UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
| INTERNATIONAL COALITION FOR RELIGIOUS FREEDOM; et al., Plaintiffs, vs. THE STATE OF MARYLAND, et al. Defendants. _____________________________________ |
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Civil Action No. L99-2940 |
TABLE OF CONTENTS
I - INTRODUCTION
II – STATEMENT OF FACTS
A. Legislative History of the Cult Task Force Resolution
B. The Task Force Report Continued the Violations of Plaintiffs’ Constitutional Rights
III - PLAINTIFFS HAVE STANDING TO BRING THIS ACTION
V - THE ELEVENTH AMENDMENT IS NOT A BAR TO THIS ACTION
VI - CONCLUSION
Defendant’s Motion to Dismiss frames arguments which ignore central facts and misinterprets constitutional law.
As to standing, plaintiffs are not gadflies in search of a fight. Rather, they have suffered personal, actual and continuing damage by the acts of defendants, and seek to preserve their own constitutional rights to propagate and practice their religion, free from unlawful governmental interference and censure. Their religions were intentionally targeted by the defendants throughout the Task Force proceedings in which their chosen beliefs were called "hateful and deceptive" by a defendant. The intention and purpose of the Task Force, as evidenced by the legislative history and the language of the legitimate enactment, give ample evidence that the defendants’ purpose was the derogation of the plaintiffs’ beliefs. The Task Force Report will cause future harm to these plaintiffs as well as to persons similarly situated.
Indeed, standing in this case could properly have been asserted by any of a large number of persons who are members of the so-called "cults" targeted by the defendants for disestablishment.
As to the assertion of mootness, the defendants pretend that injunctive relief was the only relief sought, and that the issuance of the Task Force Report moots this case. However the Complaint plainly also seeks declaratory relief to prevent future harm. Such claim retains both vitality and justiciability.
Finally, defendants’ assertion that the action is barred by the Eleventh Amendment is simply wrong. Defendants are not shielded from declaratory relief as to their prior violations of constitutional law or from continuing harms arising out of the Task Force Report condemning plaintiffs’ peaceful religious beliefs and practices.
Plaintiffs have stated a justiciable claim. The motion to dismiss should be denied.
A. Legislative History of the Cult Task Force Resolution
On February 19, 1998, House Joint Resolution 22, "Task Force to Study the Effects of Cult Activities on Public Senior Higher Education Institutions," was introduced to the Maryland House of Delegates by Delegate C. Anthony Muse. Delegate Muse 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 upon interpretation of competing religious doctrines, Delegate Muse stated:
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.
(Ex. 1.)
Thus, the Resolution overtly addressed religious issues, and did so from the viewpoint that some were good and some "prey[ed] upon naive persons" with false theology and practice. Indeed, the State of Maryland’s Internet web page of legislative enactments indexed the Resolution under the topical heading "RELIGION — see also – CHURCHES." (Ex. 2.)
In the Appropriations Committee meetings in which the passage of the Task Force legislation was proposed, no representatives of the groups to be studied (the purported "cults") were afforded the opportunity to refute public allegations derogating their religious beliefs and practices. Rather, each person who provided written or oral testimony regarding the bill was listed in the legislative record as a "proponent" of the bill. (Ex. 3.) The inflammatory and one-sided assertions of the harms generated by "cults" by these proponents, each bore a religious theme.
For example, Roger and Sandra Stephon, the parents of a member of the International Churches of Christ, who stridently disagreed with their adult child’s involvement in the religion, made allegations regarding the existence of manipulative "cults" on campus. (Ex. 4.) One Laura Ann Weber, in derogatory terms, asserted 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. 5.)
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. One key witness 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 practice "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. 6.)
Rev. Dowhower’s testimony was similarly laced with statements regarding his disagreement with "cults" on theological grounds:
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.
(Ex. 7.)
Additional witnesses, Les and Nora Baker, were represented by a lobbyist of an infamous anti-cult organization, the Cult Awareness Network, and complained that their 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" provided by Ms. Baker to the Appropriations Committee considering the legislation (Ex. 9), was the International Churches of Christ. (Ex. 10.)
Without hearing opposition testimony, the Appropriations Committee voted unanimously to pass the bill. (Ex. 11.) 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.12.)
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 identified as being in competition with the religious practices of the speakers which when identified, invariably were main line faiths such as Presbyterian, Lutheran, and later, Catholic and Episcopalian.
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.
The text of the Resolution required the Task Force to study "The Effects of Cult Activities on Public Senior Higher Education Institutions," and therefore overtly indicated its design to target religious minorities denominated as "cults." The term "cult" has come to have a highly derogatory definition in our society, connotating frightening religious practices off the main line of legitimate belief. One popular dictionary published in 1997 defined "cult" as: "a religion or sect considered to be false, unorthodox or extremist," and "a particular system of religious worship, especially with reference to its rites and ceremonies." Random House Webster’s College Dictionary. Similarly, the first definitions in the 1981 edition of Webster’s Collegiate Dictionary are religious: "1. formal religious veneration: worship. 2. a system of religious beliefs and ritual; also: its body of adherents; 3. a religion regarded as unorthodox or spurious; also: its body of adherents."
The Dictionary of Cultural Literacy, defines the term in part, as one "suggest[ing] extreme beliefs and bizarre behavior." (Ex. 16.)
In the written testimony of 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. 17.)
The pejorative meaning of the term was readily apparent in the Task Force proceedings. Appointed as a member of the Task Force as a "parent of a former or current cult member," was Ms. Patricia Rausch, a parent of an individual who had attended several meetings of the International Churches of Christ. Rausch 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. The other "parent" appointed to the Task Force was "anti-cult" activist Frantz Wilson, 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. 18, Statement of Frantz Wilson.)
Mr. Wilson and Ms. Rausch were selected as 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 former CAN president Ronald Loomis as a speaker, that Mr. Loomis had repeatedly made derogatory remarks about Mr. Colvin’s church, the Unification Church, calling its members "Moonies" and that Mr. Wilson, responded stating, "I do not care what you say because I know that the Unification Church is a hateful and deceptive organization." (Ex. 19, para. 10, Declaration of Alex Colvin.)
As Mr. Wilson and Ms. Rausch were unashamed "anti-cult" extremists, they selected all "anti-cult" advocates to testify. 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 Platz. Several "former members" of so-called "cults" presenting 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 were invited to testify. The International Churches of Christ and the Unification Church – obviously religious groups – were nevertheless specifically targeted in the meetings of the Task Force. The Task Force meetings were, in part, akin to "anti-cult" revival conferences with the Task Force and its supporters degrading and criticizing minority religions. For example, as explained by plaintiff Alexander Colvin who attended the meeting:
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 anti-cult 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 ... 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. 19, paras. 8 & 11, 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.) 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. (Ex. 20, Declaration of Dan Fefferman.)
Plaintiff Alexander Colvin attempted through the legislative process to reveal the prejudicial nature of the Resolution to the Task Force, and thereby sought to evade litigation over the Resolution – an endeavor which ultimately assisted defendants to avoid injunctive relief prior to the publication of the Task Force Report.
In light of the vehement opposition to the Task Force by plaintiffs Fefferman, Eby and Colvin, the Task Force members sought to obscure the nature of their activities to appear as if religious issues would be avoided. The decision to eliminate the term "cult" and the chairman’s assertions that the Task Force would not become involved in religious activities, permitted the Task Force to arbitrarily exclude 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. (Exs. 19 & 20.) 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 from its mission statement. In fact, he stated, the Task Force on Cult Activities was not studying "cults" at all. (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.)
In any event, these efforts were clearly political, as the International Churches of Christ and the Unification church continued to be targeted as the primary "cults" or "groups" of concern. Several other minority religions were also mentioned in the context of being "cults."
At the same time the Task Force was denying it was investigating "cults," 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, notes that the Task Force sought information "... 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. 21.)
The questionnaire’s cover letter provided no guidance regarding the identification of a "cult," obviously assuming that the term is sufficiently defined in common vernacular to be understood. If so, the definitions of the dictionary and common usage as a religious minority apply by default. The questionnaires were separately captioned to be distributed to "consulting psychologists" (Ex. 22), "resident directors and community directors" (Ex. 23), "chaplains" (Ex. 24) and "faculty/professional academic advisors." (Ex. 25).
Responses to the questionnaires were predictably rife with derogatory comments regarding minority religions – not other types of groups – and evidence of the creation of new fear, distrust and discrimination against minority religions. The responses dealt with precisely what they would be predicted to reply to – religious minorities.
For example, in a response from Coppin State University, after answering that there was no "activity, inquiry, issues, or concerns expressed by students, parents, or staff relative to cult activity," the response stated:
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. 26.)
This response is a clear indication that as a direct result of the Task Force’s actions, an atmosphere of suspicion will continue to be created toward "cults," and that University officials are increasing their "vigilance" by requiring new students to reveal their private religious and constitutionally protected associations.
Another survey response from a resident assistant at the University of Maryland College Park names the Chi Alpha Christian Fellowship and Maryland Christian Fellowship in response to the 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. 27.) Thus, perfectly innocent, constitutionally-protected religious free speech activities are denominated publicly as dangerous "cult behaviors" as a direct result of this Task Force’s inquest.
Many of the questionnaire responses evidence the Task Force’s creation of religious prejudice, including chaplains and mainline ministers reporting on the "cult activities" of their religious rivals. For example, Bob Albrecht, Catholic chaplain at Towson State University, responded 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 "infiltrated" student meetings "with the express purpose of recruitment."
(Ex. 28, 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 brags that the Catholic Newman Club helped to "put a stop" to such a group. The Unification Church owning property near campus is also designated as a dangerous "cult activity," while the Catholic Newman Club’s property ownership and presence is not only protected, it is considered by Father Albrecht to be necessary to stem the tide of a competing religion.
In response to 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 "a Bible talk" on campus. Encouraged by the Task Force’s study of "cult activities," he calls these rival Christian denominations "cults." (Ex. 28, pp. 6-7.)
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. 29.)
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 (Ex. 28, pp. 8, 9), complaining that her own religious organization is not prevailing over 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.)
The University System, in response to HJR 22, also contributed to an expanding atmosphere of intolerance by requiring its campuses to report whether any resident assistants were "cult members" as a continuing obligation. Thus, the Task Force has directly encouraged and fostered an atmosphere of stigmatization of plaintiffs’ religion and other minority religions, in which students at the University System of Maryland, citizens of the State of Maryland, staff of the University System, will be increasingly scrutinized, suspected, denigrated and investigated solely on the basis of their religious affiliations.
B. The Task Force Report Continued the Violations of Plaintiffs’ Constitutional Rights
The harmful effects of the Resolution and the activities of the defendants continue into the future by the issuance of a published Report by the Task Force on September 15, 1999 as the culmination of its investigation and as findings of its work.
The Task Force abandoned the use of the word "cult" in its Report, seeking to alloy the problems raised throughout the Task Force proceedings, replacing it with the term "groups" and seeking to moot the unconstitutional acts raised in this action by pretending that they were not targeting specific "cult" organizations such as the International Churches of Christ and the Unification Church. However, it would be obvious to anyone with knowledge of the Task Force proceedings, or indeed, anyone who has read the newspapers generally regarding "cult" issues, that these religions were among the groups targeted by reference to "cults." Worse, by issuing a report on "Cult Activities" that actually dealt with "groups" in general, the Task Force created an impression that problems caused by unidentified "groups" in general (including presumably gangs, fraternities, drug rings, etc.) result from "cult activities." Thus, the elimination of the term had no effect as it was intended to concern itself with "cults."
Among the findings in the Report is the statement:
The extent of group activities causing harm is statistically very small when considering the enormous number of students attending USM institutions, Morgan State University and St. Mary’s College. This is based upon a wide range of group activities causing harm reported from these institutions varying from no problems to some problems. However, when interaction with a group causes harm to a student, that harm can be very severe.
The admission that the extent of harm is "very small" is important. However the "severe" harms are not specified, but are left as an inflammatory generality subject to the imagination of the reader. There is also an implication that "harm" to students is always caused by the group. The Report also found:
There are a wide variety of groups involved on USM campuses, Morgan State University and St. Mary’s College. Recruitment and approaches by all types of groups are a common place occurrence.
Group activities can escalate into a problem, for example, recruitment can lead to inappropriate immersion into the group.
The Report commended a College Park program that trains dormitory resident assistants to stay attuned to possible cult-related problems among students, and stated that "A summary of Resident Assistants responsibilities should be posted in dormitories together with a mechanism for reporting complaints." One chilling recommendation of the government Report was to:
Require USM institutions, Morgan State University and St. Mary’s College to assess the training needed for heightened institutional awareness of potential problems of destructive groups. Each institution should have the responsibility and the authority to determine the definition of harm relevant to the activities of such groups. The Task Force wishes to emphasize that this recommendation is for each institution to assess its training needs. There should also be a regular forum for interested members of each campus community (advisors, counselors, residential staff and chaplains, etc.) to exchange information relating to student complaints about outside groups.
If the Task Force meetings and the responses to the questionnaires are any indication of how the Universities would approach the matter, the Report calls for the establishment of a stigmatizing "forum" to derogate and plan the attack of minority groups. In other words, the schools are to set up forums for established religions to attack minority religions with the sanction of, and on the instruction of, the state.
Finally, the Report urged further inquisition and reporting on the activities of religious minorities, urging that the University System:
Provide a central resource on each USM campus, Morgan State University and St. Mary’s College to accumulate complaints concerning group activities or actions and make the information available to students, parents, faculty and administration. Groups who are identified in such complaints should be named and clearly identified so concerned persons may evaluate the complaints themselves following their own individual standards.
Thus, while after this lawsuit was filed the Task Force Report disingenuously sought to leave the identities of the target groups simply understood, it urged the schools to specifically name and stigmatize the groups – past and future. This recommendation is an invitation to hate groups and bigots to join with the University in creating a public repository for all kinds of unsubstantiated claims and hate propaganda.
Again, while endeavoring to avoid challenge to its Report on constitutional grounds, the Report promulgates the same concepts of religious disapproval and stigmatization promoted by the Task Force over the prior several months. This is demonstrated by the interpretation of the Report by local newspapers. For example the Baltimore Sun’s article of September 19, 1999, which addresses the issuance of the Report, states in its lead sentence that the Task Force concluded that "Cults can do severe harm to students and should be carefully monitored by colleges." (Ex. 30.)
The attempted fiction that the Report did not concern "cults" – and in particular the Unification Church – was obvious to everyone but the Task Force. As published in an article appearing in the Washington Post shortly after issuance of the Report entitled, "Studying Cults on Campus Awareness Urged, But Not Alarm":
A state task force investigating cult activity on Maryland campuses has recommended that universities warn students to watch out for potentially harmful organizations and require outside groups to register before coming on campus to recruit.... Although there have been a few "heartbreaking" cases in which Maryland students have been lured into harmful cultlike activities, the task force wrote in a report released last month, those cases are relatively few and far between.
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The task force shied away from even defining "cult," choosing instead to focus on all groups "causing harm" to university communities. Many free-speech advocates say the term "cult" is used unfairly to ostracize any new offshoot religious groups. The report pleased some anti-cult activists who lobbied for the creation of the task force and at the same time assuaged some of the concerns of religious groups that had viewed the investigation as a direct attack on their constitutional right to organize.
The group was chartered by the state legislature last year in response to complaints from a couple of parents that their children had been aggressively recruited by a religious organization at the University of Maryland at College Park that they said bullied new members into devoting more and more time and money to the group.
State lawmakers also were inspired by cult-related tragedies such as the mass suicide of the Heaven’s Gate disciples in California two years ago and the subway poison-gas attack by a Tokyo cult.
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The International Coalition of Religious Freedom, a Virginia-based group funded by the Unification Church, filed suit in U.S. District Court in Baltimore to try to shut down the task force, alleging it violated First Amendment rights.
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The Rev. Richard L. Dowhower, an anti-cult activist and the pastor of All Saints Lutheran Church in Bowie, applauded the report. "The needs of cult victims have been recognized and honored," he said. "Cults themselves have been identified as a danger, and campus administrators are being put on notice that they need to develop new practices and policies and to deal with off-campus organizations." The task force recommended that schools create an educational program for incoming students to help them make smart decisions about what groups to join and to warn them about "destructive behavior" that could affect them.
(Ex. 31.)
Further, according to a brochure of the anti-religious group CULTINFO, Sandra Stephon, mother of a member of the International Churches of Christ at the University of Maryland, College Park, received primary credit for the Resolution. "Hear how one mom took on the cults in the Maryland legislature and won!" (Ex. 32.)
Thus, while the Report sought to moot this action by pretending that it did not impinge upon the constitutional rights of the plaintiffs and similarly situated persons, the religious stigma associated with the defendants’ actions – including the published Report intended as a guide to future discrimination and inquisition – continues.
III - PLAINTIFFS HAVE STANDING TO BRING THIS ACTION
Defendants argue that plaintiffs lack standing because they have failed to raise factual allegations necessary to find a justiciable controversy. The argument is predicated upon pretending that defendants’ description of the plaintiffs’ background constitutes the sole relevant facts, and argued that such facts presented are insufficient to provide standing. Defendants are mistaken.
Finding that standing inquiries in Establishment Clause claims must be tailored to reflect the type of injuries that Establishment Clause plaintiffs are likely to suffer, the Fourth Circuit stated:
[T]he Establishment Clause plaintiff is not likely to suffer physical injury or pecuniary loss. Rather "the spiritual, value-laden beliefs of the plaintiffs" are often most directly affected by an alleged establishment of religion. [citations omitted] Accordingly, rules of standing recognize that noneconomic or intangible injury may suffice to make an Establishment Clause claim justiciable. Valley Forge [Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 486, 102 S.Ct. 752, 765-66]; Smith v. County of Albemarle, 895 F.2d 953, 955 (4th Cir.1990).
Suhre v. Haywood County, 131 F.3d 1083,1086 (4th Cir. 1997).
The Court also addressed the concept of the generalized federal standing requirement of a sufficient "stake in the outcome of the proceedings" discussed in the context of Establishment Clause issues in Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968) ("The gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentations of issues upon which the court so largely depends for illumination of difficult constitutional questions.") The Suhre court found sufficient stake in the proceedings warranting finding standing for the plaintiff in that action by noting that the Supreme Court has recognized "‘a spiritual stake in First Amendment values sufficient to give standing to raise issues concerning the Establishment Clause and the Free Exercise Clause’" to those persons directly affected by alleged violations of the First Amendment. Id., citing, Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970) (interpreting School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).)
The plaintiffs in this case received both specific and general injury and a certain and special "stake" in the challenged governmental actions at issue. The Task Force Report, based upon bigoted statements of antagonistic members of competing religions, issued a Report derogatory of "cults" including specifically the Unification Church of which these plaintiffs are public members.
Plaintiff John Alexander Colvin resides in Anne Arundel County, Maryland, and is an enrolled student in the University of Baltimore, Maryland University System. (Ex. 19, Declaration of Alex Colvin). Mr. Colvin is a member of a targeted minority religious organization, the Unification Church, 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. His daughter, Hanalyn Colvin, is a high school student in Anne Arundel County who is considering enrolling in the Maryland University System. As a result of the Task Force proceedings and the subsequent Task Force Report, 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 complained of herein. (Id.)
Plaintiffs, Dan Fefferman and Susan Fefferman, who reside in Prince George’s County, are concerned that their 17 year old daughter, who is planning to attend a Maryland University System school 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 parent’s religious beliefs. (Ex. 20, Declaration of Dan Fefferman.)
Plaintiff Michael Roschuni is a resident of Prince George’s County and is a current undergraduate student at the University of Maryland at College Park. Mr. Roschuni is also a member of the Unification Church targeted by the Task Force and its Report, whose right to practice and promulgate his religious beliefs has been chilled by defendants’ conduct. (Id.) Plaintiff Lloyd Eby resides in Prince George’s County, and has three children attending public schools in that county. Dr. Eby holds a Ph.D. in philosophy, and is a member of the faculty of the University of Maryland College Park. He is also a member of the Unification Church. Because the Task Force is attempting to single out and attack, investigate, or otherwise harass his religious belief and activity by calling it "cult activity," 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.)
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. 20, Declaration of Dan Fefferman.) 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.)
Plaintiffs Dan Fefferman, Susan Fefferman, Alex Colvin and Hanalyn Colvin were all active participants in the legislative actions giving rise to the Task Force Report. (Ex. 20, Declaration of Dan Fefferman; Ex. 19, Declaration of Alex Colvin.) All three vigorously challenged the issuance of the Report because it manifestly targeted their religion. All three were the victims of discriminatory acts by the Task Force during the Task Force proceedings, including commentary from one of the Task Force members to them: "I do not care what you say because I know that the Unification Church is a hateful and deceptive organization." Id.
Because the injuries described above are caused both by the Resolution and subsequent Report, and the injury is fairly traceable to the challenged conduct, it would be redressed by invalidation of the legislative act. Indeed, subsequent issuance of the Report with its attendant publicity has only enhanced the standing of the plaintiffs and increases the likelihood that relief can be acquired through the issuance of a judgment declaring the Cult Resolution to have been an unlawful exercise of legislative authority, and the subsequent report a continuing and further violation of law and the plaintiffs’ rights – as well as thousands of other persons similarly situated to the named plaintiffs. Therefore, plaintiffs meet the generalized "case or controversy" requirement for standing imposed by Article III, as well as the "more permissive" standing requirements in Establishment Clause cases. Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d 1514, 1525 (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.
The individual plaintiffs are directly affected, their religions officially stigmatized, and their future ability to practice and promulgate their religion chilled by the Resolution and the Report.
The organizational plaintiffs also have standing to seek declaratory relief respecting the Resolution and Report and the unlawful conduct of the Task Force. Both the International Coalition for Religious Freedom – which is closely associated with and draws the majority of its members and support from the Unification Church – and the Council on Religious Freedom have standing to challenge the constitutionality of the Resolution and the Report on behalf of their members.
The district court in North Carolina Civil Liberties Union, et al. v. Constangy, 751 F.Supp. 552, 553 (W.D. N.C.1990), assumed standing of the plaintiffs to challenge the opening of court with a prayer, based only upon the following stated facts:
Plaintiff North Carolina Civil Liberties Union is a non-profit North Carolina corporation which holds itself out as being devoted to securing and defending the rights, privileges and immunities guaranteed by the United States Constitution and the Constitution of North Carolina, and as having a special interest in the rights protected by the First Amendment. A number of its members live in Charlotte and may be subject to being ordered to attend Judge Constangy’s courtroom as witnesses or defendants in the same manner as any other citizens or group of citizens.
The individual plaintiffs are attorneys licensed to practice in Judge Constangy’s court. Each individual plaintiff has been present for at least one recitation of Judge Constangy’s court-opening prayer.
The Fourth Circuit similarly assumed standing on these facts – which demonstrate far less personal stake in the outcome of the establishment cause proceedings than displayed by the plaintiffs here.
North Carolina Civil Liberties Union Legal Foundation v. Constangy, 947 .2d 1145 (4th Cir. 1991).
Moreover, each of the plaintiffs have independent standing as taxpayers to bring the action under the circumstances of this case. Aside from past expenditures, the recommendation of the Report calls for the establishment of various bodies, administrative lines and functions as set forth above. These functions and activities will require the expenditure of new funds by the State to implement, which are derived from state revenues.
In Koenick v. Felton, 190 F.3d 259 (4th Cir.1999), a public school teacher challenged a Maryland statute which provided for school holidays the Friday before Easter through the following Monday. The Fourth Circuit found the plaintiff possessed taxpayer standing to challenge the statute as a violation of the Establishment Clause. The Court applied the standard from Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 394, stating that:
[T]he Supreme Court explained that a taxpayer has standing to challenge a statute when he is able to show that he "has sustained or is immediately in danger of sustaining some direct injury as a result of [the challenged statute’s] enforcement." Id. at 434 (citations omitted). Such a direct injury has been found when the challenged statute involves the expenditure of state tax revenues. See, Cammack v. Waihee, 932 F.2d 765, 769 (9th Cir.1991). This principle has been interpreted to justify finding that a municipal taxpayer has standing in cases where the litigant’s only injury is the alleged improper expenditure of municipal funds. See id. at 770 ("[W]e conclude that municipal taxpayer standing simply requires the ‘injury’ of an allegedly improper expenditure of municipal funds....").
Applying this standard, Koenick has standing as a taxpayer in Montgomery County. In her complaint, Koenick alleges that she is injured by the expenditures of her tax revenues towards the paid holiday on the Friday before and the Monday after Easter for public school employees. It is undisputed that these tax revenues fund the public school system in the County and thereby fund the paid, statutory holidays for school employees such as that required by § 7-103(c)(1)(iii). Because Koenick is a taxpayer who indirectly bears the burden of funding a paid public school holiday around Easter, we find that she has standing to pursue her appeal.
Koenick v. Felton, 190 F.3d at 263.
The Fourth Circuit also stated that an even lesser standard would apply to taxpayer standing in Establishment Clause cases:
Although they concerned the display of religious symbols in public settings, in both Suhre v. Haywood County, 131 F.3d at 1086, and Smith v. County of Albemarle, 895 F.2d 953, 955 (4th Cir.1990), we applied an even more permissive standard, finding that noneconomic or intangible injuries may suffice to render an Establishment Clause claim justiciable. See Suhre, 131 F.3d at 1086; Smith, 895 F.2d at 955.
Koenick, supra, fn. 3.
Pursuant to this standard, plaintiffs Alex Colvin and Lloyd Eby – both of whom are employees in the Maryland University System – have at least equal factual standing as the Koenick plaintiff. Indeed, each of these state employees has greater factual standing than the Koenick plaintiff, because each is not only offended because of the establishment of religion by the Task Force Resolution and subsequent report – their religion as one of the primary alleged "cults" addressed by the Task Force acts and its Report, giving them a personal stake in the dis-establishment of their own faith.
Thus, each of the individual and organizational plaintiffs also possess taxpayer standing to assert Establishment Clause challenges to the legislative acts at issue.
On September 15, 1999, defendants issued their final report, thus completing the mandate of House Joint Resolution 22. While such act marked the conclusion of the meetings and preparation of the report sought to be foreclosed by this action, the issuance of the report has not marked the conclusion of the harm continuing to be done by defendants’ acts, nor has it foreclosed all of the relief sought in the complaint.
The very caption of the pleading states that it is a "COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF." After a lengthy description of the reasons why the conduct of the Task Force was unconstitutional and the issuance of the report was unconstitutional, the Complaint specifically prays both for an injunction against the defendants and for specific declaratory relief, seeking:
1. A declaration that the Resolution is facially unconstitutional and void;
2. A declaration that the conduct of the Task Force is unconstitutional;
(Complaint, Prayer.)
The mischief done by the Task Force’s Report was felt immediately upon its publication and is continuing to be felt by the plaintiffs and a broad class of persons and entities subject to the attack upon their faiths by the defendants under the rubric and authority of the State of Maryland.
While a federal court has no authority "to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it," Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133 (1895), the "availability of [a] possible remedy is sufficient to prevent [a] case from being moot." Church of Scientology of California v. United States, 506 U.S. 9, 13, 113 S.Ct. 447, 450 (1992).
In Church of Scientology of California v. United States, the Church challenged the disclosure of private records under an unlawful subpoena. Despite the compliance with the subpoena by a third party and subsequent copying of the records by the government, the Supreme Court found that a taxpayer still suffers injury by a continued "affront to the taxpayer’s privacy," stating:
A person’s interest in maintaining the privacy of his "papers and effects" is of sufficient importance to merit constitutional protection. ... Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession. The availability of this possible remedy is sufficient to prevent this case from being moot.
506 U.S. at 13.
This ruling has, of course, been followed in every Circuit. See, e.g., United States v. Chrysler Corp., 158 F.3d 1350, 1353 (D.C.Cir. 1998) ("even the availability of a partial remedy is sufficient to prevent a case from being moot ... The question then, is whether this court can grant Chrysler any relief at all."); Flynn v. Sandahl, 58 F.3d 283, 287 (7th Cir. 1995) ("The proper test for mootness on appeal is not whether we may return the parties to the status quo ante, but rather, whether it is still possible to ‘fashion some form of meaningful relief’.")
Declaring the Resolution, the acts of the defendants, and the existing Task Force Report to violate the constitutional rights of the plaintiffs will unquestionably provide some "meaningful relief" to these plaintiffs. It will lift a substantial chill upon their religious practices; it will tend to restore the balance of fairness between the main line religious proponents of the Task Force Resolution and the minority religions attacking the Resolution and the Report; and, it will remove the imprimatur of the State of Maryland from the forbidden inquest and derogation of the Unification Church, the Church of Christ and the other "cults" which are presumed to be the targets of the "cult" inquest.
Moreover, as noted in the Federal Circuit, in deciding whether or not an issue is moot is whether the disputed issue "continues to be justified by a sufficient prospect that the decision will have an impact on the parties." Nasatka v. Delta Scientific Corp., 58 F.3d 1578, 1580 (Fed.Cir. 1992), quoting, Flagstaff Medical Center, Inc., v. Sullivan, 962 F.2d 879, 884 (9th Cir. 1992).
A cursory review of the defendants’ motion to dismiss certainly reflects that a declaratory judgment that their conduct violated the constitutional rights of the plaintiffs will have an impact on them. A ruling will have a substantial impact on the plaintiffs, for if relief is denied, they face the prospect of continuing discrimination and persecution fostered by an antagonistic state government.
The action is not moot.
V - THE ELEVENTH AMENDMENT IS NOT A BAR
TO THIS ACTION
The Eleventh Amendment bars actions against states and their officials in federal court absent consent of the state defendant. However, excepted from this general rule of sovereign immunity is that set forth first in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908), in which the Supreme Court created the exception by asserting that a suit challenging the constitutionality of a state official’s action in enforcing state law is not so barred, reasoning that an unconstitutional statute does not "impart ... immunity from responsibility to the supreme authority of the United States." Id., 209 U.S. at 160, 28 S.Ct. at 454. Young also held that the Eleventh Amendment does not prevent federal courts from granting prospective injunctive relief to prevent a continuing violation of federal law. Id.; Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426 (1985).
Defendants concede that the Eleventh Amendment does not bar suits seeking to enjoin officials from committing violations of federal law, citing Booth v. State of Maryland, 112 F.3d 139, 142 (4th Cir. 1997). Actually, it is the continuing violation of federal law which triggers the exception to the general rule. Green v. Mansour, 474 U.S. at 68, 106 S.Ct. at 426; CSX Transportation, Inc. v. Board of Public Works of the State of West Virginia, 138 F.3d 537, 541 (4th Cir. 1998).
Defendants argue that since the acts complained of in the Complaint are past and not future acts, that the Report has now been published and the Task Force’s functions are at an end, that the action is barred. As argued in the preceding section, this action is not moot and substantial and important relief continues to be sought by the plaintiffs.
Plaintiffs are not seeking prospective relief, nor are they seeking monetary damages or injunctive relief. This case presents an unusual situation of the legislative act at issue carrying no specific mandate for future conduct, but rather, causing the promulgation of a "Report" under the authority of the State after completion of its inquisition into religious minorities, the very existence of which in its present form causes present and continuing harm as to these plaintiffs and to a large number of persons.
The Resolution and its subsequently created Report promote governmental deference to some religion and derogation of others, enumerated as "cults," or worse, the euphemism "destructive groups." In other words, finding that the term cult was offensive, the Task Force invented an even more offensive term to describe what no one reasonably perceives to be anything other than the "cults," including plaintiffs’ religions, the activities of which the Task Force was mandated to investigate.
Put another way, defendants assert that they are immune from federal suit by the publication of an official report, requested by the legislature, in which some types of religion are criticized as harmful to the public good and others elevated as not harmful to the public good. And public institutions are warned to beware of the type of "destructive" religion, which, in the words of the sponsor of the Resolution, is "manipulative, harmful and have as its goal to prey on naive persons rather than praying for the good of one."
Defendants’ acts cause continuing harm, rendering the controversy alive and requiring that defendants’ arguments be rejected by the doctrine of Ex parte Young.
Plaintiffs have standing to present a controversy which remains alive and vital and in which substantial relief is sought.
The issues in this case are important to these plaintiffs and important to the constitutional rights of many persons subject to the unlawful conduct of the defendants. The motion to dismiss should be denied.
Dated: November 15, 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
Association of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970) (interpreting School District of Abington v. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963).)19
Booth v. State of Maryland, 112 F.3d 139 (4th Cir. 1997)28
California Bankers Ass’n v. Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974)21-22
Church of Scientology Flag Service Organization v. City of Clearwater, 2 F.3d 1514 (11th Cir. 1993)21
Church of Scientology of California v. United States, 506 U.S. 9, 113 S.Ct. 447 (1992)26
CSX Transportation, Inc. v. Board of Public Works of the State of West Virginia, 138 F.3d 537 (4th Cir. 1998).28
Doremus v. Board of Education, 342 U.S. 429, 72 S.Ct. 39424
Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 (1908)28
Flast v. Cohen, 392 U.S. 83, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968)18
Flynn v. Sandahl, 58 F.3d 283 (7th Cir. 1995)27
Green v. Mansour, 474 U.S. 64, 106 S.Ct. 423 (1985).28
Koenick v. Felton, 190 F.3d 259 (4th Cir.1999)23-25
Mills v. Green, 159 U.S. 651, 16 S.Ct. 132 (1895)26
Nasatka v. Delta Scientific Corp., 58 F.3d 1578 (Fed.Cir. 1992), quoting, Flagstaff Medical Center, Inc. v. Sullivan, 962 F.2d 879 (9th Cir. 1992)27-28
North Carolina Civil Liberties Union, et al. v. Constangy, 751 F.Supp. 552 (W.D. N.C.1990), 947 F.2d 1145 (4th Cir. 1991) . . . . . . . . . . . . . . . . . .22
North Carolina Civil Liberties Union Legal Foundation v. Constangy,
947 F.2d 1145 (4th Cir. 1991) 23
Suhre v. Haywood County, 131 F.3d 1083 (4th Cir. 1997).18
United States v. Chrysler Corp., 158 F.3d 1350 (D.C.Cir. 1998)27
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