An op-ed opinion piece, mistakenly identified as a Sacramento Bee editorial, rehashed misleading statements and made many more about our Mojave cross case, which will be argued before the U.S. Supreme Court on Oct. 7. Ramona Ripston, ACLU/SC Executive Director, responds.

Margaret A. Bengs rehashed misleading statements about the law and the American Civil Liberties Union's case concerning a cross in the Mojave National Preserve.

It's the government that has shown contempt for free speech, allowing private citizens onto federal land to erect a cross but preventing other private citizens from erecting a Buddhist memorial on the same site. And the ACLU doesn't argue that a land transfer in this case could never be constitutional - only that the proposed transfer has clearly been manipulated so that the cross will remain in exactly the same place.

Many Christians are offended by Bengs'argument that this particular cross is supposedly a nonreligious commemoration of war dead, rather than a symbol of the divinity of Jesus. And thousands of Jews, Muslims, Buddhists and members of other faiths who have served their country with honor do not regard the cross as a "universal symbol." That's one reason the military allows soldiers and their families to choose which religious symbol to put on headstones in military cemeteries - a position the ACLU staunchly supports.

Characterizing the plaintiff in the Mojave case as "hypersensitive" and without standing is likewise misguided. Someone who is directly affected by government favoritism of one religion can and should be able to sue if our constitutional freedom of religion is to mean anything. If the law were as Bengs' article suggests it should be, a Jewish student "offended" by school-sponsored Christian prayers would have no legal recourse.

The right of every American to practice his or her own religion (or no religion at all) is among the most fundamental of the freedoms guaranteed by the Bill of Rights. The American Civil Liberties Union's long history of working to ensure that religious liberty is protected goes back to the Scopes trial of 1925, long before other groups began to argue for religious freedom. The Free Exercise Clause of the First Amendment mandates that the government should not interfere with people's religious rights to believe and worship freely. The Establishment Clause of the First Amendment prohibits the government from playing favorites and supporting one religion over others, and from favoring religion over nonreligion. The ACLU has been involved in a long series of prominent cases under both the Establishment Clause and the Free Exercise Clause that have argued against government interference in the religious sphere.
Religion is pervasive in the United States - and it is constitutionally protected. The ACLU has long defended individuals, families and religious communities who wish to manifest their religion in public. Particularly when compared to other industrialized democracies, religion plays a prominent role in American public life. Churches, synagogues, mosques, temples, cathedrals and Gurdwaras are plainly visible in the public sphere, and their right to display religious symbols and to construct religious edifices is protected by the Constitution and by statutes. The ACLU has actively supported the right of people to preach their religion in public places and to go door-to-door to spread their religious messages. The Constitution properly protects the right of religious figures to preach their messages over the public airwaves. Religious books, magazines and newspapers are freely published and delivered through the U.S. Postal System. No other industrialized democracy has as much religion as does the United States.
Some people, however, mistakenly use the word "public" when they really mean "governmental." This can be seen, for example, with Ten Commandments monuments. The right of churches and families to erect such monuments on their own property is constitutionally protected, regardless of whether it is public or private and regardless of whether someone is offended or not. A Christian cross that is fully visible from a public sidewalk is constitutionally protected when placed in front of a church. But if that same cross were moved across the street and placed in front of city hall, it would violate the Constitution. The issue is not "religion" -- as the rhetoric misleadingly suggests -- but whether the government should be making decisions about whose sacred texts and symbols should be placed on government property and whose should be rejected.

SANTA ANA, Calif. – The American Civil Liberties Union of Southern California filed a class-action lawsuit today against Orange County District Attorney Tony Rackauckas and the City of Orange Police Department for illegally placing dozens of residents under a gang injunction after first deliberately preventing them from arguing in court that they don’t belong to a gang.

The actions by Rackaukas and the OPD constitute an end run around the most basic tenets of constitutional due process, and have imposed probation-like conditions on dozens of youths and adults, subjecting them to curfews and severely limiting their right to associate with family and friends. The gang injunction restricts their right to move freely within their own neighborhood, and to participate in political or religious activities in a large portion of the city – all without a court ever having ruled that they should be subject to these conditions.

This abuse of the prosecutorial process began in February, when Rackaukas filed a complaint in the Orange County Superior Court to obtain a gang injunction against the Orange Varrio Cypress gang. The proposed injunction named more than 115 residents as gang members and 150 unspecified associates of the gang.

After 62 of the individuals named in the injunction challenged the allegations that they are gang members or that a gang injunction is justified, Rackaukas dropped them from the complaint – before they had a chance to have their day in court. Then, a few weeks later, Rackaukas turned around and served those very same individuals with an injunction obtained by default against the Orange Varrio Cypress gang and “all members of the gang, whether or not named in the original lawsuit.”

“District Attorney Rackaukas is playing a game of bait and switch. No public servant should be allowed to subvert the judicial process and deprive residents of their right to be heard in court or develop a full and fair record,” said Belinda Escobosa Helzer, a staff attorney with the ACLU/SC’s Orange County office. “As a result of his actions, dozens of individuals are left in the untenable position of being forced to abide by a gang injunction, even though no court has determined they should be subject to its restrictions. They cannot engage in lawful daily activities or continue to live their lives and exercise their freedoms without risking arrest and incarceration for violations of this untested injunction.”

Among those who have been subjected to the injunction and the unlawful and overzealous enforcement of it is Miguel Bernal Lara, a 20-year-old college student. He was served with the injunction though he was originally dismissed from the suit, and is now afraid to leave his home or participate in any protest against the injunction – even at Orange City Hall, which is located in the injunction area -- for fear he will be targeted by police.

Another resident, a 17-year old boy who was dropped from Rackaukas’ original suit but was later placed under the injunction, can’t even walk home from school because of the injunction’s severe restrictions. In August, police cited him for “associating” with an alleged gang member when he was on his way home from summer school. The alleged gang member was a school friend and neighbor.

“It’s outrageous that the district attorney is depriving dozens of residents of their basic due process rights. None of the individuals represented in this suit have had the opportunity to defend themselves before a judge, yet they are being treated like criminals,” said Hector Villagra, director of the ACLU/SC’s Orange County office. “Nobody should have their liberty taken from them without the chance to present their case.”

The overly broad and unconstitutional gang injunction affects a 3.78-square mile neighborhood that covers nearly 16 percent of the city of Orange. Touted by law enforcement as a tough and necessary crime-fighting tool, aggressive gang injunctions have been used largely in poor communities of color with little proven effect. In pursuing the injunctions, law enforcement has eroded community trust, separated childhood friends and endangered the basic rights of nongang members to exercise free speech, move freely and associate with whomever they like.

Image: ACLU/SC staff attorney Belinda Escobosa Helzer with Miguel Bernal Lara, a 20-year-old college student falsely accused of gang ties.