Freedom From Religion Foundation, Inc. v. Saccone et al
Filing
21
MEMORANDUM AND ORDER granting defendants' motion to dismiss 11 & directing Clrk of Ct to CLOSE case. (See memo & order for complete details.)Signed by Honorable Christopher C. Conner on 10/01/12. (ki)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREEDOM FROM RELIGION
FOUNDATION, INC.,
Plaintiff,
v.
REPRESENTATIVE RICK
SACCONE, CLANCY MYER
and ANTHONY FRANK BARBUSH
Defendants
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Case No. 1:12-cv-536
(Judge Conner)
MEMORANDUM
Presently before the court in the above-captioned matter is the motion to
dismiss (Doc. 11) of defendants Representative Rick Saccone, Clancy Myer, and
Anthony Barbush (collectively, “defendants,” or “legislative defendants”).
Defendants argue that plaintiff Freedom From Religion Foundation’s (“FFRF” or
“the Foundation”) complaint (Doc. 1) should be dismissed pursuant to Federal Rule
of Civil Procedure 12(b)(6), for failure to state a claim upon which relief can be
granted. For the reasons set forth in detail below, defendants’ motion to dismiss is
granted.
I.
Factual and Procedural History
In a resolution unanimously passed on January 24, 2012, the Pennsylvania
House of Representatives decreed 2012 to be the “Year of the Bible” in
Pennsylvania.1 H.R. 535, 2011-2012 Gen. Assemb., Reg. Sess. (Pa. 2012) (hereinafter
1
When ruling on a motion to dismiss under Rule 12(b)(6), the court must
“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading of
the complaint, the plaintiff may be entitled to relief.” Gelman v. State Farm Mut.
“H.R. 535,” or “the resolution”). H.R. 535 reads as follows:
Declaring 2012 as the “Year of the Bible” in Pennsylvania.
WHEREAS, The Bible, the word of God, has made a unique
contribution in shaping the United States as a distinctive and blessed
nation and people; and
WHEREAS, Deeply held religious convictions springing from the holy
scriptures led to the early settlement of our country; and
WHEREAS, Biblical teachings inspired concepts of civil government
that are contained in our Declaration of Independence and the
Constitution of the United States; and
WHEREAS, Many of our great national leaders, among them
President Washington, President Jackson,2 President Lincoln,
President Wilson and President Reagan, paid tribute to the influence
of the Bible in our country’s development, as exemplified by the words
of President Jackson that the Bible is “the rock on which our Republic
rests”; and
WHEREAS, The history of our country clearly illustrates the value of
voluntarily applying the teachings of the scriptures in the lives of
individuals, families and societies; and
Auto. Ins. Co., 583 F.3d 187, 190 (3d Cir. 2009) (quoting Phillips v. County of
Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)); see also Kanter v. Barella, 489 F.3d 170,
177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)).
Although the court is generally limited in its review to the facts contained in the
complaint, it “may also consider matters of public record, orders, exhibits attached
to the complaint and items appearing in the record of the case.” Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir. 1994); see also In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
2
As an aside to their primary argument that H.R. 535 violates the
Establishment Clause, FFRF takes issue with the historical accuracy of statements
made in the resolution, particularly as they relate to the influence of religion in the
American political system. The court expresses no opinion on the historical or
theological propriety of casting, for example, President Andrew Jackson – a man
whose administration sent 16,000 men, women, and children of the Cherokee
Nation on a forced march west from their ancestral homelands east of the
Mississippi River (known as the “Trail of Tears”), during which a quarter of them
perished from cold, hunger, and disease – as a paragon of Christian virtue in
government. See generally Chadwick Smith & Faye Teague, The Response of the
Cherokee Nation to the Cherokee Outlet Centennial Celebration: A Legal and
Historical Analysis, 29 TULSA L.J. 263 (1993).
2
WHEREAS, This nation now faces great challenges that will test it as it
has never been tested before; and
WHEREAS, Renewing our knowledge of and faith in God through holy
scripture can strengthen us as a nation and a people; therefore be it
RESOLVED, That the House of Representatives declare 2012 as the
“Year of the Bible” in Pennsylvania in recognition of both the
formative influence of the Bible on our Commonwealth and nation and
our national need to study and apply the teachings of the holy
scriptures.
In a November 1, 2011 memorandum to the House, Representative Rick
Saccone (“Saccone”) explained that the purpose behind declaring 2012 to be the
“Year of the Bible” would be to recognize that, “as not only Pennsylvania, but the
United States, continues to face great tests and challenges, we must look to our
faith in God and the Holy Scripture to provide us with the strength and courage to
face these great trials.” (Complaint, Doc. 1, ¶ 13). Saccone proffered the resolution
as “noncontroversial,” meaning that it could be added to a bundle of other
resolutions and voted on without debate. As a “simple resolution,” H.R. 535 was not
required to pass through both houses of the General Assembly. FFRF further
alleges that some representatives, having unknowingly voted for the resolution
amidst a larger bundle, later expressed their belief that it was, in fact, a
controversial measure.
FFRF filed this lawsuit pursuant to 28 U.S.C. § 1983, naming as defendants
Rep. Saccone, Clancy Myer, Parliamentarian of the House of Representatives, and
Anthony Frank Barbush, Chief Clerk of the House. FFRF seeks a declaratory
judgment, pursuant to 28 U.S.C. § 2201, that H.R. 535 violates the Establishment
3
Clause of the First Amendment3 and Article I, section 3 of the Pennsylvania
Constitution,4 and an injunction enjoining the defendants from further enactment
and publication of resolutions “establishing and endorsing a state-sanctioned
religion.” (Complaint, Doc. 1, ¶ 2). FFRF further asks this court to order the
defendants to take corrective action to publicly report the unconstitutionality of
H.R. 535, to declare that Pennsylvania is subject to the restraints of the
Establishment Clause, to declare that the “theocratic principles of the Bible” do not
constitute the established religion of Pennsylvania, to declare that the government
of Pennsylvania is not Judeo-Christian, and to award FFRF attorney’s fees and
costs.
FFRF is a non-profit organization composed of “non-theists” that advocates
for the separation of church and state. FFRF claims more than 17,500 members,
including at least 599 members in Pennsylvania. The Foundation filed this suit on
behalf of its Pennsylvania members, each of whom opposes governmental speech
that endorses religion because “they are made to feel as if they are political
outsiders.” (Id. at ¶ 8). FFRF alleges that their members have been injured by past
3
The First Amendment states, in pertinent part: “Congress shall make no
law respecting an establishment of religion, or prohibiting the free exercise thereof .
. .” U.S. CONST . amend I.
4
“All men have a natural and indefeasible right to worship Almighty God
according to the dictates of their own consciences; no man can of right be
compelled to attend, erect or support any place of worship or to maintain any
ministry against his consent; no human authority can, in any case whatever, control
or interfere with the rights of conscience, and no preference shall ever be given by
law to any religious establishments or modes of worship.” PENN . CONST . art. I, § 3.
4
and prospective exposure to the resolution, which they argue impermissibly
advances, endorses, and promotes a state religion and is an illegitimate exercise of
state power.
The matter has been fully briefed, and is ripe for disposition.
II.
Discussion
Defendants raise two independent grounds for dismissing the complaint:
first, that the Foundation lacks standing to bring this action under Article III of the
Constitution, and second, that even if the Foundation has standing, defendants are
nonetheless shielded from suit by the doctrine of legislative immunity. The court
will address each of these arguments in turn.
A.
Standing
Proper subject-matter jurisdiction is an inescapable predicate to a discussion
of a case’s merits. The judicial power of the United States is limited to “Cases” and
“Controversies,” and “‘Article III standing . . . enforces the Constitution’s case-orcontroversy requirement.’” Hein v. Freedom From Religion Found., Inc., 551 U.S.
587, 597-98 (2007) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342 (2006)).
“In essence the question of standing is whether the litigant is entitled to have the
court decide the merits of the dispute or of particular issues.” Warth v. Seldin, 422
U.S. 490, 498 (1975); see also American Civil Liberties Union of New Jersey v.
Township of Wall, 246 F.3d 258, 261 (3d Cir. 2001) (“ACLU-NJ”) (standing “‘is not
merely a troublesome hurdle to be overcome if possible so as to reach the ‘merits’ of
a lawsuit,’ but an integral part of the governmental charter established by the
5
Constitution.”) (quoting Valley Forge Christian College v. Americans United for
Separation of Church and State, Inc., 454 U.S. 464, 476 (1982)).
The requirements of Article III standing are “familiar.” Elk Grove Unified
School Dist. v. Newdow, 542 U.S. 1, 11-12 (2004). The plaintiff must show that he or
she suffered an “injury in fact,” that the complained-of conduct is the cause of the
plaintiff’s injury, and that a favorable judgment from the court will redress that
injury. Id.; see also Hein, 551 U.S. at 598 (“A plaintiff must allege personal injury
fairly traceable to the defendant’s allegedly unlawful conduct and likely to be
redressed by the requested relief.”) (internal quotation and citation omitted). More
precisely, the “irreducible constitutional minimum of standing” consists first of an
invasion of a legally protected interest that is (a) concrete and particularized, and
(b) actual and imminent, rather than conjectural or hypothetical. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-562 (1992) (citing Warth, 422 U.S. at 508;
Sierra Club v. Morton, 405 U.S. 727, 740-41 (1972); and Whitmore v. Arkansas, 495
U.S. 149, 155 (1990)). Second, the “causal connection between the injury and the
conduct complained of” must be “fairly . . . trace[able] to the challenged action of
the defendant, and not . . . th[e] result [of] the independent action of some third
party not before the court.” Id. at 560 (alterations in original) (internal quotations
omitted). Third, it must be “likely” that the injury will be “redressed by a favorable
decision.” Id. at 560-61. “At bottom, ‘the gist of the question of standing’ is whether
petitioners have ‘such a personal stake in the outcome of the controversy as to
assure that concrete adverseness which sharpens the presentation of issues upon
6
which the court so largely depends for illumination.’” Massachusetts v. EPA, 549
U.S. 497, 517 (2007) (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)).
Plaintiffs carry the burden of establishing the elements of standing, and they
must meet that burden “‘in the same way as any other matter on which the plaintiff
bears the burden of proof, i.e., with the manner and degree of evidence required at
successive stages of the litigation.’” ACLU-NJ, 246 F.3d at 261 (quoting Lujan, 504
U.S. at 561). The Foundation has standing only to the extent that its members have
standing, and so FFRF’s right to sue is “strictly dependent” on showing that its
members meet the requirements of Article III. See id. (citing Valley Forge, 454 U.S.
at 476 n.14; and Freedom From Religion Found., Inc. v. Zielke, 845 F.2d 265, 267
(7th Cir. 1988)).
The injury-in-fact requirement may be “particularly elusive” in
Establishment Clause cases because plaintiffs do not typically allege an invasion of
a physical or economic interest, but a plaintiff may nonetheless show an injury that
is sufficiently concrete, particularized, and actual to confer standing. See Catholic
League for Religious and Civil Rights v. City and County of San Francisco, 624 F.3d
1043, 1049 (9th Cir. 2010) (en banc). A plaintiff has suffered a concrete and
particularized injury-in-fact when the government directly sponsors and
communicates a religious message that is offensive to her beliefs. See In re Navy
Chaplancy, 534 F.3d 756, 764 (D.C. Cir. 2008) (“In the religious display and prayer
cases, the Government was actively and directly communicating a religious
message through religious words or religious symbols – in other words, it was
7
engaging in religious speech that was observed, read, or heard by the plaintiffs in
those cases.”); see also Newdow v. Roberts, 603 F.3d 1002, 1014 (D.C. Cir. 2010)
(Kavanaugh, J., concurring) (an Article III injury occurs when a plaintiff “sees or
hears a government-sponsored religious display or speech that offends his or her
beliefs”); Catholic League, 624 F.3d at 1052 (a concrete harm is produced by
“government condemnation of one’s own religion or endorsement of another’s in
one’s own community”) (emphasis added); Freethought Soc. of Greater Philadelphia
v. Chester County, 334 F.3d 247, 244 n.3 (3d Cir. 2003) (finding “not . . . convincing”
defendants’ argument that plaintiffs, suing to remove a plaque of the Ten
Commandments from a county courthouse, lacked standing, and that there was
“little question” that plaintiff had suffered an injury-in-fact) (internal citations and
quotations omitted). The Supreme Court has implicitly recognized standing5 when
plaintiffs were exposed to, for example, monuments displaying the Ten
5
The court notes the general rule that cases recognizing jurisdiction sub
silentio are not binding precedent on the issue of standing for future cases with
similar facts. See Association of Westinghouse Salaried Emp. v. Westinghouse Elec.
Corp., 210 F.2d 623, 628-29 (3d Cir. 1954). However, the court agrees with Judge
Kavanaugh’s observation that “the Supreme Court’s consistent adjudication of
religious display and speech cases over a span of decades suggests that the Court
has thought it obvious that the plaintiffs in those matters had standing,” and that
“[t]o ignore the import of those cases for the standing analysis, one would have to
believe the Supreme Court repeatedly overlooked a major standing problem and
decided a plethora of highly controversial and divisive Establishment Clause cases
unnecessarily and inappropriately.” Newdow, 603 F.3d at 285 (Kavanaugh, J.,
concurring).
8
Commandments,6 a creche in a courthouse,7 and student-led prayer at football
games.8 Establishment Clause injury is not typically measured in dollars and cents,
and non-economic injury may be sufficiently concrete to establish standing under
Article III. See generally United States v. SCRAP, 412 US. 669, 686-88 (1973).
Defendants argue that FFRF’s complaint amounts to the type of “abstract
claim” that the Supreme Court rejected in Valley Forge Christian College v.
Americans United for Separation of Church & State, 454 U.S. 464 (1982). In Valley
Forge, the plaintiff objected to the Department of Health, Education and Welfare’s
conveyance of seventy-seven acres of surplus federal land to an avowedly sectarian
Christian college. Id. at 468. The plaintiff organization brought suit, challenging
the conveyance under the Establishment Clause, and asserting standing under the
exception to the general prohibition of taxpayer suits9 and more generally as
6
Van Orden v. Perry, 545 U.S. 677 (2005); McCreary Cnty. v. American Civil
Liberties Union of Ky., 545 U.S. 844 (2005)
7
Cnty. of Allegheny v. American Civil Liberties Union, 492 U.S. 573 (1989).
8
Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290 (2000).
9
In Flast v. Cohen, the Supreme Court recognized a narrow exception to the
general prohibition on taxpayer standing when the plaintiff alleges a violation of the
Establishment Clause through a Congressional expenditure. 392 U.S. 83 (1968). In
Valley Forge, the Court addressed the application of Flast to a federal land
conveyance. The Court rejected the plaintiff’s taxpayer standing argument, holding
that the Flast exception was limited to cases in which the plaintiff challenges an
exercise of Congress’s power under the Spending Clause, U.S. CONST. art. I, § 8, on
the grounds that the act “exceeds specific constitutional limitations upon the
exercise of the taxing and spending power.” Valley Forge, 454 U.S. at 479 (quoting
Flast, 392 U.S. at 102-103). Valley Forge involved a conveyance of real property
pursuant to the Property Clause, art. IV, § 3, cl. 2 (giving Congress the “Power to
dispose of and make all needful Rules and Regulations respecting the . . . Property
9
citizens with an interest in governmental observance of the Constitution. Valley
Forge, 454 U.S. at 481-484. The court rejected both arguments, and with regard to
the latter stated that “[w]e simply cannot see that respondents have alleged an
injury of any kind, economic or otherwise, sufficient to confer standing.” Id. at 486.
As the Ninth Circuit recognized in Catholic League, a “psychological
consequence” fails to establish standing when it is born merely of disagreement
with government conduct, but it does constitute a concrete harm when it is
produced by “government condemnation of one’s own religion or endorsement of
another’s in one’s own community.” 624 F.3d 1043, 1052 (en banc) (emphasis added).
In Catholic League, the San Francisco Board of Supervisors sought to address a
doctrinal decision of the Catholic church that homosexual marriage and adoption
were “immoral,” which caused the Archdiocese of San Francisco to prohibit
Catholic adoption agencies from placing children in gay households. Id. at 1047.
The Board passed a resolution accusing the Vatican of meddling in governmental
affairs. It called the Vatican’s ruling “hateful and discriminatory rhetoric . . . that is
both insulting and callous,” and urged Catholic charities in San Francisco to “defy
all discriminatory directives” from the Archdiocese. Id. While ultimately
belonging to the United States.”).
FFRF does not assert taxpayer standing under Flast in the case sub judice. It
is for this reason that Hein v. Freedom from Religion Foundation is also inapposite,
as Hein dealt strictly with the issue of taxpayer standing under Flast and Valley
Forge as applied to action taken by the executive branch. 551 U.S. 587, 596 (2007)
(“The only asserted basis for standing was that the individual respondents are
federal taxpayers who are opposed to the use of Congressional taxpayer
appropriations to advance and promote religion.”) (internal quotations omitted).
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dismissing on the merits of the plaintiff’s Establishment Clause claim, a majority of
the Ninth Circuit sitting en banc held that the plaintiffs had standing.
When the government engages in a message of express condemnation or
endorsement of a religion, there need not be a concomitant requirement that
citizens act in accordance with that message for it to effect an injury. See, e.g.,
Engel v. Vitale, 370 U.S. 421, 422-23 n.1, 436 (1962) (deeming unconstitutional a
school board policy to begin each day with a prayer despite the fact that students
were not required to recite the prayer, and teachers were prohibited from
commenting on a student’s decision to participate or not to participate). The
instant case differs from Valley Forge in that the conduct of which FFRF complains
is not some remote government land conveyance, but rather a direct and explicit
message, embodied in a unanimously passed resolution of the House of
Representatives, that embraces and endorses the Christian religion to the exclusion
of all other religions, or of non-religion. See H.R. 535 (“Renewing our knowledge of
and faith in God through holy scripture can strengthen us as a nation and a
people.”). H.R. 535 has far more in common with the litany of cases in which the
Supreme Court has addressed government-sponsored religious displays and
speech. See Newdow v. Roberts, 603 F.3d 1002, 1014 (D.C. Cir. 2010) (Kavanaugh,
J., concurring) (listing cases); see also id. at 1014 n.1 (“The display and speech cases
are distinct from those in which a person simply becomes aware of government
conduct to which the plaintiff objects.”).
This case is not the first time that a plaintiff has challenged the
11
constitutionality of government-declared “Year of the Bible.” Indeed, H.R. 535 is
nearly identical to a joint-resolution of Congress authorizing and requesting
president Reagan to declare 1983 “The Year of the Bible.”10 Here, FFRF has
alleged that exposure to H.R. 535 creates a “hostile environment” that emphasizes
and encourages “the integration of Christianity into the offices of government,” and
that the resolution sends the message that Christian beliefs are more legitimate in
the eyes of the Commonwealth than other religions or non-religions. FFRF has
satisfied their burden to plead an injury-in-fact.
The final two aspects of Article III standing – causation and redressability –
need be addressed only briefly. FFRF alleges that the injury they suffer is caused
directly by the passage of H.R. 535, and they seek, inter alia, a declaratory judgment
10
See Proclamation No. 5018, 48 Fed. Reg. 5527 (Feb. 3, 1983); Act of Oct. 4,
1982, Pub. L. No. 97-280, 96 Stat. 1211 (1982). Candor compels the court to
recognize that there is room for honest disagreement about when Establishment
Clause injuries are sufficient for Article III standing, and two district court cases
addressing President Reagan’s proclamation provide a convenient heuristic.
In Zwerling v. Reagan, the Central District of California addressed whether
atheist plaintiffs had standing to challenge President Reagan’s proclamation. 576 F.
Supp. 1373 (C.D. Cal. 1983). Finding that the proclamation did not compel any
action or inaction on the part of the plaintiffs, the court held that it was not a “law”
within the meaning of the Establishment Clause, that there was no injury, and that
there was therefore no standing. Id. at 1376-78. But, addressing the same
proclamation, the court in Gaylor v. Reagan held that for the plaintiff’s non-theist
beliefs “[t]o be subjected to such reproach by [her] government is to suffer bona fide
injury.” 553 F. Supp. 356, 360 (W.D. Wis. 1982).
To the extent that the court’s ruling here is in tension with Zwerling, the
court notes its disagreement with the premise upon which that decision appears to
have been based – that to suffer an Establishment Clause injury, one must be
coerced by the government into performing or abstaining from some action. As
discussed at length supra, the precedents of the Supreme Court and of numerous
courts of appeals suggest otherwise.
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that the resolution is unconstitutional. If FFRF prevails on the merits of their
claims, a decision declaring the resolution void would redress their injury by
communicating that the House has transgressed the boundaries of our Constitution
and the First Amendment. See Catholic League, 624 F.3d at 1053 (“Plaintiffs seek a
declaratory judgment that the resolution is unconstitutional . . . . By declaring the
resolution unconstitutional, the official act of the government becomes null and
void.”). Hence, the court concludes that FFRF has carried its burden to establish
standing under Article III of the Constitution.
B.
Legislative Immunity
Having determined that FFRF has standing to bring this claim, the court
now addresses whether this suit is nonetheless barred by the doctrine of absolute
legislative immunity. For reasons discussed in detail below, the court finds that
defendants are entitled to absolute immunity from FFRF’s suit.
Legislative immunity has long been a fixture of our constitutional system.
“The privilege of legislators to be free from arrest or civil process for what they do
or say in legislative proceedings has taproots in the Parliamentary struggles of the
Sixteenth and Seventeenth Centuries.” Tenney v. Brandhove, 341 U.S. 367, 372
(1951). This legislative “freedom of speech” is enshrined in the Constitution, see
U.S. CONST . art. I, § 6 (“[F]or any speech or debate in either House, [Senators and
Representatives] shall not be questioned in any other place.”), and a number of
state constitutions ratified roughly contemporaneously with the federal
Constitution contained similar provisions, see Tenney, 341 U.S. at 374 n.3 (listing
13
states).
In order to faithfully carry out their duties, “‘it is indispensably necessary . . .
that [legislators] should be protected from the resentment of every one, however
powerful, to whom the exercise of that liberty may occasion offense.’” Id. at 373
(quoting II WORKS OF JAMES WILSON 38 (Andrews ed. 1896)). Following this
reasoning, the Supreme Court held in Tenney that state legislators are immune
from suit under § 1983 when “acting in the sphere of legitimate legislative activity.”
Id. at 376-77; see also Bogan v. Scott-Harris, 523 U.S. 44, 48-49 (1998) (explaining
that “legislators were entitled to absolute immunity from suit at common law and
that Congress did not intend the general language of § 1983 to impinge on a
tradition so well grounded in history and reason”) (internal citation and quotations
omitted). Legislative immunity does not just insulate legislators from monetary
damages, but cloaks them in immunity from all suits. Id. at 52 (discussing the need
to shield legislators from the “time and energy required to defend against a
lawsuit”).
Legislators are not immune from suit in all facets of their lives, but rather
only for those acts that are “legislative” in nature.11 A legislative act is any action
“with respect to the consideration and passage or rejection of proposed legislation
11
The Third Circuit has determined that the scope of immunity afforded to
state legislators is “coterminous” with the immunity extended to members of
Congress through the Speech or Debate Clause. Youngblood v. DeWeese, 352 F.3d
836, 840 (3d Cir. 2003). Hence, Supreme Court precedent demarcating the
boundaries of a “legislative act” under the Speech or Debate Clause applies equally
to the state legislative defendants in this case.
14
or with respect to other matters which the Constitution places within the
jurisdiction of either House.” Gravel v. United States, 408 U.S. 606, 625 (1972). A
legislator’s motives are irrelevant to a claim of immunity, Youngblood, 352 F.3d at
839-40 (“‘[t]he claim of an unworthy purpose does not destroy the privilege’”)
(quoting Tenney, 341 U.S. at 377), and the legitimacy of a legislative inquiry is not
“defined by what it produces.” Eastland v. United States Servicemen’s Fund, 421
U.S. 491, 5078-09 (1975).
FFRF attempts to distinguish the resolution at issue in this case from “real
law-making,” arguing that H.R. 535 is nothing more than “gratuitous political
grandstanding,” (Doc. 19 at 15-16). Fatal to its claim, FFRF cannot escape Supreme
Court precedent stating that “[c]ommittee reports, resolutions, and the act of voting
are equally covered.” Powell v. McCormack, 395 U.S. 486, 502-03 (1969) (emphasis
added). Nonetheless, FFRF suggests that, to qualify as a legislative act, there must
be some allocation of resources or regulation of behavior. (Doc. 19 at 18). This
argument is unpersuasive. Courts have routinely considered many actions taken by
legislators that go beyond voting for legislation to be “legislative acts.” See, e.g.,
Eastland, 421 U.S. at 507 (issuing subpoenas and seizing property and records for
committee hearings falls within sphere of legislative acts); In re Grand Jury
Subpoenas, 571 F.3d 1200, (D.C. Cir. 2009) (statements made by a congressman to
the House Ethics Committee regarding private funding for a trip shielded from
subpoena by a grand jury); Ray v. Proxmire, 581 F.2d 998, 1000 (D.C. Cir. 1978)
(senator immune from liability for allegedly libelous statement made in letter
15
submitted to Senate Ethics Committee); McSurely v. McClellan, 553 F.2d 1277,
1286-87 (D.C. Cir. 1976) (legislative fact-finding is protected by the Speech or
Debate Clause). It is pellucidly clear that resolutions, whether passed by a single
house or both, whether creating legally binding obligations or not, fall squarely
within the scope of absolute legislative immunity from suit. For this reason,
defendants in this case are entitled to absolute immunity from suit, and FFRF’s
complaint must be dismissed.
III.
Conclusion
The vast majority of legislative resolutions are entirely appropriate and serve
legitimate public purposes, such as honoring or commemorating individual
achievements, notable anniversaries, Commonwealth resources, and military
service and sacrifice. See, e.g., S.R. 267, 2011-2012 Gen. Assemb., Reg. Sess. (Pa.
2012) (commemorating the 100th anniversary of the Girl Scouts); S.R. 287, 2011-2012
Gen. Assemb., Reg. Sess. (Pa 2012) (designating April 22, 2012 as “Earth Day” in
Pennsylvania); H.R. 313, 2011-2012 Gen. Assemb., Reg. Sess. (Pa. 2011) (recognizing
the passing of Corp. Frank W. Buckles, America’s last survivor of World War I); S.R.
116, 2011-2012 Gen. Assemb., Reg. Sess. (Pa. 2011) (designating May 2011 as YMCA
Appreciation Month) H.R. 161, 2011-2012 Gen Assemb., Reg. Sess. (Pa. 2011)
(recognizing a Philadelphia high school team’s state championship win). However,
the court’s determination that the defendants engaged in a “legislative act” for
purposes of immunity should not be viewed as judicial endorsement of this
resolution. It most certainly is not. At best, H.R. 535 is a benign attempt to reaffirm
16
the underlying principles of the Reagan proclamation of 1983. At worst, it is
premeditated pandering designed to provide a reelection sound bite for use by
members of the General Assembly. But regardless of the motivation behind H.R.
535, its express language is proselytizing and exclusionary (e.g., “ Renewing our
knowledge of and faith in God through holy scripture can strengthen us as a nation
and a people”). The court is compelled to shine a clear, bright light on this
resolution because it pushes the Establishment Clause envelope behind the safety
glass of legislative immunity. That it passed unanimously is even more alarming.
This judicial rebuke of the resolution is not intended to impugn the religious beliefs
of any citizen. To the contrary, the court’s disapprobation is directed to the blatant
use of legislative resources in contravention of the spirit – if not the letter – of the
Establishment Clause. At a time when the Commonwealth of Pennsylvania faces
massive public policy challenges, these resources would be far better utilized in
meaningful legislative efforts for the benefit all of the citizens of the
Commonwealth, regardless of their religious beliefs.
An appropriate order will issue.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
October 1, 2012
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREEDOM FROM RELIGION
FOUNDATION, INC.,
Plaintiff,
v.
REPRESENTATIVE RICK
SACCONE, CLANCY MYER
and ANTHONY FRANK BARBUSH
Defendants
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Case No. 1:12-cv-536
(Judge Conner)
ORDER
AND NOW, this 1st day of October, 2012, upon consideration of defendants’
motion to dismiss (Doc. 11), and for the reasons expressed in the accompanying
memorandum, it is here by ORDERED that defendants’ motion to dismiss is
GRANTED. The Clerk of Court is directed to close the case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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