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.

by Peter Eliasberg, ACLU/SC managing attorney and Manheim Family Attorney for First Amendment Rights

Court To Examine Whether Transfer of Land With Cross In Mojave Desert National Preserve Remedies Establishment Clause Violation

Salazar v. Buono originated as an Establishment Clause challenge to the presence of a Latin cross on federally-owned land in the Mojave National Preserve in California. During the course of the proceedings, Congress passed a law providing for the transfer of the land on which the cross was located to the Veterans of Foreign Wars (VFW). After prevailing on the Establishment Clause claim, former National Park Service employee Frank Buono successfully challenged the transfer as a sham designed to circumvent the court's judgment in his favor. At issue in the proceedings before the Supreme Court is whether the transfer fully remedies the already adjudicated constitutional violation. The government is also asserting that Mr. Buono lacked standing to bring the Establishment Clause case in the first instance.

Background

A cross was first erected on the site in 1934, but has been torn down and replaced several times since. The current cross, which is about six feet tall, sits on the top of a prominent rock outcropping next to one of the principal roads through the preserve. A plaque announcing that the cross is intended as a memorial for veterans of all wars was placed at the site in 1934, but it has long ago disappeared and not been replaced. In the late 1990s a man asked the National Park Service for permission to erect a stupa ''' a Buddhist memorial ''' at the site. The Park Service refused the request.

Mr. Buono is a retired employee of the National Park Service, a veteran and an observant Catholic. Although he has a Latin cross in his own home, he objects to the presence of a sectarian religious symbol on government property and the favoritism the government has shown by allowing a private party to erect the cross while refusing to allow others to erect other symbols, including other religious symbols in the area.

Court Proceedings

In 2001, Mr. Buono filed a civil action in federal district court alleging the cross violated the Establishment Clause and seeking a permanent injunction. On cross-motions for summary judgment, the district court ruled in Mr. Buono's favor and granted a permanent injunction barring defendants from permitting the display of the cross. During the pendency of the district court proceedings, Congress designated the cross a national memorial commemorating United States participation in World War I and the veterans of that war. It is one of approximately 50 national memorials in the United States, which include Mount Rushmore and the Vietnam Memorial.

The government appealed the district court's judgment. During the pendency of the appeal, Congress enacted a land transfer provision: the National Park Service would transfer approximately one acre of land on which the cross sat to a local chapter of the VFW; in exchange, local resident Henry Sandoz (who had erected the cross) would transfer approximately five acres of land he owned elsewhere in the preserve to the Park Service. In a unanimous opinion by Judge Alex Kozinski, the Ninth Circuit held that Mr. Buono had standing to challenge the cross and that the cross violated the Establishment Clause. The court rejected the government's assertion that the transfer statute mooted the case, noting that the transfer had not yet occurred and might take up to two years to accomplish. The government did not file a petition for certiorari.

Approximately five months after the Ninth Circuit's judgment, Mr. Buono filed a motion in district court to enforce the judgment, arguing that the transfer was inconsistent with the permanent injunction the court had entered. The district court granted the motion and enjoined the transfer. A three-judge panel of the Ninth Circuit unanimously affirmed the district court. At that point, the government filed a petition for certiorari, which the Supreme Court has granted.

Mr. Buono has made several arguments in support of the decision:

First, the 2002 judgment of the district court, as affirmed by the Ninth Circuit in 2004, is a final judgment. By not filing a petition for certiorari from that judgment, the government is precluded from raising ''' five years later ''' all issues encompassed in the judgment, including Mr. Buono's standing to bring the case.

Second, even if the Court concludes that the standing question is properly before it, Mr. Buono had standing to bring this case. He visits the preserve regularly and must either accept the presence of a government-endorsed religious display, which offends him, or undergo burdens to avoid that contact. The Supreme Court has explicitly or implicitly recognized that kind of injury as sufficient for standing purposes in numerous cases.

Third, the lower courts were correct in concluding that the land transfer was not a valid remedy to the already-adjudicated Establishment Clause violation. The government's basic argument is that reasonable people will associate the message conveyed by the cross with the owner of the land on which it sits. Thus, if the government no longer owns the land, it will no longer be seen as endorsing the preeminent symbol of Christianity. That argument ignores the cross' continuing designation as a national memorial and its location in the midst of a national preserve.

Fourth, if the government had wanted to transfer the land, it could have made it available to the highest bidder. By transferring the land to someone who was committed to maintaining the cross at its present location, the government reinforced its endorsement of the religious symbol while, at the same time, denying other religious faiths the opportunity to erect their own, comparable religious displays in the preserve. As the Ninth Circuit found, that sort of religious favoritism compounded the Establishment Clause violation, rather than resolving it.