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.

ObamaCare – One Mandate Down

Although the national health insurance debate may not directly relate to religious liberty, we felt the Eleventh Circuit’s refreshing decision concerning health care is certainly worthy of reporting.  Last week, the Eleventh Circuit Court of Appeals ruled that the individual mandate required in the Patient Protection and Affordable Care Act (known as “ObamaCare”) is unconstitutional.

According to the Court, Congress cannot "mandate that individuals enter into contracts with private insurance companies for the purchase of an expensive product from the time they are born until the time they die."

The Court further went on to say:

“Few powers, if any, could be more attractive to Congress than compelling the purchase of certain products. Yet even if we focus on the modern era, when congressional power under the Commerce Clause has been at its height, Congress still has not asserted this authority. Even in the face of a Great Depression, a World War, a Cold War, recessions, oil shocks, inflation, and unemployment, Congress never sought to require the purchase of wheat or war bonds, force a higher savings rate or greater consumption of American goods, or require every American to purchase a more fuel efficient vehicle.”We celebrate the 2-1 majority vote of the Court to call the ObamaCare mandate unconstitutional.  Since this decision differs from another federal appeals court ruling earlier this year which upheld the individual mandate, this case will very likely go to the US Supreme Court next.

Once a new federal law is established, there are often hundreds of pages of regulations adopted by non-elected officials who implement the law. ObamaCare has raised serious concerns regarding how politicians and regulators will use this new law to promote abortion and other causes that are repugnant to the Christian faith.

If the Supreme Court does not overturn ObamaCare for its individual mandate, we will monitor the implementation of ObamaCare in order to protect religious liberty and traditional values.  We will keep you updated on what happens in the ongoing case of ObamaCare.

Do you know the TRUE story behind our national anthem, “The Star-Spangled Banner”?

In the midst of the War of 1812, three US hostages aboard a British ship wait through the night, hearing the devastating sounds of war raging against a strategic US fort.  In the morning, they wake up at dawn, head to the deck, and look out to see whether the US flag is still flying, or if it has been replaced with a British flag….

Want to know the rest of the story?  Click here to watch a video from David Barton, President of WallBuilders, explaining this amazing moment in our history.

We are excited that David Barton will be our keynote speaker at this year’s Justice Gala!  His intimate knowledge of history – particularly from a religious viewpoint – is incredible, and we are blessed to have him share more about our nation’s forgotten heroes and Christian heritage at our event.

As the icing on the cake, we have Mike Williams – one of the greatest Christian comics today – as our Master of Ceremonies. Be ready to laugh the night away while supporting Advocates for Faith & Freedom!

Justice 2011, taking place on October 1 in Newport Beach, CA, will be one you will always remember…we hope you will join us!

Judge to Rule on Case of Christians Arrested for Reading the Bible Aloud in Public

In February 2011, three Christian men from Hemet, California, went to the local DMV. They stood about 50 feet from the door to the business and, while people waited in line for the DMV to open, one of the men read aloud from the Bible.

Within about 30-40 minutes, a CHP officer arrived, grabbed the Bible from the hands of the Christian reading, and arrested him, saying, “You can preach on your OWN property.”  The other two men asked the officer, “What law was he breaking?”…but the policeman could not give an answer.  While they were still trying to figure out why an arrest had occurred, another CHP officer arrived and arrested the other two as well.

Later, the CHP decided that the charge against these men was “impeding an open business”.  However, the DMV was not open at the time they were there AND they were standing far away from the entrance.

Advocates intervened in this case to protect the freedom of speech that these men are guaranteed by our Constitution, as well as to recognize the false arrests that they endured.  We stood in defense of our clients' freedom of speech and filed a lawsuit in the Federal District Court against the CHP for an unlawful arrest.  The CHP then filed a Motion to Dismiss in response to our lawsuit, after which we filed a brief in opposition to their motion.  We anticipate that the judge will decide on the CHP’s motion very soon.

The three men are now being criminally prosecuted for not having a permit.  We believe the charges are unfounded because no permit is clearly required by state law.  Interestingly, the criminal charges were not filed until after we initiated the federal lawsuit.

We are praying for favor from the court and that the judge will see the validity of the arguments we presented in our written brief.

We appreciate your support and encouragement in this important case.  Not everyone will agree with the approach or the type of outreach these men performed, but we should all recognize their Constitutional right to read from the Bible out loud in public.  If this is not protected speech, then the Free Speech Clause would be of little value.

If you would like to see the whole story as it actually played out, you can watch a video of the arrest here.

Also, join us on Facebook and Twitter to stay up-to-date on our progress in this case and others.

Did you know Congress printed the first U.S. Bible?

The theme of our annual Justice gala, on October 1, 2011, is“Defending Our Christian Heritage.”  In a time when the culture war is raging in our Nation, we can’t think of a more relevant topic to share with you.

We are so pleased to have David Barton, president of WallBuilders – an organization dedicated to preserving America’s forgotten history and heroes – as our featured speaker at Justice.  His knowledge of America’s Christian foundation shines a bright light on our history, such as the fact that the first Bible printed in English in the U.S. was printed by our government.

There is so much religious history to our nation’s founding that has been lost or revised along the way.  Other amazing facts that David Barton shares…

• That first U.S. Bible printed by Congress was for use in…our public schools
• The 4 paintings lining the walls of the Capitol show two prayer meetings, a Bible study, and a baptism
• The U.S. Capitol was America’s first megachurch, housing church services every Sunday

You will not want to miss this year’s Justice dinner and auction on October 1, with David Barton as our guest speaker.  This video gives just a sneak peek of what he will be sharing with us about the importance of “Defending Our Christian Heritage”:

Click here to view video

Another Student Vindicated

Whether you are a parent, a student, or have a loved one currently in middle or high school, we wanted to inform you of a recent case we fought involving the rights of a high school student.

In April, the Assistant Principals of Casa Grande High School approached student Maurace Zetino and told him that he could not wear his rosary outside of his clothing while on school grounds.  They said that the rosary could be construed as a gang symbol, and thus it was not permitted to be worn in full view – even though Maurace wears it as an expression of his Catholic religious beliefs.

Beyond a shadow of a doubt, the law supports the constitutional right of students to express their religious beliefs.Students do not give up their freedoms and liberties when they step foot on campus.

Along with our friend Jay Sekulow at the American Center for Law & Justice, we sent a joint demand letter to the Principals at Casa Grande, informing them of Maurace’s constitutional rights to convey his religiosity. In 1969, in the case of Tinker v. Des Moines Indep. Community Sch. Dist.,students wore black armbands to protest the activities occurring in Vietnam. The students were sent home and told not to return until they removed the armbands, but the Supreme Court found in favor of the students and stated that students could express their beliefs – even if not shared by the school – as long as they did not cause “material and substantial” interference with the workings of the school or the rights of others.

Maurace is not a gang member. He does not wear the rosary to offend anyone or cause any kind of raucous. He simply wears it as an expression of his faith.

After our demand letter was sent to the school, attorneys on behalf of the administrators quickly responded and said that Maurace could continue to wear the rosary, and that all disciplinary actions related to this situation would be removed from Maurace’s record. We thank the school and admire their prompt response and resolution of this matter.

If you have a student in your life whose liberties are in some way infringed upon at school, I urge you to take action and stand up for religious freedom. Being a minor student does not eliminate a person of his or her constitutionally supported liberties. If Advocates can help in any way, we are ready and available to do so!

Reading the Bible in Public Has Never Been So Controversial

Advocates for Faith & Freedom recently filed a lawsuit against the California Highway Patrol when three men from Hemet, California, were arrested for reading the Bible out loud in front of the DMV.  The facts are indisputable because the entire arrest was recorded.  The video of the arrest can be found here.  All that is missing from this video is approximately 25 minutes of Bible reading from various Bible passages.  There was no disturbance and no preaching - just pure Bible reading.  However, this case has created quite a controversy thanks, in part, to media coverage from local newspapers to Glenn Beck on the Fox News Channel to the video being played over 90,000 times on YouTube.The Controversy Begins

Many non-Christians are offended by the teachings of the Bible, so hearing the Bible read in public is especially disturbing to them.  II Corinthians 2:14 speaks of this reality where it says that the Gospel is like the aroma of death to the unbeliever, but life to the believer.  Additionally, many Christians are disturbed by the fact that we filed this case because they strongly disagree with the method of evangelism used by these men – reading the Bible aloud to persons who were waiting in line for the DMV to open.

On the other hand, most people who support our lawsuit are equally disturbed by the officer’s complete disregard of the First Amendment right to free speech and the Fourth Amendment right to be free from arrest unless the arresting officer has reasonable belief that a crime was committed.

A False Arrest

Why were the men arrested?

It was not for trespassing or loitering since they were allowed to be there.  Rather, the CHP officer claimed that it was illegal to “preach” to a “captive audience.”  Of course, there is no such law in the California Penal Code.  Instead, the men were later cited for allegedly violating Penal Code Section 602.1(b), which prohibits individuals from intentionally obstructing or intimidating persons who are attempting to carry on business with a public agency.  However, not only does the video evidence clearly dispute the claim of obstruction or intimidation as the men were more than 50 feet from the DMV entrance, Penal Code Section 602.1(b) expressly states that it does not apply to any “person on the premises who is engaging in activities protected by the California Constitution or the United States Constitution.” Reading the Bible out loud on public property is an activity that is typically protected by both the United States and California Constitutions.

Even though it appears clear to most people that this was an unlawful arrest with no valid probable cause, many Christians and non-Christians alike are offended by what they saw on the video – a man reading the Bible in a loud voice, approximately 20 to 30 feet from individuals waiting in line for the DMV to open for business.  Some people don’t believe that reading from the Bible out loud in public deserves protection under the First Amendment because they think it might be offensive to the ears of unsuspecting recipients.

Is Street Evangelism Wrong?

We have heard from some Christians who say they are embarrassed by persons who engage in “street evangelism,” especially when they observe annoying or offensive witnessing methods.  We have heard from a few Christians who are offended by the evangelistic approach used by these three men in particular and, therefore, do not support the legal action we have taken to challenge these unlawful arrests.

We understand that not everyone agrees with vigorous street evangelism, but not everyone agrees with passive non-confrontational evangelism either.  Some people may have been offended by Billy Graham’s evangelistic approach.  Does that mean that Billy Graham should not have had the right to free speech because some persons disagreed with his message or approach?  Should Martin Luther King’s speeches have been censored because some of the “white establishment” was offended by his remarks – remarks that some would say were offensive and radical?

The First Amendment was not intended to protect speech that everyone agrees with.  In fact, agreeable speech needs no protection.  Rather, freedom of speech applies to offensive speech, annoying speech, and even evangelistic speech.  This is the point of this case.  You don’t have to agree with the method of evangelism to support the fact that our Constitution, and the right of free speech found in the First Amendment, does not allow the police or other governmental officials to decide whether speech is acceptable or constitutionally protected.  If offensive speech is not protected, it may be determined in the future that your church’s door hangers advertising Easter service or the gospel tracks you hand out in front of the homeless shelter are offensive and, therefore, illegal!

In the future, it may be your own method of evangelism that is banned from public dissemination in alleged violation of the First Amendment.  We concluded that even though our clients’ approach to evangelism is offensive to some, their speech must still be constitutionally protected.  Some of the cases we regularly cite to in legal briefs to defend religious liberty are based on highly offensive facts.  For example, one case decided by the U.S. Supreme Court said that the words “F… the Draft”, written on a t-shirt that was worn in a courthouse, is protected speech.

Recently, U.S. Supreme Court Chief Justice John Roberts upheld the right of the infamous Westboro Baptist Church to stage protests in front of military funerals in order to protest the military’s acceptance of homosexual behavior.  Some of the signs that were held read, “Fag Troops”, “You're Going to Hell,” and “God Hates You.”

Speech Is Powerful                                                                                                                                                                                                                                                                                                                               

Chief Justice Roberts wrote that “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.”  Roberts addressed the captive audience argument by writing, “the Constitution does not permit the government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer.  Rather, ... the burden normally falls upon the viewer to avoid further bombardment of [his] sensibilities simply by averting [his] eyes.”  Roberts summarized his rationale as follows: “Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and-as it did here-inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course-to protect even hurtful speech on public issues to ensure that we do not stifle public debate.”

We Must Support Free Speech

Intellectual honesty is required of Christians, as it is of all American citizens.  True free speech is by nature controversial, and can be difficult to defend when any individual does not agree with the speech for any reason.  If we decide that only our own personal view of Christ-like speech or our method of evangelism deserves constitutional protection, then, eventually your own religious expression may be publicly banned.  The Truth of the Gospel does not return void and American culture desperately and increasingly needs that Truth to be shared.  It is more important than ever to defend the free speech rights of every individual who seeks to share that Truth, regardless of the controversy surrounding the method, in order to ensure that everyone’s right of free speech is protected, for all methods and in all forums, for the sake of future generations and the culture of today.

"So Help Me God" Stays Put

Last month, the United States Supreme Court refused to hear a case brought by a group of atheists (led by the infamous atheist Michael Newdow who also challenged “under God” in the Pledge of Allegiance), challenging the use of the phrase “So help me God” used at the end of the President’s inaugural speech.

This suit originally came about before President Obama’s inaugural ceremony in January, 2009, asking a federal judge to block the use of the phrase at the inauguration.  In addition, this group asked that clergy be barred from conducting an invocation and benediction at the ceremony.

A federal judge claimed that the atheists did not have proper standing to bring this case, and so they were denied.

Later, the atheist group amended the case, seeking to bar all religious reference from the 2013 and 2017 inaugurations. They claimed that these statements amounted to governmental support of religion, which they believed would violate the First Amendment’s Establishment Clause.  The case was filed against the chief justice, prospective prayer leaders, and inaugural committee members.

The appeals court dismissed the case, stating that the President or President-elect decides the content of the inaugural ceremony.  Thus, none of the individuals named in the case had the power to change the content, and since the atheist group did not name the President or President-elect, the case was dismissed.

Acting Solicitor General Neal Katyal underscored an important point:

“A court would not have the authority to enter an injunction directly against the president in the exercise of his executive functions or against the president-elect (a private citizen) in the exercise of his personal religious beliefs.”

We applaud the decision of the Court!

Christian Arrested for Reading the Bible in Public - Caught on Video

Hemet, CA. On February 2, 2011, one assistant pastor and two elders from Calvary Chapel of Hemet, California, went to the Hemet DMV before it opened and one of the men started to read the Bible aloud. Less than thirty minutes later, he was arrested for "impeding an open business" under Penal Code Section 602.1(b). Shortly after the men arrived at the DMV and began to simply read the Bible out loud, a security guard approached Mark Mackey as he was reading the Bible and told him to stop. The men believed that they had a First Amendment right to free speech as they were standing in a planter within the parking lot and were located on public property. Further, they were not interfering with any business of the DMV and were not yelling or disturbing the peace.

About ten minutes later, a California Highway Patrolman approached Mr. Mackey as he read, took the Bible out of his hands, and arrested him. As the CHP officer was arresting him and putting him in his patrol car, the two men who were with him – Assistant Pastor of Calvary Chapel Hemet, Brett Coronado, and Ed Flores – asked the officer, “What law was he breaking?” Instead of identifying a legal violation, the officer asked, "Were you preaching too?" After continuing to ask the officer for the legal violation, Pastor Coronado and Ed Flores were also arrested by another CHP officer who had come to the DMV and were also cited for “impeding an open business.” Neither Pastor Coronado nor Mr. Flores ever read the Bible out loud anywhere on DMV premises.

The charge of “impeding an open business” was enacted in large part to protect businesses against protesters who block the doors of an open business. At the time of the arrest of these men, the DMV was closed, and they were standing at least fifty feet away from the entrance.

“This is an abuse of power on the part of the CHP,” said Jennifer Monk, Associate General Counsel for Advocates for Faith & Freedom. “The arresting officer could find no appropriate penal code to use when arresting these men. The purpose of the arrests appears to have been to censor them.”

After their arrests, these men were released, and the District Attorney has not at this time pursued any criminal charges. Prior to the arrest and during the arrest, Pastor Coronado and others videotaped the actions of the CHP, and a link to the edited footage can be found below. Advocates for Faith & Freedom has filed a federal lawsuit on behalf of these three men for violation of their right to free speech and for unlawful arrest.

"Whether this was an intentional violation of our clients' constitutional liberty or whether this was an act of ignorance on the part of the CHP, this lawsuit is important in order to preserve the liberty to read the Bible aloud on public property without fear of criminal prosecution,” said Robert Tyler, General Counsel for Advocates for Faith & Freedom.

A copy of the complaint can be found here.

For an edited version of the video footage from this arrest, please click here.

A Supreme Court Win for Liberty

With our big government seemingly growing bigger all the time, we celebrate every victory that affords individuals personal freedom and liberties.

Just this week, the Supreme Court decided in favor of the individual and religious liberty.  In Arizona, state taxpayers had challenged a state program that allows tax credits to those who contribute to school tuition organizations (STOs), which provide scholarships to private and religious schools.  In a 5-4 vote, the Supreme Court found that these taxpayers had no standing, and that, essentially, individuals have the right to contribute their money to the organizations they want to help.  In the decision, Justice Kennedy explained:

“[C]ontributions result from the decisions of private taxpayers regarding their own funds.  Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs.  While the State, at the outset, affords the opportunity to create and contribute to an STO, the tax credit system is implemented by private action and with no state intervention…”

We celebrate this victory of freedom and personal liberty, and we are proud to have written the brief on the issue where the case was won!