The 2012 ballot isn’t the only place where a raging debate on same-sex marriage is taking place in Minnesota. Three same-sex couples filed an appeal in July in their bid to overturn Minnesota’s Defense of Marriage Act, and groups on both sides of the issue have filed paperwork with the court offering strongly worded arguments on the issue of marriage equality.

A Hennepin County district court judge dismissed a suit by the couples — Duane Gajewski and Doug Benson, Lindzi Campbell and Jesse Dykhuis, John Rittman and Tom Trisko–  in March. The judge said that until the Minnesota Supreme Court overturns Baker v. Nelson, a 1971 case that said same-sex couples cannot marry in Minnesota, “same-sex marriage will not exist in this state.”

So the couples are taking their case to the Minnesota Court of Appeals with hopes that they can get it heard before the Minnesota Supreme Court.

“The appellants challenge MN DOMA and the obstacle it poses to the appellants’ enjoyment of 515 separate laws that confer tangible benefits upon married couples and their families, and relieve the injuries the appellants face in taxation, inheritance, powers of attomey, health care, and child rearing, amongst other matters,” the court filings for the couples read.

Attorneys for the couples argue that the 1971 Baker decision doesn’t apply, arguing that the current case is about recognizing marriages performed in other states.

“Resting on its interpretation of the Book of Genesis for its holding, the Baker Court turns aside an early bid by a same-sex couple seeking to marry under Minnesota law,” court filings said. “Notwithstanding the state’s protests to the contrary, and notwithstanding the district court’s reluctance to rule contrary to Baker in spite of its stated misgivings, Baker does not determine the outcome of this case. In addressing the claims of same-sex couples lawfully married in other jurisdictions, this court may grant the appellants relief from MN DOMA, regardless of Baker.”

In a bit of a twist, the Minnesota Family Council filed a brief saying that Baker is a “decisive” case. That differs from MFC’s public statements that judges are likely to rule in favor of same-sex marriage and that a constitutional amendment barring it is necessary.

“[T[he Minnesota Supreme Court’s Baker decision is undoubtedly binding and controlling here,” MFC’s attorneys wrote. Those attorneys are from the Alliance Defense Fund, a group founded by prominent religious right groups including James Dobson’s Focus on the Family and the American Family Association, an organization that has been labeled a hate group by the Southern Poverty Law Center.

“The State Supreme Court in Baker squarely rejected the argument ‘that the right to marry without regard to the sex of the parties is a fundamental right of all persons’ under the federal constitution. That same conclusion… applies under the state constitution,” they wrote.

The Family Council brief also argued that lesbians, gays and bisexuals do not constitute a “suspect class” because they do not lack political powerlessness — “such individuals wield tremendous power” — and it contends that sexual orientation can change.

Finally, the group argues that same-sex couples should not be granted marriage rights because they cannot reproduce.

“Sexual relationships between opposite-sex couples have a normative procreative capacity, only those relationships provide children with their mother and father. Same-sex couples, in contrast, can neither procreate without intervention by a person of the opposite sex nor give children a home with both a mother and a father,” the brief said.

The Minnesota Atheists also filed a brief in the case, arguing that laws barring rights for same-sex couples are inherently religious in nature and should be overturned.

“These clerics and their followers are, of course, entitled to their beliefs. But, they should not be allowed to impose their theocratic views in the secular laws of this state,” the brief reads. “There is no compelling secular reason to deny civil marriage to same-sex couples; there are only religious justifications.”

The Minnesota Atheists point to hearings in May on a proposed constitutional amendment that would bar same-sex marriage where every testifier had a strong religious background and testified based on religious belief.

“This religious viewpoint, running deeply through DOMA, clashes with secular science and medicine. For example, the American Psychiatric Association “supports the legal recognition of same-sex unions and their associated legal rights, benefits, and susceptibilities, and opposes restrictions on those rights, benefits and responsibilities,” the brief said.

The group also took issue with the Minnesota Family Council’s assertion that marriage should remain between opposite-sex couples because same-sex couples cannot reproduce.

“This argument makes no sense. The state does not impose any fertility requirements on couples getting married, imposes no test whether the parties can conceive, and does not disallow marriages for women who are beyond child bearing age or men who are impotent, sterile, or have had a vasectomy.”

The timeline for the case is up to the court and could well bleed into the debate over the constitutional amendment as it gears up next year leading to the November elections.

Doug Benson, one of plaintiffs in the case, said, “Even if our opponents’ anti-gay marriage amendment is defeated by the voters in November 2012, our law suit will still be needed to get rid of the current Minnesota DOMA statute from 1997. We will continue to carefully move our case forward in the courts, using every argument and resource at our disposal to overturn the statutory ban on same-sex marriage.”

But the lawyers for the Minnesota Family Council warn that if the case is successful, gay marriage will be forced on everyone.

“No provision of the Minnesota Constitution gives individuals the right to redefine marriage and force that definition on everyone else,” the ADF’s Jim Campbell said in a statement.

Lawyers for the Alliance Defense Fund (ADF), a national conservative Christian legal organization, sent a letter to the Anoka-Hennepin School District this week urging it to maintain its “neutrality policy” on sexual orientation. The letter (PDF) comes in response to a possible lawsuit by the Southern Poverty Law Center (SPLC) and the National Council for Lesbian Rights (NCLR), two groups that have accused the district of creating an unsafe environment for LGBT students. The ADF argues that no changes are needed in the district.

Reports of suicides and bullying of LGBT students have touched off national concerns in the Anoka-Hennepin district, particularly over a policy that prevents teachers from discussing LGBT issues in the classroom. The SPLC and NCLR view that policy as contributing to an unsafe environment for LGBT students and have threatened to file a lawsuit if the policy isn’t changed. The ADF told the district that the two groups are only trying to promote a narrow agenda, not help the district’s students and accused the groups of exploiting student suicides.

“SPLC and NCLR’s letter plainly misinterprets the district’s policy, is inaccurate as to the law, and is heavy on hyperbole,” ADF wrote that the lawsuit threats “create the inescapable impression that these groups are trying to use the recent tragic suicides of several students who attended District schools to push their narrow political and social agenda.”

The ADF also argues that the “neutrality policy” does not single out LGBT students, a claim that is at odds with both the history of the policy and its current use.

The ADF wrote:

SPLC and NCLR wrongly claim that the Policy “singles outs LGBT students” for disfavored treatment, in violation of the Fourteenth Amendment to the United States Constitution. First, the Policy, on its face, does not mention (let alone target) students who identify as homosexual, bisexual, or transgendered. Rather, it requires neutrality regarding “sexual orientation.” Sexual orientation is a broad concept that encompasses all sexual orientations, including lesbian, gay, bisexual, trans gender, and heterosexual. The Policy does not target anyone, but rather treats all persons the same, regardless of their claimed sexual orientation.

That is at odds with what the district says. When asked last fall by reporters if the policy pertains to discussion about heterosexuality, including topics like marriage and sexual health, or whether it merely singles out discussions about LGBT issues, a district spokesperson said, “That’s correct. It only pertains to discussions of GLBT issues.”

And the policy itself stems from a similar 1995 policy, pushed by conservative Christian parents, that said homosexuality should not be “taught/addressed as a normal, valid lifestyle” in the district’s schools.

The policy was changed in 2009 after a Minnesota Department of Human Rights complaint against two teachers accused of harassing a student they thought was gay.

The policy reads, in part, “Teaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

The Parents Action League, a group of parents in the district opposed to homosexuality that’s headed by Barb Anderson of the Minnesota Family Council, has vociferously opposed any changes to the policy on the grounds that they do not want LGBT issues discussed in the schools unless it’s in the context that the “LGBT lifestyle” is a sin.

The ADF also opposes mentions of LGBT issues in schools unless they are presented in a negative light. The group has sponsored the annual “Day of Truth,” which encourages conservative Christian students “to counter the promotion of the homosexual agenda and express an opposing viewpoint from a Christian perspective.”

Based in Arizona, the ADF was founded by prominent religious right groups including Focus on the Family and the American Family Association, the latter of which has been labeled a hate group by the SPLC.

Minnesota for Marriage is touting a poll released last week by the religious right group, Alliance Defense Fund, that showed a majority of Americans believe that marriage should be defined as between one man and one women. That poll, which found 62 percent of Americans back that definition, was conducted by Republican pollster Public Opinion Strategies and has been criticized for its odd sampling as well as biased questioning.

“The proof is in the pudding,” said Chuck Darrell, director of communications of the Minnesota Family Council, in a press release on Wednesday. But the poll differs starkly with several others that have found a slight majority of Americans support legalizing gay marriage.

The poll’s sample left out anybody who comments on political blogs, anyone who works in politics and anyone who works in media, prompting critics to note that it would exclude anyone who follows the gay marriage issue closely.

Another difference is in the wording. The poll asked voters to weigh in on the definition of marriage as opposed to the legality of gay marriage.

“A key difference is that these [mainstream] polls focused on legality rather than the ‘definition’ of marriage,” the group Faith and Public Life wrote in response to the poll. “Given that the political debate surrounding same-sex marriage pertains to legislation rather than the contents of the dictionary, it’s hard to see the relevance of ADF’s data. It certainly is interesting, but it’s not even close to a refutation of the overwhelming body of current nonpartisan opinion research pointing to majority support for legal recognition of same-sex marriage.”

Still, proponents of the anti–gay marriage amendment said it was proof that they are on the side of voters.

“The results of the ADF poll show clearly that a strong majority of Americans, and surely a strong majority of Minnesotans, believe that marriage is a unique institution that should remain only between a man and a woman,” said Jason Adkins, Executive Director of the Minnesota Catholic Conference, the policy wing of the Roman Catholic Church in Minnesota. “In the survey, voters saw marriage as ‘special’ and most importantly, they saw the direct connection between marriage, stable families, and the benefits to children.”

The superintendent of a central Minnesota school district says a lawsuit against it by an anti-abortion legal group is a misunderstanding and that the litigation came out of the blue last Thursday. A representative of the Alliance Defense Fund, a national group that has sued numerous school districts, says the school should not be surprised by the lawsuit and claims it continues to violate students’ rights by not listing the All Life Is Valuable Club as “curricular.”

“The bottom line is, we have not denied access,” Dr. Jim Behle, St. Michael-Albertville School District Superintendent-elect, told St. Michael Patch. “The student group can meet in our school; basically, what the lawsuit wants us to do, we have already done. There’s a lot of misinformation being alleged.”

“Obviously [ADF] believed, and we’re kind of confused by this, that for some reason this group was going to be denied,” he said. “There’s obviously some confusion someplace by the national organization that filed this.”

But the ADF told the Minnesota Independent there’s is no confusion.

“There is no reason for the school district to be ‘surprised’ as it has been violating the club’s constitutional rights for several months now,” said ADF’s senior counsel David Cortman. “The district is currently taking the same position that they have throughout this entire process.”

ADF, which represents ALIV, says the group should be considered a “curricular” group and have all the same access the other educational student groups do, including meeting during school hours on school property. ADF says the group could be tied to health classes, for instance.

According to the lawsuit, ALIV’s curriculum involves “faith and religion, life, abortion, abstinence from premarital sex, personal responsibility, keeping and raising children in the event of pregnancy.”

“The school district still has the opportunity to immediately end this case by reversing its position and granting the pro-life club official recognition, just like that which is granted to the book club and the anime club, among others,” said ADF’s Cortman.

The ADF has been prolific in suing various educational institutions. In the last month alone, the group has been involved in actual or threatened legal action against at least six educational institutions.

In one instance, ADF threatened to file suit if the University of Buffalo’s student government organization didn’t recognize the group Students for Life. In a letter, ADF said the process was taking too long and threatened litigation if the situation wasn’t rectified. The university relented.

ADF won a case against a Chicago high school that asked a student who wore a “Be Happy, Not Gay” t-shirt to change the slogan to “Be Happy, Be Straight” or “The Truth Cannot Be Silenced,” which is a slogan of ADF’s anti-gay Day of Truth.

Last month, ADF filed a federal lawsuit after a New Hampshire zoning board denied an application by a man who wanted a blinking Jesus sign near the highway. The zoning board said the sign would distract drivers, but after the suit the body reversed its decision.

The legal group won a case in Arkansas that will allow a third grader to distribute Christian church pamphlets on school property during school hours, and in Pennsylvania ADF is suing a school district because it prevented a student from distributing church fliers during school hours.

A California school district backed down just hours after the ADF filed suit following the school’s decision that a student’s Christian talent routine would possibly violate the separation of church and state.

ADF boasts a budget of $32.7 million and was founded by a consortium of religious right entities including Campus Crusade for Christ, Focus on the Family and the American Family Association, which was recently listed as a hate group by the Southern Poverty Law Center.

Lawsuits against schools are not the group’s only activities. In the month of March, the group was involved in legal action against a number of public and private entities, as well. ADF is suing an Arizona county on behalf of a church that had failed to file its property taxes or an exemption to avoid the taxes. The county is attempting to collect three years of backed taxes.

The ADF is also currently representing a woman who was fired as a counselor for the Centers for Disease Control after she told a gay client that the client’s lifestyle was contrary to her religious beliefs, and the group just lost a case in which a conservative Christian mother wanted to home-school her child over the objections of her ex-husband. A court ruled in favor of the father to send his daughter to public school.

The group is also suing an LGBT group called Bash Back! which protested a Michigan church. The church is suing for civil damages.

Closer to home, the group joined a suit in Wisconsin to overturn that state’s domestic partner registry for same-sex couples.

And in New York City, ADF is suing prevent an ordinance that requires anti-abortion clinics, called crisis pregnancy centers (CPCs), to include in their materials that they do not provide abortions or contraceptives. CPCs have a history of misleading women who have unintended pregnancy into their clinics by insinuating they provide a full range of options.

The national religious right legal group Alliance Defense Fund filed suit in the U.S. District Court of Minnesota last week on behalf of a student who is trying to form an anti-abortion rights group at the St. Michael-Albertville High School. The All Life Is Valuable (ALIV) Club was denied permission to become an “officially recognized club” because school administrators said it didn’t “support the student body as a whole.”

According to the complaint (below), the ADF takes issue with the fact that certain clubs are granted access while others are not.

“Apparently the Diversity club, the Environmental club, and the Anime club (among others), however, are deemed to ‘support the student body as a whole’ as they were all permitted to become officially recognized clubs,” the complaint states. “The ALIV Club has been relegated to second-class status and is only permitted to meet unofficially before or after school and receives none of the other club benefits.”

The group is suing under First and Fourteenth amendment grounds. “The Equal Access Act, along with the First and Fourteenth Amendments, prohibit governmental discrimination of this type and guarantee religious and political student clubs access and treatment equal to that of other non-curriculum related student clubs.”

According to the filing, ALIV brings students together to talk about “faith and religion, life, abortion, abstinence from premarital sex, personal responsibility, keeping and raising children in the event of pregnancy, leadership, community service, peer pressure, promoting respect and dignity for all others, reading and studying various governmental and political issues, and the attainment of knowledge,” and the group has a “desire to share their Christian faith with fellow members and students through ALIV Club activities.”

Minnesota has seen several court cases pertaining to student groups. In 2008, a federal appeals court ruled in favor of a gay-straight alliance in a Twin Cities suburban school district. In 2003, the ADF sued another Minnesota school district that did not allow students to pass out fliers for a Bible-study group. The school subsequently changed its policies.

The ADF also sued the University of Minnesota on behalf of the Maranatha Christian Fellowship because Maranatha wanted the ability to discriminate in its membership as a student group. The university required all student groups to sign a nondiscrimination policy in order to use university resources, and later changed its policies to allow discrimination among student groups’ officers but not in general membership.

A judge has rejected an attempt by the Minnesota Family Council to intervene in a lawsuit challenging state law that bans same-sex marriage. Three same-sex couples filed a lawsuit against the state of Minnesota earlier this year arguing that the Defense of Marriage Act signed into law in 1997 violates the state Constitution. The Family Council argued that it should be part of the lawsuit, in part, because if DOMA is ruled unconstitutional, it will cost them millions to fight same-sex marriage. The court said the group has no standing to defend DOMA.

“The Council’s alleged injuries would occur solely due to its sincerely-held belief that principles rooted in its interpretations of religious texts are best for the well-being of children and families, and that marriage only between one man and one woman accords with these principles,” wrote Minnesota Fourth District Court Judge Mary S. DuFrense (PDF). “The Court certainly understands that the Council feels strongly about the social issue of same-sex marriage. Strong feelings, however, do not establish a legal interest in a lawsuit.”

The Minnesota Family Council attempted to enter the lawsuit with the help of James Dobson’s Alliance Defense Fund, an evangelical Christian legal group.

Douglas Benson, executive director of Marry Me Minnesota, an organization formed by the couples who are suing the state, said, “We appreciate the judge’s decision to deny the Minnesota Family Council’s motion and believe it ensures that our case will be decided on its merits, without the interference of anti-gay ideologues.”

Attorney for the couples, Peter J. Nickitas, said, “This decision is a great victory for the plaintiffs and their families, marriage equality, and the integrity of the court system.”

The three couples — Duane Gajewski and Doug Benson, Lindzi Campbell and Jesse Dykhuis, John Rittman and Tom Trisko — are suing the state for the right to marry after having their applications for marriage licenses rejected. The couples self-financed the lawsuit and have not received support from LGBT organizations which have said the case faces difficult hurdles. In 1972, the Minnesota Supreme Court upheld laws that ban same-sex marriage.

The couples said that if the Minnesota Family Council were allowed to join the lawsuit, it would have subjected them to significant legal costs that could have derailed the case.

Photo: Simax105, Flickr

Twin Cities Pride and the Minneapolis Park and Recreation Board are locked in a disagreement over whether the Pride Festival, a gathering of nearly 300,000 LGBT people and allies held annually in Loring Park, should be compelled to allow an anti-gay group to distribute Bibles at the event. Festival organizers say they paid ten of thousands of dollars to secure the park for this weekend’s celebration, giving them a right to control the message of the event. The park board has given the OK to Brain and Lois Johnson to distribute the Bibles, saying it is merely standing up for free speech.

“The park board’s decision is akin to allowing the Klu Klux Klan to openly convey their racist and anti-immigration views at the Cinco de Mayo festival,” said Eileen Scallen, an attorney for the Pride Festival and a professor at William Mitchell College of Law.

Pride officials say they will seek a federal injunction Wednesday to prevent the Johnsons from handing out books and anti-gay literature within Loring Park during the festival. They gave the park board until Tuesday evening to reverse the decision to allow the Johnsons in the park.

The Johnsons had put pressure on the park board when they enlisted the help of the Alliance Defense Fund, a James Dobson–affiliated religious right legal organization based in Arizona. The group has defended numerous cases of anti-gay protesters crossing legal lines to denounce LGBT people, including a similar case in New York.

In a complaint to the Minneapolis Park Board dated April 5, ADF called Twin Cities Pride a “festival devoted to the toleration of homosexual conduct.”

ADF “demands that… you will allow Mr. Johnson to enter into Loring Park and onto the perimeter sidewalks around the park to distribute literature, display signs and speak during the time of the festival,” the letter stated.

The ADF says that if the park board doesn’t allow Johnson into the park, it will sue. That prompted the park board to acquiesce. It wrote to ADF that it “will not prevent Brian Johnson from entering Loring Park or its perimeter sidewalks on June 26 and June 27, 2010 during the Minneapolis Pride Festival (‘Festival’) to distribute literature, display signs, and speak to members of the public.”

An April 28 letter from the ADF to Johnson said, “You should be able to return to the 2010 festival and exercise your right to free expression.” The letter added that ADF had closed the file and told Johnson, “Keep up the good work sharing the Gospel!”

Pride officials say not only did the Park Board cave, but they waited more than a month to tell them. In a letter to the board, festival organizers said that they were “shocked and dismayed” to learn about the decision relayed to them only weeks before the event.

Organizers argued they’re within their rights to prevent the Johnsons from handing out Bibles, citing the case Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston.

“Ironically, in that case, a Boston parade organizer denied a GLBT group from participating,” Scallen said. “And the Court said a permit holder could do so. The Park Board’s actions on behalf of Mr. Johnson are in clear violation of that US Supreme Court ruling.”

“Mr. Johnson is free to hurl invectives against the GLBT community and their families and distribute Bibles on the public sidewalk opposite Loring Park,” said Amy Slusser, an attorney with the Minneapolis law firm, Robins, Kaplan, Miller & Ciresi and who is representing Pride. “That is his First Amendment right. He just can’t do so in the park while it is being leased for the Pride Festival.”

The park board doesn’t see it that way. Tuesday night it issued a statement “reaffirming freedom of expression at park events” and rejecting Pride’s ultimatum.

Board chair John Irwin said Minneapolis parks are for everyone. “I happen to wholeheartedly agree with the message of Twin Cities Pride. I’m gay myself. But I also believe in every person’s right to free speech and expression,” he said. “Asking the Minneapolis Park Board to exclude someone from a public space because they have a differing view is a dangerous precedent.”

He added, “I personally think Mr. Johnson is on the wrong side of history and the wrong side of the God I know, but I also think he has the absolute right to be wrong.”

But the park board did concede that the Johnsons would not be allowed to hand out Bibles or literature at the festival and the board would not try to force Pride to give Johnson a booth.

In a letter to Pride (pdf), park board counsel Brian Rice said, “[H]e is not entitled to set up a booth or bring boxes of materials into the Festival, nor does he have the right to harass or intimidate attendees. Should he disturb the public, he may be asked to leave and arrested if necessary.”

Johnson and his wife were arrested for trespassing at last year’s festival, but the City of Minneapolis decided not to prosecute the couple.

David Wayne Hill, chairman of Pride last year, said that even paying vendors with booths are not permitted to hand out materials outside the booth area, as Johnson was accused of doing.

“They were advised that they were being prohibited from engaging in such activity on the park grounds and when Mr. Johnson refused to comply, he was arrested by the appropriate authorities,” Hill said.

One of the few ways the festival makes money, he added, is through vendor fees. It wouldn’t be fair, said Hill, “to have people walking through the park marketing themselves when other vendors, in booths or otherwise, pay a fee to do so.”

“We should be strengthening marriage, not undermining it,” Lorence said in a press release Wednesday. “Once again, activists are trying to use the courts to force something on the people that they have repeatedly rejected. Judges and politicians should never impose a system that intentionally deprives children of a mom and dad. Which parent doesn’t matter: a mom or a dad?”

Three couples are suing the state in Benson v. Alverson (pdf) for the right to marry on the grounds that Minnesota laws prohibiting same-sex marriage violate the state Constitution. The couples say the law violates the families’ right to due process, equal protection, freedom of association and freedom of conscience. But ADF, an organization based in Arizona, disputes that legal reasoning.

“No provision of the Minnesota Constitution gives individuals the right to redefine marriage and force that definition on everyone else,” Lorence said. “The same-sex couples who have brought this lawsuit are brazenly asking the courts to misuse the state constitution to throw out Minnesota’s legal definition of marriage as one man and one woman, the only definition of marriage Minnesota law has ever had.”

Court challenges to make same-sex marriage legal have succeeded in Iowa, Massachusetts, Connecticut and California, though in California voters overturned that ruling in 2008. Legislatures in New Hampshire and Vermont have also passed marriage equality measures.

Image: Ben McLeod

Under pressure from the religious-right legal outfit Alliance Defense Fund (ADF), the city of Elk River removed an ordinance that banned religious groups from holding worship services in the city’s library. The council voted on Aug. 17 to remove the restriction.

City council member Paul Motin told the council in July that the reason for the restriction was to prevent the library from being used as a church.

“We didn’t want them to turn them into worship halls. Even though they could use it [for meetings] they couldn’t use it for prayer and worship services,” he said. “If they need them for meetings and things along those lines, I have no problems with that.”

“I guess I would have a problem if we started allowing the city facilities to be used for church services. There are other places available to them in the city,” Motin said.

Mayor Stephanie Klinzing said it was overuse that led the council to put the policy into place. “We have many start-up churches using public and private facilities in the city that occupy the same space every week for, sometimes, many years,” she said. “The council wanted to prevent this type of long-term, continual use by one group in order to open the spaces up to use by as many community groups and residents as possible.”

The city also had an ordinance that charged a higher fee to religious groups using a city park for worship services that was changed at the August meeting.

The policy stated: “The meeting room is available; free of charge, for use by community members for non-religious, non-commercial meetings, which are open to the public” and “usage may not be for prayer or other worship purposes.” The policy had been in effect for more than six years, according to Klinzing, and charged religious groups to use library meeting rooms for worship services. The library board passed a similar policy a year ago prohibiting religious use of it’s meeting rooms.

When the council repealed the ordinance Aug. 17, the library board followed suit and changed their policy to allow religious groups to use its rooms for worship.

“Excluding religious groups from a public library and charging them more than other non-profits to utilize a public park for religious expression is unconstitutional,” said Daniel Blomberg, an attorney for ADF, the group who made the complaint to the city, in a press release praising the decision. “We appreciate the city’s decision to respect the First Amendment rights of its citizens.”

But the legal issues surrounding the use of public facilities for worship services are murky.

In 2006, the 9th U.S. Circuit Court of Appeals ruled that a northern California county was within its rights to ban worship services from its public libraries. “[T]he County’s decision to exclude . . . religious worship services from the meeting room is reasonable in light of the library policy so that the . . . [library] is not transformed into an occasional house of worship,” the court wrote.

Religious groups can hold meetings, the court ruled, but when a religious group is turning public property into a regular church service, that constitutes government endorsement of religion.

The court said: “To conclude that the County’s exclusion of religious worship services from its government buildings is unreasonable would result in the ‘remarkable proposition that any public [building] opened for civic meetings must be opened for use as a church, synagogue, or mosque.’”

Klinzing disagreed with the the policy when it was implemented. “I was fully aware at the time that the city council approved the policy that it was blatantly unconstitutional,” she said. Klinzing says she went to the city attorney to get his opinion. “Our attorney would not render his opinion that there was anything illegal about the proposed policy,” she said.

“Regardless, I knew that some day it would be challenged and the city would have to — or be forced to — change the policy. And, as you know, that is exactly what has happened,” she said.

Klinzing said that the city council came up with a compromise that works for everyone — restrict the number of times an entity can rent a facility each year, but not prohibit any type of entity from renting it. “The change in the policy was very simply accomplished and the new language protects the facilities from the sole major concern of long-term, continual use by one organization without putting the city in violation of the U.S. Constitution,” she said.

Elk River’s public library has been used by Mayor Klinzing and others for a religious worship called “Pray Elk River.” According to press reports, as part of an effort to bring the “Kingdom of God” to the city, the mayor, pastors and local business leaders met every Tuesday for years at the Elk River Library to worship and pray. The primary goal was “for every person in the greater Elk River area to be prayed for by name.”

”We have a group of intercessors who pray for the town council, for the city, for me as mayor,” Klinzing told The New York Times in 2004.

But that group met in the old Elk River Library, which wasn’t covered under the city policy prohibiting worship. The group had to move to a different location in 2007, however, when the library moved into its new facility.

“The weekly use of a room in the former library by the Pray Elk River group was not a violation of the library’s policy because the policy covering the former library did not prohibit prayer and worship,” said Klinzing. “The group was not able to use the new library, however, because the new policy restricted prayer and worship.”

Image: Ben McLeod

The Internal Revenue Service’s investigations into alleged tax violations by two Minnesota-based churches, Living Word Christian Center (LWCC) and Warroad Community Church, have been thwarted by internal procedural problems.

These cases highlight the special tax-exempt status churches receive by law, but they also underscore problems at the IRS. In effect, the IRS has been unsuccessful in investigating allegations of tax violations by churches because years of conflicting congressional action have made it impossible for the IRS to follow its own rules.

And while the IRS has undertaken the potentially months-long process to reform its broken system, the religious right is seeking to exploit it by encouraging churches to flout the law and endorse candidates from the pulpit next month.

During the 2008 election, Warroad Community Church pastor Gus Booth, a Republican activist, apparently broke tax laws that prohibit electioneering by tax-exempt churches when he endorsed John McCain for president and trashed Barack Obama and Hillary Clinton from the pulpit. Last month the IRS suspended its investigation into the church, citing “a pending issue regarding the procedure used to initiate the case.”

In a similar case, the Minnesota Independent (then the Minnesota Monitor) identified questionable accounting practices by the Brooklyn Park–based Living Word Christian Center in 2007, which eventually led to an IRS investigation. But in January of this year, a U.S. District Court judge in Minneapolis also rejected an IRS summons to Living Word Christian Center because of procedural errors.

In both cases conflicting congressional actions prevented the agency from following its own rules.

In 1984, Congress passed the Church Audit Procedures Act to make it harder for the IRS to investigate church abuse of tax law. Among its provisions: An IRS official making a case against a church must hold a rank “no lower than that of a principal Internal Revenue officer for an internal revenue region.”

But thanks to a 1998 act of Congress, the Internal Revenue Service Restructuring and Reform Act, internal revenue regions (and their principal officers) were abolished, and the IRS was divided into sections servicing different categories of taxpayers, including individuals, businesses, and tax-exempt organizations like churches.

This change directly benefited Living Word Christian Center: It won its case in January because the IRS official charged with investigating the allegations wasn’t legally authorized to do so. Similarly, with no one on staff to legally investigate Warroad Community Church, the IRS suspended its investigation.

Reforms proposed by the IRS, entered into the Federal Register in early August, would clear up the contradiction, making the agency’s Director of Exempt Organizations the primary authority for investigating possible violations of tax law by churches. But the process of adopting those changes will be lengthy, involving a public comment period and hearings.

In the meantime, a group of churches plans to violate the law while there’s no one at the IRS to investigate.

On Sunday Sept. 27, the Alliance Defense Fund, a Focus on the Family–affiliated legal group, is encouraging pastors to endorse candidates from the pulpit. This year will be the second year of ADF’s “Pulpit Initiative.” Last year 33 churches participated, including Warroad Community Church.

The ADF’s Eric Stanley said that the campaign “is really part of a long, sustained campaign” to get a court challenge to IRS laws governing electioneering.

“We feel very confident that when we do, it will not take long for a federal judge to strike down this unconstitutional restriction on churches’ rights.”

Rob Boston, communications director of Americans United for the Separation of Church and State, writes that the new IRS rules should give churches participating in Pulpit Freedom Sunday a reason to pause.

“The fact that the IRS has issued these new rules is a sign that it wants to have a mechanism in place that will enable it to investigate churches that openly flout the law by endorsing or opposing candidates,” he wrote on the group’s blog. “Far from rolling over, it looks to me like the IRS is girding for battle. Churches that choose to follow the ADF down this misguided path can’t say they weren’t warned.”