2005 Year-In-Review Report

In America, we have a legacy that has been handed down by brave men and women who knew what it was to sacrifice for their beliefs—individuals who, even when faced with almost certain defeat, would never back down. We encounter these individuals every day at The Rutherford Institute. They are the men, women and children who are willing to take a stand, and often suffer, for the things that truly matter—faith, family and freedom.

The reason I started The Rutherford Institute in 1982 was to offer assistance and legal help, at no charge, to these brave individuals. With little in the way of funding and only a handful of attorneys who had pledged to help me take on cases for no fee, The Rutherford Institute has now grown into a fighting force for freedom, as our attorneys have defended the rights of countless Americans in their struggle for religious freedom. Our cases have extended into virtually every area of life, including the schools, home, workplace and state and federal governmental agencies.

The Institute has accompanied its legal work with innovative educational activities concerning essential human rights through radio and television programs, as well as in newspapers, books, magazines, videos and booklets for the general public and in professional law reviews, brochures, books and courses.

The success of the Institute and its continuing relevance are due in large part to its willingness to become involved in timely cases and issues. And, by continuing to address and defend constitutional and human rights issues in the coming years, we will have even more opportunities to carry out our mission to fight for those who cannot defend themselves, speak for those whose voices cannot be heard and contend for those who do not have the strength to fight for what has been taken from them. While none of this will be easy, we will not waver.
Each of us has a duty to ensure that America remains the land of the free and the home of the brave.

The Rutherford Institute remains committed to this fight for freedom and embraces the challenges that lie ahead, which we intend to meet with courage, clarity and competence. Whether defending the constitutional rights of individuals in the courtroom, calling on others to raise their voices against injustice or educating the public about their rights with our educational materials ranging from freedom resource briefs, legal features and commentaries to interviews and feature articles, we understand that the continuing rise of liberty and equality in America is dependent on our fight for religious freedom. The following are just a few of the highlights of The Rutherford Institute’s ongoing battle to preserve our liberties.

John W. Whitehead, President

January 2005:

• Institute attorneys succeeded in protecting the free speech rights of a Christian youth group that was prevented from praying at the Alamo. The Daughters of the Republic of Texas agreed to The Rutherford Institute’s demands that they modify their rules and regulations regarding the use of the historic Alamo Shrine, grounds and complex buildings to allow for the free exercise of religious expression and prayer on its grounds. Rutherford Institute attorneys had contacted the DRT, the designated custodians of the Alamo for the State of Texas, on behalf of Jeremy Errickson, director of a young adult discipleship program who was prohibited from engaging in a group prayer while touring the Alamo. The DRT had insisted that praying on the solemn property constituted a violation of “the separation of church and state.”

• Attorneys for The Rutherford Institute filed a motion to intervene in Tammy Kitzmiller, et al v. Dover Area School District on behalf of the First Amendment rights of a group of students and their parents who opposed an effort by the ACLU to prevent science teachers or administrators from informing students that there are gaps in Darwin’s theory of evolution and to censor and deny access to information to all ninth graders concerning criticism of the theory of biological evolution or any knowledge of other theories of the origins of life, including intelligent design.

February 2005:

• Responding to reports that the Culpeper (Va.) Town Council was preparing to reconsider its decision to remove Christian invocations at town council meetings and replace them with a generic moment of silence, The Rutherford Institute provided the Culpeper Town Attorney and members of the Town Council with guidelines for constitutionally permissible methods of offering prayers/invocations before City Council meetings.

March 2005:

• Attorneys for The Rutherford Institute succeeded in helping a California church prevail against an attempt by city officials to use local zoning ordinances to prevent the church from building a church. Institute attorneys cited recent rulings under the Religious Land Use and Institutionalized Persons Act (RLUIPA), which forbids state and local governments from imposing or implementing a zoning or landmark law in a manner that imposes a substantial burden on religious exercise, as having contributed to the settlement in which city officials agreed to allow the Church of the Light to proceed with plans to build a church. Since its passage in 2000, RLUIPA has been hailed as an important protection for religious exercise in America. However, it has also been challenged on numerous fronts.

• Attorneys for The Rutherford Institute appealed to the U.S. Supreme Court on behalf of a Florida high school student who was forced to paint over Christian words and symbols she had included on a school mural. Charging that school officials engaged in viewpoint discrimination in violation of the First Amendment when they ordered Sharah Harris to paint over Christian references in her mural, Institute attorneys asked the court to overturn a 2004 ruling by the Eleventh Circuit Court of Appeals, which held that educators at Boca Raton Community High School had the right to exercise greater editorial control, i.e., the censoring of religious speech, because the murals constituted school-sponsored speech. Institute attorneys pointed out that students were specifically instructed to express themselves freely on the murals, barring offensive or profane speech, thus creating a limited public forum for student expression.

April 2005:

• In an effort to alleviate some of the confusion surrounding the question of prayer in public places, The Rutherford Institute issued guidelines for constitutionally permissible methods of offering prayers/invocations before City Council meetings. The Institute’s guidelines explain the limited import of the Fourth Circuit Court of Appeals’ ruling in Wynne v. Town of Great Falls, South Carolina, which was confirmed by the Fourth Circuit’s later ruling in Simpson v. Chesterfield County Board of Supervisors. The guidelines also emphasize that constitutionally permissible methods remain for offering prayer before City Council meetings and suggest guidance in the conduct of such meetings.

May 2005:

• Attorneys for The Rutherford Institute filed a First Amendment lawsuit in defense of the rights of a mother who was prevented from reading a Bible passage out loud as part of a “Me Week” kindergarten classroom program intended to feature her son and showcase his favorite book. In their complaint, Institute attorneys charged that by singling out and forbidding Donna Busch from reading a Bible passage chosen by her son Wesley because of the reading’s religious content, school officials violated her First Amendment right to free speech, discriminated against her speech on the basis of its religious viewpoint and deprived her of the right to equal protection under the law as guaranteed by the Fourteenth Amendment to the United States Constitution.

• John W. Whitehead, president of The Rutherford Institute, appeared at the 16th Annual Jackson Lewis Corporate Counsel Conference to address corporate counsel with employment, labor, benefits and immigration law responsibilities on the topic of “Faith in the Workplace: Finding the Balance for ‘Sincerely Held Beliefs.’” Whitehead discussed how corporations can find the balance between employees’ reasonable expressions of faith or beliefs and management’s legitimate goal of controlling solicitation and distribution at work; to what extent an individual must be allowed to proselytize at work; what the necessary accommodations are under federal and state anti-discrimination laws to avoid charges of religious discrimination; and how an organization can be sure its diversity programs and religious policies comply with applicable law.

• The Rutherford Institute issued a “Special Report to Corporate America” on religious discrimination in the workplace, which was made available to corporations across America, including Fortune 500 companies. In addition to outlining employers’ specific duties toward religious employees or prospective employees under Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace on the basis of race, color, religion, sex or national origin, the report also provides employers with specific recommendations for accommodating their employees’ religious beliefs or practices.

• In a unanimous decision, the U.S. Supreme Court upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), a federal statute that requires state prisons receiving federal funds to accommodate inmates’ religious practices unless they have a compelling interest against the accommodation. Attorneys for The Rutherford Institute filed an amicus brief with the U.S. Supreme Court in Jon B. Cutter, et al. v. Reginald Wilkinson, et al., one of three cases before the High Court that challenged the constitutionality of RLUIPA. In requesting that the Supreme Court uphold RLUIPA, Rutherford Institute attorneys asked the justices to overturn the Sixth Circuit Court of Appeals’ ruling that RLUIPA violates the Establishment Clause of the First Amendment.

June 2005:

• This year, The Rutherford Institute welcomed 11 top-ranking students from law schools across the country to its intensive Summer Legal Internship Program. John Whitehead personally directed the students in their training. Interns in this program attend classes in First Amendment law, research and write legal memoranda and briefs, analyze and discuss a broad range of constitutional and cultural issues related to the law and talk with people who call in for assistance. This year’s class of bright young minds rose to the challenges placed before them.

• As part of its Summer Internship Program for law students, The Rutherford Institute launched its 2005 Summer Speaker Series, which aims to engage law students, lawyers and community members in stimulating discussions with leaders from a cross-section of religious, cultural, philosophical and legal backgrounds. This year, The Rutherford Institute was pleased to welcome a broad array of speakers on issues ranging from property rights and human life concerns to criminal justice reform, religious freedom and judicial activism.

• In a split decision, the U.S. Supreme Court ruled that there was no constitutional violation in the placement of a Ten Commandments monument on the grounds of the state capitol building in Austin, Texas. Attorneys for The Rutherford Institute had filed a friend of the court brief with the U.S. Supreme Court in Thomas Van Orden v. Rick Perry, one of two Ten Commandments cases that came before the Supreme Court this year. The Supreme Court was asked to determine whether a 6-foot by 3-foot Ten Commandments monument, one of 17 monuments that commemorate Texas history and culture on the grounds of the Texas Capitol, constitutes an establishment of religion in violation of the First Amendment. Institute attorneys had asked the High Court to uphold and affirm the monument’s constitutionality, pointing out that the mere presence of a monument with religious themes on government property is not a violation of the Establishment Clause.

July 2005:

• Attorneys for The Rutherford Institute asked the U.S. Supreme Court to protect the rights of plaintiffs in civil rights lawsuits to recover reasonable attorneys’ fees and costs when the case has been resolved through legislative action. The appeal arose out of a case involving Lt. Col. Martha McSally, a Christian and a decorated pilot with the U.S. Air Force, who challenged a military policy requiring servicewomen stationed in Saudi Arabia to wear a Muslim abaya when off base. The abaya is a black head-to-toe robe worn in certain Muslim cultures and is perceived as a sign of subordination to men. As a result of the lawsuit, Congress enacted legislation prohibiting the military from requiring or encouraging that the abaya be worn and from retaliating against those who choose not to wear it.

August 2005:

• Attorneys for The Rutherford Institute succeeded in having dismissed a lawsuit filed by the ACLU against individual members of the Indian River School District Board of Education. The lawsuit, which was filed against school board members in their personal and professional capacities, alleged that school-sponsored prayer “has pervaded the life of teachers and students” in the Indian River District schools. Rutherford Institute attorneys, who have been representing school board member Reginald Helms in his official capacity, had argued that prayers intended to solemnize School Board meetings are part of the legislative process. In dismissing the case against the individual board members, Judge Farnan declared that opening a session of the legislature or other deliberative public body with a prayer is not a violation of the Establishment Clause.

• The Rutherford Institute launched its annual “ABC’s of the Constitution in the Classroom” campaign, a national effort to educate students, parents, teachers and school administrators about how to uphold the rights of Christian students in the public schools. As part of the campaign, John Whitehead, president of The Rutherford Institute, sent a legal memorandum to nearly 15,000 public school superintendents across the United States to educate them about the Department of Education’s “Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools” and warn them against censoring student religious expression. The Institute also made available to school officials an in-depth special report entitled “Inside the Schoolhouse Gates: A Report on Religion in the Public Schools” and promised to send a free pocket-sized copy of the U.S. Constitution to anyone, student or adult, who requests one.

September 2005:

• John Whitehead called on public school administrators to respect the right of students and faculty to gather prior to the start of the school day and participate in their local “See You at the Pole” events on Wednesday, September 21, 2005. See You at the Pole (SYATP) is a student-initiated and student-led movement that revolves around students praying together on the third Wednesday of September, usually before school and most often at the school’s flagpole. The annual prayer gathering began in Burleson, Tex., in 1990, when organizers first challenged young people to meet on a common day to launch their school year in prayer. SYATP has since grown to an international day of public student prayer, numbering some 2.5 million students. Attorneys for The Rutherford Institute have succeeded in protecting the rights of students to promote and participate in SYATP events in previous years.

• Attorneys for The Rutherford Institute filed a lawsuit on behalf of an Indiana family whose 15-year-old daughter, Chelsea Rhoades, was subjected to a mental health screening examination at school without her parents’ knowledge or consent. Institute attorneys charged that school officials violated Michael and Teresa Rhoades’ constitutional right as parents to control the care, custody and upbringing of their daughter when Chelsea was subjected to the mental health exam without their knowledge or consent. Mental health screening exams like TeenScreen have increasingly been adopted by schools in 43 states, reportedly as part of an effort to identify students with mental health problems or at-risk tendencies for suicide that cannot be seen outwardly.

October 2005:

• Charlie Sydnor, host of WHTJ PBS’ “For the Record,” aired an in-depth interview with John Whitehead. Now in its fourteenth season, “For the Record” was created to bring central Virginians thoughtful discussions and first-hand insight into the worlds of politics, public policy and the office of the presidency. Sydnor, an internationally-known historian specializing in the history of Nazi Germany, policies of persecution, crimes of the Nazi Regime and the history of the Holocaust, interviewed Whitehead about The Rutherford Institute’s efforts to defend civil liberties and human rights.

• Attorneys for The Rutherford Institute submitted a “friend of the court” brief with the Texas Court of Appeals in defense of the right of publishers and authors to freely publicize matters of public concern without having to face costly defamation lawsuits. Filed on behalf of a group of leading Christian publishers and ministries that include Moody Publishers, Gospel Light Books and the Christian Film and Television Commission, the Institute’s amicus brief comes in response to a defamation lawsuit brought against Harvest House Publishers by a religious group that was referenced in a book about cults. Insisting that the defamation lawsuit can only serve to chill the speech of individuals who wish to engage in open, robust discussion relating to matters of public concern, Institute attorneys asked the court to dismiss the lawsuit and uphold the publisher’s First Amendment right to freedom of speech and press.

November 2005:

• In response to a growing tendency among public schools, government officials and even private businesses to ban references to Christmas or Christianity during the holiday season, The Rutherford Institute issued “The Twelve Rules of Christmas,” outlining what can legally be done to celebrate Christmas in public. Institute attorneys have succeeded in protecting the rights of individuals to publicly celebrate Christmas in previous years.

• Institute attorneys prepare for an increase in calls involving misguided attempts to censor Christian expression at Thanksgiving. For example, last year Institute attorneys came to the assistance of a third-grade student whose statement in the context of a class assignment that she was thankful for living in a country where she could choose her religion was censored from the Thanksgiving edition of the school paper. The principal was under the mistaken belief that printing the child’s statement in the school paper might violate the Establishment Clause.

December 2005:

• Institute attorneys prepare for an increase in calls involving misguided attempts to censor expressions of Christmas. For example, in years past, officials in one Oregon community ordered the removal of a Nativity display at a drive-through espresso stand because the owner leased the property from the city. A Michigan parent complained that an elementary school music teacher, acting on instructions from the school principal, eliminated the word “God” from all songs in her school’s holiday concert. Children were instructed to be silent rather than say “God” whenever the word appeared in the music. And in Texas, although school officials allowed some Jewish parents to assist in instruction when second graders were taught the religious significance of the Menorah, a Christian parent was turned away when he offered to assist in a similar fashion regarding Christmas.