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INTERNATIONAL COALITION FOR RELIGIOUS FREEDOM; et al., Plaintiffs, vs. THE STATE OF MARYLAND, et al. Defendants. _____________________________________ |
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Case No. L 992940 MEMORANDUM IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING ORDER AND MOTION FOR PRELIMINARY INJUNCTION |
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Pursuant to an unconstitutional purpose and with an unconstitutional result, the State of Maryland has officially initiated an inquest into the activities and beliefs of minority religious organizations. The name of the Act itself defines its purpose: "Task Force to Study the Effects of Cult Activities on Public Senior Higher Education Institutions." (Ex. 1.) Both on its face and through the activities of the Task Force, officials of the State of Maryland have targeted certain religious entities and organizations for discriminatory treatment, giving governmental preference to "main line" religious denominations over the targeted "cults."
The term "cult" is itself derogatory, a common dictionary definition being, " a religion or sect considered to be false, unorthodox or extremist." Any organization or belief so denominated is therefore automatically suspect. Indeed, the legislative history of the Resolution is replete with alarming and inflammatory descriptions of the alleged dangers and deprivations associated with so-called "cults," and the need to save gullible college students from the allegedly false doctrines espoused by these groups, which would, the Task Force foresees, most assuredly lead university students to spiritual, financial and emotional ruin.
The conduct of the Maryland Task Force has severely chilled the exercise of First Amendment rights of members of minority religious organizations. Questionnaires sent by the University System of Maryland at the behest of the Task Force to university faculty, academic counselors and chaplains, has instituted what can most accurately be described as a witch hunt, seeking the identities and activities of those with allegedly divergent religious belief. Recruiting allies among state employees, the Task Force’s pursuit of unorthodoxy has already caused a recognition among those answering the questionnaires that the targeted minority religious organizations are to be officially denigrated. And, the questionnaires have therefore caused burgeoning discrimination against such religions in Maryland.
The Task Force has also disingenuously limited its receipt of information from targeted religions which contradicts the biased and contrived factual assertions it has received about such religions. Defendants have also declined to receive academic evidence or commentary from persons asserting that the acts of the Task Force are discriminatory, illegal and unconstitutional.
This harm extends far beyond our borders, because the United States represents the bulwark against religious intolerance in the world, and other countries who have initiated suppression of religious minorities have expressed interest in the Maryland "anti-cult" bill as justification for their own violations of human rights. The issuance of a TRO will also preserve the status quo and permit the Court to consider the merits of the case while preventing immediate harms to the plaintiffs and others similarly situated.
Defendants are also causing immediate and irrevocable harm to students and faculty of colleges and universities in the Maryland University System by demanding personal and private information regarding religious beliefs and practices of such individuals, and causing suspicion of such individuals among other faculty and staff. Temporary and preliminary injunctive relief is therefore necessary because defendants are required to issue their report to the Legislature before September 30, 1999, which will further and irrevocably chill the First Amendment rights of targeted religions through official commentary denigrating religious beliefs and practices.
However, the chairman of the Task Force, defendant William Wood, has publicly announced that he intends to issue the report and recommendation of the Task Force before such report is mandated by the Resolution inferring in part that his rapid action is intended to railroad the offending report through to publication before the instant action can prevent him from doing so.
The Task Force is illegal and unconstitutional. Its conduct immediately and permanently causes substantial harm to many persons, will cause greater harm in the near future, and it should therefore be temporarily and preliminarily enjoined pending further litigation of the issues raised in this action.
II - A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION SHOULD ISSUE FORBIDDING DEFENDANTS FROM FURTHER UNLAWFUL CONDUCT AND FROM ISSUANCE OF ITS FORMAL REPORT
The standard for preliminary injunctions in this circuit was established in Blackwelder Furniture Co. v. Seilig Manufacturing Co., 550 F.2d 189 (4th Cir.1977). Four factors must be considered:
1. the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied;
2. the likelihood of harm to the defendant if the injunction is granted;
3. the likelihood that the plaintiffs will succeed on the merits; and
4. the public interest.
Rum Creek Coal Sales, Inc. v. Caperton, 926 F.2d 353, 359 (4th Cir.1991). These factors are not weighted equally. The "balance of hardships," determined by comparing the relevant harms to the parties, is the most important determination. Hughes Network Sys. v. Interdigital Communications Corp., 17 F.3d 691 (4th Cir.1994). The determination of the balance of harms will dictate how strong a likelihood of success the plaintiffs must show. (Id.)
As addressed in detail below, the Cult Task Force Resolution is unconstitutional on its face, and unconstitutional as applied, impinging upon the free exercise of religious rights of the plaintiffs and unlawfully establishing a religious preference for some religions, while derogating the rights of others. The harms are immediate and palpable.
Plaintiffs meet each of these tests, warranting imposition of temporary and preliminary injunctive relief.
III – THE RESOLUTION IS UNCONSTITUTIONAL
Maryland House Joint Resolution 22, entitled, "Task Force to Study the
Effects of Cult Activities on Public Senior Higher Education Institutions," states that its purpose is to establish such Task Force and to report thereafter to the Governor and the General Assembly no later than September 30, 1999. (Ex. 1.)
The resolution opens with the inflammatory statement, "WHEREAS, A
‘recent’ mass suicide in California, cult motivated murders in Mississippi and Florida and a subway gassing incident in Japan have increased national awareness of the destructive nature of cult activities." None of these alleged incidents is explained and none is alleged to have any connection to any interest of the State of Maryland.
Having "established" through the first whereas clause that "cults" are dangerous and violent, the resolution states a further generality without attributing any source to the conclusion, "WHEREAS, It has been estimated that there are as many as 2,000 cults operating in the Unites States with 4 million to 6 million members."
Then, having asserted that dangerous "cults" are everywhere among us in large numbers, the Resolution states, "WHEREAS, Cult recruitment activities are often directed towards students on college campuses." Following therefrom, the Resolution offers justification for the need for the inquest, in light of the singular mental deficiency of college students: "WHEREAS, College students are particularly vulnerable to cult recruitment because they are often grappling with becoming independent, overwhelmed with new responsibilities and relationships, adjusting to new environments, and anxious about their futures."
Having thus alleged these disturbing facts about "cults" and the debility of college students to understand and appreciate the threat "cults" manifest, the Resolution postulates dire results when students become involved in "cults": "WHEREAS, College students who become involved with cults undergo personality changes, suffer academically and financially, are alienated from their families and friends and are robbed of the very things universities were designed to encourage: freedom of thought, intellectual growth and personal development." The Resolution then states the situation sought to be rectified: "Some college administrators" have either "failed to recognize the threat" or "refused to deal with the problem."
Finally, the Resolution notes that "Although the United States Constitution and Maryland Constitution clearly and properly limit the ability of any government entity to interfere with the free exercise of religion," the State has a "right and responsibility to examine the behavior" of groups "who violate State or local law or campus policies regarding deception, harassment or fraud, or who threaten the mental, emotional or physical well-being of the citizens of Maryland or students enrolled in the University System."
Thus, despite recognition that it is constrained by the First Amendment to impinge upon religious belief and practice, the legislature justifies the Resolution through subjective determinations regarding its opinion of the effect of "cults" on the minds of students.
The Resolution requires that the Task Force be composed of two members
of the Maryland House of Delegates, two members of the Maryland Senate, three state university and college presidents or their designees, the chancellor of the University System of Maryland or designee, a member of the Board of Regents of the University System, a member of the Maryland Higher Education Commission, "two parents of current or former cult members, two parents from school parents associations, and two student government representatives." The Resolution then instructs the Task Force to investigate and acquire information regarding the "the recruitment and organizational practices of cults... the response of college administrators in Maryland and around the nation to cult activities, and the effect of cult involvement on students."
The Task Force is further instructed to communicate with "cult awareness organizations, former cult members, college administrators ... families of cult members and other interested parties" for such information. The term "cults" is not itself defined except through the inflammatory description above, however, the legislative history of the Resolution made clear its purpose was to harm and eliminate the practice of non-traditional or newer religions in Maryland, as discussed below.
B. The Resolution Has an Unlawful Intent as Evidenced by the Legislative History
The earliest dated document in the files of the legislature is a memorandum written by Washington, D.C. attorney, David Bardin and two other attorneys from his firm. In the mid 1990's, Mr. Bardin was a registered lobbyist for both the Cult Awareness Network and its sister organization, the American Family Foundation ("AFF"), (Ex. 2).
The Cult Awareness Network was the primary American anti-religious group of the second half of this century. It was so named to capitalize on the powerful images it created by redefining the term "cult" in American lexicon as something dangerous and sinister and, invariably, a "false" religion. Initially it was very overt about supporting mercenaries who promoted that they could change religious beliefs, resulting in kidnaping of adherents of minority groups. This kidnaping, false imprisonment and forced indoctrination of adults for the purpose of destroying religious faith, was euphemistically called "deprogramming" or "exit counseling."
CAN’s primary activity was directed to the dissemination of propaganda to the media derogating "cults" and endeavoring to influence government and legislators to enforce "anti-cult" laws. In 1995, CAN was sued for its role in the conspiracy to kidnap a young Christian man for the purposes of "deprogramming" him from his Pentecostal interpretation of the Bible, perceived by CAN to be unorthodox. CAN and its co-conspirators were assessed nearly $5 million by a unanimous jury for the violation of the religious adherent’s civil rights (Ex. 3); the verdict was upheld on appeal by the Ninth Circuit, and CAN was liquidated in bankruptcy.
Before its demise, CAN heavily lobbied in the State of Maryland for two decades seeking legislative assistance for its anti-cult agenda. The most willing recipient of CAN’s lobbying efforts was Maryland State Senator Ida Ruben, with whom it maintained numerous communications for the purpose of the introduction and support of "anti-cult" legislation. Senator Ruben has previously sponsored four bills on behalf of CAN to diminish the religious rights and freedoms of minority religions: HJR 107 in 1980 (Ex. 4), HJR 67 in 1981 (Ex. 5), SJR 22 for the establishment of a "Cult Awareness Week" in 1988 (Ex. 6), and Bill No. 1725 in 1982 entitled, "An Act Concerning the Special Guardianship of the Person," relating essentially to a legalized form of kidnapping and "deprogramming." (Ex. 7.) Ms. Ruben received recognition from CAN as its "top legislator" for these acts of religious prejudice.
Each of these prior legislative efforts as introduced by Senator Ruben was unsuccessful, however, and CAN’s former lobbyist, David Bardin, initiated actions resulting in the present, challenged law in this state. Mr. Bardin’s memorandum, putatively on behalf of his clients Les and Nora Baker, complains that Mrs. Baker’s daughter was "coerced" by a Resident Assistant at the University of Maryland "to give her life over to a destructive cult." (Ex. 8.) The alleged "cult" at issue was, as described in a newspaper "expose," (Ex. 9) provided by Ms. Baker to the Appropriations Committee considering the legislation, the International Churches of Christ. (Ex. 10.)
On February 19, 1998, House Joint Resolution 22 was introduced to the
Maryland House of Delegates, by Delegate C. Anthony Muse. (Ex. 11.) Delegate Muse supplied his own written testimony in support of the Resolution, in which he unambiguously stated that the "cults" he was seeking to restrain were religious organizations. Asserting his preference for some religious practices over other religious "cults," and characterizing the bill as one which is based on religious concepts, Delegate Muse stated, in part:
Cults can be defined from and by many different disciplines. Here, I am not defining cults from a theological perspective as I always believe in freedom of religious expression. But I am aware that even religious practices can be designed to be manipulative, harmful and have as its goal to prey on naive persons rather than praying for the good of one.
The Appropriations Committee meetings in which the passage of the Task Force legislation was proposed, were neither fair nor broadly known to the public. At the Committee’s meeting to consider testimony, held on March 5, 1999, no witnesses were invited to speak who opposed the Resolution. In particular, no representatives of the groups proposed to be studied (the purported "cults") were afforded the opportunity to refute public allegations derogating their religious beliefs and practices. Rather, each of the 16 persons who provided written or oral testimony regarding the bill was listed in the legislative record as a "proponent" of the bill. (Ex. 12.) Included among the inflammatory and one-sided assertions provided to the Legislature by these proponents were the following:
Roger and Sandra Stephon, the parents of a member of the International Churches of Christ, and who stridently disagreed with their adult child’s involvement in the religion, provided a statement dated March 5, 1998. The Statement makes wild but general allegations regarding the existence of manipulative "cults" on campus. (Ex. 13.)
Another undated statement in the legislative history is from one Laura Ann Weber, who, in inflammatory terms, asserts that her life changed for the worse after she attended a Bible study group which led to her deep involvement in a religious organization she referred to as a "cult." (Ex. 14.)
The legislative history supplies many examples of the usage of the term "cult" as applicable to a religious organization with practices perceived to be unorthodox. For example, one person who provided written and oral testimony to the committee prior to passage, was Lutheran Minister Richard Dowhower, who provided examples of blatant preference for his "main line" religious beliefs over the "destructive" beliefs of the "cults" which he deemed in part to constitute "heresy":
While the worst aspects of these religious and therapeutic malpractice are their human rights violations, serious thinkers and believers are also offended by cultic truth claims, which are often self-contradictory and are violated by the actions of the cult’s leaders. They violate the Christian tradition by (1) denying the validity of Jesus as savior, (2) the sufficiency of the Holy Bible as revelation and (3) the fellowship of traditional churches. Their "salvation by special enlightenment" is a revisiting of the ancient gnostic heresy.
(Ex. 15.)
Rev. Dowhower’s testimony, given shortly before the Committee approved the Resolution, was similarly laced with statements regarding his disagreement with "cults" on theological grounds, also stating in part:
As part of my parish ministry since 1975 I have been studying new religious movements, educating clergy, youth and church groups to their dangers, and counseling families as to how they may morally and legally get their loved ones out of such groups. Once the ex-members have voluntarily exited the cult, I help them sort out their spiritual and theological issues as they move through the post-cult era of their lives.
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Generally speaking I find that recovering ex-members are confused about many things, especially their own ability to function and in the state of their own spirituality and personal theology.
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In the area of religious thought they are confused as to what elements of their experience and belief systems are healthy and which are to be discarded ... they exhibit much ambivalence about the Supreme Being.
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... characteristics I have found most common among recovering ex-members of cults: ... Fourth is the need to be at the Messianic cutting edge of God’s saving work on earth.
(Ex. 16.)
Additional examples of blatant denominational preference and denominational condemnation are addressed in the argument section below.
Without hearing opposition testimony, the Appropriations Committee voted unanimously to pass the bill. (Ex. 17.) The Resolution was provided to the entire House of Delegates the next day, March 28, 1999, with a short descriptive cover page. The cover page used the word "cult" seven times, noting in part, that "the bill would study ... cult activities ... regarding recruitment and organizational practices of cults, the extent of cult activities within the University System of Maryland ... and the effect of cult involvement on students." (Ex. 18.)
The Joint Resolution was passed by the Maryland House of Delegates on April 9, 1999 and by the Senate on April 12, 1999. The Governor signed the Joint Resolution on May 21, 1998.
C. The Resolution Is Unconstitutional on Its Face
Numerous Establishment Clause cases have stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion, or of religion in general. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. at 532, 113 S.Ct. at 2226 ("At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons."); Epperson v. Arkansas, 393 U.S. 97, 104-106, 89 S.Ct. 266, 271-72, 21 L.Ed.2d 228 (1968) ( "The First Amendment mandates governmental neutrality between religion and religion.... The State may not adopt programs or practices ... which 'aid or oppose' any religion.... This prohibition is absolute.")
The Supreme Court recently considered a statute directed at a particular religious practice, but which, like the instant law, presented vague language and generalities avoiding identifying the religious practices at issue. The Court initially noted:
There are, of course, many ways of demonstrating that the object or purpose of a law is the suppression of religion or religious conduct. To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face. A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context.
Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 534, 113 S.Ct. 2217, 2227 (1993).
The text of the Resolution at issue facially discloses its discriminatory purpose. Its title, "Task Force to Study the Effects of Cult Activities on Public Senior Higher Education Institutions," overtly indicates that it is designed to target religious minorities denominated as "cults."
The term "cult" has come to have a highly derogatory definition in our society, connotating frightening and mysterious practices off the main line of what they viewed as legitimate belief. As indicated above, one popular dictionary definition of "cult", published in 1997, is "a religion or sect considered to be false, unorthodox or extremist." Random House Webster’s College Dictionary. The first definition of "cult" in the same dictionary, is "a particular system of religious worship, esp. with reference to its rites and ceremonies." (Id.) Similarly, the first two definitions in the 1981 edition of Webster’s Collegiate Dictionary, 1981, are religious ("1: formal religious veneration: worship. 2: a system of religious beliefs and ritual; also: its body of adherents.") The third definition in Webster’s is: "3: a religion regarded as unorthodox or spurious; also: its body of adherents."
While each dictionary also supplies as a last definition, a general usage of the word as "great devotion to a person or thing, or a fad," the derogatory usage most prevalent today, and clearly intended by HJR 22 is that of first, a religious belief and practice, and second, one which is considered to be unorthodox and extremist. For example, The Dictionary of Cultural Literacy, defines the term as follows:
In anthropology, an organization for the conduct of ritual, magical or other religious observances. Many so-called primitive tribes, for example, have ancestor cults, in which dead ancestors are considered divine, and activities are organized to respect their memory and invoke their aid. A cult is also a religious group held together by a dominant, often charismatic individual, or by the worship of a divinity, an idol, or some other object.
The term cult often suggests extreme beliefs and bizarre behavior.
(Ex. 19.)
In the written testimony of one person to the Appropriations Committee, Dr. William Stuart, professor of anthropology at the University of Maryland College Park, who represented that his primary research interest is the study of new religious movements, stated:
The term "cult," itself, is a problematic one. Although the term can be – and usually is by social scientists – defined in a non-prejudicial manner, it is a fact that the term, as used by most of us, the public, is pejorative; it is a term one uses to describe the religion of someone else; virtually no group that I am aware of uses the term ‘self-referentially," i.e., to speak of itself. Moreover, the term, when used in the colloquial manner of
everyday speech, carries with it a condemning, negative assessment of the movement.
(Ex. 20.)
Indeed, numerous portions of the legislative history demonstrated an antagonism to "cults" in general, and specifically the International Churches of Christ and Unification Church – as compared to or in competition with the religious practices of the speakers which when identified, invariably were main line faiths such as Presbyterian, and Lutheran, and later, Catholic and Episcopalian.
Evidence of these theological attacks upon minority religion are dispositive of the unconstitutional nature of the Resolution. As stated by Justice Goldberg in School Dist. of Abington v. Schempp, 374 U.S. 203, 225, 83 S.Ct. 1560, 1573, 10 L.Ed.2d 844 (1963), ""[t]he fullest realization of true religious liberty requires that government ... effect no favoritism among sects ... and that it work deterrence of no religious belief."
Indeed, nothing is more basic in our constitutional rights than the clear prohibition of governmental preference for any religion over any other religion or as in this case, a group of religions believed by government to have common characteristics condemned by the majority. As stated by the Supreme Court:
This constitutional prohibition of denominational preferences is inextricably connected with the continuing vitality of the Free Exercise Clause. Madison once noted: "Security for civil rights must be the same as that for religious rights. It consists in the one case in the multiplicity of interests and in the other in the multiplicity of sects." Madison's vision -- freedom for all religion being guaranteed by free competition between religions -- naturally assumed that every denomination would be equally at liberty to exercise and propagate its beliefs. But such equality would be impossible in an atmosphere of official denominational preference. Free exercise thus can be guaranteed only when legislators -- and voters -- are required to accord to their own religions the very same treatment given to small, new, or unpopular denominations.
Larson v. Valente, 456 U.S. 228, 245, 102 S.Ct. 1673, 1684 (1982)
The Resolution also requires that the Task Force be composed, inter alia, of legislators, educators and "two parents of current or former cult members." These two parents could obviously be expected to provide only derogatory views regarding cults.
Any doubt as to whether or not the Resolution calls for an investigation of
and potential targeting of religious groups as opposed to some other generic form of group, is reasonably dispelled by such recognition of this fact by the State of Maryland. The State maintains a webpage on the Internet of legislative enactments and proposals, indexed to specific topics. Under the topical heading "RELIGION — see also – CHURCHES," is listed the Cult Task Force Resolution at issue. (Ex. 24.)
In any event the text of the Resolution eviscerates government neutrality. The resolution opens with the highly inflammatory statements regarding "cult", "suicide" and "cult motivated murders" and "increased national awareness of the destructive nature of cult activities." Obviously, "cults" are dangerous, violent and criminal – unlike the religious beliefs of the lawmakers involved in passage of the statute.
The resolution thereafter states several opinions and generalities regarding the proponents’ view of minority religions, stating, "Cult recruitment activities are often directed towards students on college campuses" and "College students are particularly vulnerable to cult recruitment ..."Having promulgated such derogatory opinions and characterizations about "cults" and the inability of college students to understand and appreciate the threat "cults" manifest, the Resolution postulates dire results when students become involved in "cults":
"WHEREAS, College students who become involved with cults undergo personality changes, suffer academically and financially, are alienated from their families and friends and are robbed of the very things universities were designed to encourage: freedom of thought, intellectual growth and personal development."
While use of the term "student" tends to characterize the group targeted for "protection" as minors or even children, when, in fact, virtually all college students are adults who have a constitutional right to seek and choose their own religion without governmental interference. There is little reasonable dispute that the Resolution was intended specifically to target and derogate minority religious organizations, as its final statement indicates a recognition that the law impacts upon religious organizations:
Although the United States Constitution and Maryland Constitution clearly and properly limit the ability of any government entity to interfere with the free exercise of religion," [the State has a] "right and responsibility to examine the behavior" [of groups] "who violate State or local law or campus policies regarding deception, harassment or fraud, or who threaten the mental, emotional or physical well-being of the citizens of Maryland or students enrolled in the University System.
(Ex. 1)
Thus, despite the Task Force’s recognition that it was constrained by the First Amendment not to impinge upon religious belief and practice, the proponents in the legislature justified the Resolution through subjective determinations regarding its opinion of the effect of religious belief on students.
Perhaps the best demonstration of the unconstitutional scope of the Resolution, is by substitution of the name of some other well known religion for the term "cult" in the text of the Resolution. For example:
"WHEREAS, College students who become involved with [Judaism] undergo personality changes, suffer academically and financially, are alienated from their families and friends and are robbed of the very things universities were designed to encourage: freedom of thought, intellectual growth and personal development."
Or as another example:
"WHEREAS, It has been estimated that there are as many as 2,000 [Fundamental Christian churches] operating in the Unites States with 4 million to 6 million members."
Or as a further example:
"WHEREAS, College students are particularly vulnerable to [Episcopalian] recruitment because they are often grappling with becoming independent, overwhelmed with new responsibilities and relationships, adjusting to new environments, and anxious about their futures."
Under even a lenient standard, the Resolution represents unconstitutional incursions on religious liberties. However, a lenient standard is not applied to a statute which manifests denominational preference. "In short, when we are presented with a state law granting a denominational preference, our precedents demand that we treat the law as suspect and that we apply strict scrutiny in adjudging its constitutionality." Larson v. Valente, 456 U.S. 228, 245, 102 S.Ct. 1673, 1684. Application of a strict scrutiny standard here requires that the law be found to be unconstitutional on its face, thereby establishing the third Blackwelder test for issuance of preliminary injunctive relief, the likelihood that the plaintiff will succeed on the merits. The Resolution at issue cannot survive constitutional scrutiny.
D. The Conduct of the Task Force is Unconstitutional
The activities of the Task Force make it even more clear that (1) the Resolution as designed requires violation of constitutional rights, and (2) the Task Force members went out of their way to assume that forbidden result. After the Resolution became law, Members of the Task Force were appointed as required by the Resolution. One of the two State Senators appointed to the Task Force was Ida Ruben, who had supported and promulgated CAN’s message of religious intolerance for at least the past 15 years.
Also appointed as a member of the Task Force as a "parent of a former or current cult member " representative, was Ms. Patricia Rausch, a parent of an individual who had attended several meetings of the International Churches of Christ, who was highly disturbed over her adult daughter’s choice of religion, as indicated in her testimony to the Task Force. Rausch was therefore chosen as one of the persons who would make determinations on behalf of the State, even though she was known to be highly prejudiced.
Frantz Wilson, an "anti-cult" activist, was also appointed to the Task Force as a "parent" representative, although his daughter joined the Black Hebrews, a religious group, 19 years ago and the event had no relation in or to the State of Maryland or its universities. (Ex. 25, Statement of Frantz Wilson.) Mr. Wilson and Ms. Rausch were appointed to the "sub-committee" to select the speakers at Task Force meetings. At one of the Task Force public hearings, on June 25, 1999, plaintiff Alexander Colvin complained that Mr. Wilson had selected Ronald Loomis as a speaker, and that Mr. Loomis had repeatedly made derogatory remarks about Mr. Colvin’s church, calling its members "Moonies" and that Mr. Wilson, a Task Force member charged with studying "the effects of cults," responded stating, "I do not care what you say because I know that the Unification Church is a hateful and deceptive organization." (Ex. 26, Declaration of Alex Colvin.)
As Mr. Wilson and Ms. Rausch were unashamed "anti-cult" extremists, they endeavored to select all "anti-cult" advocates to testify. Mrs. Rausch was also appointed the chairperson of a sub-committee to work on language describing the alleged "destructive behaviors" of "groups." She is on record stating that "a cult is not a religion." (Ex. 27, Declaration of Dan Fefferman.) Both Mrs. Rausch and Mr. Wilson were appointed to the Task Force by the Governor of Maryland as "parents of current or former cult members," thus demonstrating that both the State of Maryland and its Task Force to Study the Effects of Cult Activities" formally viewed Black Hebrews and the International Churches of Christ, two minority religious groups, as "cults."
The Task Force therefore followed its legislative mandate of seeking information from "anti-cult" representatives and other persons with an "anti-cult" agenda, rather than from balanced sources. At the first meeting of the Task Force on May 25, 1999, one of the persons invited to speak was Ronald Loomis, the former Executive Director of the Cult Awareness Network. Mr. Loomis’ speech was entitled, "Overview on Cults" and contained numerous references to religious issues. He also justified his use of religious invective to describe the Unification Church. (Ex. 28.) Other persons invited to testify at the Task Force’s first meeting were the head of the local former Cult Awareness Network office in Baltimore, Doris Quelet and Lutheran minister Rev. Platz, mentioned above. Several "former members" offering derogatory opinions on their former churches were also invited to testify. No active members or representatives of any of the targeted "cults" were asked to testify, and no representatives of civil rights groups or advocates were invited to testify. The International Churches of Christ and the Unification Church were specifically targeted in the first and subsequent meetings of the Task Force.
The Task Force meetings were, in part, akin to "anti-cult" revival meetings with the Task Force and its supporters degrading and criticizing minority religion. For example, as explained by one eyewitness:
The first person to give testimony to the task force on May 25, 1999 was Mr. Ronald Loomis. His topic was "Overview on Cults." He was identified on the agenda as a "Cult Awareness Educator and Consultant." Mr. Loomis was introduced by Mr. Frantz Wilson, the Chairperson of the Subcommittee on Outside Resources. In his testimony, Mr. Loomis made numerous comments about new religious movements referring to them as "cults." While Mr. Loomis maintained that his comments referred to a wide variety of cults, he specifically discussed the Unification Church and the International Churches of Christ and made a number of prejudicial and unsubstantiated accusations. He maintained that the witnessing and teaching of these organizations was a form of "mind control." When Mr. Loomis spoke of the Unification Church, he frequently referred to them in a demeaning and negative manner as "moonies." Mr. Loomis was given more than an hour to present his anticult theories and allegations.
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On the afternoon of May 25, the task force heard several hours of anti-cult testimony. One of the witnesses was Reverend Elizabeth Platz, the Lutheran Chaplain at University of Maryland College Park. Another was Sidney L. Gulick, Professor of Mathematics, University of Maryland College Park, a long-time anti-cult activist. Dr. Gulick introduced two "former cult members." One, Edward Rodriguez, had been a member of the International Church of Christ. He did not mention the name of the group, but spoke of being invited to "Bible studies," "confessing his sins," and donating a part of his income from his employment as "cult" activities. After Edward Rodriguez testified, Chairman Wood asked all of the task force members to applaud.
(Ex. 26, Declaration of Alex Colvin)
Substantial time was expended in the first meeting to define the type of
group the Task Force was instructed to investigate, i.e., endeavoring to define the term "cult." The Task Force’s advisors from "anti-cult" groups provided definitions which were manifestly religious in nature -- since that is what the term means -- and the Chairman determined that the word "cult" would no longer be used. (Id.) Having been criticized heavily for the clearly unconstitutional direction of the Task Force as an anti-religious inquisition, the Task Force was unable to define the term and its Chairman expressed concern that the Task Force not become involved in religious issues. (Id.) The definition of "cult" was therefore not the subject of agreement at the first meeting, obviously to avoid creating evidence for a growing body of religious protesters to the Resolution. However, the Task Force defined the term in the context of activities which leave no room for doubt that the organizations targeted are religious in nature. For example, the Task Force determined that one primary characteristic of a "cult" is devotion to a charismatic leader. (Ex. 27, Declaration of Dan Fefferman.)
Defendants’ attempt to obviate constitutional scrutiny of the Resolution by not mentioning the churches they were targeting, is unavailing. As noted in Church of the Lukumi:
Facial neutrality is not determinative. The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. The Clause "forbids subtle departures from neutrality," Gillette v. United States, 401 U.S. 437, 452, 91 S.Ct. 828, 837, 28 L.Ed.2d 168 (1971), and "covert suppression of particular religious beliefs," Bowen v. Roy, supra, 476 U.S., at 703, 106 S.Ct., at 2154 (opinion of Burger, C.J.).
508 U.S. at 534, 113 S.Ct. at 2227.
The decision to exclude the term "cult" and the Chairman’s assertions that the Task Force would not become involved in religious activities or would not investigate "cult" activities or become involved in religious matters, also effectively silenced the voices of witnesses who took him at his word that he was not going to persist inquiry into religions. (Exs. 26 & 27.)
This decision had several ramifications. First, it permitted the Task Force and defendant Wood to arbitrarily exclude from receipt by the Task Force academic and scholarly works regarding the prejudicial nature of its activities in investigating religious minorities. Excluded were numerous testimonial statements challenging the Task Force’s mandate as unlawful, and articles demonstrating the biases inherent in the use of the term. (Id..) Throughout the proceedings, the Chairman interrupted witnesses to tell them that the Task Force had decided not to define the word "cult" and that it intentionally omitted the word "cult" from its mission statement—recognizing the word as problematic. In fact, he stated, the Task Force on Cult Activities was not studying "cults" at all, and did not specifically mention any one religion. (Id.) Then, at a Task Force meeting on August 10, 1999, the Task Force voted to abandon its policy of not defining "cult" and officially re-opened the question of defining the term. (Id.)
Thus, any proposed benefit to the Task Force intended by alleged exclusion of the central word of the text – "cult" – was eviscerated both by the Task Force’s reversal of its position, as well as the better evidence of the text of the Act itself. In any event, "The Court must survey meticulously the circumstances of governmental categories to eliminate, as it were, religious gerrymanders." Walz v. Tax Commission of New York City, 397 U.S. 664, 696, 90 S.Ct. 1409, 1425, 25 L.Ed.2d 697 (1970) (Harlan, J., concurring). A "gerrymandering" to avoid the term was obviously impossible just as using the term to avoid identifying the religion targeted is impermissible.
The effort was also unavailing as at the June 7, 1999 meeting of the Task Force, the International Churches of Christ continued to be targeted as the primary "cult" of concern. Ronald Loomis, representing himself as the "Education Director" of the AFF, distributed a flyer which claimed, inaccurately, that the International Churches of Christ was banned from a number of campuses, and thus apparently that it should be banned in Maryland. Several other minority religions were also mentioned in the context of being "cults."
At the very time that the Chairman of the Task Force was refusing to accept academic papers regarding the religious rights of "cults" and the definitions of "cults" -- asserting that the term "cult" would be replaced in the investigation by the word "group" to avoid religious connotations, a questionnaire created by the Task Force was disseminated through the Maryland University System. The questionnaire, provided to the Presidents of all University System of Maryland Schools from the Chancellor of the University System of Maryland, dated July 7, 1999, notes that the Task Force, established by the legislature and the Governor, is charged to:
Communicate with and obtain information from ... college administration, campus security personnel, campus ministers ... regarding the recruitment and organizational practices of cults, the extent of cult activities with the University System of Maryland ... and the effect of cult involvement on students.
(Ex. EE.)
The cover letter makes it plain that the Task Force seeks information regarding cults, but of course, provides no guidance regarding the identification of a "cult." Similarly, the questionnaire itself mentions cult twice, and then inexplicably changes direction in an ineffectual manner, and seeks information regarding "groups," as if the change in wording would not single out religious entities. The questionnaires were separately captioned to be distributed to "consulting psychologists" (Ex. 30) "resident directors and community directors" (Ex. 31) "chaplains" (Ex. 32), and "faculty/professional academic advisors." (Ex. 34). The questions are particularly invasive, and require counselors and advisors to divulge confidential information volunteered by students about their religious associations, in effect turning counselors into agents of the state to collect damaging intelligence about religious organizations. Among the questions required by faculty and staff to be "answer[ed] fully and completely" with "factual data to support your answer," are:
1. How many students have you seen who experienced problems associated with such group activity? Briefly describe each situation (in terms of the group’s behaviors and related types and degrees of problems created for the student).
2. How many other students have you seen who discussed personal concerns related to such activities on campus. Briefly describe each situation.
3. Describe any other campus-based experiences you have had associated with such activity (e.g., inquiries from or interviews with concerned parents, etc.).
4. Thinking back over the last five (5) years (or your total time of employment in this position if less), on average how many students annually do you think you have seen who experienced problems associated with such activity?
Responses to the questionnaires were predictably rife with derogatory comments regarding minority religions, and evidence of the creation of new fear, distrust and discrimination against minority religions.
In a response from Coppin State University, after answering that there were no reports by academic advisors, student support staff, or students of any "cult activity," and that there were no inquiries or interviews with concerned parents, and no "activity, inquiry, issues, or concerns expressed by students, parents, or staff relative to cult activity," the response went on to say that:
As a result of this inquiry, Dr. Geraldine Waters [Dean of Adult and General Education] has suggested that we be more vigilant with regards to this issue. She plans to insert a question in her initial interview with students to discern any indication of cult involvement. (e.g.) Are there any groups or involvement to which you give special allegiance, which you have not disclosed in your admissions application? If so, please describe them at this time.
(Ex. 34.)
This response is a clear indication that as a direct result of the Task Force’s actions, an atmosphere of suspicion has been created toward "cults," even where there is no evidence of a perception of problematic behavior, and that University officials are taking swift action to increase their "vigilance" by requiring new students to reveal their private religious and other constitutionally protected associations.
Further evidence of the Task Force’s encouragement of an atmosphere of scrutiny is demonstrated by the following response from faculty member Horace Russell of the Engineering Department at the University of Maryland at College Park:
...one student, two years ago, was suspected by the center of involvement in an extreme religious group. However, this suspicion only lasted for one semester.
(Ex. 35.)
Another survey response from Donna (last name deleted), a resident assistant at the University of Maryland College Park names the Chi Alpha Christian Fellowship and Maryland Christian Fellowship in response to Task Force’s Question 3 in what she refers to as its "dangerous group survey." She cites three episodes of being asked to come to a "Bible study," and one of a student attempting to give her a Bible, although she admits that in all cases those who approached her did not persist after she rejected their invitations. She also refers to a person who had previously invited her to a Bible study walking in a public parking area and "talking to a young adult." (Ex. 36) Thus, perfectly innocent, constitutionally protected free speech activities are denominated publicly as dangerous "cult behaviors" as a direct result of this Maryland Task Force’s biased survey.
Many of the questionnaire responses evidence the Task Force’s creation, as well as exposure of religious prejudice, including asking chaplains and mainline ministers to report on the "cult activities" of their religious rivals, and requiring psychologists to report confidential information provided by clients. For example, Bob Albrecht, Catholic Chaplain at Towson State University, responded to the Task Force by citing as evidence of "cult activity" the following:
1. The Unification Church owned a house near the campus.
2. Members of the Unification Church attended student meetings "with the express purpose of recruitment."
3. "Some members of the Unification Church even enrolled in classes to gain access to students."
(Ex. 37, p. 5.)
In addition to attacking the Unification Church, Father Albrecht denigrates other Protestant groups that seem to be more successful than his own church at recruiting new members. He calls these "Shepherding Groups" and defines them as "cults who take young people from their families and brainwash them," although he offers nothing to support this statement. (Id.) Father Albrecht -- obviously understanding he communicates with those of like mind -- even brags that the Catholic Newman Club helped to "put a stop" to such a group. The Unification Church owning property near campus is dangerous "cult activity," while the Catholic Newman Club’s property ownership and presence is not only protected, it is necessary to stem the tide of competing religion.
In response the Task Force’s questionnaire, William Reichart from the Campus Crusade for Christ at Towson University complains that rival Christian groups are causing problems by inviting students to such nefarious activities as "a Bible talk" on campus. Encouraged by the Task Force’s study of "cult activities," he calls these rival Christian denominations "cults." (Ex. 37, p. 6-7.)
In a questionnaire response from Frostberg State University, representatives of mainline denominations such as the Archdiocese of Baltimore and the United Campus Ministry joined in denouncing a rival, more conservative, Christian movement, the Inter-Varsity Christian Fellowship, as a dangerous group. (Ex. 38.)
Another response from the counseling center at Frostburg State, complains about the speech activities of a "Fundamentalist Christian" group, stating, "The group is intolerant of others and ridicule the Methodist campus chaplain and the Catholic priest as being ‘unsaved’ and ‘unchristian’ because their theology does not match the group’s beliefs." (Ex. 39)
In an interrogatory response from Rev. Mary E. Becker, Episcopalian Chaplain at Towson State University, she submitted derogatory information on the International Churches of Christ, the Holy Tabernacle Ministries, the Great Commission Church, the Unification Church, and the Greater Grace World Outreach -- all of which appears to be grossly distorted as seen through the eye of prejudice. (Ex. 37.) Rev. Becker complains that her own religious organization is not prevailing over the activities of other competing groups:
What is very upsetting and frustrating to me are the restrictions campuses have put on denominational groups which do not hinder the ones that are out to control others. We are not allowed to do programming in the residence halls, yet any of these groups are doing programs because they enroll students and get them to sponsor meetings in their rooms.
(Id.)
Thus, Rev. Becker, unable to encourage Episcopalian students to sponsor such meetings, as they are free to do, has, by the Task Force, been provided a vehicle to vent her prejudice at government expense and frustration over the success of younger, growing religions she apparently believes are successfully competing against her established denomination. It is not the State’s role to take sides in religious competition. This Task Force, however, uses State funds to invite the campus leaders of established denominations to complain about their rivals, fostering intolerance, prejudice, and favoring these denominations over newer groups. "The First Amendment mandates governmental neutrality between religion and religion.... The State may not adopt programs or practices ... which 'aid or oppose' any religion.... This prohibition is absolute." Larson v. Valente, 456 U.S. 228, 246, 102 S.Ct. 1673, 1684, (1981), quoting Epperson v. Arkansas, 393 U.S. 97, 104, 89 S.Ct., at 270, 271 (1968).
The Task Force also sought statements of prejudice with which to control minority religion, requiring University Counseling Psychologists and other University staff to reveal private information offered to them under apparent guarantees of confidentiality in responding to the question, "1. How many students have you seen who experienced problems associated with such group activity? Briefly describe each situation (in terms of the group’s behaviors and related types and degrees of problems created for the student.)" One University Counseling Psychologist from the University of Maryland, College Park reported:
A student in a therapy group that I facilitated who became involved with a group that is now known and has been identified as a cult¼ was referred to the group by his psychiatrist who was treating him for OCD. The client became involved with this group in the Spring of the year, and perceived this group as a new and positive force in his life. He began to no-show for sessions and did not show for our final group meeting.
(Ex. 40.)
Thus, the Task Force’s activities are fostering not only prejudices between religions, but also between psychology and religion, and denigrated religion which the psychologist refers to as a "cult", which although perceived by the student "as a new and positive force in his life," and discouraged him from continuing with the competing practice of psychology. In addition to creating an atmosphere of religious discrimination, the psychologist was encouraged by the Task Force to reveal private confidential information without the permission of the student in question. The same psychologist describes her own investigatory visit to a "cult" activity:
Grounded in my religious faith, I was not moved by the activities during that 2 hour service¼ There were at least 2,000 people in attendance. There were many references to ‘sin’ and ‘hell,’ especially if you engaged in certain behaviors, such as drinking, smoking, premarital sex, etc." ¼This organization [the International Church of Christ] provides the guidance and structure to their lives that they think they are looking for. By accommodating this need, it slowly robs a person of personal rights and responsibility.
(Ex. 39.)
Thus, here, encouraged by the Task Force, a University psychologist expresses a personal prejudice against religious concepts such as sin and hell, and furthermore -- on the basis of no evidence other than attending one church service -- declares that the International Churches of Christ "robs a person of personal rights and responsibility" by suggesting that participation in "vices" will have deleterious spriitual consequences -- a matter which has been the subject of heated debate between and among religions for centuries.
Another questionnaire response from a behavioral science instructor provides details regarding the member of a religious group targeted by the instructor as a "cult":
She was in my EDCP 108-0 class in 1996. Her journal indicated issues that I knew were off the wall. So, I had her come in and talk with me. The group was demanding her to account for all her time¼ Fortunately she left the group and got involved with a more mainstream Christian student group.
(Ex. 41.)
Not only does this publicize a student’s private journal, it also shows an inappropriate favoritism by a state employee for "mainstream Christian" student groups over other religious groups.
The University System, in response to HJR 22, also contributed to an atmosphere of intolerance by requiring its campuses to report whether any resident assistants were "cult members." Thus, by its actions, the Task Force has directly encouraged and fostered an atmosphere in which citizens and residents who happen to be students at the University System of Maryland will be increasingly scrutinized, suspected, denigrated, and investigated solely on the basis of their religious affiliations. This is a serious, immediate and irreparable harm to their rights of association, religious belief, religious expression, speech and other fundamental constitutional rights.
IV - PLAINTIFFS HAVE STANDING TO SEEK RELIEF
Each of the plaintiffs have standing to bring this action, arising out of specific and palpable harms in the present and in the future arising out of the defendants’ conduct.
Plaintiff International Coalition for Religious Freedom is a non-profit
educational organization dedicated to defending the religious freedom of all people, regardless of race, gender, creed or nationality. (Ex. 42, Declaration of Nicholas Miller) Several of plaintiff’s officers and members are residents of the State of Maryland, participated in the State University system, and are directly affected by the governmental conduct at issue in this case. (Id.) Plaintiff Nicholas Miller, the Executive Director of the Council on Religious Freedom, is an individual and taxpayer residing in Montgomery County, Maryland, who wishes to freely propagate his religious faith Seventh Day Adventist and who objects to his tax dollars being spent to single out for discriminatory discussions and treatment, minority religious groups. (Id.)
Plaintiff John Alexander Colvin is an individual residing in Anne Arundel County, Maryland, and is an enrolled student in the University of Baltimore, Maryland University System. (Ex. 26, Declaration of Alex Colvin) Mr. Colvin is a member of a targeted minority religious organization, the Unification Church, and is also an employee of the Maryland University System who believes that his employment is being jeopardized by the activities of the Task Force and the chilling effect created by the University System’s investigation into the religious affiliations of its employees. Plaintiff Hanalyn Colvin is an individual residing in Anne Arundel County, Maryland, and is a high school student who is considering enrolling in the Maryland University System. As a result of the Task Force proceedings, Ms. Colvin has been intimidated from pursuing these potential college plans and may be forced to travel out of state to continue her education because of the chill to her free exercise of religion, the detrimental effect the activities of the Task Force portend for her future employment opportunities and the prejudicial atmosphere being established in Maryland arising out of the activities herein. (Id.)
Plaintiffs Dan Fefferman and Susan Fefferman, are individuals residing
in Prince George’s County, Maryland, concerned that their 17-year-old daughter, who is planning to attend a Maryland University System institution of higher learning upon graduation from high school, will, because of the atmosphere of "cult activities" generated by the defendants, be subject to harassment and scrutiny arising out of her parents’ religious beliefs. (Ex. 27, Declaration of Dan Fefferman). Plaintiff Michael Roschuni is a resident of Prince Georges County Maryland, and is a current undergraduate student at the University of Maryland at College Park. Mr. Roschuni is a member of a religious organization targeted by the unlawful acts of the defendants as set forth below, whose right to practice and promulgate his religious beliefs has been chilled by defendants’ conduct. (Id.)
Plaintiff Lloyd Eby is an individual residing in Prince George's County, Maryland, who has three children attending public schools in that county. Dr. Eby holds a Ph. D. in philosophy, with interest and professional training in ethics, logic, theory of knowledge, and theory of religion, and is a member of the humanities faculty of the University of Maryland College Park. He is also a member of a religious group denigrated as a "cult" by defendants. His ability to continue with his profession and to promulgate and practice his religious beliefs is chilled and threatened by the activities of the Task Force and the acts of the defendants. (Id.)
Because the injury at issue is caused by the Resolution, the injury is fairly traceable to the challenged conduct, and would be redressed by invalidation of the legislative act. Therefore, plaintiffs meet the "case" or "controversy" requirements for standing imposed by Article III of the Constitution. Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d 1514, 1544-45 (11th Cir. 1993); California Bankers Ass'n v. Shultz, 416 U.S. 21, 44-45, 68-69, 76, 94 S.Ct. 1494, 1509, 1521, 1524-25, 39 L.Ed.2d 812 (1974). As noted in City of Clearwater:
Just as the Establishment Clause "does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not," Engel v. Vitale, 370 U.S. 421, 430, 82 S.Ct. 1261, 1267, 8 L.Ed.2d 601 (1962), so also does the clause prohibit the casting of official disfavor upon a particular sect even though its members are not directly regulated. Religious groups and their members that are singled out for discriminatory government treatment by official harassment or symbolic conduct analogous to defamation have standing to seek redress in federal courts. Church of Scientology v. Cazares, 638 F.2d 1272, 1279-80 (5th Cir.1981); see also, e.g., Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 3326, 82 L.Ed.2d 556 (1984) (noting that stigmatic injury associated with invidious official conduct is cognizable for standing purposes if the plaintiff is directly affected).
Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d at 1525
Plaintiffs easily meet the standing requirements. They have been personally harmed by the ongoing activities of the defendants and even greater, future harm is threatened to each of them.
V - A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTIVE RELIEF ARE APPROPRIATE AND WARRANTED
Each of the Blackwelder criteria addressed above are met in this case, as follows.
The direct effect of the legislative resolution and its actual implementation is to make certain individuals religious adherents and the individual plaintiffs in this action feel and appear to be political outsiders within the college and university communities of Maryland because of their religious adherence. As Justice O’Connor stated in her concurring opinion in County of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 525, the government violates the Establishment Clause prohibition:
if it endorses or disapproves of religion, "Endorsement sends a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to non-adherents that they are outsiders, not full members of the political community." Disapproval conveys the opposite message.
Justice O’Connor states that "[e]very governmental practice must be judged in its unique circumstances to determine whether it constitutes an endorsement or disapproval of religion." Id. at 625.
The Court in Lynch v. Donnelly, 465 U.S. 668, 672 (1984) noted:
that the purpose of the Establishment and Free Exercise Clauses of the First Amendment is "to prevent, as far as possible, the intrusion of either [the Church or the state] into the precincts of the other."
Lemon v. Kurtzman, 403 U.S. 602, 614 (1971).
In Lemon, the Court stated that it is enough to strike a governmental regulation where a reasonable likelihood or probability of Church-State entanglement exists. Lemon, 403 U.S. at 602. In a subsequent case, the Supreme Court spoke of the "substantial risk" of potential Church-State conflict. Levitt v. Committee for Public Education and Religious Liberty, 413 U.S. 472, 479-481 (1973).
In Allen v. Morton, 459 F.2d 65, 75 (D.C. Cir. 1973) that court noted that government involvement with religion should be kept to a necessary minimum and that not only actual interference but the "potential for an appearance of interference with religion," should be avoided. But here, rather than avoiding involvement with the constitutionally protected religious sphere, Defendants seeks to enquire into the prejudices of individuals and groups that seek to condemn other individuals and groups for their religious beliefs and practices.
The whole process engaged in by Defendants runs against the grain of the Religion Clauses of the First Amendment and is designed to make certain groups suspect and their members political outsiders. Such conduct may be engaged in by individuals within the free market place of religious debate, but is a prohibited area for government.
As indicated above, many students have been singled out in the questionnaires on purely religious grounds for special, discriminatory treatment by the Task Force’s activities. They have, in effect, been made political outsiders. Individuals’ rights to freely promulgate their religious views – even merely to talk about their religious views to other students or faculty, is under assault by the statute. And, "When an individual's free speech rights are infringed, irreparable harm is generally inflicted." Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976).
The Supreme Court in Wallace v. Jaffree, 472 U.S. 38, 53-54 has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only from the interest in respecting the individual’s freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects – or even intolerance among "religions" – to encompass intolerance of the disbeliever and the uncertain.
As Justice Jackson stated in West Virginia Board of Education v. Barnette, 319 U.S. 624, 642 (1943):
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by award or act their faith therein.
Among the irreparable harms presented in this action are the following:
These activities create a serious chilling effect upon the free exercise of religion both by students and employees of the University System, and also tend to dis-establish or restrict the ability of minority religions both to exercise religious belief and to promote, practice and establish their religion in the face of such official antagonism. Such activities also constitute violations of the rights of association, speech and privacy of members of the targeted religious organizations of an irreparable nature.
Moreover, the issuance of a report by the Task Force would constitute a further and substantial infringement of the free exercise of religion by those persons who belong to religious minorities seeking to practice freely their faith, by chilling their desire and ability freely to do so, and impinging upon and restricting their rights of association and privacy. Similarly, the issuance and publication of any "findings" of the Task Force derogatory of religious minorities would tend to disestablish or prevent the establishment of such religions.
Thus, while the irreparable harm to many persons has already been accomplished, the threatened actions of the Task Force constitute a harm of far greater magnitude, because a report from the Task Force, carrying the imprimatur of the State of Maryland, will be publicly issued regarding its view of the "problem" of "cult" activities – spreading fear and distrust farther into society, outside the state and even outside the country.
Defendant Wood has also indicated that in light of the filing of the instant complaint, he is expediting the issuance of the report even before it is due to the legislature in a transparent effort to moot this action and cause great harms to many persons before this Court can stop him from doing so.
There is no harm to the Task Force or the State from refraining from issuing its report until this Court determines the constitutionality of its actions.
The defendants presumably will argue that they seek to protect the public against "destructive cults," which they will assert is an important public interest. However, stating the proposition reveals its fallacy, as a "cult" is a religious organization, the beliefs of which are wholly outside the authority of civil authority to regulate. To be sure, the rhetoric of the defendants and the proponents of the Resolution dwells not upon conduct of the "cults", but rather upon their beliefs, philosophies, and supposed effects the beliefs have upon students.
The Resolution talks of students being "particularly vulnerable to cult recruitment" because they are often "overwhelmed with new responsibilities and relationships, adjusting to new environments, and anxious about their futures" and that "college students who become involved with cults undergo personality changes", "are alienated from their families and friends and are robbed of the very things universities were designed to encourage: freedom of thought, intellectual growth and personal development." With all due respect for those of the Task Force and legislature who may have the best of intentions with respect to these comments, the fact is that these matters are philosophical, religious or spiritual in nature and are unquestionably subjective evaluations which cannot be separated into belief vs. conduct. It is not conduct which is at issue – it is manifestly religious belief that is under attack in this Resolution, and the legislative history makes that fact crystal clear.
Since the defendants may not lawfully regulate belief and may not lawfully
disestablish the targeted religions or aid the establishment of favored religions, this criteria weighs heavily to plaintiffs’ side.
As addressed above, an extremely strong case can be made that the statute is facially unconstitutional. Moreover, even without discovery, the public record reveals far greater bases for a finding of unconstitutionality of the statute as applied.
This criteria also tips decidedly in favor of a TRO and preliminary injunction.
There is great public interest in assuring that the state acts in a constitutional manner and protects its citizens – all of them. Plaintiffs seek only to ensure that the constitutional rights of themselves and other similarly situated persons are preserved. Indeed, the action potentially assists a great many persons whose rights are infringed by the statute
On the other hand, there is literally no public interest in the continuation of the discriminatory acts undertaken by the defendants, which if found to be unconstitutional, do a serious and fundamental harm to the citizens of Maryland and other states.
The statute at issue is illegal, targeting religious organizations for special discriminatory treatment.
All meetings of the Task Force, have been extremely biased, demonstrating the intention to derogate "cults." "Anti-cult" viewpoints are fostered and promoted while those with opposing views are actively discouraged or denied reasonable opportunity to speak. Nearly every person to testify regarding the scope of the Task Force’s inquiry and the nature of the alleged problem addressed, spoke to the religious practices sought to be examined and restrained. In the several months of its existence, the Task Force has been unable to fashion even a definition for the term "cult" because every definitional criteria is obviously religious and obviously denigrates religious belief.
The statute is illegal as it has been applied and threatens far greater harm than it has already accomplished.
A TRO should immediately issue and a hearing set for a preliminary injunction, preserving the status quo and restraining all further activities of the Task Force and defendants pending resolution of this action or further Order of the Court.
Dated: September 13, 1999Respectfully submitted,
______________________
Kendrick Moxon
MOXON & KOBRIN
3055 Wilshire Blvd., Ste. 900
Los Angeles, CA 90010
(213) 487-4468
Lee Boothby
4545 42nd St. NW, Suite 201
Washington D.C. 20016
(202) 363-1773
Eric Lieberman
Rabinowitz, Boudin, Standard, Krinsky & Lieberman, P.C.
740 Broadway, 5th Floor
New York, NY 10003
(212) 254-1111
Counsel for Plaintiffs
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