The BLT: The Blog of Legal Times

D.C. Circuit Takes Up Presidential Oath Case

Atheist lawyer Michael Newdow, who has unsuccessfully challenged religious trappings of presidential inaugurations past, took his latest dispute--this one involving Barack Obama's inauguration--to the U.S. Court of Appeals for the D.C. Circuit today.

A little background: Last December, Newdow and his fellow plaintiffs sued the Presidential Inaugural Committee and Chief Justice John Roberts Jr., among others, in an effort to block Roberts from feeding then President-elect Obama the line “so help me God” at the end of the oath of office and Obama from repeating it. The plaintiffs say the phrase violates the establishment clause of the First Amendment.

The plaintiffs are also suing over other religious remarks by clergy during the larger inaugural ceremony.

Judge Reggie Walton of the U.S. District Court for the District of Columbia denied an injunction and ultimately dismissed the suit, saying that the plaintiffs lacked standing. Walton also determined he didn’t have the authority to tell Roberts what to do. At issue on appeal are the plaintiffs’ standing and the mootness of the claims.

Newdow, arguing for himself and the plaintiffs today before Judges Douglas Ginsburg, Brett Kavanaugh and Janice Rogers Brown, said he has suffered “stigmatic” injury. “I think there’s a stigma when you’re an atheist,” he said in court. Atheists, he said, are considered “second-class citizens” in the United States. And he argued that the claims are not moot since there’s a good chance that presidents-elect down the line will also use the phrase “so help me God” during the swearing-in ceremony.

Fort Hood and Religious Liberty Topics at Federalist Society Panel

One week after the mass shooting at Fort Hood, a Federalist Society panel today took up the constitutional implications of law enforcement officials sitting in on religious gatherings during a larger discussion on religious liberty.

The event moderator, D.C. Circuit Judge Brett Kavanaugh, initiated the topic by asking the panelists their thoughts on the shootings because “a lot of people have a lot of conflicting emotions about it,” he said.

Alan Brownstein, a professor at the University of California, Davis, School of Law, said there’s always a danger of a minority group getting blamed as a whole when one member commits a heinous crime. There’s a need to balance national security concerns against abridgements of religious liberty.

“In my synagogue, if we knew there were police officers sitting in the back of the synagogue listening to what people say, we would feel chilled,” he said. “Having a government agent listening to everything that is expressed in a house of worship is problematic.”

Michael McConnell, of the Stanford Constitutional Law Center, however, said if religious groups are known to be propagating violence, there should be no problem.

“I’m all for treating religions and especially religious minorities with a good deal of caution and respect, but espousing violence is not in the book,” he said. “I don’t think that because it’s happening in a place that happens to be called a mosque means we should shy away from it.”

George Washington University law professor Ira Lupu considered the larger problem of trying to identify traits that are useful in predicting harmful behavior. “Any attempt to do so…is likely to create an enormous amount of false positives,” he warned.

At a different point in the discussion, Brownstein said this country doesn’t take the free exercise of religion as seriously as the freedom of speech.

McConnell said that this is likely due to the fact that the courts have tried not to take sides in the culture war. He said there’s no tidy way to draw the line, but suggested that it would be wrong to remove all religious objects or ideas from government.

“The effect of that would be a kind of enforced government whitewashing that is not neutral and is not even remotely similar to the concerns of the framers,” he said.

Federalist Society's Lawyers Convention Opens Today

Today marks the opening of the Federalist Society's annual Lawyers Convention, and The National Law Journal will be covering it in force for the next three days.

Stay tuned to The BLT for updates today, tomorrow and Saturday. Highlights will include Justice Samuel Alito's keynote address tonight and panels on judicial nominations, drug enforcement policy, federal pre-emption, and federalism during the economic crisis.

Red Mass in D.C. Draws Six Justices, Vice President

Six Supreme Court justices, two Cabinet members and Vice President Joe Biden were on hand along with dozens of other judges and public officials Sunday at the traditional Roman Catholic Red Mass at the Cathedral of St. Matthew the Apostle in D.C., the unofficial start to the Supreme Court's fall season. The cardinal giving the sermon at the mass called on lawyers to give "radical support" to the unborn.

It was Sonia Sotomayor's first Red Mass as a justice, and she was joined by four of the five other Catholics on the Court: Chief Justice John Roberts Jr. and Justices Antonin Scalia, Anthony Kennedy and Samuel Alito Jr. Also attending was Justice Stephen Breyer, who is Jewish. The sixth Catholic justice, Clarence Thomas, was attending a wedding and could not attend. As we reported here on Friday, this year's Red Mass was drawing attention not only because of the record number of Catholic justices, but because of the cardinal designated to give the sermon: Archbishop Daniel DiNardo of Galveston-Houston. Last spring, he was the first American cardinal to criticize the University of Notre Dame for inviting President Barack Obama to be its commencement speaker, because of his position in favor of abortion rights.

DiNardo's sermon stuck close to his interpretation of the Bible readings of the mass, with only one brief mention of the rights of the unborn. He lamented that the legal profession has become "semi-mechanical," detached from the human need for justice. Clients, he said, "are poor and wealthy, confused and lucid, polite and impolite. In some cases the clients are voiceless for they lack influence; in others, they are literally voiceless, not yet with tongues, and even without names. They too require our most careful attention and radical support."

That message, brief as it was, was not the first reference to abortion that the more than 1,200 people at the mass heard. Because Biden was scheduled to come, attendees waited in long lines to go through metal detectors before entering the majestic downtown cathedral. Longtime anti-abortion protester Randall Terry, armed with a bullhorn, addressed them as they waited from behind a roped-off area reserved for the media and for demonstrators. "How dare you present yourself for Communion with the blood of babies on your hands?" Terry said. Himself a Catholic, Terry said he was directing his comments to Biden and members of Congress and the judiciary who were attending and who, in their official duties, had lent any kind of policy or legal support to abortion.

As the mass began, Washington, D.C. Archbishop Donald Wuerl welcomed participants to the 56th Red Mass celebrated in Washington. With ancient roots, the Red Mass -- named to signify the flame of the Holy Spirit -- has grown in significance as the Church's official blessing of both the high court and other civic leaders, including diplomats, in the D.C. area. It is scheduled on the day before the first Monday in October, when the Supreme Court term officially begins. Chief Justice Roberts and his wife Jane have longstanding connections to the John Carroll Society, an organization of Catholic professionals that sponsors the mass each year.

The two Cabinet members attending were Interior Secretary Ken Salazar and Transportation Secretary Ray LaHood. As it happens Salazar, by dint of his position, is the named petitioner in an important church-state case set for argument this Wednesday, Salazar v. Buono. It involves a war memorial in the form of a Christian Cross that has stood on federal land owned by the Interior Department in the Mojave Desert for more than 70 years. In response to an Establishment Clause challenge to the cross, Congress sold the land under and near the cross to a private party. At issue is whether that sale cures the constitutional problem, and whether the person objecting to the cross had standing to sue.

All Eyes on Sunday's Red Mass, Unofficial Start of Supreme Court Season

The official opening of the Supreme Court term, by law (28 U.S.C. Sec. 2), is the first Monday in October. But for more than 50 years, the informal launch of the season has come the day before, at the Roman Catholic Red Mass at the Cathedral of St. Matthew the Apostle in D.C. There, in a pageantry-filled ceremony, the Catholic hierarchy gives its blessing to the Supreme Court, lower courts, and other civic leaders often including presidents, diplomats, members of Congress, and Cabinet members.

This year's mass on Oct. 4 may be of special interest for two reasons: the identity of the cardinal who will give the sermon, and the fact that with the arrival of Sonia Sotomayor on the Court, fully two-thirds of the Supreme Court's nine justices are Catholic -- a record number. 

The archdiocese has announced that Cardinal Daniel DiNardo, archbishop of Galveston-Houston, will give the sermon at the Red Mass. DiNardo is the newest American cardinal, having been named to the College of Cardinals by Pope Benedict XVI in 2007. DiNardo made headlines last spring when he became the first American cardinal to criticize the University of Notre Dame for inviting President Barack Obama to speak at its commencement in May. “I find the invitation very disappointing,” DiNardo wrote in the Texas Catholic Herald. "Though I can understand the desire by a university to have the prestige of a commencement address by the President of the United States, the fundamental moral issue of the inestimable worth of the human person from conception to natural death is a principle that soaks all our lives as Catholics, and all our efforts at formation, especially education at Catholic places of higher learning." 

Asked what DiNardo's semon topic will be on Sunday, Washington archdiocese spokeswoman Susan Gibbs said, "The Cardinal’s homily likely will focus on the Scripture readings and will connect them with a message for today, as most homilies do." Homilists for the mass are typically invited up to a year in advance.

 

In the last several years, most Red Mass sermons have struck universal themes of peace and harmony, but in the 1980s and 1990s, homilists sometimes injected Catholic doctrine on abortion or separation of church and state into their talks. Justice Ruth Bader Ginsburg once told an interviewer that after attending a Red Mass where the sermon was "outrageously anti-abortion," she decided never to return.

The Morning Wrap

Weeding Out the Garden State: Poor New Jersey. Always being picked on. Yesterday's round-up of alleged corrupt public officials surely won't help things. Federal authorities arrested 44 people in what The New York Times called a sprawling corruption scandal that stretches from the Jersey shore to Brooklyn to beyond. Three New Jersey mayors, two state assemblymen and five rabbis were hooked and booked. Charges in the case include money laundering, bank fraud and bribery. And there's this: piles of cash—including $97,000 stuffed in a box of Apple Jacks cereal. And then this: one man in the scheme is alleged to have acquired kidneys for ten grand and resold the organs for $160,000.

Specter Pitches Pleading Standard Reform: Sen. Arlen Specter, D-Pa., introduced legislation this week that would direct federal courts to return to a more liberal pleading standard in civil litigation, The National Law Journal reports. Two recent Supreme Court decisions have raised the bar that pleaders must meet to avoid a swift granting of a motion to dismiss. In remarks on the Senate floor, Specter accused the Court's majorities of making an end run around precedent. As the NLJ reports: the bill, if considered, would likely be a lightning rod for debate among plaintiffs lawyers, consumer groups and businesses.

On Tap at the ABA Meeting: Attorney misconduct, intellectual property litigation and pro bono conflicts of interest are expected to be tops on the American Bar Association's agenda at the ABA's annual meeting, The National Law Journal reports. The ABA's House of Delegates, which includes 555 members, is expected to consider 36 bylaw and constitutional amendments. The meeting, in Chicago, runs from July 30 to Aug. 4.

Court Rules Against Hacker: The New York Law Journal reports that a computer hacker who navigated a network to acquire advance information about a company's financial reports can be sued for fraud under the Securities Exchange Act of 1934 even though he owed no fiduciary duty to the company, the U.S. Court of Appeals for the 2nd Circuit ruled.

Targeting the Pop King's Doc: Michael Jackson's personal doctor, Conrad Murray, is identified as a suspect in the manslaughter investigation into Jackson's death, according to a report in the Los Angeles Times. The Times reports that a pair of search warrants filed in Houston show detectives are looking for "items constituting evidence of the offense of manslaughter that tend to show that Dr. Conrad Murray committed the said criminal offense." Said Murray's lawyer, Edward Chernoff, who was present during the execution of the search warrants: "I do not know what they are looking for, and I can't possibly tell you how anything they took in any way connects with the death of Michael Jackson."

Questioning Liberty University's Tax-Exempt Status

The recent decision by Liberty University in Lynchburg, Va. to end recognition of its College Democrats Club is turning into a heated disputed over its tax-exempt status. Americans United for Separation of Church and State last week asked the Internal Revenue Service to investigate whether the university's action violates the rules for tax-exempt status. Now Liberty Counsel, representing the university, is asking the IRS to investigate D.C.-based Americans United for the same offense.

Americans United claims that by singling out the Democratic club and ending recognition and student funding for the club, the university engaged in political or partisan activity in violation of IRS rules. "If the university insists on pushing policies that favor Republicans over Democrats, it should have to surrender its tax exemption," said Rev. Barry Lynn, the group's executive director, in a statement.

Spokesman Joe Conn explained that  a private university "can do almost anything it wants" in terms of favoring one viewpoint over another, "but it can't be partisan" in the political sense of favoring one party or candidate over another. The group often sends similar letters to the IRS during presidential elections when churches take political stands or endorse candidates.

The university is firing back by questioning Americans United's own tax status. "AU has essentially become an arm of the Democratic Party,"wrote Mathew Staver, chairman of Liberty Counsel and dean of the university's law school. Staver told the IRS that Americans United is itself partisan because it objects mainly when churches support Republican candidates.

Staver also claimed that Liberty University was not violating the tax code when it dropped endorsement of the College Democrats. The action had "had nothing to do with the political nature of the club" but instead was meant to enforce a broader policy against lending the university's name to clubs that "support abortion or same-sex marriage." Staver also said the Democratic club may still meet on campus.

American United's Conn said his organization is "not quaking in our boots" about losing tax-exempt status. "We are very rigorously non-partisan," he added, noting in that in recent months the organization has criticized the Obama Administration for its faith-based initiative.

Conn said Liberty University chancellor Jerry Falwell Jr. is following in the footsteps of his father, the famed preacher Jerry Falwell. In 1993, the late Falwell paid fines to the IRS for partisan activity in his "Old Time Gospel Hour" program.

Former Corporation Counsel Representing Defrauded Churches

If you caught today’s Washington Post article on allegations about defrauded churches, you may have noticed a reference near the end to Fred Cooke, former D.C. corporation counsel and current attorney for tax-challenged D.C. Councilman Marion Barry. Cooke is representing a coalition of congregations called Churches United for Justice (the Post piece misstated the name), which is looking to lead a nation-wide campaign against the leasing companies they say scammed them out of thousands of dollars.

“I’m doing some lobbying, I’m doing some defense, and I’m doing some proactive litigation,” Cooke said in an interview with Legal Times.

As the Post reported, the churches signed leases on electronic kiosks that were supposed to run paid advertising from community businesses. Unfortunately, according to Cooke, the middlemen in charge of managing ad sales and revenue allegedly didn’t hold up their end of the deal, and many of the computer terminals were little but empty monitors. The leasing companies, including United Leasing Associates of Brookfield, Wis., and Balboa Capital of Irvine, Calif., allegedly have kept charging for the service, sometimes withdrawing from the church bank accounts.

D.C. Attorney General Peter Nickles has filed a civil suit against the companies, claiming fraud among other allegations, but in the meantime Cooke is pursuing his own legal strategy. He is currently representing about 30 churches in the D.C. metro area that say they were victims of the fraud, but believes there may be as many as 250 to 300 more churches in similar situations across the country. He says there is talk of forming a national coalition, part lobbying group, part legal fund.

By joining forces, the churches hope they can attract the attention of more state and local authorities and convince them to file suits similar to the D.C. attorney general’s.

“We believe there is strength in numbers,” he says.

Some Maryland churches are scheduled to meet with their state attorney general to discuss possible litigation.

The leasing companies have already sued several churches that stopped paying rent on the kiosks. Because of language in the leasing agreements, many of the suits are happening in Wisconsin and California, where Cooke has had to arrange counsel. He is also trying to defend against default judgments against the churches that the companies are seeking to enforce in the District, and he is considering filing a fraud suit himself.

Court: D.C. Firefighters, Paramedics Can Keep Whiskers

A federal appeals court today ruled in favor of a group of D.C. firefighters and paramedics who challenged the department’s clean-shaven policy in a lawsuit that said the grooming rules violate the free exercise of religion.

District public safety officials in 2005 banned facial hair for firefighters and paramedics, saying a breach in the seal of protective masks could expose the employees to contaminated air. Bearded firefighters and paramedics were assigned to desk duty. The clean-shaven policy mirrors federal regulations.

A federal judge in 2007 ruled in favor of the plaintiffs, including firefighter Calvert Potter and paramedic Steven Chasin (pictured at left), who cited religious beliefs in refusing to go whiskerless. Legal Times wrote about the case here. Covington & Burling, with the ALCU, took the case pro-bono. William Iverson, a senior counsel at Covington, says he hopes the District drops the litigation. “I think they can with comfort just give up on this. I am not sure why didn’t before.”

The ruling today in the U.S. Court of Appeals for the D.C. Circuit hinged on a procedural matter and isn’t likely to carve out any special niche in the body of case law under the Religious Freedom Restoration Act, Iverson says.

The appellate court noted the failure of lawyers for the District to timely raise its dispute about the safety of self-contained breathing apparatus masks. The court said only under exceptional circumstances will a circuit court consider an argument against summary judgment that was not made in the trial court.

Richard Love, senior assistant attorney general for the District, said in court last year that the city never conceded that SCBA masks are safe for bearded paramedics and firefighters. A spokesman for the city fire department, Alan Etter, did not have any immediate reaction this afternoon to the court ruling. Etter has said the District cares about the safety of its firefighters and paramedics.

Judge Judith Rogers wrote for the majority, joined by Judge David Tatel. Senior Judge Stephen Williams wrote a concurring opinion. “Unfortunately for the District, its own muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome,” Williams wrote.

Williams looked to the future in his opinion, saying the decision today will create an experiment in the District in which some firefighters and paramedics will wear beards while others go without facial hair.

“Perhaps the difference will prove inconsequential. The experiment is far from ideal, however,” Williams wrote. “Most obviously, the likelihood of acute calamity—and thus the risk that response teams will be stretched to the breaking point—seems greater in the District than almost any other American city.”

Williams said he hopes the “experiment launched by this judgment will end without having falsified the plaintiffs’ theory” that beards won’t cause a safety problem.

Forced Off of Their Plane, Muslim Vacationers Consider a Lawsuit

The nine Muslims who were ordered off of an AirTran Airways flight Thursday are considering filing a lawsuit, according to the 29-year-old lawyer whose offhand comment accidentally sparked the commotion.

“We’re actually mulling over whether or not we want to pursue it,” says Atif Irfan, of Alexandria, Va. “The federal agents who handled it handled it very well, but we’re concerned about the behavior of the airlines.”

Irfan, who is U.S.-born with Pakistani roots, was traveling to a religious retreat with seven family members and a friend when federal officials removed them from their plane at Reagan National Airport. Passengers panicked when they overheard he and his wife, having a playful conversation about what they thought would be the safest place to sit on a plane.

“I said it’s probably a good idea not to be by the engines if something happens,” Irfan says. “Obviously it had something to do with my skin color and that my wife wears a headscarf.”

Though FBI agents later cleared Irfan and the rest of his group, AirTran officials refused to let them book another flight on the airline. They were forced to buy tickets on U.S. Airways instead.

The story broke to reporters, causing a sensation, after Irfan and his family called the Council on American-Islamic Relations, which quickly sent out a media advisory. The organization filed a complaint with the U.S. Department of Transportation on Friday.

AirTran has since issued an apology, calling the event a misunderstanding. It has offered to reimburse the cost of the cost of the U.S. Airways tickets and to fly the group back to Washington for free.

Though media reports have referred to him as a tax lawyer, at the moment Irfan is in the hunt for a job. A native of Detroit, Irfan earned his undergraduate degree from the University of Michigan, before attending the University of Illinois College of Law. He is licensed in Illinois, but worked at the Environmental Protection Agency in Washington during his 2L summer. After graduating, he spent a year consulting in Houston, but came back to the D.C.-area hoping to find work in tax or environmental law. His job search was interrupted, however when his father-in-law was shot and killed at the check-cashing store where he worked in Houston. Irfan says he has had about a month to seriously look for employment around Washington.

“It’s sort of one thing after another, huh?” he says.