Wis. sheriff violated establishment clause, 7th Circuit rules

Thursday, December 10, 2009

By repeatedly inviting a religious group to speak at mandatory police meetings, the Milwaukee County Sheriff’s Department violated the part of the First Amendment that ensures some separation between church and state, a federal appeals court has ruled.

In April 2006, the Fellowship of the Christian Centurions sent out fliers about its group, which is a peer-support organizations for officers. Sheriff David Clarke Jr. then invited Centurion leaders to speak at the department’s leadership conference, a mandatory meeting for all deputies with the rank of sergeant or above.

At the conference, Centurions made remarks filled with religious references and messages. A Centurion founder, George Papachristou, said: “Civil government was God’s idea. The first several verses of Romans 13 tell us He established government and that people in authority are ministers of God assigned to promote good and punish evil.”

Clarke then invited the Centurions to 16 department roll calls, during which they made various presentations and distributed fliers and books. Two officers, Ilir Sino, a Muslim, and Mark Zidek, a Catholic, objected to the religious content of the mandatory meetings. They and their union, the Milwaukee Deputy Sheriffs’ Association, sued in federal court, seeking a court order to prevent future such presentations at department meetings. The plaintiffs alleged that the department and Clarke violated the establishment and free-exercise clauses of the First Amendment.

A federal district court rejected the free-exercise claim but ruled in the plaintiffs’ favor on their establishment-clause claim. The district court also awarded more than $38,000 in attorneys fees and $1 in damages to Sino and Zidek.

The sheriff’s department and Clarke appealed to the 7th U.S. Circuit Court of Appeals, which on Dec. 4 affirmed the establishment-clause ruling for the plaintiffs in a unanimous three-judge panel opinion in Milwaukee Deputy Sheriffs’ Association v. Clarke.

Writing for the panel, Judge Ann Claire Williams examined the establishment-clause issue by applying the U.S. Supreme Court’s Lemon test, named after the 1971 decision Lemon v. Kurtzman. Under the Lemon test, a government action violates the establishment clause if it has a religious purpose, a primary effect of advancing or inhibiting religion and excessively entangles government with religion. In interpreting the “effects” prong, some courts use an “endorsement” analysis, which asks whether a reasonable observer would perceive the government to be endorsing or promoting religion.

Williams focused on the endorsement aspect in the Dec. 4 opinion. “The Sheriff’s perceived or actual endorsement of the Centurions’ message is readily apparent from these facts,” she wrote. “In this case, the Centurions gave a heavily Christian-focused presentation at a mandatory conference for government employees, and the Sheriff subsequently invited them to present at mandatory roll calls during work hours, granting them unfiltered access to a captive audience of subordinates.”

Williams cautioned that she and her colleagues were not suggesting “that religiously affiliated groups are always constitutionally barred from working with or speaking to government employees.” However, Williams reiterated that under the facts of this case, it was clear that Clarke endorsed the Centurions’ views.

Clarke argued that he was compelled to allow the Centurions to present at department meetings because the department had allowed other groups, such as the Alliance for Blacks in Law Enforcement and the National Latino Peace Officers Association, to speak at conferences. The First Amendment’s free-speech clause, he argued, provided him a defense to the establishment-clause claim because the leadership conference was a type of public forum at which he could not prevent a group from speaking because of its religious viewpoint.

“The Sheriff is mistaken that the department has created a forum of any kind and so, the Centurions’ desire to access the deputies present at the leadership conference and roll calls does not trigger a Free Speech forum analysis,” Williams wrote. “We therefore reject the Sheriff’s attempts to seek refuge under the Free Speech Clause.”

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