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May 3, 2007National Day of…

Religious Issues in Libraries

Mary Minow, J.D., A.M.L.S. LibraryLaw.com

Infopeople Webcast

Thursday May 3, 2007

12:00 noon to 1:00 p.m

Legal Disclaimer

• Legal information

•Not legal advice!

Religious Issues in Libraries

Legal Framework

Meeting Rooms and Displays

Library collections

Money and support

EmployeesCoachella Library, Riverside County

was once a church

1. Legal Framework: We are the Government

6

U.S. Constitution

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech …

First Amendment

Establishment Clause

Supreme Court shifting test away from separation of church and state …to neutrality and nondiscrimination Shifting lines in the sand

see County of Allegheny v. ACLU Greater Pittsburgh Chapter, 492 U.S. 573, 635, (1989) (O'Connor, J., concurring in part and concurring in the judgment),

judged by reasonable observerNote: “Lemon test” is waning [secular purpose, primary effect does not advance/inhibit religion, no excessive church/state entanglement]

Free Exercise Clause

Neutral, generally applicable

Library policy should not aim to prohibit free exercise of religion

If policy applies generally to everyone, with mere incidental effect on religion, can be okay.

e.g. No smoking

cigarettes peyote (even for religious use)

See Employment Division v. Smith, 494 U.S. 872 (1990)

California Constitution broader than federal

No Preference Clause - free exercise and enjoyment of religion without discrimination or preference guaranteed

Cal. Const. art. 1 § 4

No Aid Clause - strictly prohibits governmental appropriation or donation of personal property for any religious creed, church or sectarian denomination

Cal. Const. art. XVI, § 5

prohibits any appearance that govt. allied with one specific religionprohibits grant regardless of government's secular purpose

(unless indirect, remote, or incidental)

Test case: boy scout lease (Balboa Park, San Diego)

Barnes-Wallace v. San Diego and Boy Scouts of America, 471 F.3d 1038 (9th Cir. Dec. 18, 2006); Calif. Supreme Court S148874 case initiated Dec. 19, 2006

Court: Library Can’t Prohibit Religious Groups from Meeting Room

Concerned Women for America, v. Lafayette County and Oxford Public Library, 883 F.2d 32 (5th Cir., 1989)

2. Meeting Rooms and DisplaysMeeting Room Policy: Not available for religious purposes

Library Rule

Court: Library can’t prohibit religious groups from meeting room

Concerned Women for America, v. Lafayette County and Oxford Public Library, 883 F.2d 32 (5th Cir., 1989)

Court: Library Can’t Prohibit Religious Groups from Meeting Room

Library Rule

Meeting Room Policy: Not available for religious instructions

Christopher A. PFEIFER, v. City of West Allis, 91 F. Supp. 2d 1253 (E.D. Wisc., 2000).

Court: Library can’t prohibit religious instructions

Groups may use for religious instructions

Christopher A. PFEIFER, v. City of West Allis, 91 F. Supp. 2d 1253 (E.D. Wisc., 2000).

Religious Speakers Right To Same Access As Everyone Else

Policies: No religious use policies knocked over like deck of cards

•2005 Sept 20 Woodland Park Library (CO) settlement

•2002 Mitchell County Public Library (TX)

•2002 Dunedin Public Library (FL)

•2001-Escambia County Library (FL)

•2000 Pine Mountain Regional Library System (GA)

X

X

X

X

X

Legal settlements

•2005 Sept 20 Woodland Park Library (CO) settlement

•2002 Mitchell County Public Library (TX)

•2002 Dunedin Public Library (FL)

•2001-Escambia County Library (FL)

•2000 Pine Mountain Regional Library System (GA)

www.lc.org/news/

Crack between the rules

Public university (IN) can use content neutral criteria to decide who can speak library lawn.

OK to turn away traveling evangelist. Space limited to university community and invited guests.

Note: If lawn open to outsiders, can’t exclude speakers based on message content.

Gilles v Blanchard, 2007 U.S. App. LEXIS 3234 (Feb. 14, 2007); Reh. en banc, den. by Gilles v. Blanchard, 2007 U.S. App. LEXIS 7158 (7th Cir. Ind. Mar. 12, 2007)

www.nacua.org/documents/Gilles_v_Blanchard.pdf

NEW Exception: Religious Services

Faith Center Evangelistic Ministries

1) “Wordshop” on ‘The Making of an Intercessor,’ how to pray fervent prayers that God answers

2) “Praise and Worship” sermon

Library ultimately said okay to Wordshop, but not to worship session

Antioch Library

Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U.S. App. LEXIS 5542 (9th Cir. Mar. 9, 2007)

wanted to book library meeting room

TWO SESSIONS

Evangelical Church sued Contra Costa County Library

Initial policy “Library meeting rooms shall NOT be used for religious purposes."

Lawsuit filed – amended policy twice

2d try: prohibited use "for religious services or activities"

3d try: prohibited "religious services"

Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U.S. App. LEXIS 5542 (9th Cir. Mar. 9, 2007)

Federal Appellate Court: Library Wins

Library MAY prohibit “Religious worship” - merely prohibits type of discussion, doesn’t prohibit a particular religious

viewpoint, e.g. can’t prohibit only Mennonite worship

Can government distinguish worship from speech?

- MOOT, the church itself can and did in it’s meeting room application to library.

Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U.S. App. LEXIS 5542 (9th Cir. Mar. 9, 2007)

Specter of Excessive Entanglement?

What if next group is less candid about religious worship?- Court decides only that which is before it.

Return to lower court to craft order - e.g. group could certify “no religious services”

Copyright 2006 Phillip the Filipino, Creative Commons Attribution-NonCommercial-NoDerivs 2.0 www.flickr.com/photos/retuta/

Court doesn’t need to decide this

Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U.S. App. LEXIS 5542 (9th Cir. Mar. 9, 2007)

Critics of court opinion

Treats groups differently

e.g. liturgically oriented Catholics may be subject to greater burden

Evangelicals, Unitarians services characterized by fellowship, singing, not characterized as “mere worship” Uploaded on February 27, 2007 by

Lawrence OP. Some rights reserved. Attribution-NonCommercial 2.0

www.flickr.com/photos/paullew/405080805

Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U.S. App. LEXIS 5543 (9th Cir. Mar. 9, 2007)(Bybee, J. dissent from denial of en banc rehearing)(

Current status of case

Current Policy

Library meeting rooms shall not be used for religious services

www.ccclib.org/policies/#meeting

may be appealed to Supreme Court

Updates: news.justia.com/cases/faith-center-church-evengelist-ministries/370281/

Review:

• Settled law: Must

allow religious meetings

• Ninth circuit:

May prohibit religious services

Displays by the Library:Christmas Trees, Crèches etc.

Although some Christmas crèches on public property are constitutional, others are not.

Christmas trees, Santas are secular

Test: Look to 2005 Supreme Court cases o Ten Commandments on government property

Texas State Capitol

Six-foot monument Ten Commandments given by private group, placed with other monuments

Secular purpose; would not lead observer to conclude state endorsed religious message

Kentucky courthouses

Two large, framed copies of

Ten Commandments

Lacked predominant secular purpose, were not religiously neutral

OKAY NOT OKAY

McCreary County v. ACLU of Ky., 545 U.S. 844 (2005)

Van Orden v. Perry, 545 U.S. 677 (2005)

Cambridge (MA) Public Library

Freedom From Religion Foundation asked library to remove large Ten Commandments

Update: Library is under renovations. When it reopens, informative scrim will be placed over the wall. Patrons will be able to raise to view.

-phone interview with library director, Susan Flannery 4/27/07

Displays in the library sponsored by community

Very different.

Free speech of community

If library opens a public forum must offer to everyone equally.

May limit based on purpose of forum

See Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753 (1995) (cross placed by private group on land next to state house permissible as the space was open to all on equal terms)

Library cannot limit content (that fits within forum’s purpose) or viewpoint (can’t allow pro-life and disallow pro-choice or vice versa)

e.g. local notices, local performances etc.

School libraries after hours similar to public libraries

Test: Would reasonable observer see state endorsement of religion? Is message:

Adherents are insiders

Nonadherents are outsiders

_______________________________

Court: Access to school facilities must be available on equal basis._________________________________________

Good News Club v. Milford Cent. Sch., 533 U.S. 98, (2001); Culbertson v. Oakridge Sch. Dist. No. 76, 258 F.3d 1061 (9th Cir. 2001). See also Wigg v. Sioux Falls Sch. Dist. 49-

5, 2004 U.S. App. LEXIS 18628, (8th. Cir. 2004) on use of school library

?

3. Library Collections

Shelve holy books on highest shelf?e.g. Koran

Law for Librarians recommendation:

Shelve by call number

(don’t show preference)

Labeling religious library materials

Labeling religious materials problematic if library seen to favor one religion over others

“The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

McCreary County v. ACLU of Ky., 545 U.S. 844 (2005)

Dewey classification

200 Religion 210 Philosophy of Religion220 Bible230 Christianity240 Christian devotional250 Christian orders260 Ecclesiastical theology270 History of Christianity280 Christian denominations290 Other religions

Under the Dewey Decimal Classification, my religion's literature is shelved in the 133s under Parapsychology and Occultism, Special Topics.

Janet Tapper, Dewey Does a Number on Wicca, Library Journal My 1 2006 supp

Religion infused throughout classification system

Self help, religious books fraternizing – “spiritual living”

Incorporate faith into parenting, business, health, work, relationships

Raya Kuzyk, Brave New Genre, Library Journal ((May 1 2006).

e.g. John Rubin, The Maker's Diet: The 40-Day Health Experience That Will Change Your Life Forever Dewey 613.2

4. Money and support

Library solicitation of religious groups for $

warning bells – okay to ask everyone but

…don’t single out churches

inevitably will leave some out

Neutrality issue ..

Strings on the money?

Donate their version of the bible?

image courtesy of www.aperfectworld.org"

5. EmployeesSay Merry Christmas to customers?

Legally, likely okay

Libraries often take community into consideration; only say it back to someone

“Happy Holidays”

See also: Stephen M. Feldman, Please Don't Wish Me a Merry Christmas: A Critical History of the Separation of Church and State (NYU Press: 1998)

.

Federal Court (CA) – May employee discuss religion (and pray) with clients?

Employee shared Christian faith and prayed (at times) with welfare clients, against dept policy

Court: Employee lost. Clients may try to ingratiate themselves with staff

Berry v. Dep't of Soc. Servs., Tehama Co, 2006 U.S. App. LEXIS 10796 (9th Cir. May 1, 2006)

Don’t - danger of entanglement

Federal Court (KY) – May library employee wear cross necklace?

Library fired employee for wearing cross.

Court: Employee won. Library not able to show dress code necessary to protect impartiality when working with patrons.

Draper v. Logan County Pub. Library, 403 F. Supp. 2d 608, (W.D. Ky. 2003) ; see also Gerard E. Dempsey and Janet N. Petsche, Library Law: Library Dress Codes: Keeping

Up Appearances (February 8, 2007) www.nsls.info/articles

Bottom line: employers should take religious accommodation requests seriously; ultimate decision depends on facts. General guidelines offered in California League of Cities memo

California dress standards

Dress standards or requirements for personal appearance shall be flexible enough to take into account religious practices.

California Code of Regulations Title 2, Sect. 7293.3 (7)(c)(2) www.fehc.ca.gov/pdf/code_regulations.pdf

Federal Court (CA) – May employee have Jesus in his private cubicle?

I s speech of public concern?

I s speech the main reason for

demotion etc?

Does speech value outweigh workplace

disruption?

I s speech of public concern?

I s speech the main reason for

demotion etc?

Does speech value outweigh workplace

disruption?

Tucker v. California Dep't of Educ., 97 F.3d 1204  (9th Cir. 1996).

YES

YES

YES

Employee Won

Federal Court (CA) - May employee have Bible in cubicle with public contact?

Court: Employee lost. Clients came to cubicle, so Bible impermissible

…even if okay in private cubicle.

Berry v. Dep't of Soc. Servs., Tehama Co, 2006 U.S. App. LEXIS 10796 (9th Cir. May 1, 2006)

.

Federal Court (CA) – May employer prohibit prayer meetings in staff conference room?

Court: Yes, Employer won. Staff room is nonpublic forum

Employer can limit e.g. to business and business parties

But … problematic if allow personal use and then restrict religious use

Berry v. Dep't of Soc. Servs., Tehama Co, 2006 U.S. App. LEXIS 10796 (9th Cir. May 1, 2006)

.

Federal Court (MO) – Library employee need not work Sundays

Library employee sued when library changed policy and required her to work on Sundays.

Jury award: over $53,000

Rehm v. Rolling Hills Consolidated Library 2006, U.S. Dist. Ct (W.D. Mo), Case No. 04-6088-CV-SJ-JTM

California: Employer must adjust work schedules to accommodate employee’s religious observance if absence not undue hardship

See League of Cities memo

.

findable at www.cacities.org

See also Title VII of the Civil Rights Act of 1964. 42 U.S.C. §§ 2000e-2000e-17; Cal. Gov. Code § 12940.; 2 Cal. Code Regs. § 7293 et seq.

California

League of Cities

.

Religious Issues in Libraries

Legal Framework

Meeting Rooms and Displays

Library collections

Money and support

EmployeesCoachella Library, Riverside County

was once a church