Suing Ourselves in the Foot

In 2010, the Freedom From Religion Foundation (FFRF) sent a letter to the City of Warren, Michigan. For years, the city had put out a holiday display that included a lighted tree, reindeer, snowmen, a “Winter Welcome” sign and a nativity scene. Unsurprisingly, FFRF didn’t like it. They demanded the city put up another sign that read, in part, “At this season of THE WINTER SOLSTICE may reason prevail. There are no gods, no devils, no angels, No heaven or hell. There is only our natural world, Religion is but Myth and superstition That hardens hearts And enslaves minds.” Also unsurprisingly, the city refused, and FFRF sued.

Most unsurprisingly of all, FFRF lost.

This story is nothing new.  Westlaw, a website that tracks court decisions, shows twenty-seven cases where FFRF has gone to court as a party and gotten a final disposition1. They have won six. This 22% win percentage makes FFRF the least successful secular organization in the courts. They also happen to be the most litigious.

In this article, I will argue (1) that FFRF’s litigation strategy is harming the movement, (2) that the secular movement needs to take lessons from the gay rights movement on how to be successful in the courts, and (3) I will make recommendations of where to go from here.

FFRF’s Effect on the Movement 

To understand how FFRF is harming the movement, it helps to understand how our legal system works. Here’s a quick Law 101 lesson.

There are two major legal systems in the US: federal and state courts. They operate fairly independently of each other. Our federal system is hierarchical. At the top is the Supreme Court. Below it are thirteen circuit courts, each covering a handful of states. Below them are district courts. When you first bring a lawsuit in federal court, it goes to a district court. District court decisions have relatively little effect on anyone other than the parties involved. The district judges also have the least amount of flexibility. Each district court is in a circuit, and if their circuit court or the Supreme Court has decided a case that it similar to the one they’re deciding, the district court is required to rule the same way.

If a party loses in district court, they can appeal to the circuit court. A circuit court has more flexibility. They’re bound by previous Supreme Court decisions, but other than that, they can develop the law in whatever way they want2. Because the Supreme Court only takes 75 cases a year, most law develops in the circuits, and the law can vary dramatically from circuit to circuit. For instance, city councils can likely start meetings with a Christian prayer if they are in Florida, but doing the same thing in North Carolina would be illegal3.

If a party loses in their circuit court, they can appeal to the Supreme Court. As I mentioned, the Supreme Court is very selective in the cases they take and most of the time they will let the circuit court’s opinion stand.

Once a case is decided, it creates a legal precedent. While courts have the ability to overturn their previous decisions, they very rarely do. In 1986, the Supreme Court ruled that states have the right to ban gay sex. It wasn’t until 2003 that they overruled that decision – and that is considered an extremely quick change. The lesson is that legal organizations have to be very careful. Losing a case with a circuit court or the Supreme Court can sink future litigants for decades.

This is especially scary when we consider how the law works in practice. While many people believe that justice is blind and that courts mechanically apply the law, this is far from the case. If a plaintiff is especially sympathetic, courts will often try to find a way to make sure he wins. If he is unsympathetic, the court will try to make him lose.

On the other side of the equation are state courts. State courts are courts of general jurisdiction – they can hear cases on anything including their state constitution and the US Constitution. When deciding issues about the US Constitution, the court is required to follow previous Supreme Court cases – and the Supreme Court has a right to review their decisions – but they are not bound by circuit decisions. They are also the only ones allowed to interpret their own state’s constitution.

Got it? Great.

So how is the FFRF harming the movement? Well, they keep losing. In general, this is not a good time for the Establishment Clause. The pro-religion conservatives have a strong 5-4 majority on the Supreme Court and almost any time we bring a case to them, we lose. The circuit judges – many of whom are Bush appointees – have taken note of this and they generally rule against us, too.

There are two types of cases the FFRF are bringing. The first are cases that present a novel question. These are cases where the Supreme Court might have given an indication of how they feel about it, but there are no cases exactly similar. Using the legal parlance: the case presents an open question. The FFRF brings these cases, and because the courts and precedent are hostile to us, we lose.

Why is this so bad? It’s very likely that, in the near future, we will have a more sympathetic majority in the Supreme Court. This will help us win future cases – but remember, courts are really hesitant to overturn their past decisions. Luckily, novel questions give them some cover. If they can take a case and say “well, this is kind of similar to this past case, but here are some relevant differences that let us rule a different way,” they’ll do it. But with FFRF’s strategy, none of these novel questions are going to be left. They have slowly built up bad precedent on every set of facts imaginable. We’re forcing future courts to make really hard choices rather than giving them the easy way out to help us.

The other sort of cases are those where the Supreme Court or the circuit court have dealt with the exact same facts and ruled against us. The case I described at the start was a perfect example. It is very well-established that Warren’s Christmas display was Constitutional and that the city wasn’t required to put up FFRF’s sign.

Why is this so bad? There’s nothing to lose, right? Well, not quite. Again, it all goes back to how hesitant courts are to overturn their own decisions. It took seventeen years until the Supreme Court was ready to say “okay, things have changed enough since our last decision that we won’t let states ban gay sex.” Now instead imagine that, every year since 1986, a group brought another lawsuit about sodomy, and every time they lost. What’s the court going to say now? In the past 12 months things changed enough that we can overturn these thirty other cases? Courts are most comfortable overturning a single decision that happened a long time ago. They are least comfortable overturning a huge number of decisions that happened relatively recently. FFRF has made it so that anytime a judge wants to rule against us, she has a mountain of previous cases to point to.

The worst part of all this is that FFRF takes the absolute least sympathetic facts when they go to court. Again, we have to remember that there are just things that federal courts will not do. They are not going to force a city to post an anti-religious sign on city hall’s steps. They are not going to ban the pledge of allegiance. They are not going to force the government to take “In God We Trust” off money. It’s just not going to happen, at least not anytime soon. So, when FFRF brings suits about these issues (all of which they have), the court will find any way they can to make us lose.

Sometimes the courts are not comfortable ruling against us on the merits, so they look to other places. The past decade has led to a huge expansion of the standing doctrine. While I won’t get into the nuances of the doctrine, it’s a set of rules that stop people who haven’t been harmed from bringing a suit (i.e. I can’t sue the governor of Kentucky for polluting a river, only a resident of the state who lived close to the river could). Because of a series of bad decisions coming from unsympathetic cases where the judges went searching for ways to make us lose, one of the biggest obstacles for defending the separation of church and state is convincing the judge to even hear your case. The standing doctrine has become so powerful now that there are some violations of the Establishment Clause that no one has the ability to challenge in a courtroom.

I understand why FFRF’s strategy is so appealing to so many people. We get pissed off – and rightfully so. The Mayor of Warren was an asshole. Atheists – not to mention Muslims and Jews – shouldn’t have to watch their government embrace Christianity every December. And the rulings that say otherwise? I think they’re wrong. The Supreme Court isn’t “final because [it is] infallible, but [it is] infallible only because [it is] final.” I don’t want God in my pledge or on my money. And when minority groups like atheists are discriminated against, they should be able to go to the courts to be protected.

But we can’t. At least not now. Going to the courts does more harm than good.

Instead, it’s time we follow the lead of other groups that have been successful in the courts. We need to be patient, and we need to stop shooting ourselves in the foot.

Learning from Other Movements 

The LGBT rights movement provides the best model for how minority groups can win in the courts. As a case study, I want to give an overview of how the LGBT movement handled the battle in the courts for marriage.

The late 1990s and early 2000s were a tumultuous time for the LGBT movement. The movement was still reeling from a 1986 ruling upholding the rights of states to criminalize gay sex. A 1993 Hawaii Supreme Court ruling finding a right to same-sex marriage gave the movement hope, but the Hawaii legislature quickly amended their state constitution and Congress responded by passing DOMA. A 1996 Supreme Court case overturning a discriminatory law in Colorado was a huge win for the movement, but the political climate was still hostile.

The movement came together to find a plan. They knew a federal marriage lawsuit would lose and set the movement back decades, so they went to state courts instead. First, they went to favorable states to build up precedent. Suits were filed in Vermont and Massachusetts alleging that their respective state constitutions prohibited the state from banning same-sex marriages. This state-by-state strategy was brilliant. They were able to start with liberal states that would be more hospitable to their claims. The hope was to create a domino effect. If they could get three state Supreme Courts to find a right to marry, it would be much easier to convince other states to do the same. In addition, while it’s never good to lose, any real harm was mitigated because no other state would be bound by the decision and because they were suing under the state constitution it was unreviewable by the Supreme Court.

And it worked.

A win in Vermont forced the legislature to give rights to same-sex couples and the win in Massachusetts made it the first state to have – and keep – same-sex marriage equality. Meanwhile, the movement was much more conservative in federal courts. It avoided any claims of a general right to same-sex marriage and instead focused on more narrow issues with more favorable facts. For example, in 2003, a man in Texas was actually prosecuted for having sex with another man. While these laws remained on the books in many states, they were never enforced. The fact that Texas was actually prosecuting this was insane – and the movement recognized it. The story behind the case is fascinating. It turns out that the men weren’t actually having sex, but because they were belligerent, the cops decided to charge them with something – and they chose sodomy.  The movement heard about the arrest and, within two days, it had lawyers on the ground in Texas. They brilliantly managed the case through the state court, setting it up to go to the Supreme Court. Good facts make good law. And they had good facts. This was a sympathetic case, and the Supreme Court wanted to find a way to let the men win. In doing so, they laid the framework to (hopefully) overturn Prop 8 and DOMA a decade later.

The movement also continued its work in state courts. A 2006 New Jersey Supreme Court decision (again, sticking with liberal states) brought marital rights to same-sex couples. Washington’s, Maryland’s and New York’s supreme courts refused to do the same, but the movement rebounded with wins in Iowa and California. Again, this state-by-state push allowed this movement to win some and lose some without risking too much. The game was played on the LGBT movement’s turf – they picked the plaintiffs, they picked the state, they picked the court. They rigged the game – and it worked.

Meanwhile, the movement’s leaders actively pushed back against any groups that didn’t want to play the game like they did. When activists in Minnesota – a state the movement wasn’t ready to go into yet – wanted to bring a case to the Supreme Court, the movement refused to represent or help them. Sure enough, the litigation led to a loss and a proposed constitutional amendment to ban same-sex marriage. Similarly, when plaintiffs in California went to federal court to challenge Prop 8, their lawyers said the LGBT movement had “gone to such great lengths to dissuade us from filing suit and to tar this case in the press.” Eventually the movement united behind the Prop 8 case, but only after four years of litigation gave time for public opinion to become more favorable to the LGBT community.

The movement’s work continues in the courts. This month, the Supreme Court will hear a case about the constitutionality of DOMA. In their briefs, the movement has been able to extensively cite from state court and earlier Supreme Court decisions that found in favor of LGBT couples. While no one expects the court to legalize same-sex marriage everywhere, piece-by-piece and bit-by-bit the movement has put itself in a winning position in the courts. If this suit had come a decade earlier, they would have undoubtedly lost.

To summarize, the LGBT movement has been incredibly successful in the courts over the past decade. Its strategy has been to (1) litigate in liberal state courts where a loss will have little precedential effect, (2) litigate in federal courts only when it has a narrow issue and a favorable set of facts to slowly build up precedent on its side, and (3) to actively resist any organization or plaintiff that goes against this model. The secular movement could learn a lot.

 Proposals for the Secular Movement

The secular movement needs to follow suit with the LGBT movement. Our litigation needs to start happening on the state level instead of in federal courts. This is already happening to some extent, and to some success. FFRF had one of its six wins last May when the Colorado Court of Appeals found the state Day of Prayer to be unconstitutional. This same suit, filed in federal court, lost in 2011 on standing grounds. Similarly, the American Humanist Association (AHA) is challenging “under God” in the pledge of allegiance in Massachusetts state court. While I’m skeptical that AHA will be able to win this case, at least there is far less to lose because it’s not being brought in federal court under the federal constitution.

The secular movement needs to expand this effort. Nearly every state constitution has an establishment clause that differs from the US Constitution. We need to find sympathetic cases and bring them in favorable state courts to start building precedent on our side.

The secular movement needs to start being careful what it’s bringing in federal courts, as well. Here, FFRF is the worst offender. We need to stop the grandiose suits over the motto on our money. We need to turn our focus to places we’re actually winning. Let me give two examples of recent, successful, and modest cases. In 2011, the ACLU sued a county that began every commissioners meeting with a prayer. Christian congregation leaders were invited to give Christian prayers and, in the phone book used to find the congregation leaders, the commission had crossed out names that weren’t Christian. The facts were good. The issue was small. The ACLU won. In 2012, Americans United sued a school district that was holding their graduation ceremony in a church. The church refused to remove its giant cross from the front of the hall for the ceremony, and the school was okay with it. One year, the church manned information tables with religious pamphlets. Another year, they actively distributed the pamphlets to the students.

This was a perfect set of facts. And guess what? We won.

We also need to build on these wins. Despite court wins in the past, cities and counties continue to flaunt their disregard of the law when it comes to the Establishment Clause. There’s no reason to lose a suit against Chief Justice Roberts for saying “so help me God” at President Obama’s inauguration when we can win suits against cities that continue to start their council meetings with Christian prayers. The AHA has been great on this front. As a legal intern with them this summer, I spent countless hours documenting illegal prayers at these meetings and drafting cease-and-desist letters for them. FFRF needs to get more active with this, too. There are real establishment clause violations happening that give us cases we can win in court. We just need to find them.

Finally, we need to act together in stopping lawsuits that are sabotaging our efforts in court. LGBT lawyers have a conference every year to discuss legal strategy. We need to be doing the same. There’s not enough coordination between the organizations’ legal departments. Donors need to get active and informed, too. FFRF made $40,000 from lawsuits last year. They spent $1,200,000. If donors start saying they won’t contribute to organizations setting bad precedent, the unsuccessful lawsuits would end.

Conclusion 

I want to stress that I don’t think the FFRF is a bad organization. They have a phenomenal group of lawyers and a great leadership team. While I was President of the University of Northern Iowa Freethinkers and Inquirers, I made it a point to get Dan Barker onto campus. He’s a great writer and spokesperson for the movement. I also recognize that the FFRF does some great work. Many of their cases are settled before litigation even starts. The FFRF does more work to find Establishment Clause violations than any other secular group in the country.

I also recognize why FFRF takes the strategy they do. We all have an intuition that when a right is violated, the courts are there to protect us. And they should be! But, unfortunately, today they are not. I also recognize the non-legal benefits to these cases. They may set bad legal precedent, but they bring media attention to the movement and sometimes lead to policy changes in legislatures.

Finally, I recognize that FFRF isn’t the only culprit. Throughout this article, I’ve referred to cases brought by Michael Newdow and other organizations.

Still, FFRF is the most litigious secular organization in the country today. And the cases that they, and other groups, are taking to court are doing more damage than good. The LGBT movement has shown us how to be successful in court. It’s about time we do so.

Update 3/25/2013: Clarified that my win-loss tally only includes cases on Westlaw where FFRF was a party. FFRF contacted me to, correctly, point out that this win-loss record may be misleading because of settled and unpublished cases, as well as cases where FFRF is involved but not as a party. This is correct, however the point of this post still stands: while FFRF has been successful in some cases, many of their losses are with cases that should not have been brought in the first place.

  1. This only includes cases that can be easily classified as a win/loss on the substantive or procedural merits of the case itself. Motions for lawyer fees and most interlocutory motions were not included. A full list of cases used can be found at https://docs.google.com/spreadsheet/ccc?key=0AoLWJBKH_709dEJSNVVBREFvekJ6TlhkeC1iOER6X2c&usp=sharing. []
  2. I’m simplifying here. Each circuit has a large number of circuit judges, and each case is randomly assigned to a three-judge panel. These panels are typically bound by previous circuit decisions. A losing party can appeal to have their case heard by all of a circuit’s judges at once (an en banc review). An en banc panel can then overturn previous circuit opinions. []
  3. For anyone curious, the relevant case law is Joyner v. Forsyth County, N.C., 653 F.3d 341 (4th Cir. 2011) cert. denied, 132 S. Ct. 1097, 181 L. Ed. 2d 978 (U.S. 2012) and Pelphrey v. Cobb County, Ga., 547 F.3d 1263 (11th Cir. 2008). Both circuits claim to agree with each other, but the cases are difficult to reconcile. []