Simpson v. Chesterfield County Bd. of Sup'Rs

• Decision Date: 13 November 2003
• Docket Number: No. CIV.A. 3:02CV888.,CIV.A. 3:02CV888.
• Parties: Cynthia SIMPSON, Plaintiff, v. CHESTERFIELD COUNTY BOARD OF SUPERVISORS, Defendant,
• Court: U.S. District Court — Eastern District of Virginia

292 F.Supp.2d 805

Cynthia SIMPSON, Plaintiff, v. CHESTERFIELD COUNTY BOARD OF SUPERVISORS, Defendant,

No. CIV.A. 3:02CV888.

United States District Court, E.D. Virginia, Richmond Division.

November 13, 2003.

Victor Michael Glasberg, Victor M. Glasberg & Associates, Alexandria, VA, Rebecca Kim Glenberg, Richmond, VA, Ayesha Khan, Washington, DC, for Plaintiff.

Stylian P. Parthemos, Steven Latham Micas, Chesterfield County Attorney's Office, Chesterfield, VA, for Defendant.

MEMORANDUM OPINION

DOHNAL, United States Magistrate Judge.

This matter is before the court by consent of the parties (28 U.S.C. § 636(c)(1)) on cross motions for summary judgment. Fed.R.Civ.P. 56. The Plaintiff asserts, in her individual capacity, that the Chesterfield County Board of Supervisors' (the Board) established policy that restricts the giving of invocations at its public sessions to religious representatives of the Judeo-Christian tradition constitutes an impermissible preference for a certain set of beliefs over all others, including her own, in violation of the Establishment Clause of the First Amendment. (Compl.). Plaintiff also asserts that her rights to the free and equal exercise and expression of her religion have been violated by the Board under color of state law in violation of constitutional and statutory provisions. (Compl. ¶ 2; Pl.'s Mot. Summ. J.) (citing U.S. Const., amend. I, cl. 1; amend. XIV; 42 U.S.C. § 1983). The Board contends in defense, and in support of its reciprocal demand for dispositive relief, that the subject policy does not promote any particular religion; it does not constitute an unconstitutional entanglement of government and religion; Plaintiff's asserted First and Fourteenth Amendment rights to the full, free, and equal exercise and expression (free speech) of her professed religious beliefs have not been violated because no public forum is involved in which such rights would be implicated; and no one, including Plaintiff, is discriminated against on the basis of religion in the promulgation and/or application of the policy. (Def.'s Mot. Summ. J.). For the reasons set forth herein, each motion for summary judgment is GRANTED in part and DENIED in part.

Standard of Review

Summary judgment is only to be granted when there is no genuine dispute as to any issue of material fact when all justifiable inferences are drawn in favor of the non-moving party and the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). However, unsupported conclusory allegations by the non-moving party are not sufficient to create a genuine dispute of material fact so as to withstand the granting of relief. Celotex Corp., 477 U.S. at 327, 106 S.Ct. 2548 (White, J., concurring). In essence, the court must decide if the evidence when viewed in the light most favorable to the non-moving party "presents a sufficient disagreement to require submission to the [factfinder] or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-252, 106 S.Ct. 2505.

Undisputed Material Facts and Justifiable Inferences

The court deems the following to be the undisputed material facts and justifiable inferences on which the resolution of the pending motions is properly based:¹

1. The Board is the governing legislative body of a state locality that acts under color of state law. (Compl. ¶ 4).

2. The Board has maintained a policy since approximately 1984 whereby invocations are given at each regularly-scheduled public meeting of the Board. (Compl. ¶ 7; Def.'s Mem. ¶¶ 1, 4).

3. The stated policy provides that all invocations "must be non-sectarian with elements of the American civil religion and must not be used to proselytize or advance any one faith or belief or to disparage any other faith or belief." (Def.'s Mem. ex. A).

4. Only the identity of the congregations of monotheistic religions with an established presence in the local community served by the Board are eligible to be placed on a list from which the respective leader is invited on a "first-come first-serve" basis to offer an invocation. (Def.'s Mem., Blakley Aff. ¶¶ 32,34; exs. A-C).

5. The policy's requirement that invocations contain elements of the American civil religion has been consistently interpreted and applied by the Board to allow only representatives of the Judeo-Christian tradition (Protestant, Catholic, and Jewish religions) and, on one isolated occasion, the Islamic faith, to be invited to give invocations. (Def.'s Mem. ¶ 8).

6. There is no evidence that invocations have been utilized to proselytize or advance any religion other than by reference to the name and being of the Judeo-Christian divinity (God) and Jesus Christ in most of the invocations given. (Pl.'s Mem. ex. 3 (Miller dep.) at 44-45; ex. 4 (Humphrey dep.) at 84; ex. 6).

7. There is no allegation or evidence that representatives of any polytheistic or other non-monotheistic religion were invited to give invocations.

8. Although the Board's meetings at which the invocations are offered are opened to the public, no apportunity is provided during the invocation period for public comment or discourse; rather, a separate opportunity is allowed later in the Board's agenda "for citizens to address the Board of Supervisors on matters involving the services, policies and affairs of the County." (Def.'s Mem., Blakley Aff. ¶ 10).

9. Plaintiff is a member and leader in the religion known as "Wicca" or "witchcraft" that has an established membership base within the local community governed by the Board. (Pl.'s Mem. ex. 1, ¶¶ 2, 6-7).

10. The Wicca religion includes a broad array of religious beliefs, practices, and traditions of a polytheistic and pantheistic nature that focus on the change of seasons and other natural phenomena. (Id. at ¶ 2).

11. The Wicca religion is not monotheistic at least in the same consistent sense as are the faiths of the Judeo-Christian tradition. (Id. at ¶ 4).

12. Plaintiff was prepared to present a non-sectarian invocation espousing basic values consistent with general themes about "life, death, and creation, and about how to live a good and ethical life." (Compl. ¶ 19; Pl.'s Mem. ex. 1 (Simpson Decl.) ¶ 15; ex. 8d).

13. The Board denied Plaintiff's repeated requests to provide a non-sectarian invocation for the following stated reason: "Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition. Based upon our review of Wicca, it is neo-pagan and invokes polytheistic, pre-Christian deities. Accordingly, we cannot honor your request to be included on the list of religious leaders that are invited to provide invocations at the meetings of the Board of Supervisors." (Compl. ¶ 11).

14. Plaintiff specifically requested the Board to change its policy so as to allow her to participate in offering invocations, but the Board declined to do so and specifically reaffirmed the existing policy in response to Plaintiff's requests. (Pl.'s Mem. ex. B, attached exs. C, D, E, F, and G).

15. There are recognized religions in America other than Wicca that are not considered to be "monotheistic" or of the "Judeo-Christian" tradition, including, for example, Afro-Caribbean religions (e.g., Santeria, Vodou, and Rastafarianism), Buddhism, Hinduism, the various Native American traditions, Bah'i, Jainism, Sikhism, Shinto, Taoism, and Zoroastrianism. (Pl.'s Mem. ¶ 28 (citing attached exhibits)).

Analysis

Case or Controversy/Standing

As a preliminary issue, the Defendant challenges the Plaintiff's ability to maintain the action on the grounds that the Board's policy is unassailable in that it constitutes nothing less than "a proper distinction based on the American civil religion" as sanctioned by Supreme Court precedent. (Def.'s Mem. at 10-11). The Defendant also asserts that no "case or controversy" in which Plaintiff has standing has been presented because Plaintiff has not suffered any personal "injury" where she was never denied the right to practice her religion or to address the Board as an individual, tax-paying citizen or representative of her religion during its public comment segment. (Def.'s Mem. at 12-14).

It is well-settled that in First Amendment claims in which no direct economic harm or injury is alleged, an individual establishes standing in a case or controversy if it can be demonstrated that the individual is "directly affected by the laws and practices against [which] their complaints are directed." Sch. Abington Sch. Dist. v. Schempp, 374 U.S. 203, 224 n. 9, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).² In this regard, Plaintiff's exclusion from the challenged process, that is, not being eligible to give an invocation, is no less an actionable injury than that suffered by school children and their parents who, in Schempp, challenged a state law that required the Bible to be read during each school session. Similarly, the plaintiffs in Saladin v. City of Milledgeville, 812 F.2d 687 (11th Cir.1987) (quoting Schempp), were deemed to have standing to challenge the use of the word "Christianity" on a city's official seal that was placed on unsolicited correspondence that they simply received in the mails. See also ACLU v. Rabun County Chamber of Commerce, Inc., 698 F.2d 1098, 1107-1108 (11th Cir. 1983) (plaintiffs had standing to challenge placement of a cross in a public park that made them feel like second class citizens). Here, Defendant argues, in part, that Plaintiff has not suffered any injury, constitutional or otherwise, because she always had an opportunity to address whatever issues she wanted in the open portion of the Board's meeting. (Undisputed Facts and Justifiable Inferences (Findings) ¶ 8). However, it is her preclusion and exclusion from the invocation segment that, in effect,...