CONCORD, NH — A federal courtroom in Concord was electrified on Sept. 25 when Judge Paul J. Barbadoro took a U.S. Department of Justice attorney to task over her contention that a Bible-believing Christian has no right to sue the government over its privileging of Christianity. From the beginning of the hearing, Judge Barbadoro expressed skepticism of the government’s defense of the placing of a Bible on a Prisoner of War/Missing in Action memorial at the Manchester Veterans Administration Medical Center.
United States Air Force veteran James Chamberlain, a member of the Military Religious Freedom Foundation, had filed suit back in May. He is asking that the Bible be removed from the Manchester VAMC’s “Missing Man Table” as it is a violation of the U.S. Constitution’s Establishment Clause.
Chamberlain was represented by Lawrence A. Vogelman, of the Manchester law firm Nixon Vogelman Slawsky & Simoneau.
The First Amendment of the U.S. Constitution holds that “Congress shall make no law respecting an establishment of religion,” this being the first 10 words in the federal Bill of Rights. Constitutional law has evolved over 240 years to hold that the government’s privileging of a religion is unconstitutional.
The Constitution was adopted 140 years after the execution of King Charles I, that climaxed the English Civil War, a conflict with religious overtones. The triumph of Parliament over Crown also was the triumph of “low church” Protestants, such as Puritans, over the established Anglican Church. Many Protestant dissenters from the established church emigrated to North America in search of religious freedom.
In the context of the times, when an estimated 96 percent of churchgoers in the English colonies in 1775-76 belonged to 14 Protestant sects, the idea of freedom of religion was seen in the conflicts between low-church Protestants and Anglicanism, and other Protestant sects in states where a sect other than the Anglican Church was dominant, such as Congregationalists in New England.
In this first hearing into the suit, Judge Barbadoro repeatedly said that Establishment Clause cases were highly complex. He sought to simplify the process by which the U.S. District Court of New Hampshire would adjudicate Chamberlain’s claim. The U.S. government in the guise of the Department of Veterans Affairs was represented by Cristen C. Handley, of the U.S. Department of Justice’s Federal Programs Branch, Civil Division in Washington, D.C.
The Northeast MIA/POW Network was represented by two Boston attorneys, two lawyers from First Liberty, a Plano, TX, Christian advocacy group that litigates over issues of “religious liberty,” and a lawyer from the Concord law firm Reno & Orr, who was there so the out-of-state lawyers not admitted to the New Hampshire Bar could appear in the U.S. District Court of New Hampshire pro hace vice.
It is the Northeast MIA/POW Network that erected the Missing Man Table at the Manchester VAMC. It is responsible for putting a Bible on the war memorial, and it has forbidden any other religious or non-religious texts to be placed on it, with the full backing of the Department of the Veterans Affairs. The organization was granted intervener status in the lawsuit
From the bench, Judge Barbadoro said that he was dedicated to creating a “good record” for the First Circuit Court of Appeals, and the U.S. Supreme Court.
“These cases are never decided by District Court,” he said, explaining that Establishment Clause cases were very complex, and this one was no different.
But first, the court had to determine if it indeed was an Establishment Clause case, and whether the plaintiff had standing to use in federal court. Judge Barbadoro dispensed with the first dilemma early on in the hearing, though the latter issue was left for determination at a later date.
The defense had come into court saying that the Manchester VAMC’s “Missing Man Table” was a limited public forum case, and disputed whether the plaintiff was directly injured by the display. Since he was not directly injured, he did not have standing in federal court to pursue his grievance. The question about standing quickly became the center of the hearing.
Judge Barbadoro was firm, saying that they were there to resolve an Establishment Clause claim made by the plaintiff. Daniel W. Hartman of the Boston law firm Nutter McClennen & Fish asserted that this was actually a case about the free speech rights of his client, the Northeast POW/MIA Network.
Hartman’s argument was quickly rejected by Judge Barbadoro. He also dismissed the motions of the government and Hartman to dismiss the lawsuit on the grounds that the plaintiff lacked a substantive claim.
To create that “good record” for the anticipated appeals would not be easy, Judge Barbadoro claimed. He continually queried the two lawyers defending the Veterans Administration’s stance on Bible displays about what should be the legal test by which the case should be decided.
Judge Barbadoro said that Establishment Clause cases present unique problems, as regards to standing. These cases are uniquely challenging as, unlike freedom of expression violations which target an individual, Establishment Clause violations cause injury not because they target individuals but because they establish or benefit a religion. That is what makes Establishment Clause causes so unusual.
Laughter in the Court Room
When querying Attorney Cristen Handley of the Department of Justice, Judge Barbadoro asked her more than once to “drill down” to get to the core of her arguments. He kept demanding, specifically, what she felt was the right standard to determine Establishment Clause cases.
In most federal civil lawsuits, for a party to claim that they were injured and achieve standing, the injury has to be concrete and particular to the individual, he said. The injured parties in Establishment Clause cases, however, are more generalized, as such cases often involve the rights of third parties. Judge Barbadoro said that in the vast majority of Circuit Courts of Appeals, the court requires that the injury be direct and unwelcome.
He asked Attorney Handley whether that was the test, but she was unable to answer the judge to his satisfaction.
“Rarely ever is there a mechanical formula,” she told Judge Barbadoro.
He quickly retorted, “I’m not free to do what I want. The law restrains me.”
When asked again if the direct and unwelcome standard was the one that the District Court should use in this case, she replied, “I agree it is one.”
Lightning fast, Judge Barbadoro replied, “Which one should I use? Identify a standard I can use.”
Attorney Handley replied that Judge Barbadoro was not bound by one standard, which was answered with a monumental put-down by Judge Barbadoro:
“You can evade the question,” he said light-heartedly. “You can evoke the right to remain silent.”
The court erupted in gales of laughter. The failure of Handley to “drill down” and provide the judge with clear answers wound up humiliating her.
“If it’s not the right test, what is the right test?” Judge Barbadoro again asked Handley. She replied that the standard had to be one of coercion, that for a party to suffer injury and thus have standing, they had to be a captive audience.
“You didn’t argue that in your brief,” Judge Barbadoro said.
There has to be a change in behavior, Handley responded. The plaintiff must avoid coming to the Manchester VAMC. The mere fact that he claims he is offended is not enough for his claim to be legitimate. He has to allege that he has stopped going to the facility, she said.
The standard for injuries, it was argued back and forth, has to be concrete and particular. The direct and unwelcome standard applies to Chamberlain at the Manchester VAMC, the judge contended, as it is irrefutable as he goes there.
A Question of Standing
Attorney Handley conceded that the religious display at the Manchester VAMC was unwelcome to James Chamberlain, the plaintiff, but she raised the question: Was the unwelcomeness sufficient to satisfy constitutional law requirements for the plaintiff to have standing in federal court?
Judge Barbadoro was of the opinion that it was enough that he has to go there and has to see it. He also pointed out that if Chamberlain, rather than being a “Bible-believing Christian”— the judge’s own words – was an atheist, there would be no question that the injury he suffered was direct.
Barbadoro then asked Handley whether the government was claiming that a Christian could not challenge the privileging or establishment of Christian beliefs.
In the rhetorical melee that followed, it seemed that the government was asserting that very argument. Handley cited a sentence in the FACTS section of Chamberlain’s lawsuit, to contend that as a believing Christian, the injury he suffered was not direct, and thus he lacked standing.
Despite his strong personal religious beliefs, he believes that the Christian Bible has no place being displayed on the POW/MIA table at the entranceway to the MVAMC, where he gets his care. As a Christian, he respects and loves all his military brothers and sisters and does not want to be exclusionary by the placement of the Christian Bible.
Handley of the DOJ repeatedly harped on the “Despite his strong personal beliefs” language, to claim he lacked standing as his religious faith was not violated. Judge Barbadoro disagreed, saying that the lawsuit states that the Bible display does injure Chamberlain’s Christian beliefs.
“Respectfully answer my question,” he asked Handley. “If he was an atheist, you would not have an argument?”
Handley’s faltering attempt to make this argument exasperated Judge Barbadoro.
“You want to qualify everything,” the Judge said. “In the extent that you refuse to answer, I’ll keep picking at you until I get an answer.”
Judge Barbadoro declared that if Chamberlain had been atheist, he would have standing in federal court as the government’s privileging of a religion would make him into a second class citizen.
An Argument Not Backed Up By Case Law
Attorney Handley of the DOJ asserted that Chamberlain might sustain a psychological injury, but that itself did not give him standing. After constant prodding by Judge Barbadoro, Handley asserted, finally, that because Chamberlain was a Christian, he has no standing to sue the government as the religion being privileged by the Veterans Administration is his own.
It was a startling and seemingly novel argument, not backed up by any case law. Handley argued that if it’s your own religion being established, you can’t object to it unless there’s something else, another claim of injury, other than psychological distress.
Judge Barbadoro did not buy that argument. He gave the hypothetical example of a Muslim objecting to the display of a portrait of Muhammad at a government facility.
The Muslim objects to the religious display, as images of the Prophet are not condoned by Islam and, thus, are not part of the religion that the government is privileging. According to Barbadoro, the hypothetical plaintiff is objecting to the federal government’s view of his religion.
At the end of this exchange, Judge Barbadoro asked Handley, “Can you cite a case where a person of the religion can’t sue?” The Judge said that he had searched and searched for a case to uphold the government’s claim.
Attorney Handley of the DOJ could think of no such case. Judge Barbadoro said that in his extensive research, he could find no case in which a person of a religion objecting to a display involving their religion, was denied standing. However, he said he did find a case that may provide a precedent, Moss v. Spartanburg School District.
This was a question of a group seeking to assert rights of others. In that case, some groups claiming injury were rejected by the Court, while others were granted standing. The group that was rejected didn’t have direct engagement with the display, unlike James Chamberlain, who has direct engagement with the religious display at the Manchester VAMC.
Handley of the DOJ countered that there is not a lot of standing law in Establishment Clause cases. She again cited the language in the lawsuit, “Despite his strong personal religious beliefs,” claiming that he was not personally injured, but simply upset about how other, non-Christians would feel about the Bible display.” Once again, Handley claimed that Chamberlain was tacitly admitting he had not suffered a direct injury, and thus lacked standing.
Judge Barbadoro said that the injury suffered by a plaintiff who achieves standing doesn’t have to be unique, that it can be shared by millions and still be particularized. He said that Chamberlain’s religious and philosophical beliefs were offended by the government’s use of the Bible.
The Judge stated that Chamberlain was of the opinion that the government “shouldn’t use my religion to promote religion.” Chamberlain’s complaint is not just that the government is injuring non-Christians, but Christians too, by promoting religion via a display of a Christian Bible.
Handley of the DOJ, in response, asserted that, “Psychological distress is not enough to be a concrete injury.”
A Case of Private Speech?
Judge Barbadoro moved on to the lawyer for the Northeast POW/MIA Network. Daniel Hartman attempted to argue that this was not an Establishment Clause case, but a case involving the private speech of his client. He was immediately shut down by Judge Barbadoro.
“You get to determine what the case is, not he?” the Judge asked facetiously. “This is a non-starter.”
Attorney Hartman for the Northeast POW/MIA Network attempted to make a limited public forum argument, claiming that it’s not the government’s speech at issue, it’s the free speech rights of his client.
Once again, Judge Barbadoro was not buying it. He made a hypothetical case: If the New Hampshire General Court makes part of the State House lawn a public forum, and says only Christians can participate, is that an Establishment Clause case? Hartman agreed that it was.
Handley of the DOJ claimed that only allowing a Christian Bible to be displayed at the Manchester VAMC would be an Establishment Clause case, Hartman agreed with her.
“If a group of atheists wants to have a Missing Man Table,” the Judge asked, “would it be allowed?”
“Yes, “ then Hartman said, “but it never asked.” He then asked for a judicial motion and Judge Barbadoro refused. Hartman for the Northeast POW/MIA lawyer then brought up the “American Legion” (Bladensburg Cross) case, starting to argue that the cross like the Manchester VAMC Bible was “steeped in history.”
Judge Barbadoro immediately shut Hartman down again, replying that he was not persuaded by American Legion. It was now the turn Lawrence Vogelman, attorney for James Chamberlain, plaintiff, to address the court.
American Legion/Blandensburg Cross
“The real problem,” Lawrence Vogelman said, is what the government is saying: ‘I personally like this display, but am worried that it offends people and I don’t like constitutional violations,’” binding the argument of Cristen Handley of the DOJ in a rhetorical nutshell.
Vogelman said that this claim that Chamberlain has no standing because he’s a believing Christian and thus has not suffered a direct injury should be dismissed, as Chamberlain is a veteran.
“Our claim is that as he’s a Christian and a veteran,” Vogelman said, “and he’s offended by the belittling of what it means to be a veteran, and a POW/MIA.
“He objects that historically, the Missing Man Table never had a Bible. And by adding a Bible to it, it establishes religion.”
Judge Barbadoro turned his unmercifully meticulous attention to Vogelman. “Are you claiming that – even though he’s a practicing Christian, the display of the Bible, by getting indirect sponsorship by the government – that it psychologically injures him?”
Vogelman said that case law supports the proposition that practitioners of a faith can maintain standing to challenge a government religious display involving their own faith. This assertion was answered by Handley of the DOJ, who cited cases about third parties, including the American Legion/Bladensburg Cross case that Judge Barbadoro already said he found unconvincing.
The issue argued in court again became one of direct, unwelcome contact with a religious display. Vogelman contended that there was a “bystander standard” that justified Chamberlain having standing, and cited American Legion/Bladensburg, saying that a plaintiff had standing in that case, merely by being exposed to the cross.
The Bladensburg Cross-skeptical Judge Barbadoro shifted gears, and it was now attorney Vogelman’s time to be on the judicial rack. He cautioned Vogelman, “The Supreme Court in American Legion cautioned lower court judges not to do what you’re telling me to do.”
The Judge then cited a case of unwelcome direct contact. “You think that’s the standard?” he asked.
The courtroom argument went back and forth, about religious display cases involving direct and unwelcome exposure by third parties. Vogelman was of the opinion that there doesn’t have to be financial or physical injury for a plaintiff to have standing to sue in federal court; the injury can be psychological, an idea rejected by Handley of the DOJ, if that’s the sole injury being alleged.
Judge Barbadoro, alluding to the “Despite his strong personal beliefs” statement in the lawsuit, said, “If I didn’t know it, I would think the plaintiff drafted the petition in the most difficult way to find standing.”
The judge again pointed out that it was a challenging case, and neither side could point to a case that supported their argument. Handley of the DOJ said it was the plaintiff’s duty to establish standing.
Hartman for the Northeast POW/MIA Network cited Felix v. City of Bloomfield, in which polytheistic Wiccans who objected to a display the 10 Commandments were found to have standing. Like Handley of the DOJ, he was alleging that Bible-believing Christians don’t have standing in cases involving Christian religious displays.
Lawrence Vogelman for the plaintiff conceded, “Perhaps it was a poorly-crafted sentence. But despite this, we anticipated the government’s response that belief in Christianity doesn’t have standing.” That was why the sentence was written that way, he explained.
The Court was rocked when Vogelman said that he might amend the case to add non-Christian plaintiffs so that the case over the Manchester VAMC Bible was not dismissed.
Judge Barbadoro was exasperated, telling Vogelman that he had planned to start work on his standing decision and that the whole exercise might be unnecessary if Vogelman planned to add a non-Christian plaintiff. He gently chided Vogelman, saying that by the way the attorney spoke, he sounded as if he believed he did not have a right to amend the complaint, which he did.
In wrapping up the hearing, Judge Barbadoro said that the limited public forum standard put forward by the defense was not sufficient to dismiss the lawsuit, though he said he would evaluate it. He reiterated that the DOJ and First Liberty’s motion to dismiss Chamberlain’s lawsuit was denied.
He then told Vogelman, “If you think you will amend the complaint, notify me right away.”
Vogelman said that two other plaintiffs might come forward to join the lawsuit, and that he hoped he would be able to tell the judge about whether the complaint would be amended by Friday, September 27.