Dispatches from the Creation Wars

In a lawsuit filed against the Cherry Creek School District in Colorado for a program the plaintiffs say is a violation of the Establishment Clause, a federal magistrate judge has denied a request that the plaintiffs be allowed to withhold their identities in order to avoid potential harassment of their children – despite the fact that the motion was unopposed by the school district.

In fact, the two sides in the case agreed to keep the identities of the children secret. The ruling, by U.S. Magistrate Judge Craig Shaffer, says:

On October 24, 2007, the parties filed a Stipulation Regarding Anonymity of Individual Plaintiffs (doc. # 5). Under the terms of this Stipulation,

The true identities of the individual Plaintiffs shall be disclosed to the counsel for the Defendants, but that said identities shall not be disclosed further except as necessary to ascertain the residency status, taxpayer [*4] status, school enrollment status of these Plaintiffs, and/or for other discovery reasons. Such disclosure beyond counsel for the Defendant shall be strictly limited to those absolutely necessary to make those ascertainments. . . . The individual Plaintiffs shall not be required to be present in open court except for trial testimony or as otherwise required by virtue of the nature of the proceedings. All depositions, affidavits and pleadings shall refer to these Plaintiffs by their respective pseudonyms.

The judge then notes that federal law specifically allows for the use of pseudonyms in such cases and that the reasons for that use are quite broad:

Rule 26(c) of the Federal Rules of Civil Procedure permits the court, on a showing of good cause, “to make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.” Stipulated protective orders have become a common feature in federal litigation. While I acknowledge that Plaintiff’s pending motion is unopposed, the parties by stipulation may not override the court’s independent obligation to ensure compliance with the Federal Rules of Civil Procedure. This court cannot abdicate its responsibilities even when presented with an unopposed motion for relief.

But given the broad reasons recognized in federal law, which allows for the use of pseudonyms even to prevent annoyance or embarrassment, what possible basis could the judge have for rejecting this motion? The reasoning is rather weak:

In this case, the individually named Plaintiffs argue that they should be permitted to proceed anonymously because of the role that religion plays in this case and the public’s views toward atheists. Plaintiffs cite a 2006 public opinion poll which found that “atheists are seen by many as a threat to the American way of life and are the minority group most Americans are least willing to allow their children to marry.” Plaintiffs request anonymity out of their concern “about the possibility for intimidation, harassment, and physical harm should their identities become public.” As support for their position, Plaintiffs cite three anecdotal accounts of religious discrimination and harassment recounted by Professor Frank S. Ravitch in his book, School Prayer and Discrimination: The Civil Rights of Religious Minorities and Dissenters (Northeastern University Press 1999).

While the court appreciates the highly personal aspects of religious dissent and could not condone any form of harassment that might be prompted by religious or any other considerations, the unsubstantiated potential for an adverse public reaction does not establish a compelling reason to depart from the requirements of Rule 10(a). Notably, Plaintiffs have not presented any evidence that reflects disapproval of the instant lawsuit within the relevant community or suggests they would be the target of actual threats, harassment or retaliation.

This is absurd. Harassment of plaintiffs in Establishment Clause suits is so rampant that it would be easier to name the cases where it did not happen than the cases where it did. Tammy Kitzmiller received death threats aimed at her daughter in the Dover case. Joann Bell and her family had their house firebombed in Oklahoma after challenging school prayers in their local schools.

The Dobrich family was chased out of their community in Delaware after complaining about Christian proselytization in the Indian River school district. Ellery Schempp and his family were harassed to no end. In fact, I can’t think of a single major church/state case that did not result in harassment, intimidation and sometimes outright violence against the plaintiffs.

This judge had better hope to high heaven that the kids in this case don’t end up the victims of violence after filing this case. Their injuries would be on his hands.