The Religious Geography of Religious Expression: Local Governments, Gourts, and the First Amendment

JOHN C. BLAKEMAN
LOCAL COVERNMENT POLICYMAKING AND RELIGION

Scholars of religion and poUtics have long noted the impact and influence of religion on local govemment policymaking. More so than state or federal politics,local politics often engage the intersection of law, politics, and reli&on m fundamental ways through basic functions such as public schooling, zoning, govemment building permits, or simple requests to use government property for meetings, rallies, or oQier expressiye activities. Indeed, as Richard K Morgan noted, church-state conflicts are most acute at the local level: "here are waged those intimate little community wars over religious practices in particular schools; here are the disputes over religious services and artifacts in public parks."i As Morgan pointed out, local disputes are often triggered by demographic changes in which rehgious minorities come into rehgiously homogenous communities. Conflicts over religion and govemment power, as Ted Jelen observed, have their roots m the structure of American federalism that divides political power at the national, state, and local levels, and creates and fosters local control over certain issues. As he puts it, "the grassroots character of most churchstate contests is not surprising . . . small-scale religious politics often involve questions of aesthetics, zoning, locaf taxation, or
JOHN C. BLAKEMAN B.A., Wake Forest University; M.Sc, London School of Economics; Ph.D., University of Virginia) is associate professor of political science. University of Wisconsin-Stevens Point, Stevens Point, Wisconsin. He is author of The Rible in the Park: Religious Expression, Public Forums, and Federal District Courts. His articles have appeared in Journal of Church and. State, Journal for the Scientific Study of Religion, and Journal of Law and. Politics. Special interests include First Amendment religious liberty and freedom of expression, religion and politics, and comparative constitutional law. 1. Richard E. Morgan, The Politics of Religious Conflict (New York: Pegasus, 1968), 94-95.

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public education."2 Likewise, Elaine B. Sharp investigated how local govemment^ policymakers respond to "culture war" or "morality poUtics" issues, such as anti-abortion protests, gay rights policies, f)omography, or gambling^^ Such local disputes are often issues "in which the primary stakes . . . are matters of fundamental religious value or deep-seated religious belief about the propriety of behavior or activity."3 The basic regulatory functions that form the essence of local govemment policymaking can often cause conflict between religious groups and the govemment. As one scholar aptly put it, "flie interplay of religious and civil authority and the accommodation of each occurs locally, among neighbors, in communities."4 Importantly, Jelen, Sharp, and others indicate that local political institutions, and political outcomes, are affected by a community's sub-culture, especially its religious makeup. For example, communities with a greater percentage of churchgoers tend to have more restrictive laws regulating^ indecency and pomography, such as zoning laws for adult bookstores, whereas commumties with more diverse and unconventional sub-cultures ^^ ---J have fewer restrictions. Similarly, David Fairbanks found strong links between the religious makeup of a community and its policies on liquor sales and gambling. 5 Kenneth Wald and others concluded that local ordinances prohibiting discrimination against gays are "prevalent in communities with a particular cultural geography. Both the overall level of church affiliation and the concentration of conservative Protestants depressed the likelihood that a community maintained an ordinance."6 Indeed, how local officials respond to "morality politics" often correlates to the t3^e and degree of religious affiliation within a given community.7 Barry A. Kosmin and Seymor E. Lachman point out that "in

2. Ted C. Jelen, To Serve God and Mammon (Boulder, Colo.: Westview Press, 2000), 6263. See also Ted C. Jelen, "Political Culture, Political Structure, and Political Conflict: The Persistence of Church-State Conflict in the United States," in Piety, Politics, and Pluralism: Religion, the Courts, and the 2000 Election, ed. Mary C. Segers (Lanham, Md.: Rowman and Littlefield, 2002), 211. 3. Elaine B. Sharp, "Culture, Institutions, and Urban Officials' Responses to Morality Issues," Political Research Quarterly 55 (lDecember 2002): 862. 4. Richard C. Schragger, "The Role of the Local in the Doctrine and Discourse of Religious Liberty," Harvard Law Review 117 (April 2004): 1810, 1815. 5. David Fairbanks, "Religious Forces and 'Morality' Policies in American States," The Western Political Quarterly 30 (September 1977): 411-17. 6. Kenneth D. Wald, James W. Button, Barbara A. Rienzo, "The Politics of Cay Rights in American Communities: Explaining Antidiscrimination Ordinances and Policies," American Journal of Political Science 40 (November 1996): 1166. 7. Sharp, " Culture, Institutions, and Urban Officials' Responses," 875.

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any given community, churches and religious organizations may exist for some faiths "but not for others." Moreover, the religious makeup of a community, based on present churches and other religious organizations, is a "group^henomenon that reflect:s a population's social environment.''^ This "religious geography" of focal communities is an important variable for measuring and establishing links between religion in a community and local political outcomes. As the research above so aptly demonstrates, there are significant links between the religious geography of a community and the political issues and policy outcomes within that community. Although successfully used to examine local policymaking, religious geography has been under-utilized to investigate the relationship t)etween local political institutions, courts, and litigation conceming religious issues. To that end, this study investigates the interaction between local govemment policymaking, litigation, and religious geography in order to more fully understandTiow the interplay of^rehgion, civil authority, and law is affected, and perhaps driven, by religious factors intrinsic to local communities. LOCAL GOVERNMENTS AND PUBLIC FORUMS One type of religious liberty dispute increasingly prominent at the local level concems religiously motivated emression and the extent to which religious speakers seek out public property such as parks, govemment buildings, and pubhc schools as a fomm to communicate a religious message. Under the First Amendment Free Speech Clause, publicly owned spaces are often considered public fomms open to free speech activities. As Supreme Court Justice Anthony Kennedy noted in the pubUc forum and religious speech case ISKCONv. Lee, "Public places are of necessity the locus for discussion of public issues. . . . At the heart of our jurispmdence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places."9 The Supreme Court has used pubUc fomm doctrine to protect religious expression in public. As Justice Antonin Scalia put it in his majority opinion in Capitol Square Review & Advisory Board v. Pinette, whichprotected the right of the Ku Klux Klan to place an unattended Christian cross in the Columbus, Ohio, capitol square, "Our precedent establishes that private religious speech, far from being a First

8. Barry A. Kosmin and Seymor E. Lachman, One Nation Under God (New York: Crown, 1993), 50-51. 9. International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992) at 695.

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Amendment orphan, is as fully protected under the Free Speech Clause as secutar private e}g)ression."io First Amendment law significant^ constrains locaf regulation of public forums and makes it difficult for local policymakers to close a forum to a religious speaker, n Yet local governments do just that: they sometimes deny access to a public forum for religious expression, even though that forum most likely is open to civic groups and private clubs that have no religious affiliation. As discussed below, litigation against local governments over religious expression in public has significantly increased over the past twenty years, indicating that local policymakers, with increasing frequency, close their public torums to religious expression. Policymaicers may consider religious speech inappropriate or offensive to some listeners and thus may deny access to a public forum in order to avoid any controversy that religious speech might generate. Policymakers might also be wary oT allowing religious speech in public forums due to concerns about violating the Establishment Clause barrier between church and state. 12 Whatever the govemment motiyation, litigation may result when a forum is closed to a religious speaker. There are no statistics on when government agencies or individual policymakers grant or deny access to a public forum for religious expression, and there are similarly no statistics on when those who are denied access take no further action. Thus, it is difficult to gauge accurately how and why local governments respond as they do when faced with religious messages in public spaces. However systematically studying litigation over religious speech and local policymaking illustrates how certain vari^les, such as religious geography, affect the mobilization and resolution of litigation against local governments. To do so, this study uses a comprehensive database of district court cases concerning religious speech and local governments. 13 Given the
10. Capitol Square Review & Ad.visory Bd. v. Pinette, 515 U.S. 753 (1995) at 760. See also Good News Club v. Milford Central School, 533 U.S. 98 (2001). 11. Religious speakers as litigants include not only individuals but also religious groups and formal organizations such as churches. 12. There are many divergent interpretations of the Establishment Clause and the perceived barriers that it erects between govemment and religion. This article is not concemed with how and why the Establishment Clause might conflict with private religious expression. For a more detailed look, see John C. Blakeman, The Bible in the Park: Religious Expression, Public Forums, and Federal District Courts (Akron, Ohio: University of Akron Press, Series on Law, Politics, and Society, 2005), ch. 6. 13. This study of the links between local religious geography, local policymaking, and litigation over religious expression in public fomms is based on a comprehensive database of federal district court cases between 1973 and 2001. The case population was compiled through several LEXIS searches, the most notable of which used the search term "relig!"

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constitutional dimension to religions speech disputes, grounded as they are in the First Amendment, most cases will start in federal district courts, which are the trial courts of first instance for the federal judicial system. Thus, a comprehensive database of all district court cases on rehgious speech and local (as opposed to state or federal) public forums demonstrates htigation trends and outcomes in this specific area of the law. Case characteristics from the district court dataset are also linked to the religious geography of each community involved in a religious speech case. lJsinthe 2000 Glenmary census of religious denominations and affiliation, several variables that reflect the religious geography of the local communities litigating in district courts are defined. 14 For instance, one variable defines the dominant rehgion of each community, is Other measurements reflect the growth or decline of evangeUcal, Catholic, and mainline religious groups within each community. 16 Further variables gauge the percentage of Jewish and Muslim populations in each community,!^ and a final variable defines tne percentage of that community's population
limited hy "public forum" in the federal district court file for all available dates. That specific search returned 446 cases, ranging in dates from February 1973 to May 2001. The cases were reviewed, and two types of cases were chosen for analysis: those in which litigants sought to place their religious speech in the public forum, and those cases in which litigants sought to keep religious speech out of the public forum. The case population was further limited to only those disputes in which a local government was one party. The fmal case population has 132 cases for analysis. Several variables were coded for each case, including the type of issue, interest group participation, and the regional location of each court. 14. Religious Congregations & Membership in the United States: 2000. Copyright 2002 by the Association of Statisticians of American Religious Bodies (ASARB) (Nashville, Tenn.: Glenmary Research Center, 2000). 15. The dominant religion of each community is defined as the largest religious group, among all religious adherents, for each community. This study uses the county level measurement provided by the Clenmary census. When the census provided an urban or metropolitan area measurement, that data is used instead. 16. The change in denominational strength reflects the time period 1990-2000. To define the change in evangelical groups, the overall change in the following denominations was calculated and averaged for each community: Assemblies of Cod, Church of Cod (Anderson), Church of Cod (Cleveland), Church of Cod (Prophecy), Churches of Christ, Evangelical Free Church, IndependentCharismatic, IndependentNon-charismatic, Lutheran (Missouri Synod), Salvation Army, and Southern Baptist Convention. Mainline churches were represented by American Baptist, Disciples of Christ, Episcopal, Lutheran (ELCA), Presbyterian (USA), United Churches of Christ, and United Methodist. The Catholic church measurement simply reflects the number of Catholic members of the parish(es) within each local area. 17. Jewish and Muslim congregations were not measured in prior Clenmary decennial religious censuses, and in fact the Jewish and Muslim measurements in 2000 are only estimates. Thus, the estimated percentage of Jewish and Muslim adherents in each community is used, as based on the Glenmary data, instead of a measurement ofthe growth or decline of those two groups.

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that maintains membership in a religious group, is The measurements derived from the Clenmary census capture the dominant religious denomination in 2000, and the growth or dechne of evangelicals mainliners, and Cathohcs occurs between 1990 and 20(J0. To be sure, federal district court cases are static examples of trials that start and stop within a certain period of time. Thus, some court cases will be early in the decennial census period, and some cases will be later. However, as Wald and others note, the religiosity of a local community is not a fleeting or momentary trait,1but a long-lasting feature of community life. Indeed, 'the overall pattern o? religious geography at the community level is remarkably stable."19 Thus, although the measurements of religious geography in this study are based on the 1990-2000 Clenmary census, the data reflects more durable aspects of a community s religiosity. Yet, the Clenmary census data for 1990-2000 is extended back in time to cover only those federal district court cases that occur after 1985. Although this cutoff is somewhat arbitrary, it nonetheless reflects the more stable patterns of" religious geography at the local level. 20
LOCAL COVERNMENTS AND RELIGIOUS EXPRESSION

More so than federal and state governments, local governments bear the brunt of defending their public forums in rel^ous speech litigation. Figure One compares the number and"^ growth of public forum cases conceming local and state governments, and shows that of district court cases between the early 1970s and 2001: 75 percent involve public forums falling under local control and management (n=132); the rest concern public forums owned by state governments (n=29) or the federal government (n=9; federal cases are not displayed). In a real sense, then, the development of religious speech and public forum doctrine by the U.S. Supreme Court, and its application by lower trial courts, has a significant impact on local government pohcymaking. Local governments must defend their pohcies concerning religious expression (or expression in general) in places such as pubhc schools, libraries, city and county public

18. In the Clenmary study, this variable is referred to as the number of adherents within a given population area. 19. See Wald et al., "The Politics of Cay Rights," 1155. 20. A Clenmary census is available for the years 1980-1990. However, it has no measure for Jews and Muslims; those two religious groups are first measured by the Clenmary census in 2000. Thus, to include a measurement of Jews and Muslims at the local level, I have simply extended the 1990-2000 censusthe most recentto cover district cases from 1985.

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buildings, and public parks.21 In doing so, they also incur litigation costs and devote valuable time and other resources to defending their public forum management in court. A four-year moving average shows a relatively sharp increase in litigation against local governments from the mid-1980s to the mid-1990s, and then a relative decrease in litigation from the mid-1990s onwards. Although a detailed examination is beyond the scope of this essay, the increase in cases is supported by several factors. One, the Supreme Court began to address religious speech and public forum issues in several cases in the 1 r\rfr\ 1 i r\r\/~r" I ' l 11 i 1 1 * i * _ 198' Os and1^ early 199Crs which mosti l *Ukelv prompted litigantsi _ ito file lawsuits in lower district courts.22 As well, several interest groups such as the American Center for Law and Justice (ACLT) and the Rutherford Institute began to litigate religious speech cases.23 The relative decline of religious speech cases can also be explained, briefly, by several factors. For example, the Supreme Court's jurisprudence by the late 1990s clearly established that religious expression was to be as protected under the First Amendment as private secular speech, thus local governments typically could not close a forum to religious speakers if it was open for use by non-reUgious groups. In addition, the federal Department of^ Education in 1995 and again in 2003 released guidelines for protecting the religious expression of students in public schools, thus communicating to school authorities that students retained the right to, among other things, read religious literature or hold religious meetings in public scnools, as long as students did not disrupt the school's functions.24 Thus, the Court's protection of religious speech in public combined with the federal government's guideUnes to public schools communicated to local governments that public forums were to be opened to religious speakers if those forums were already

21. For a more detailed discussion of specific forums and whether local governments win or lose, see Blakeman, The Bible in the Park. 22. See, for example, Heffron v. Intemational Soc'yfor Krishna Consciousness, 452 U.S. 640 (1981), Intemational Soc'yfor Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992), Rosenberger t>. University of Virginia, 515 U.S. 819 (1995) at 830, Board of Education ofWestside Community Schools o. Mergens By and Through Mergens, 496 U.S. 226 (1990), and Land's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993). 23. For an engaging study of how Christian based interest groups developed religious speech litigation, seen Steven Brown's Trumping Religion: The New Christian Right, the Free Speech Clause, and the Courts (Tuscaloosa, Ala.: University of Alabama Press, 2002). Importantly, the increase in district court litigation over religious speech, and religious liberty in general, correlates with the growth of evangelical Christian groups devoted to litigating religious issues. 24. See Blakeman, The Bible in the Park, chs. 5-6.

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open to non-religious speakers. That is, governments could not discriminate against religious speech, yet allow non-reUgious expression access to a public space.

Local Government ^~" State Government - - Local Government Forums, 4 year moving average Figure One: Religious Expression and Public Forum Disputes, By Type of Govemment, 1973-2000

A range of local governments are affected by religious speech litigation also, from large urban areas to small rural counties.25 Litigation against local government is also regionally dispersed. Here, the relative absence of litigation from the more evangelical southern states is interesting. 26 The Clenmary census demonstrates the concentration of evangelicals in the south and as Barry A. Kosmin and Seymor E. Lachman note: "Residents of the South are stiU more cnurch-oriented than people in other sections ofthe country."27 However, 80 percent of cases (n=105) come from non-southern states; many come from New York state and states in the Midwest. To be sure, the regional diffusion of religious speech litigation is not surprising, and is simply indicative oT the more national dimensions of religious life in the United States. Yet, that evangelically distinctive southem states have fewer religious speech cases may point to a trend in local
25. It would be interesting to compare the population densities of communities engaged in litigation over religious speech in public forums. I have opted not to do so yet, in lieu of focusing exclusively on religious geography. 26. Southern states are: Alabama, Arkansas, Delaware, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia. 27. Kosmin and Lachman, One Nation Under God, 54. Andrew Kohut and others point out that committed evangelical Protestants and other evangelical Protestants account for almost 25 percent of the national population. 54 percent of committed evangeUcals live in the South; 44 percent of other evangelicals live in the South. See Andrew Kohut, et al.. The Diminishing Divide: Religion's Changing Role in American Politics (Washington, D.C: The Brookings Institution Press, 2000), 130-33.

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government policymaking, which is that southern governments may be more accommoaating of religious speakers in pubic forums than non-southern governments, and thus local governments in the south generally avoid litigation over religious speech in public places. A presumption here, of course, is that evangelicaf Christians will more actively seek to place a religious message in a public property, more so than mainline Christians or Cathohcs. Of the faith messages involved in religious speech cases, 75 percent are by Christian speakers, many of whom are evangelicals. 28 As this study only focuses on litigationdisputes over religious speech that are adjudicated by a court-there is no control group that includes disputes over rehgious speech settled without litigation. Comparing local governments that allow

religious speakers into public forums to local governments that

deny access would illuminate many of the decision making variables tliat underlie these types of political disputes. There is some research on how local officials tend to view religious speech issues such as allowing religious groups access to public buildings, or allowing prayers at public meetings. For instance, Paul Scnumaker's study of local officials in several American cities indicated that policymakers are evenly divided over permitting religious expression in public places.29 Polls of poHcymakers aid in understanding why local governments grant or deny access to rehgious speakers, but more detailed case studies that define the various political and social forces that affect the pohcymaking process are still warranted. Concentrating on local religious geography instead of region yields some interesting results. As Figure Two demonstrates, two-thirds (69 percent), of religious expression cases arise in communities in which the Roman Catholic Church has the highest number of adherents and is thus considered the majority or dominant religion. More importantly, to categorize a religion as "dominant" in a given community does not mean that a majority of people within that locale belongs to that one religious group. It simply means that of all people in a given community who belong to a local church or religious group, the group with the most members is the dominant denomination. 30
28. See Blakeman, The Bible in the Park. It is important to note that district court cases generally do not discuss the specific denominational background of religious speakers. 29. Paul Schumaker, "Moral Principles of Local Officials and the Resolution of Culture War Issues," in Culture Wars and Local Politics, ed. Elaine B. Sharp (Lawrence, Kans.: University of Kansas Press, .1999), 193-219. 30. The Glenmary census measures membership in specific denominations, and also distinguishes broadly between "adherents," or people who are claimed as members by a denomination, and "non adherents," who are not claimed by a denomination and thus may

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Mainline 7%

Other/Missing 3%

Evangelical 21%

Figure Two: Dominant Religion of Local Communities in Religious Speech and Public Forum Litigation. Federal District Courts, 1985-2001

Evangehcals are the dominant religion in 21 percent of the communities, and in only 7 percent are mainline churches the majority of adherents. The relative absence of cases from communities in which evangehcal churches are dominant may well reflect what Ted Jelen terms the "generally accommodationist" policymaking of local governments by which local pohcymakers more reamly acquiesce to demands by rehfflous groups and individuals.31 Governments obviate the need for utigation by accommodating rehgious speakers and granting them access to public forums, and in evangelical communities local policymakers may be more welcoming of religious speech. Tnat is, the relative absence of cases arising in evangelical communities may be indicative of a general local government support for public religious speech. Litigation over religious speech will almost always be prompted by the government's refusal to allow religious expression in a public rorum. Thus, local governments in Catholic areas may be less accommodating of religious expression in public forums and more willing to defend their policymaking regarding pubhc forum access through litigation. Although speculative at this point, it may well oe that religious speech htigation in Catholic areas arises from non-Cathohc speakers who pemaps see pubhc religious expression as a way of countering a perceived Cathohc ethos in their local community. Prior studies
or may not have a religious affiliation. 31. Jelen, To Serve God and Mammon, 64.

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on religious liberty litigation in general (Free Exercise Clause and Establishment Clause) offer some guidance, as they show that First Amendment cases are filed not by Catholics and mainhne Protestants but by marginal relirions that are not part of the religious mainstream and are in significant tension with their surrounding culture.32 For this study, the hmits of data gleaned from distnct court cases are clear, since judicial opinions generally do not reveal the denominational affihation of htigants. But in substance much of the rehgious speech involved is Christian and may appropriately be termed ' evangelical" to the degree that it concems individual speakers who wish to preach, pray, or distribute rehgious hterature in a pubhc place, or a group that wishes to hold a worship service or other rehgious meeting in a pubhc facihty. Thus, the tendency of religious speech htigation to arise in Cathohc areas may indicate that these disputes are prompted by religious speakers who are not representative of the prevailing religious or denominational culture in a specific community. A locS govemment's refusal to allow access to a pubHc forum for a religious speaker may show a real clash between the prevailing religious ethos of a community and the speech of members of a rehgious minority. Indeed, this dynamic between local policymaking and religious minorities is a prominent part of First Amendment jurisprudence, shown by the numerous U.S. Supreme Court and lower federal court cases on the leafieting and soliciting of Jehovah's Witnesses.33 To be sure, more indepth case studies comparing pohtical and legal disputes over religious speech in Catholic and non-Cathohc communities are necessary to more fully detail why Cathohc communities tend to have far higher rates of litigation over religious speech. Linking the dominant community religion with the type of expression litigated further clarifies the hnks between religious geography and religious speech cases. The types of expression are denned as: holding a public worship service or prayer in a public fomm; rehgious display, such as a creche or a cross; access to a pubhc school for a student rehgious club; enjoin or stop

32. See Frank Way and Barbara J. Burt, "Religious Marginality and the Free Exercise Clause," American Political Science Review 77 (September 1983): 652-65; and John Wybraniec and Roger Finke, "Religious Regulation and the Courts: The Judiciary's Changing Role in Protecting Minority Religions from Majoritarian Rule," Joumal for the Scientific Study of Religion 40 (2001): 427-44. 33. For overviews of Jehovah's Witness litigation, see Merlin Owen Newton, Artned. with the Constitution: Jehovah's Witnesses in Alabama and the U. S. Supreme Court (Tuscaloosa, Ala.: University of Alabama Press, 1995); and Shawn Francis Peters, Judging Jehovah's Witnesses: Religious Persecution and. the Dawn ofthe Rights Revolution (Lawrence, Kans.: University of Kansas Press, 2000).

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religious speech already in the public forum; distribute rehgious hterature or solicit for donations to a rehgious cause; and other types of speech that do not fall into the above categories. Figure Three shows some noteworthy trends wrien the type of religious expression- is linked with the dominant rehgion of a community. Cases in which a rehgious speaker wishes to hold a worship or prayer service in a pubhc space, like a school auditorium or municipal center, occur most frequently in Cathohc areas, and 93 percent of them seek to express some kind of Christian message. Such cases are often filed by local nondenominational (and non-Cathohc) churches that, for exarnple, seek access to pubhc schools to nold a Campus Cmsade for Christ magic show,34 hold regular Sunday services,35 conduct religiously themed summer camps on public school properties,36 or rent a school auditorium to snow a religious movie.3V These types of cases suggest that churches, g;enerally evangelical and non-denominationm, that ask to use publicly owned iacihties in Catholic areas may mn into some opposition from local pohcymakers. Since "start up" evangelical churches do not have the wealth of inherited capital that mainhne and Cathohc churches have, in the form or buildings and infrastructure, they have to look elsewhere for meeting space. It may be too that in evangehcal communities, local pohcymakers are more welcoming of non-denominational and start up churches and thus more wilhng to accommodate their usage of pubhc facihties for religious meetings and worship. Tliis accommodation, again, precludes the need for litigation.

34. Gregoire v. Centennial School District, 674 F. Supp. 172 (E.D. Pennsylvania, 1987). 35. Wallace and Northgate Community Church v. Washoe County School District 701 F Supp. 187 (D. Nevada, 1988). 36. Youth Opportunities Unlimited, Inc., v. Board of Public Education of Pittsburgh, 769 F. Supp. 1346 (W.D. Pennsylvania, 1991). 37. Lamb's Chapel v. Center Moriches Union Free School District 770 F. Supp 91 (E D
New York, 1991).

THE RELIGIOUS GEOGRAPHY OF RELIGIOUS EXPRESSION

Other Distribute Religious Literature or Solicit Enjoin Religious Expression Religious Club in School Religious Display Public Worship or Prayer
0%
20%

411

80%

100%

Catholic

SI Evangelical

Mainline

Figure Three: Religious Expression Disputes by Type of Expression and Dominant Religion. Federal District Courts, 1985-2001

Literature distribution cases involve more than just Christian speech, although Christian speakers file 56 percent of the cases, most of which center on the attempts of evangelical groups, such as the Gideons or Child Evangelism Fellowship, to distribute bibles or reUgious magazines such as Issues and Answers.^^ Krishnas practicing their ambulatory form of solicitation called sankirtan file 31 percent of the cases, and the remainder are htigated by non-conventional reliaous movements that are not easny categorized. 39 Again, as with most categories of religious speech, these disputes occur mainly in Cathohc locales. Disputes over religious displays in pubhc forums present an interesting dynamic. Many cases focus on holiday displays, such as Christian nativity scenes and Hanukah Menorahs. Other pubhc displays are more evangelical in orientation, such as displays of^the Ten Commandments or, in one case, neon letters spelhng the message "The World Needs God."40 Some hohday (fisplays are sponsored by the Catholic Knights of Columbus; non-hohday displays are often sponsored by evangelical groups hke the Federated Women's bible Club (now defunctj or a generally non-rehgious group, the Fraternal Order of the Eagles, which promoted the public display of the Ten Commandments in
38. For the Cideons and Bible distribution, see Peck v. Upshur County Board, of Education, 941 F. Supp. 1465 (N.D. West Virginia, 1996). For distribution of Issues and Answers, see Thompson v. Waynesboro Area School District, 673 F. Supp. 1379 (M.D. Pennsylvania, 1987). 39. Sankirtan is part of Krishna doctrine, and mandates that Krishna devotees must approach people in public places and solicit them for contributions to the Hare Krishna movement. 40. Doe V. County of Montgomery, 915 F. Supp. 32 (1996).

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the 1950s and 1960s. Interestingly, the Chabad Lubavith, a messianic Jewish group, often seeks to display Menorahs alongside existing Christian holiday displays.41 Two other points are notable. First, cases over student religious clubs m public schools fall under First Amendment public forum doctrine and federal statutes such as the Equal Access Act, and, although few in number, most again come from Catholic communities. Scholars note that the vast majority of lawsuits and other disputes over student religious clubs in schools are prompted by evangelical student groups, many of which are sponsored by local evangelical churches.42 Again, it may be that schools in evangelical areas are more supportive of religious clubs, more so than in communities where the majority of religious adherents are Catholic.43 Finally, disputes in which a litigant asks a federal district court to enjoin, or stop, religious expression in a public forum tend to occur more in evangehcal communities. These types of complaints concem instances where a local govemment has allowed a rehgious message into a public fomm^whether it exphcitly or implicitly approves of that messageand a lawsuit is initiated to remove it. indeed, the religious message may even be sponsored by the govemment, and not by a private individual or group. That slightly more of" these types of cases occur in communities where evangelicals are more numerous may be indicative of local govemment support for religious messages in predominantly evangelical areas. That is, locm govemments in evangehcal communities may have a greater propensity to allow

religious speech in government managed places, which results in

41. See, for example, Lubavitch of Iowa v. Walters, 684 F. Supp. 610 (S.D. Iowa, 1988) and Lubavitch v. Public Ruilding Commission of Chicago, 700 F. Supp. 1497 (N.D. Illinois, 1988). See also Barbara J. Redman, "Strange Bedfellows: Lubavitcher Hasidim and Conservative Christians,"/ouma/ of Church and State 34 (Summer 1992): 521-46. 42. See Dena S. Davis, "Religious Clubs in the Public Schools: What Happened After Mergens?," Albany Law Review 64 (2000): 237; Martha M. McCarthy, "People of Faith as Political Activists in PubUc Schools," Education and Urban Society 28 (May 1996): 308-26; and "First Priority Clubs Target Public School Kids for Religious Conversion," Church 6State (January 1997): 18. 43. Importantly, district courts entertain fewer cases conceming religious clubs in public schools, for two main reasons. One, the federal Equal Access Act of 1984 mandates that schools must allow use of facilities to curricular-related student groups, and the Supreme Court's decision in Roard of Education of Westside Community Schools v. Mergens, 496 U.S. 226 (1990), sustained the statute's constitutionality and application. Additionally, the Department of Education under both Presidents Bill Clinton and George W. Bush released guidelines for schools on how to protect student religious expression, and in the No Child Left Behind Act (2001) Congress mandated that schools must have in place policies that protect student religious expression at the risk of losing federal grant monies. For a fuller discussion, see Blakeman, The Bible in the Park.

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413

litigation to drive that message out of the public forum.

RELIGIOUS SPEEGH LITIGATION AND LOGAL DENOMINATIONAL CHANGE

A more telling statistic for local communities looks at denominational change (growth or decline) in comparison to national trends. Between 1990 and 2000, the national growth ot the evangelical denominations used in this study, as a group, was approximately 31.4 percent. National growth for the Catholic Church was 16.2 percent, and the Church of Jesus Christ of Latter Day Saints (Mormons) grew at 19.3 percent. Mainline churches, as a group, had negative (-6.8 percent) growth. For communities in which a lawsuit over rehgious expression in a public forum took place. Figure Four shows that Catholic, evangelical, and Mormon congregations all grew, on average, at a higher rate than the national average.44 Mtainline congregations also had lower negative growth than at the national level. Thus, the greater growth rate of evangehcal and Catholic groups in locafcommunities and the lesser decline of mainline churches, indicates that local communities experiencing religious expression lawsuits tend to have a relatively dynamic rehgious geography in which the growth of congregations outpaces national trends. The number of Jewish and Mushm adherents in each community roughly approximates the national measurement which indicates that each community is generally no less diverse than the national trend.45

44. Catholic growth: 38.4 percent, standard deviation 71.15; evangelical growth: 42.2 percent, standard deviation 39.52; mainline growth (loss) -3.6 percent, standard deviation 12.42; Mormon growth 35.5 percent, standard deviation 46.8. 45. The Glenmary census does not report the growth of Jewish and Muslim adherents between 1990 and 2000, only the estimated number within each community for 2000. The data presented in Figure Four also controls for the Jewish and Muslim populations in New York City, and the Jewish population in Miami Beach, Florida. Both cities are involved in this study, and both cities have significantly higher numbers of Jews and Muslims than the national average.

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Catholic
40

Evangelical

LDS

20

1 rt 1 .Ltd
mm

Jewish
Mainline

Ll_

P^^

Muslin

-10 D % National Increase 1990-2000 H % Local Increase 1990-2000 (Mean) Q Jewish and Muslim National Average Jewish and Muslim Mean % of Local Adherents (controlling for New York City and Miami Beach Florida)

Figure Four: Denominational Change (percentage) in Religious Speech Case Communities, 1990-2001

Another perspective in which to place the denominational growth of local communities concerns the overall percentage of adherents within each given cominunity compared to national statistics. The Glenmary census measures the percentage of people who are "unclaimed" by a denomination. Nationally, the census pegs the percentage of unclaimed people at 49.8 percent 1 t^^j'^ftional population, and the percentage of adlierents claimed by a denomination is 50.2 percent.46 i n communities engaged in rehgious speech htigation, the mean percentage of adherents closely approximates the national statistic at 50.5 percent.47 Thus, these communities do not typically have higher or lower rates of adherence among their population. However that the percentage of adherents mirrors the national percentage coupled with the larger increase in denominational growth at the local level compared to the national level, means
46. This does not mean that those unclaimed people are unchurched or do not observe the tenets of a specific faith; it simply means they are not claimed as members by a denomination, 47. Of communities in this study the minimum percentage of adherents is 26.5 percent, the maximum is 77.4 percent, and the standard deviation is 12.251. The 25th percentile is 41.7 percent; 50th percentile is 50.4 percent; and the 75th percentile is 58.7 percent.

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that communities experiencing rehgious expression litigation most likely had adherent levels below the national average at
some point, and the greater increase in denominational growth locally brings those communities up to the national level of adherents. This further magnifies local denominational growth since local religious groups must be more active in bringing their membership rolls up to national levels. That communities experiencing htigation over rehgious expression in public have nigher rates oi g'rowth in evangehcal and Cathohc churches (and a lesser dechne in mamhne churches) may be an important clue as to why a local government would deny public forum access to a religious speaker and subsequently defend its policies in litigation. For instance, a government less willing to accommodate rehgion may deny access and htigate that denial because of heightened concerns about maintaining a barrier between government and rehgion. Conversely, an increasing religious population may indicate why

a religious speaker woula turn to litigation and courts to eain

access to a public forum, as the plaintiff responds to and is perhaps emboldened by a perceived growtli in the local community's rehgiosity. Assessing the motivations of local governments and plaintiffs is speculative at best since there is no control group of local governments that grant access to rehgious speakers, and thus no meaningful comparison can be made between governments whose public forum pohcies result in htigation with mose that do not. Comparing denominational growth communities embroiled in rehgious speech litigation to a national trend is hmiting, but it does iflustrate a degree of difference that calls for more exacting research. More in-depth case studies that assess why local governments deny public form access, and then why litigants choose to litigate, can more fully detail the motivations of litigants and the choices that each side makes.
COURTS AND LOGAL COVERNMENTS: DOES RELIGIOUS GEOGRAPHY AFFEGT WHETHER LOGAL GOVERNMENTS W I N OR LOSE?

There are noteworthy differences in the rehgious geography of a local government and whether at the trial court level it wins its bid to close a pubhc forum to rehgious speech. Table One shows district court decisions in favor of local governments, in the context of the type or form of expression litigated along with die dominant religion of a community. Broadly, local governments in Catholic areas receive more favorable rulings from trial courts than governments in evangelical and mainline communities. In httle more than one-half (51 percent) of cases

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arising out of Cathohc areas district couri:s sided with local govemments, but only in 40 percent and 42 percent of the cases did courts support local govemments in mainline and evangelical areas, respectively. One general trend among district courts, then, is relative support for plaintiffs seeking to place a rehgious message in a pubfic fomm, which is in keeping with Supreme Court precedent protecting religious speecli under the First Amendment. The results must be interpreted cautiously, however. Recall that mainhne communities only account for 7 percent (n=9) of religious speech cases, and so few cases make it difficult to define generahzable and apphcable trends. Across the categories of different types of rehgious expression, however, district courts are niore supportive of local govemments in Catholic areas than elsewhere. Table One: District Court Support (percent of cases) for Local Govemment
Regulation of Religious Expression

Dominant Religion
Type of Speech

Evangelical 33 percent 37 percent 33 percent 22 percent

Catholic 40 percent 32 percent 86 percent 60 percent 53percent

57 percent 51 percent

Mainline
67 percent 33 percent 0 percent 100 percent
"NA' :':^:'^

Average 46 percent 34 percent 40 percent

60 percent

Preaching, WorshipService Distribute Literature, Solicit Student Religious Club Enjoin Religious Speech Religious Display Other Average

lO0percent
50 percent 42 percent

100 percent 40 percent

69 percent

Again, why this is so requires more exacting scmtiny of local govemment policymaking and the interaction between local govemments and federal judges. Federal judicial pohcy-making must also be studied to assess now religious geography, as one or many different variables, influence case outcomes. As noted above, the Glenmary census measures the number of adherents within a given community, which is the percentage of population of a local community claimed by a specific denomination. The mean percentage of adherents tor commun-

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417

ities in this study is 50.2 percent, which closely mirrors the national level of 50.5 percent. However, in some communities in this study the percentage of adherents will be higher than the national level, and in some it will be lower. Thus, correlating court support for local governments with the relative size ol adherents within a community can further clarify the interaction between them. Table Two shows that district court support for government regulation of pubhc forums increases when the community's general level oT rehgious adherence is below both national and focal means. Conversely, court support for local governments decreases when the community's level of adherence is above national and local means. Put another way, district courts are more supportive of rehgious speakers seeking to access a public forum if the forum is located in a community in which the percentage of the population adhering to a specific religious group is higher than the national average. Thus, it could be that one of the local variables influencing^ district court decisions for and against local governments in religious speech cases is the comparative denominational strength ol a community in general, instead of the relative strength of specific denominations within a given community. That is to say, in communities where the majority of the population (50 percent or higher) are adherents to a denomination, courts may be influenced by some kind of majoritarian religiosity. Again, since there is no control group of local government policymaking on religious speech and pulDhc forums absent htigation, the data must Be interpreted somewhat cautiously. 48

48. A more sophisticated statistical study could show the strength of the relationships between district court outcomes and variables, such as denominational growth, that might affect those outcomes. Most variables will be nominal and categorical and thus can be analyzed using logistic regression. See, for example, John C. Blakeman and Donald E. Greco, "Federal District Court Decision Making in Public Forum and Religious Speech Cases, 1.973-2001" Journal for the Scientific Study of Religion 43 (2004): 437-47.

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Table Two: District Court Support (percent of cases) for Local Government Denial of Access to Public Forums, Gorrelated to Local Religious Growth

Local Adherents (percent of population)

Above National Average Below National Average 50 percent Above Local Average 41.3 percent Below Local Average 51.9 percent

District Court Support for Local Government PoMcymaking

44.2 percent

National average as reported in Glenmary Gensus. Local average based on all communities in this study. Gases to enjoin religious speech were excluded.

Scholars of the federal judicial process point out that federal district courts decide constitutional disputes in the context of local majority concems.49 Here, the data indicate that there is a dilterence between district court pohcymaking for communities m which a minority of the population belong to a denomination and those in which a majority of the population adhere to a denomination. One presumption, of course is that a community m which the majority claims some kind of denominational athhation will be more supportive of public religious speech; the data here, and in the Clenmary census, shed nolight on majority preferences. Yet, as scholars who study the interaction of religious geography and local policymaking show, there are clear links between the number of adherents in a community and local government policies.
RELIGIOUS SPEEGH AND INTEREST CROUPS

Interest groups have consistently been involved in religious hberty htigation. Spanning different types of faithsfrom Tews and Jehovah's Witnesses to evangelical Christians and Muslims interest groups such as the American Jewish Congress, the Rutherford Institute, and the American Center for Law and
49. See, for example, Kenneth N. Vines, "Federal District Judges and Race Relations Cases in the South," in The Impact of Supreme Court Decisions, 2nd ed., eds. Theodore L Becker and Malcolm M. Feeley (New York: Oxford University Press, 1973); Jack W Peltason, Lonely Men: Southern Federal Judges and School Desegregation (Urbana III University of Illinois Press, 1971), 58; and C.K. Rowland and Robert A. Carp, Politics and Judgment in Federal District Courts (Lawrence, Kans.: University Press of Kansas, 1996).

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Justice (ACLJ) provide counsel and legal support at the trial and appellate levels!^o Specifically for evangelical Christians, Steven Brown details well how interest groups such as the ACLJ shifted litigation tactics over religious expression, especially in pubhc schools, and strategically used the Free Speech Clause to protect the right of religious groups to use school faciUties, or the right of individual students to engage in Bible reading and prayer. After experiencing frustration with the Supreme Court:'s refusal to change Free Exercise and Estabhshment Clause jurisprudence to reflect Christian Bight concerns, many advocacy groups turned to other parts of the First Amendment and recast their attempts to place religion back into public hfe in terms of freedom of expression.51 Brown not only explains the recasting of rehgious liberty claims as free expression claims, but also addresses an underlying rationale as to why evangelicals focused on the issue of free speech. "Underlying the courtroom efforts of New Christian right public interest law firms is their conviction that they are divinely commissioned to use the judicial process to keep the pubhc square open to that message. Religious hberty thus becomes more than a legal right; it becomes a gospel tool. "52 Although interest groups typically prefer to get involved in htigation once a lawsuit reaches the appellate level, there is some interest group involvement at the trial court level in rehgious speech cases. In disputes against local govemments, interest groups provide counsel and otiner trial support in one out of four (27 percent ) cases. Importantly, interest groups typically have mixed success; they win 57 percent of their sponsored cases. However, most interest groups will sponsor trial litigation with a view towards establishing broader precedents at the appellate court level. When hnked with the dominant rehgion of each community, interest group participation mirrors the litigation dynamics overall. That is, 35.3 percent of sponsored cases are in predominantly evangehcaf communities, 61.8 percent are in Catholic areas, and 2T9 percent are in communities dominated by mainhne congregations. The main groups that litigate rehgious speech cases, such as the ACLJ and the Rutherfordlnstitute, are princip^ly evangehcal Christian. Croups are shghtly more
50. The literature on religious liberty litigation and interest group involvement is voluminous. See for example Gregg Ivers, To Build a Wall: American Jews and the Separation of Church and State (Charlottesville, Va.: University of Virginia Press, 1995); and Joseph F. Kobylka, "The Mysterious Case of Establishment Clause Litigation: How Organized Litigants Foiled Legal Change," in Contemplating Courts, ed. Lee Epstein (Washington, D.C: Congressional Quarterly Press, 1995), 93-127. 51. Brown, Trumping Religion, 47-61. 52. Ibid., 141.

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inclined to htigate cases in evangehcal areas, and less so in CathoKc and mainline areas. However, as Figure Five illustrates below, what matters as far as prompting interest group involvement is not necessarily the denominational outlook of a given community, but the overall denominational growth of that community.

48.3% 39.8% 28.9% 41.4%

cs B

ft .'
-0.8% -3.14%

1
o

Evangelical

Catholic

Mainline

D Interest Group as Counsel in Litigation No Interest Group Counsel in Litigation Figure Five: Denominational growth and Interest Group Involvement in Litigation at the Local Level. Federal District Courts, 1985-2001

Interest group sponsorship of cases occurred in local communities in which the mean growth of evangelical denominations was 48.3 percent, which far exceeded the mean growth of Cathohc parishes at 28.9 percent. As well, the data show that in cases with no interest group sponsorship, the mean growth of evangelical and Cathohc denominations was approximately the same. These results must be interpreted cautiously, however. It is likely that many other factors affect why groups decide to sponsor cases or not. For example, in many cases htigants may not request assistance from a group, and the group may not even be aware of pending or ongoing htigation in a given community. Interest groups do not have the resources to monitor all pending or ongoing federal district trials (and state trials) over religious liberty, and will typically be r)rompted to action only when contacted by a potential plaintiff. In adcntion, it may well be that the types of cases that arise in communities

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421

experiencing greater increases in evangelical membership are more appealing to the litigation agendas of groups such as the ACLJ, tnus the group itself is responding more to the issues presented in religious speech cases, and is less focused on the religious geograpny of each given community.
CONCLUSION

This study of religious speech htigation and religious geography shows some of the ways that rehgion may influence litigation over rehgious expression and pubhc forums at the local level. The fact that two-thirds of religious speech cases come from communities in which the Cathohc Church is the dominant religion is significant, although further research needs to be done to determine the motivations of the pohcymakers and litigants involved. That communities involved in rehgious speech lawsuits have higher than normal rates of denominational growth is hkewise significant, although, again, how this specificaSy affects policymaking decisions and htigation trends should be the subject of future research. Concerning the interaction of federal courts and local govemments, whether a district court upholds a govemment's denial of access to a public forum does seem to be affected by the type of expression correlated to the dominant rehgion of a community. In addition, the percentage of a community's population that belongs to a denomination also matters. District courts are more supportive of the right of religious speakers to access a pubhc forum, and tend to strike down govemment pohcies closing forums to rehgious speech, when the surrounding community has a majority ofpeople who have a denominational affiliation. Importantly, denominational affiliation is not the same as rates or church attendance, and just because a person affiliates with a denomination, and is claimed by the denomination as a member, does not mean that person regularly attends worship services. Thus, the hnk between court support for rehgious speech and the percentage of adherents in a community must be interpreted cautiously. A community v^th a higher than average percentage of adherents is not necessarily a more "rehgious" community, m the sense that religious ties and behefs are more deeply felt and acted upon by the people. However, linking litigation and case outcomes to the "religiosity" of communities is certainly an avenue for future research. The data and analysis necessarily sweep broadly here, and lend several suggestions for future research. For example, indepth case studies comparing govemments and pubhc fomms in Cathohc and evangehcal dominated communities would shed

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light on what really motivates religious speakers and policymakers to litigate over access to a public forum. Are religious speakers motivated by a felt need to spread their religious message? Are they supported by interest groups? For local policymakers, when are they willing to grant access to public forums for religious speakers? Why do they deny access? Are they opposed to religious expression in public Decause of the "wall of separation" between church and state, or are they hostile to religious speakers because of other considerations? Is there a perception among pohcymakers, for instance, that religious expression in public causes too many problems and offendf too many people? Or, are policymakers hesitant to open up publiclyowned places to expression in general? Thick case studies based on interviews of policymakers and protagonists, as well as analysis of local govemment records, with some accounting for local public opinion, could help answer some of these questions.