May 3 2007 National Day of www ndptf

May 3, 2007 National Day of… www. ndptf. org www. nationaldayofreason. org

Religious Issues in Libraries Infopeople Webcast Thursday May 3, 2007 12: 00 noon to 1: 00 p. m Mary Minow, J. D. , A. M. L. S. Library. Law. com

Legal Disclaimer • Legal information • Not legal advice!

Religious Issues in Libraries Legal Framework Meeting Rooms and Displays Library collections Money and support Employees Coachella Library, Riverside County was once a church

1. Legal Framework: We are the Government

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 6

Establishment Clause Supreme Court shifting test away from separation of church and state … to neutrality and nondiscrimination Shifting lines in the sand judged by reasonable observer Note: “Lemon test” is waning [secular purpose, primary effect does not advance/inhibit religion, no excessive church/state entanglement] 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),

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 religion prohibits 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. 3 d 1038 (9 th Cir. Dec. 18, 2006); Calif. Supreme Court S 148874 case initiated Dec. 19, 2006

2. Library Can’t Prohibit Religious Court: Meeting Rooms and Displays Meeting Room Policy: Not available for religious purposes Groups from Meeting Room Library Rule Concerned Women for America, v. Lafayette County and Oxford Public Library, 883 F. 2 d 32 (5 th Cir. , 1989)

Court: Library can’t prohibit religious groups from meeting room Concerned Women for America, v. Lafayette County and Oxford Public Library, 883 F. 2 d 32 (5 th Cir. , 1989)

Meeting Room Can’t Prohibit Religious Court: Library Policy: Not available for religious Meeting Room Groups frominstructions Library Rule Christopher A. PFEIFER, v. City of West Allis, 91 F. Supp. 2 d 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. 2 d 1253 (E. D. Wisc. , 2000).

Religious No religious use. To Same Policies: Speakers Right policies knocked over Everyone of cards Access As like deck Else X • 2005 Sept 20 Woodland Park Library (CO) settlement X • 2002 Mitchell County Public Library (TX) X • 2002 Dunedin Public Library (FL) X • 2001 -Escambia County Library (FL) X • 2000 Pine Mountain Regional Library System (GA)

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 (7 th Cir. Ind. Mar. 12, 2007) www. nacua. org/documents/Gilles_v_Blanchard. pdf

NEW Exception: Religious Services Faith Center Evangelistic Ministries wanted to book library meeting room TWO SESSIONS 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 (9 th Cir. Mar. 9, 2007)

Evangelical Church sued Contra Costa County Library Initial policy “Library meeting rooms shall NOT be used for religious purposes. " Lawsuit filed – amended policy twice 2 d try: prohibited use "for religious services or activities" 3 d try: prohibited "religious services" Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U. S. App. LEXIS 5542 (9 th 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 (9 th Cir. Mar. 9, 2007)

Specter of Excessive Entanglement? Court doesn’t need to decide this Copyright 2006 Phillip the Filipino, Creative Commons Attribution-Non. Commercial-No. Derivs 2. 0 www. flickr. com/photos/retuta/ 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” Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U. S. App. LEXIS 5542 (9 th Cir. Mar. 9, 2007)

Critics of court opinion Treats groups differently e. g. liturgically oriented Catholics may be subject to greater burden Uploaded on February 27, 2007 by Lawrence OP. Some rights reserved. Attribution-Non. Commercial 2. 0 Evangelicals, Unitarians services characterized by fellowship, singing, not characterized as “mere worship” www. flickr. com/photos/paullew/405080805 Faith Ctr. Church Evangelistic Ministries v. Glover, 2007 U. S. App. LEXIS 5543 (9 th 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 Kentucky courthouses Six-foot monument Two large, framed copies of Ten Commandments given by private Lacked predominant secular group, placed with purpose, were not religiously other monuments neutral OKAY Secular purpose; would not lead observer to conclude state endorsed religious message Van Orden v. Perry, 545 U. S. 677 (2005) NOT OKAY Mc. Creary County v. ACLU of Ky. , 545 U. S. 844 (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 e. g. local notices, local performances etc. Library cannot limit content (that fits within forum’s purpose) or viewpoint (can’t allow pro-life and disallow pro-choice or vice versa) 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)

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. 3 d 1061 (9 th Cir. 2001). See also Wigg v. Sioux Falls Sch. Dist. 495, 2004 U. S. App. LEXIS 18628, (8 th. 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. ” Mc. Creary County v. ACLU of Ky. , 545 U. S. 844 (2005)

Dewey classification 200 210 220 230 240 250 260 270 280 290 Religion Philosophy of Religion Bible Christianity Christian devotional Christian orders Ecclesiastical theology History of Christianity Christian denominations Other religions Under the Dewey Decimal Classification, my religion's literature is shelved in the 133 s 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 e. g. John Rubin, The Maker's Diet: The 40 Day Health Experience That Will Change Your Life Forever Dewey 613. 2 Raya Kuzyk, Brave New Genre, Library Journal ((May 1 2006).

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. Employees Say 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 Don’t - danger of entanglement Berry v. Dep't of Soc. Servs. , Tehama Co, 2006 U. S. App. LEXIS 10796 (9 th Cir. May 1, 2006) .

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. Bottom line: employers should take religious accommodation requests seriously; ultimate decision depends on facts. General guidelines offered in California League of Cities memo Draper v. Logan County Pub. Library, 403 F. Supp. 2 d 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

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

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 (9 th 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 (9 th 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 California: Employer must adjust work schedules to accommodate employee’s religious observance if absence not undue hardship See League of Cities memo Rehm v. Rolling Hills Consolidated Library 2006, U. S. Dist. Ct (W. D. Mo), Case No. . 04 -6088 -CV-SJ-JTM

California League of Cities findable at www. cacities. org . See also Title VII of the Civil Rights Act of 1964. 42 U. S. C. §§ 2000 e-17; Cal. Gov. Code § 12940. ; 2 Cal. Code Regs. § 7293 et seq.

Religious Issues in Libraries Legal Framework Meeting Rooms and Displays Library collections Money and support Employees Coachella Library, Riverside County was once a church .