bursch, LLP July 25, 2018 FOR IMMEDIATE RELEASE Contact: Desare Ferraro at 951-600-2733

Ninth Circuit Forbids School Board Invocations and Censors Private Citizens

Chino, CA —Today, the Ninth Circuit Federal Court of Appeals ruled that the Chino Valley Unified School District board policy that allows invocations before the start of school board meetings is a violation of the Establishment Clause. The Fifth Circuit Federal Court of Appeals came to a different conclusion in 2017 in American Humanist Association v. McCarty.

The Ninth Circuit further affirms the District Court’s injunction that enjoins the CVUSD school board members “from conducting, permitting or otherwise endorsing school sponsored prayer in Board meetings.”

“This requires the Board to censor or otherwise remove individuals who attempt to say a prayer, or anything that might resemble a prayer, during the public comment period,” said Robert Tyler of Tyler & Burch, LLP and legal counsel for CVUSD. “Such an overbroad injunction is a clear violation of the right of private citizens to address their local representatives in public meetings and is dangerous to the First Amendment.” Footnote 20 of the Ninth Circuit’s opinion makes this point more clear.

In 2014, the U.S. Supreme Court upheld ceremonial prayer at city council meetings in Town of Greece v Galloway. In that decision, Justice Anthony M. Kennedy noted the historical significance of such invocations. “Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government…,” Kennedy wrote.

The CVUSD school board will be meeting in the coming weeks to determine its next course of action.

A copy of the Ninth Circuit’s Opinion can be found here.

The Riverside County law firm of Tyler & Bursch, LLP, represents CVUSD, with the support of Advocates for Faith & Freedom, a nonprofit legal organization.

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Advocates for Faith & Freedom is a nonprofit public interest law firm dedicated to protecting religious liberty in the courts. The firm, in association with Tyler & Bursch LLP, has represented clients across the country on matters governing land use and religious liberty in the public square.

Christian Vindicated - WIN in the Ninth Circuit!

I have great news to share with you regarding a case that many of you have followed and supported for many years! On January 11th, three federal  appellate judges in the Ninth Circuit  issued a final ruling in favor of our  client,  Mark  Mackey, who was arrested back in 2011 for reading the  Bible aloud  in  front of the  California Department of Motor Vehicles in Hemet.

Overzealous CHP officer, Darren Meyer, approached Mark Mackey, grabbed the Bible from his hands, slapped handcuffs on his wrists, and hauled him off to jail. The entire episode was recorded on video and, despite clear evidence that Mr. Mackey and his friends were merely exercising their constitutional rights, the state refused to drop the charges. The video showed Officer Meyer saying that it was illegal to “preach to a captive audience.”

The court also rightly rebuked Officer Meyer for false allegations in his police report. In that report, the officer alleged that Mr. Mackey was yelling at people waiting in line and that a “verbal confrontation” had become “heated and nearing a physical state.”

The Ninth Circuit judge explained, “That version of events is completely belied by video and audio footage which does not reveal any confrontations whatsoever, and merely shows Mackey reading the bible aloud somewhat apart from people standing in line.”

It was obvious to us from the beginning that a great injustice had occurred. An innocent man exercising his religious liberty and free speech was criminally  prosecuted  based on erroneous claims put  forth  by a false and deceitful police report because the officials did not agree with our client’s speech. But that is exactly why our founders created the First Amendment—to protect even disagreeable speech.

Mr.  Mackey  filed a federal lawsuit, but  immediately  offered to drop the  federal  suit  if  the CHP admitted to the unlawful arrest and agreed to properly instruct its officers on how to handle such cases. They declined. Instead they prosecuted him. We successfully prevailed over the criminal charges.

Because of the nature of this case, it received national attention and more than 165,000 people have viewed the online video. But the real work was done behind the scenes as our team invested hundreds of hours investigating legal precedents, drafting briefs and dealing with opposing counsel.

Without dedicated supporters like YOU, who offered consistent prayers and financial backing over the years, Mr. Mackey would never have prevailed. His win in the liberal Ninth Circuit is a win for all of us who hold religious liberty dear. On behalf of Mark Mackey—and those who come after him—We Thank You!

If you would like to financially support the essential work we do here at Advocates for Faith & Freedom, please click here.

Click to view the Press Release.

Three of our Cases Pending in the Ninth Circuit

Is reading the Bible aloud in public “illegal?” You may recall that in 2013, we defended two men who were arrested by a CHP officer because they were reading the Bible aloud in a DMV parking lot. The men were arrested for “obstructing or intimidating persons there to transact business” with the DMV. The District Attorney’s arrest-with-captionOffice prosecuted our clients for a misdemeanor. However, we were victorious at trial and  our  clients were  found to be  innocent  of  the charges.

This entire case was based on two police reports written by the arresting CHP officer who fabricated events to justify the arrest. Thankfully, video recordings provide the truth. We offered the CHP the opportunity to avoid a federal lawsuit by admitting the arrest was unlawful and agreeing to properly instruct its officers. We filed a federal lawsuit for unlawful arrest in federal court after the CHP rejected our proposal. The federal district judge ignored the video evidence and ruled for the CHP. We then filed an appeal to the Ninth Circuit Federal Court of Appeal.

We appeared for oral arguments in the Ninth Circuit before a three-judge panel on December 9, 2016. The decision from the Ninth Circuit should come sometime next year. Please pray for God’s divine wisdom and guidance as we proceed in this case.

Is it “illegal” to allow invocations at school board meetings?

The Freedom From Religion Foundation is aggressively pushing its agenda. They sued the Chino Valley Unified School District because it allowed a pastor or religious leader to open each school board meeting with an invocation. After a federal district court judge declared the invocations to be unconstitutional, the School District asked us to appeal their case to the Ninth Circuit and to  take  over their  defense.chino-valley-schoo-board-prayer-supporters

The so-called “separation of church and state” does not  exist  in the  Constitution,  but has been used in an  attempt to eliminate all influence of a Christian worldview in our government.  We will defend the school district all the way to the U.S. Supreme Court if needed so that our leaders can properly begin their meetings with reverence for God and recognize their moral responsibility in government.

The outcome of this case will impact the judiciary nationally and will likely be binding on all of the nine states under the Ninth Circuit’s jurisdiction and more than 60,000,000  residents.  Prayers have been offered at the beginning of legislative meetings since the founding of our country. The U.S. Supreme Court has upheld the practice in state legislative meetings and city council meetings. 

Is  it “legal” to force all Christian pregnancy counseling centers to give abortion referrals?

This is precisely the question we were asked by our client, Pastor Scott Scharpen, the president  of Go Mobile for Life—a nonprofit crisis pregnancy counseling center that operates a mobile medical clinic providing free ultrasounds.

scott-and-carolyn-sharpen-with-captionThe State of California recently enacted a new law that requires pregnancy counseling centers to give their clients a notice that “California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women.” The notice must also include the phone number to the county social services office where abortion information can be obtained. The abortion notice must be posted in a conspicuous place within the waiting room or personally delivered to each patient.

Although there are some exemptions to the law, they appear to apply to Planned Parenthood and other abortion providers, but there is no exemption for religiously-based counseling centers.

We partnered with our friends at American Center for Law and Justice and filed a lawsuit on behalf of Go Mobile for Life in California state court where we are presently in active litigation and conducting depositions. We also filed a federal lawsuit on behalf of Livingwell Medical Clinic in northern California. After the initial three-judge panel in the Ninth Circuit denied our request for a preliminary injunction, we filed a petition “en banc” wherein we are requesting all of the judges in the Ninth Circuit to vote on whether an eleven-judge panel should be appointed to rehear the case.

As you can see, we are extremely busy preparing and strategizing on these three cases, as well as many others. We certainly appreciate your prayers and any contributions you can offer to assist us as we take a stand in the courts.

Will the Mt. Soledad Cross Remain?

Recently, we sent an amicus brief to the district court in opposition to the decision of the Ninth Circuit regarding the Mt. Soledad cross in San Diego, CA. Mt Soledad Cross In 2011, the Ninth Circuit ruled that the cross was unconstitutional under the Establishment Clause in our Constitution. The decision stated, "Overall, a reasonable observer viewing the Memorial would be confronted with an initial dedication for religious purposes…” However, the Court did not decide what to do with the memorial.

This decision was appealed to the U.S. Supreme Court, but they declined to hear the case. So, the Ninth Circuit verdict remains in place.

          We believe that this cross is a longstanding memorial to our men and women in uniform, and we – along with other supporters – suggest that the land the cross sits on be sold to a private party so that the memorial can remain. With the sale or transfer of the land to a private organization, the government would be free from any perceived endorsement of religion.

This would be a far better resolution than removing the cross altogether. The Mt. Soledad Cross has stood atop a hill in La Jolla, CA, since 1913 (the current cross was erected in 1954) and is a memorial honoring veterans who have served our country.


          Please pray with us as our amicus brief goes before the District Court. We pray that this memorial will continue to stand in honor of those who have bravely served our country!

Update: What Will Happen with the Mt. Soledad Cross?

Since 1913, a cross has sat atop a hill in La Jolla, CA, as a centerpiece to the Korean War Memorial.  However, since 1989, the cross has been at the center of some very intense legal battles.  Opponents of the cross say that it sits on public land and should not be allowed because it is a Christian symbol.  They claim that the government is promoting one specific religion through its existence.  On the other hand, supporters of the cross say that it is simply a symbol of remembrance – not related to any religion. Most recently, the Ninth Circuit Court of Appeals ruled that the cross was unconstitutional; however, it did not decide what should be done with the cross.  When the case was then appealed to the U.S. Supreme Court, the High Court said that it would not hear the case…right now.  It will be sent back down to the U.S. District Court in San Diego to decide what will be done with the cross.  At that point, supporters can then appeal the case again to the Supreme Court.


Please pray for this ongoing case.   A memorial with such a rich history should be allowed to stand in commemoration of our veterans, and we will continue to pray and fight for its continued existence!

Ninth Circuit Rules - Student v. Teacher

On August 19, 2011, the Ninth Circuit Court of Appeals issued a ruling in the case of Farnan v. Capistrano Unified School District.

Please read this important update as we make preparations to take this case all the way to the U.S. Supreme Court.

In 2007, Chad Farnan, then a student at Capistrano High School in Orange County, CA, brought a case against his Advanced Placement European History teacher. Farnan had tape recorded numerous lectures for study purposes, but in the meantime, caught his teacher making numerous comments that we believe were an unconstitutional attack on Christianity and religion. In one instance, his teacher stated, “When you put on your Jesus glasses, you can’t see the truth.”

We filed a federal lawsuit arguing that the public school teacher was creating an environment of religious hostility, thereby violating the federal Establishment Clause.  We believe that a child should be able to go to school without being bullied by his own public school teacher.

In May 2009, a federal District Court judge issued a ruling in Farnan’s favor. The judge held that the teacher violated the Establishment Clause in one instance where he expressed “an unequivocal belief that creationism is 'superstitious nonsense.'” This was a great victory in the furtherance of religious liberty.

On appeal, the Ninth Circuit agreed with us that the Establishment Clause of the First Amendment requires that government officials must maintain neutrality toward “religion and nonreligion.” The court even said that “[a]t some point a teacher’s comments on religion might cross the line and rise to the level of unconstitutional hostility.”

Despite these statements, the Ninth Circuit chose not to give a ruling on the main constitutional question presented on appeal. Instead, the Ninth Circuit chose to simply say that the court could “not conclude that a reasonable teacher standing in [the teacher’s] shoes would have been on notice that his actions might be unconstitutional.” Therefore, the Court granted immunity to the school teacher.

This begs the question: Why didn’t the Ninth Circuit rule on the constitutional question and provide guidance to the millions of school children and tens of thousands of school teachers? This case could have been used to place boundaries on teachers who feel free to improperly express hostility toward religion in public schools.

We believe that the Ninth Circuit had the responsibility to issue a ruling that clarified the law by declaring that the teacher’s conduct was unconstitutional. Instead, the Court intentionally avoided making any determination on the substantive legal issue and simple granted immunity.

Just as public school teachers are not allowed to promote one religion in the classroom, they should not be able to use their classrooms as a platform to attack religion because the pendulum swings both ways.

It is our goal to have the Ninth Circuit, and ultimately the U.S. Supreme Court, issue a precedent setting ruling on this important legal issue, regardless of whether the teacher is granted immunity from monetary damages.

The teacher may have won a mid-level procedural victory - being granted immunity, but he certainly has not won the moral victory.  So far, the only court to address the constitutionality of the teacher’s conduct is the District Court and that court determined that the teacher’s conduct was unconstitutional.

A teacher who spews hostility toward Christianity or other faiths is no more acceptable than the bully on the playground that is verbally hostile toward other students. This case is not about immunity for the teacher or money for our clients, it’s about protecting our kids from a hostile environment in the classroom.

This case, however, is far from over. We plan to file a petition for rehearing and for en banc review before the Ninth Circuit within the next week or so. If the petition is not successful, we will ask the U.S. Supreme Court to review the Ninth Circuit’s decision.

Please stand in prayer with our legal team and Chad Farnan.  We greatly appreciate your prayers and would appreciate your immediate financial support as we prepare our legal briefs over the next two weeks.

Mt. Soledad Cross Declared Unconstitutional by Ninth Circuit

In yet another shocking decision from the Ninth Circuit court of Appeals, the court ruled that the Mt. Soledad cross, a San Diego monument to our Nation’s veterans and a poignant war memorial, is unconstitutional.  Advocates has submitted substantial briefing in support of the constitutionality of the war memorial, and will continue to do so should this decision be reconsidered by the United States Supreme Court!  With deep gratitude to those who have sacrificed the ultimate prince with their lives to defend our freedom, we are hopeful that the monument will continue to stand as a beacon of light and an expression of gratitude.  The Court’s preposterous interpretation of the First Amendment in this decision should not be permitted to stand.