Ongoing Lawsuits - Legal - Freedom From Religion Foundation

FFRF, ACLU bring suit challenging public school’s live nativity scene

On October 7, 2015, the Freedom From Religion Foundation, the American Civil Liberties Union, and the ACLU of Indiana filed a federal lawsuit, along with a local parent and student, challenging an annual live nativity performance at Concord High School in Elkhart, Indiana.

The complaint notes that for several decades, Concord High School has organized a "Christmas Spectacular" each winter. Every performance, of which there were five last year, "ends with an approximately 20-minute telling of the story of the birth of Jesus, including a live Nativity Scene and a scriptural reading from the Bible. During this segment, students at the High School portray the Virgin Mary, Joseph, the Three Wise Men, shepherds, and angels."

Plaintiff Jack Doe, a student at the school, is a member of the performing arts department. Attendance and performance at the Christmas Spectacular is mandatory for students enrolled in the performing arts department.

Attorneys for FFRF and the ACLU argue in the complaint that the nativity performance and the reading of the biblical story of the birth of Jesus are, of course, "well-recognized symbols of the Christian faith. Their presence at the Christmas Spectacular is coercive, represents an endorsement of religion by the High School and the School Corporation, has no secular purpose, and has the principal purpose and effect of advancing religion."

A video of the 2014 Nativity performance can be viewed here.

FFRF has brought suit in conjunction with the ACLU of Indiana and the national ACLU. Attorneys on the case include Sam Grover and Ryan Jayne of FFRF, Gavin Rose of the ACLU of Indiana, and Daniel Mach and Heather L. Weaver of the ACLU. FFRF v. Concord Community Schools, Case No. 3:15-cv-00463, is in the U.S. District Court for the Northern District of Indiana, South Bend Division. Judge Jon DeGuilio has been assigned to the case.

Press Release 
Motion for Preliminary Injunction
Motion for Protective Order

FFRF, AU, ACLU sue Brevard County (FL) over discrimination of nontheists

The Freedom From Religion Foundation, together with Americans United for Separation of Church and State, the American Civil Liberties Union, and the American Civil Liberties Union of Florida, filed a federal lawsuit on July 7, 2015, challenging censorship of nontheists by Brevard County (Fla.) Board of County Commissioners. The lawsuit asserts that Brevard County's persistent rejection of atheists, humanists and other nontheists who want to deliver solemnizing messages to start meetings violates the U.S. and Florida Constitutions.

The plaintiffs in the case include the Central Florida Freethought Community (a chapter of FFRF) and its chair David Williamson; the Space Coast Freethought Association and its president Chase Hansel; the Humanist Community of the Space Coast and its president Keith Becher; and Brevard County resident Ronald Gordon.

Litigators include Alex Luchenitser and Legal Fellow Joshua Hoffer at Americans United; Nancy Abudu and Daniel Tilley of the ACLU of Florida; and Daniel Mach of the ACLU Program on Freedom of Religion and Belief; and FFRF Senior Staff AttorneyRebecca S. Markert and Staff Attorney Andrew L. Seidel.

The case, Williamson v. Brevard County no. 6:15-cv-01098-JA-DAB, has been assigned to Senior District Judge John Antoon, a Clinton appointee, in the U.S. District Court for the Middle District of Florida, Orlando division.

Press release 

FFRF backs Georgia family in suit over elementary school prayer

On Feb. 9, 2015, FFRF filed a federal lawsuit in the Southern District of Georgia, alleging discrimination against two anonymous Doe children by their elementary school teachers. The complaint against Emanuel County Schools charges that teachers inflicted religious prayers on their captive student audiences each day before lunch. Plaintiffs are the Freedom From Religion Foundation and the anonymous Doe family.

When the parents of kindergartener Jamie Doe and first grader Jesse Doe complained about the prayers at Swainsboro Primary School, teachers responded by instructing the Doe children to wait in the hallway while the rest of their classes prayed. The Doe parents ultimately removed Jamie from school due to persistent complaints of feeling uncomfortable in class.

The complaint further alleges that Jesse was pressured to pray by multiple teachers in the school. A teacher held Jesse back from recess to explain her personal Christian beliefs and said that Jesse's mother was a bad person for not believing in God.

FFRF is represented by W.R. Nichols, of Atlanta, with FFRF Staff Attorneys Samuel T. Grover and Andrew L. Seidel serving as co-counsel. FFRF v. Emanuel County School System, Case No. CV615-013, is in the U.S. District Court for the Southern District of Georgia, Statesboro Division.

Read FFRF's press release

Exhibit 1
Exhibit 2

FFRF sues Walker administration for open records violation

The Freedom From Religion Foundation filed a lawsuit Dec. 17, 2014 in Dane County Circuit Court, Wis., charging that Wisconsin open records law was violated by Theodore Nickel, state Office of the Commissioner of Insurance and Commissioner. In addition to FFRF, Staff Attorney Patrick Elliott is a plaintiff.

Elliott made a series of open records requests of the Office of the Commissioner after a reported agency decision that Wisconsin's contraceptive mandate, known as the Contraceptive Equity Law, would no longer be enforced because it was preempted by the June 30 Hobby Lobby ruling by the U.S. Supreme Court. FFRF and many other observers disagreed, since the Religious Freedom Restoration Act under which the ruling was decided applies only to the federal government, not states.

FFRF learned of documents in OCI's possession that should have been provided in response to the records requests, but were withheld. FFRF charges that OCI violated numerous portions of the open records law when it failed to provide the documents, and seeks an order directing the defendants to produce the records and award reasonable attorneys' fees, damages of not less than $100, punitive damages and other actual costs.

"Let there be sunlight," said FFRF Co-President Annie Laurie Gaylor, who thanked the firm of McGillivray Westerberg & Bender for representing FFRF.

The case is in the courtroom of Circuit Court Judge Amy Smith.

FFRF News Release: "FFRF sues Walker administration over open records violations"
FFRF Complaint
OCI Answer
OCI Motion for Judgment on the Pleadings
FFRF Response Brief
OCI Reply Brief
Judge’s Order on Motion
FFRF Motion for Clarification
In Camera Review Order


FFRF sues over school board prayer in Chino Valley, Calif.

On November 13, 2014, FFRF filed a lawsuit in the Central District of California, Eastern Division, against the Chino Valley Unified School District Board of Education, whose meetings “resemble a church service more than a school board meeting.” There was such an outpouring of support that FFRF amended its complaint on December 15, adding 18 plaintiffs, for a total of 22. All the plaintiffs are families with students in the school or school employees who have had the prayers foisted on them.

School board meetings open with a prayer, and often include bible readings and proselytizing by board members. Board President James Na injects Christianity into many of his official statements, FFRF's legal complaint notes. At one typical meeting, Na “urged everyone who does not know Jesus Christ to go and find Him,” after which another board member closed with a reading of Psalm 143.

Students often attend the meetings to receive awards, speak about issues affecting their schools, attend disciplinary hearings and do performances. Student attendance is mandatory in some instances, and a student representative is a member of the board.

FFRF is represented by Attorney David J.P. Kaloyanides, who won a lawsuit in February on behalf of the American Humanist Association, which stopped the city of Lake Elsinore, Calif., from building a war memorial depicting a soldier kneeling before a Christian cross. FFRF Senior Staff Attorney Rebecca Markert and Staff Attorney Andrew Seidel are co-counsel on the case.

The complaint asks the court to declare the board's religious practices unconstitutional under both the federal and state constitutions and to permanently enjoin the board from any further school-sponsored religious exercises. U.S. District Judge Jesus Bernal, an Obama appointee, is handling the case (Case No. 5:14-cv-02336).

On February 27, 2015, CVUSD retained new counsel, the Pacific Justice Institute.

FFRF filed a motion for protective order to keep the plaintiffs' identities confidential and protect them from retribution. Pitzer College professor Phil Zuckerman, the foremost expert on secular demographics and sociology, offered testimony to support FFRF's motion. PJI opposed the protective order initially, then changed course and stipulated to the pseudonyms. The court granted plaintiffs' request and ordered that pseudonyms be used from the case.

Amended Complaint
Motion for Protective Order
Zuckerman Declaration 
Defendant's brief opposing protective order 
Order granting pseudonyms 

Read Press Release:
FFRF adds 18 plaintiffs to school board prayer suit in Chino, Calif.
FFRF sues praying school board in Chino Valley, Calif.

FFRF and parent seek removal of Ten Commandments monument in front of Pa. public school

NewKenTenCommFFRF and a parent filed suit on Sept. 14, 2012, against the New Kensington-Arnold School District (Pa.) to challenge a six-foot-tall Ten Commandments monument in front of Valley High School. FFRF wrote to the District in March of 2012 requesting the monument be moved because it violated federal and Supreme Court precedent prohibiting the display of the decalogue in public schools. District officials defended the monument and refused to move it.

FFRF's complaint stated that the continued presence of the Ten Commandments on district property was an unconstitutional advancement and endorsement of religion.
The parties filed for summary judgment on Dec. 12, 2014 before Judge Terrence McVerry of the Western District of Pennsylvania.

McVerry ruled on July 27, 2015, that the parent of a student, Marie Schaub, and the student did not have standing to bring the lawsuit.

FFRF's summary judgment brief discussed the plaintiffs' contact with the monument, which included a visit to the school for a karate event, use of the school's swimming pool, and visits to the school on other occasions. FFRF's brief argued, "This direct unwelcome contact with the Monument satisfies any standing burden that the Doe Plaintiffs have." FFRF's statement of facts in the case highlighted another form of unique injury to the family. Ms. Schaub withdrew her child from the school because of the Ten Commandments Monument.

Judge McVerry ruled in a companion case that a similar monument violated the Establishment Clause.

On Aug. 25, 2015, the plaintiffs filed notice of appeal with the U.S. Court of Appeals for the Third Circuit.

New Kensington-Arnold School District:

FFRF challenges Catholic shrine on Big Mountain

FFRF filed suit in U.S. District Court in Montana, challenging the Forest Service's decision to renew a special permit for a "shrine to our Lord Jesus Christ" on federal property in the Rockies. The Knights of Columbus, a conservative Roman Catholic men's club, has placed a devotional shrine on Big Mountain near Whitefish Mountain's Resort Chair Two in Flathead National Forest, in violation of the Establishment Clause of the First Amendment to the Constitution. On June 24, 2013, U.S. District Judge Dana Christensen issued a ruling granting summary judgment for the Defendants.

FFRF news release: "FFRF challenges Catholic shrine on Big Mountain"
William A. Cox Declaration
FFRF news release: "Judge rules FFRF's Jesus shrine suit can go forward"
Government's Brief for Summary Judgment
Intervenor's Brief for Summary Judgment (Knights of Columbus)
Smith Declaration
FFRF Response Brief
Bonham Declaration
Morris Declaration
Gaylor Declaration, Exhibits
Decision and Order 

FFRF filed a notice of appeal on August 22, 2013. The case will be heard by the Ninth Circuit Court of Appeals.

FFRF Appellate Brief
Government's Response Brief

Amicus Briefs filed in support of Government: 

State of Montana and American Legion

Ninth Circuit ruling by 3-judge panel 8/2015

FFRF sues IRS over "parsonage exemption"

The Freedom From Religion Foundation, with plaintiffs Annie Laurie Gaylor, Anne Nicol Gaylor and Dan Barker, filed a nationally significant federal lawsuit in Madison, Wis., on Sept. 13, 2011, challenging tax benefits for “ministers of the gospel,” commonly known as the “parsonage exemption," allowing ministers to deduct housing costs from their taxable income. The case advanced to the 7th Circuit Court of Appeals, which ruled that the plaintiffs lacked standing. FFRF will be retrenching its challenge of this unconstitutional subsidy.

FFRF sought a declaration that the federal statute creating the parish exemption, as administered by the IRS and the Treasury Department, violates the Establishment Clause of the First Amendment by providing preferential tax benefits to ministers of the gospel. FFRF requested the court enjoin the allowance or grant of tax benefits exclusively for ministers of the gospel.

The individually named plaintiffs, either currently directors or retired directors of FFRF, receive a housing allowance designated by FFRF's governing body, yet do not qualify for the housing allowance as they are promoting non-belief, rather than religion. In fact, Dan Barker is an ordained minister who previously was able to utilize the housing allowance and exclude such payments from his taxable income.

Ministers, who are paid in tax-free dollars, also may deduct their mortgage interest and property tax payments. Under federal law, allowances paid to “ministers of the gospel” are not treated as taxable income. “Ministers of the gospel” may uniquely claim these benefits, so the statutes convey a governmental message of endorsement, unconstitutionally favoring religious employees and institutions over all others. The exemptions permit clergy to deduct from their taxable income housing allowances furnished as part of compensation. The unique benefits to clergy date to 1954, when Congress amended the tax code to permit all clergy to exempt their housing costs from their incomes taxes. U.S. Rep. Peter Mack, author of the amendment, declared:

“Certainly, in these times when we are being threatened by a godless and antireligious world movement we should correct this discrimination against certain ministers of the gospel who are carrying on such a courageous fight against this foe. Certainly this is not too much to do for these people who are caring for our spiritual welfare.”

“The income taxation of ministers of the gospel under the general rules that apply to other individuals would not interfere with the religious mission of churches or other organizations or the ministers themselves,” the legal complaint maintained. The statutes are not an accommodation of religion, therefore, but a subsidy.

Defendants were Jacob Lew, U.S. Treasury Secretary and John Koskinen, Internal Revenue Service Commissioner, who are all providing tax benefits only to “ministers of the gospel,” rather than to a broad class of taxpayers. (When originally filed in 2011, defendants were Timothy Geithner and Douglas Shulman).

U.S. District Judge Barbara Crabb, Western District of Wisconsin, issued a strong 20-page opinion and order on Aug. 29, 2012, permitting FFRF Co-Presidents Dan Barker and Annie Laurie Gaylor and President Emerita Anne Gaylor to pursue their challenge of the 1954 law. The plaintiffs receive part of their salaries designated for a housing allowance. Yet they do not qualify for the parish exemption as they are not “ministers of the gospel.” The government contested their standing to sue, but Crabb wrote that “there is no plausible argument that plaintiffs could make that they qualify as ‘ministers of the gospel,’ so it would be pointless to require plaintiffs to jump through the hoop of filing a claim to prove that they are not entitled to the exemption.”

Motion to Dismiss
Amended Complaint
Opinion and Order - Motion to Dismiss
FFRF news release: "FFRF parish exemption case clears hurdle" 
Opinion and Order, August 29, 2012
Government Brief for Summary Judgement
FFRF's Brief in Opposition
Annie Laurie Gaylor Declaration
Dan Barker Declaration
Decision in favor of FFRF (Nov. 21, 2013) 

The federal government filed notice on January 24, 2014, that it was appealing Judge Crabb’s ruling in favor of FFRF. Oral arguments were held before the Seventh Circuit Court of Appeals in Chicago on September 9, 2014.

Government’s Appellate Brief
FFRF Brief
Government’s Reply Brief
Plaintiff’s Supplemental Brief Regarding Standing

Amicus Briefs filed in support of Government:

Becket Fund for Religious Liberty 
Foundation for Moral Law
Liberty Institute
National Jewish Commission on Law and Public Affairs
Alliance Defending Freedom
Church Alliance
Christian Legal Society - Part I
Christian Legal Society - Part II

Amicus Brief filed in support of FFRF:

Center for Inquiry - Amicus Brief

On November 13, 2014, a three-judge panel of the Seventh Circuit Court of Appeals ruled the plaintiffs lacked standing to challenge the exemption.

Decision for 7th Circuit
FFRF news release: "FFRF faults 7th Circuit timidity on clergy privilege case"

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