8th U.S. Circuit Court of Appeals rules Bible ban to remain in

St. Louis Daily Record & St. Louis Countian, Aug 22, 2007 by Donna Walter

A federal judge was right to enter a preliminary injunction barring the distribution of Bibles to students at an elementary school in southeastern Missouri, the 8th U.S. Circuit Court of Appeals said Tuesday.

U.S. District Judge Catherine Perry of the St. Louis-based federal trial court issued the preliminary injunction last September. The injunction prohibits the South Iron R-1 School District, located in Iron County, from distributing Bibles to its students and from allowing any other group to do the same. Traditionally, Gideons International has given Bibles to the district's fifth-grade students.

Now that the 8th Circuit affirmed Perry's order, lawyers for both sides expect the district judge will rule soon on their competing motions for summary judgment pending before her.

The case was argued April 12 before 8th Circuit Chief Judge James B. Loken, Judge Kermit E. Bye and Judge William Jay Riley.

The plaintiffs are John Doe, Lonney Roark and Lesa Alcorn - all parents who have children in the school district. They are represented by Anthony E. Rothert, legal director for the American Civil Liberties Union of Eastern Missouri, and Leonard J. Frankel of the Clayton law firm of Frankel, Rubin, Bond, Dubin, Siegel & Klein PC.

The district is represented by Erik W. Stanley, Mathew D. Staver and David M. Corry of Liberty Counsel in Lynchburg, Va.

Even though the 8th Circuit's decision deals with a preliminary injunction, Rothert said it's still an important decision because it deals with the scope of the injunction, which he said was narrowly tailored to facts of this case.

Writing for the 8th Circuit, Loken described it this way: "The injunction is succinct, clearly written, and limited to the precise conduct that warranted preliminary equitable relief. It does not, for example, broadly enjoin the distribution of all religious- oriented materials or address what activities the District might allow after school hours under the new policy."

The permanent injunction the plaintiffs are seeking is identical in scope to the preliminary injunction affirmed by the appeals court, Rothert said. So the opinion is likely to help the district judge craft a permanent injunction if she rules in the plaintiffs' favor, he said.

According to Rothert, the school district argued the injunction singles out the Bible. But the injunction would have been too broad if it barred all religious texts, he said.

The 8th Circuit specifically rejected the argument that the preliminary injunction is invalid because it's content-based. Rothert said the 8th Circuit decision doesn't just come down against the government endorsement of religion. Instead, it goes on to say that even an appearance of endorsement is prohibited, he said.

"Even though there had been some changes in the whole Establishment Clause jurisprudence, where you have coercion or the appearance of endorsement, an injunction's still an appropriate remedy," Rothert said.

Staver, who represented the district, focused on the policy the district adopted about a month before Perry entered the preliminary injunction. "That's the policy we're going to go to trial on, and I believe that policy is constitutional," he said.

The new policy includes a ban on distributing any kind of literature in the classroom, where the Gideons traditionally have made their Bible presentations, and specifies that literature must be distributed outside of instructional time, according to court documents the district filed to support its motion for summary judgment.

Staver described the policy as an open-forum policy in which the district provides the school as a forum for individuals or groups to distribute their literature. As such, the distribution of Bibles by the Gideons is not a government endorsement of religion, he said.

Alex Luchenitser, senior litigation counsel for Americans United for the Separation of Church and State, described the school district's new policy as a ploy "aimed at facilitating distribution of the Bibles by the Gideons while at the same time trying to make it a more difficult legal case for the plaintiffs."

Staver said Perry likely will rule against the district, but he predicted it will win in the end.