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.
Twenty-nine-year-old Nada Higuera stood in the courtroom last April, her growing belly an accessory to her case briefs and plea binders.
As an attorney with Advocates for Faith & Freedom—a California-based non-profit law firm dedicated to protecting religious liberty—Higuera was once again in Riverside County Superior Court Justice Gloria Trask’s courtroom to challenge the Reproductive FACT Act, or AB-775 (see “Free Speech vs. Forced Speech,” page 12). The statute, hailed by NARAL
Pro-Choice America as “historic,” and “set[ting] a precedent for the nation,” forces pregnancy resource centers (PRCs) statewide to advertise taxpayer-funded abortion and birth-control programs in their waiting rooms, signage and communications.
Signed by Gov. Jerry Brown in October 2015, the FACT Act was immediately decried by the pro-life community. Every Golden State PRC would have no choice if AB-775 became law but to tell clients not only that free or low-cost abortions might be available, but exactly where and how to obtain them. In other words: They would be forced to violate their own missions and moral convictions while providing free advertising for the opposition.
Higuera took the case because it was, in her words, Read More
Nationally, pro-life and religious liberty protections are strengthening. Yet, with bills like AB569 that ban Christian employers from requiring their employees to be pro-life in practice (as well as adhere to other biblical values), and laws like AB775 that required pro-life birth clinics to advertise for abortion services, California is ground zero for promoting anti-Christian policies through legislation.
Struggling against their own antithetical rhetoric, they voted to remove the requirement to provide one’s biological gender on birth certificates and drivers licenses while, at the same time, declaring anyone who does not believe in their version of global warming a “science denier.”
California’s liberal legislators have become not only an arm, but a hand and a mouth for left-wing special interest groups.
That’s why Advocates for Faith & Freedom is working hard to counter their anti-constitutional, anti-Christian alliances and policies. Below are three important cases we have been fighting on behalf of religious liberty.
Advocates attorneys are working side-by-side with other legal organizations by sharing our research from our success on the Scharpen case, submitting an Amicus brief, and more, for the NIFLA v. Becerra case, which will be argued before the High Court on March 20, 2018.
Religious land use
On March 22, 2018, Advocates for Faith & Freedom will submit the opening brief on appeal in the Calvary Chapel Bible Fellowship religious land use (RLUIPA) case.
Asked to represent Chino Valley Unified School District in their appeal involving opening school board meetings with an invocation prayer, Advocates for Faith & Freedom gave oral arguments in November 2017 and we’re awaiting the judge’s decision.
As you can see, these cases can sometimes take years to defend and the court fees are costly. Partnering with us in prayer, along with your financial support is important to our success in every case!
“The righteous shall flourish… in courts of our God.”Psalm 92:12-13 NIV
The good news is that we know God is in charge, so as long as anti-Christian organizations and lawmakers in California continue their attack on religious liberties, Advocates for Faith & Freedom will continue to defend the constitutional rights of Christians.
Whew!! 2017 has been a whirlwind of activity with President Trump winding down his inaugural year in office. Lost behind many of the sensational headlines and storylines has been a record-setting year of judicial appointments that will help to shape our culture not only in 2018 and into the 2020 mid-terms, but also for years to come. The future looks bright for those of us who embrace our God-ordained religious freedoms.
Making good on one of his central campaign promises, President Trump has already seen 12 of his federal appeals court nominations, a record for first-year presidential appointments. The previous record was 11 by Presidents Kennedy and Nixon. The conservative nominees all solidly embrace the U.S. Constitution; no revisionists among them. In addition to their conservative philosophies, many of Trump’s appointments are young enough that their influence will be entrenched in American law for decades to come!
But even though the president has been operating at a record pace, there is still a tremendous backlog of judicial vacancies.
Many of Trump’s nominations are being held up by Democrats who are trying to obstruct his presidential prerogative to appoint judges. Such is the case in the 9th U.S. Circuit Court, which governs the western
U.S. The 9th Circuit, the most liberal—and overturned appellate court in the country—has four vacancies (three of which have been vacant a year, the fourth for two years) with two more coming in 2018. The vacancies include a seat in California, as well as Arizona, Hawaii, and Oregon.
Despite the desperate need to fill those seats, Trump’s nomination to fill the Oregon seat has been stalled by politics. The highly qualified nominee, Ryan Bounds, has been awaiting confirmation for three months while Sens. Ron Wyden and Jeff Merkley try to use procedural grounds to block the appointment.
In addition to the appeals court, federal district courts in California (the central and southern divisions), have seven existing vacancies, with one more coming Dec. 31. Nominees have yet to be named to those positions. We believe the make-up of the nation’s district courts is absolutely critical because they hear roughly 60,000 cases annually. In addition, nominees to the appellate court are often culled from the ranks of the district courts.
Although there are no current vacancies on the U.S. Supreme Court—thanks to Neil Gorsuch’s April confirmation—most experts anticipate that Trump may have the opportunity to appoint at least two justices with the long rumored-retirements of Justices Ruth Bader Ginsburg, a liberal, and Anthony Kennedy, a moderate who frequently casts the tie-breaking vote.
The judicial composition of these courts is particularly crucial in California where the legislature is overwhelmingly liberal. Often the only recourse we have in protecting religious liberties is through the court system, which has systematically eroded to the left. As a result, the greatest legacy of the Trump Administration could be his efforts to remake the courts.
As we head into 2018 with a watchful eye toward promising judicial appointments, Advocates for Faith & Freedom’s attorneys are diligently working on several court cases that have significant ramifications for religious freedom:
The Scharpen Foundation v. Kamala Harris against CA AB775
In October, Advocates’ attorneys successfully argued before a Riverside County Superior Court Judge that California’s Reproductive FACT Act infringes on constitutional free speech by compelling pregnancy care centers to engage in speech that is contrary to their spiritual beliefs. The state will likely appeal.
National Institute of Family and Life Advocates v. Becerra
The Supreme Court has agreed to hear this sister case to Scharpen. We are working closely with NIFLA’S lead counsel because of valuable research we uncovered during our preparations on the Sharpen suit. That information will likely influence the High Court.
Calvary Chapel Bible Fellowship v. Riverside County
Our client maintains the city of Temecula violated federal law (RLUIPA) by denying the church’s permit to expand its existing facility on its own land within the wine country. Earlier this month we filed our notice of appeal to the 9th Circuit.
We have also supported several other high profile lawsuits by filing Amicus Briefs:
Masterpiece Cakeshop v. Colorado Civil Rights Commission
Colorado baker Jack Phillips is being sued for discrimination for refusing to decorate a wedding cake for a same-sex couple. The case was argued before the U.S. Supreme Court on December 5. Our brief is filed on behalf of a notable constitutional law school professor.
Arlene’s Flowers v. State of Washington
Similarly, flower shop owner Barronelle Stutzman declined to create floral arrangements for a long-time customer’s same-sex wedding. Stutzman lost her case in Washington. Our brief is filed on behalf of a notable constitutional law school professor.
California, et al. v. Hargan, et al.
California Attorney General Xavier Becerra is challenging to overturn President Trump’s executive order partially removingObama-era mandate that all insurance policies cover contraceptives. Trump’s order exempts employers who object on religious grounds. Our brief is filed on behalf of American Center for Law and Justice.
When you consider your year-end or year-round charitable giving, please remember Advocates for Faith & Freedom with a tax-deductible donation.
While we remain grateful that your faithful prayers continue to encourage us through these court battles, without your financial generosity, we would not be able to continue to work on pro bono cases that uphold our Christian beliefs.
Yesterday, Masterpiece Cakeshop v. Colorado Civil Rights Commission–the well-known case between a same-sex couple and a Colorado bakery owner–was heard in the U. S. Supreme Court.
In her first case before the High Court, Kristen Waggoner, Senior Counsel for Alliance Defending Freedom defended the Colorado baker’s constitutional right not to be forced by the government to create a custom-designed cake in celebration of a same-sex marriage–that promoting this sentiment through his creative work violates his traditional Christian faith.
This case not only affects religious liberties–it effects all freedom of expression!
As Advocates for Faith & Freedom learned in our victory in the Scharpen case against California’s Reproductive FACT Act, the freedom NOT TO be forced to speak should be just as protected by our government as the freedom TO be allowed to speak.
“The Supreme Court has never compelled artistic expression, and doing so here would lead to less civility, diversity, and freedom for everyone, no matter their views on marriage,” said Waggoner.
And many Americans seem to agree, because while Advocates for Faith & Freedom and other religious organizations filed friend-of-the-court briefs in support of Jack Phillips’ religious liberties, several others who actually support same-sex marriage realize the danger of a government that forces speech and also filed briefs in support of Phillips’ right to decline the customer’s order.
‘My bakery, my family, my life, the work I get to do, is a gift from God and I want to honor Him in everything I do,” says Phillips.
However, the Colorado Civil Rights Commission is arguing that Phillips’ refusal to decorate the wedding cake demonstrated sex discrimination and intolerance–and since, with many of the cases before the high court these days, the decision may come down to the opinion of one moderate judge–all ears were on the questions and comments of Justice Kennedy.
Comments like this from 81-year-old Kennedy give us hope for a ruling in favor of fairness and equality: “It seems to me that the state in its position here has been neither tolerant nor respectful of Mr. Phillips’ religious beliefs.
“My hope is that the court will use this case as an opportunity to say, ‘We’re protecting the liberty of both sides,” said Waggoner.
We pray that the High Court heard the oral arguments for freedom of expression with clarity and validity. We also pray that the arguments were received by the justices without bias and through His wisdom.
Advocates for Faith & Freedom would like to thank all our supporters for their ongoing prayers and tax-deductible donations which allow our attorneys to continue their pro bono work defending life and religious liberty cases like Jack Phillips’ in the courts!
“Who through faith conquered kingdoms, enforced justice, obtained promises, stopped the mouths of lions…” Hebrews 11:33 (ESV)
Since our founding 12 years ago, thousands of courageous Christians have partnered with Advocates for Faith & Freedom in the fight for religious liberties and to end the tyranny against Christianity. You may remember a few of our cases from over the years where, through God’s blessings, your faithful prayers and generous financial support, we have been victorious for His kingdom!
Pearlie Jenkins and Healing Hearts Outreach Ministry took on the Memphis Housing Authority! Standing for free assembly and exercise of religion in 2007 when her Bible study was banned from her retirement home, Pearlie contacted Advocates. Just 3 days after our complaint was sent, the MHA not only decided to permit the Bible study, they also adopted a policy protecting the religious liberties of all the residents!
High School student Chad Farnan “stood up for Jesus” against his teacher and the entire Capistrano Valley Unified School District! In 2007, Chad exposed his teacher’s frequent hostility in the classroom towards religion and in particular, Christianity—once telling his students that, “When you put on your Jesus glasses, you can’t see the truth.” With the help of Advocates’ attorneys, in the first case of this type, a Federal Court initially found that some of the teacher’s comments of violated the Establishment Clause!
With a desire to bring “spiritual revival to a depressed area,” Lake Elsinore Christian Center and Pastor Jim Hilbrant fought City Hall…and won! When City officials denied the church a building permit, they sought our help in the first-ever case of violating the Religious Land Use and Institutionalized Persons Act (RLUIPA). In 2007, after a seven-year battle that was pending at the U.S. Supreme Court, the City of Lake Elsinore settled, paying the church $1,205,000, in a precedent-setting victory for religious land use protection for churches all across the nation!
In 2008, Superior Court employee Mindy Barlow and her group’s six-year-long, lunch-time Bible study meetings were suddenly no longer allowed, while other groups were still permitted, so she contacted Advocates to file a complaint on her behalf. Ms. Barlow “just wanted the judicial system to… apply the freedoms guaranteed in the Constitution.” The Superior Court’s Administration agreed to settle, permitting Ms. Barlow and the Bible study group to resume their access to the free exercise of religion in the courthouse facilities!
In December 2013, two brave first-graders won the war on Christmas by fighting against religious bullying and intimidation in their schools!
Little Isaiah Martinez was not allowed to share a Christmas legend with his classmates about a candy-maker who created candy canes to symbolize the life of Jesus Christ. His West Covina school teacher told him, “Jesus isn’t allowed in school.” After we filed a Federal Lawsuit, the School District agreed to craft a new district policy that accommodates religious liberties at all of its campuses!
That same month, Brynn Williams’ Temecula Valley school teacher prevented her from completing her class assignment to share her family’s Christmas tradition. As she began describing the Bethlehem Star from atop her family’s Christmas tree, before she could quote John 3:16, her teacher interrupted with, “Stop right there! Go take your seat!” She later explained, in front of the entire class, that talking about the Bible or sharing its verses was not allowed in school. After receiving Advocates for Faith & Freedom’s demand letter, asking for an apology, the School District agreed to allow Brynn to complete her speech in her class and provide First Amendment training to its staff!
We are honored to have partnered with these inspiring Christian soldiers who have stood in the gap with us in the fight to protect and defend religious liberty across our nation. Because of your support, we have been able to represent all of these individuals without charge!
Advocates for Faith & Freedom has grown over the years and we now have eight Christian attorneys! Through their hard work, time and sacrifice, Advocates for Faith & Freedom is making a difference in our laws and culture!
But there is more work to do! We ask for your continued prayers and are thankful for your tax-deductible support for three important, precedent-setting court cases that we are litigating today:
The Scharpen Foundation v. CA Attorney General – defending free speech and the sanctity of life. We had a victory at our hearing in State Superior Court – October 30, 2017!
Calvary Chapel Bible Fellowship v. the County of Riverside – defending their religious land use rights. We are awaiting Riverside County Superior Court Judge’s decision by November 9, 2017.
Chino Valley Unified School District v. Freedom From Religion Foundation – defending the right to ceremonial prayer before school board meetings under the Establishment Clause. The judge will hear our oral arguments in the Ninth Circuit Federal Court of Appeal on November 8, 2017.
We are grateful for your ongoing support of our vital ministry. Through God’s blessings, your continued prayers and your tax-deductible gifts, Advocates for Faith & Freedom will continue to be a strong Christian voice for justice in the courts!
“Cast your burden upon the LORD, and he will sustain you
and uphold you;
he will never allow the righteous to be shaken.” Psalm 55:22 AMPYour Prayers Made All The Difference!
On Wednesday, October 18, Advocates for Faith & Freedom attorneys, Bob Tyler and Nada Higuera, gave their final arguments on the Scharpen Foundation case, challenging the California law that requires pro-life clinics to advertise for abortion clinics.Your prayers were felt as attorney Higuera, who just gave birth to a healthy daughter last month, presented a well-researched and convincing case that we are optimistic resonated with the judge.
Judge Gloria Trask assured us she will issue her ruling by November 21 and we will let you know as soon as we hear. This will be Judge Trask’s last case, as following a 40-year career, she will be retiring.
We were grateful for the many pro-life supporters who filled the courtroom seats in theRiverside County Superior Court, including such well-behaved children, they even received a compliment from the judge!
And thank you to our faithful supporters at home! From the final preparations to the start of the hearing, to the closing arguments, your prayers made all the difference!
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Your tax-deductible donations are what allows us to continue to fight these important cases!
You may recall we are representing the Scharpen Foundation in challenging AB775 the Reproductive FACT Act where we filed a lawsuit in both federal and state courts. The California statute requires pro-life pregnancy centers that are Christian-based in just about all cases, to provide women the contact information for where they can get free and low- cost abortions.
After arguing for three hours in the Superior Court in Riverside County on April 6, 2017, the California State Attorney General’s motion to dismiss our case was just denied this last week!
According to the judge, this law “forces the clinic to point the way to the abortion clinic.”
In her ruling, Judge Gloria Trask wrote that “the required notification is compelled speech which on its face violates freedom of speech protected by Article 1, Section 2 of the California Constitution.”
With funding raised by Advocates for Faith & Freedom, Tyler & Bursch’s lawyers strategically filed the lawsuit in state court because the California State Constitution is supposed to provide greater free speech protection than the First Amendment.
Ms. Nada Higuera, our staff attorney who argued the case, said that “Judge Trask explains that because free speech is involved under the State Constitution, the Court must strictly scrutinize whether the legislation is lawful. After scrutinizing the law, the judge agreed with our analysis that the law is an unconstitutional violation of free speech.”
Freedom of expression on public issues should be protected at the highest level. Therefore, this law should be analyzed using strict scrutiny. The ruling warned that the state’s “ability to impress free citizens into State service in this political dispute cannot be absolute; it must be limited.”
In her ruling, the judge explained that this state-compelled speech “is not merely the transmittal of neutral information.” She agreed with our attorneys that this is not just calorie counting or a health hazard warning on smoking tobacco or drinking alcohol. This issue – which is “contentious and raises issues that are religious, cultural, political and legal” – is about the more than four decades-long dispute over abortion.
The Reproductive FACT Act compels the clinic to “speak words with which it profoundly disagrees” and “places too heavy a burden upon the liberty of free thought.”
Given the language in the ruling, Tyler & Bursch’s General Counsel Robert Tyler is confident that “while this ruling is not the final judgment, this interim ruling foreshadows what will be the judge’s final decision. She makes her opinion known that the law is unconstitutional.”
Our next hearing is set for July 21, 2017, where the court will give direction on how our case should proceed – whether the case will actually have a trial or whether it should be simply decided by briefing.
Concurrently, we also represent Livingwell Medical Clinic in federal court. This statute was previously upheld in that case as not violating the First Amendment to the U.S. Constitution before a three-judge panel in the Ninth Circuit. That case is pending a determination from the U.S. Supreme Court as to whether the High Court will take up our case. Our two-front strategy gives us the ability to win in either federal or state court.
Although it appears that victory is at hand in state court, we would not be able to do any of this without the generous financial support from friends like you. Won’t you please consider donating just $25, $100, $200 or more so we can continue fighting for religious liberties in the courts?
While Advocates for Faith & Freedom depends on our supporters for the funds to fight these important cases, we first and foremost thank you for your continued prayers.
Thank you for your faithful prayers and yourdonations!