Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
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.
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Of course if the judge were to open his door or draw back his drapes and see a crowd gathered across the street from hi home, the organs of state security would be at HIS beck and call.
Posted by: democommie | August 5, 2009 9:21 AM
I'm curious. Would the family be able to bring a civil lawsuit against the judge if something did happen? I would hope there is some recourse for the poor judgement of this one official.
Colorado is a very strange state. There are a lot of very progressive, enlightened areas, and a lot of very backwards religiously oppressive areas, and they are often very close together.
Posted by: FastLane | August 5, 2009 9:46 AM
What's the problem? As soon as some harrassment occurs, the judge will simply reverse his decision and restore the plaintiffs anonymity, right?
Posted by: Taz | August 5, 2009 9:58 AM
Incidentally, here's a link to an older article on the merits of the case itself. (Sadly, I haven't seen this new decision covered much in the local press.)
http://www.denverpost.com/search/ci_10561617
Posted by: WScott | August 5, 2009 10:08 AM
You cannot sue a judge for decisions made in his official capacity, and the supreme court has stretched this to the point where even clearly unauthorized judicial acts are covered as long as the judge believes he's acting within the law.
Posted by: Mu | August 5, 2009 10:10 AM
-the unsubstantiated potential for an adverse public reaction does not establish a compelling reason -
I believe the definition of stupidity is doing the same thing over and over again and expecting a different result.
Posted by: Richard Eis | August 5, 2009 10:11 AM
I assume the judge did this for convenience' sake. It would be a bitch for people in Colorado to drive to Pennsylvania to harass the Kitznmillers again.
Posted by: kehrsam | August 5, 2009 10:12 AM
If I were in this situation (and considering that I'm contemplating raising a child in Georgia I may be someday) I would demand the judge sign an affidavit accepting full responsibility for any harm or threat of harm that may befall me or my family, and for my response to such, either of which may be brutally violent.
If you don't want blood on your hands, don't expose children to death threats from the batshit insane.
Posted by: phantomreader42 | August 5, 2009 10:13 AM
Mu @ #5:
So judges can use the insanity defense too?
Posted by: phantomreader42 | August 5, 2009 10:17 AM
I wonder how this judge would feel about the death threats religious nuts made against Judge Jones in the Dover trial. Though given his behavior already, it seems unlikely that he'd dare rule based on the reality of the case or the law. He'll issue whatever ruling better helps prop up his cult with state funds. And if a child ends up murdered as a result of his stupidity, he'll just tell himself he did it for Jeebus.
Posted by: phantomreader42 | August 5, 2009 10:30 AM
kehrsham @7:
I wanted to acknowledge that I always appreciate your very dry wit.
Taz @ 3 was also nothing but net.
Posted by: Michael Heath | August 5, 2009 10:33 AM
Having lived in Denver for many years and being very familiar with the religious makeup of a lot of the state, I am quite confident that the judge did this for the specific purpose of discouraging the plaintiffs from filing. "If they're going to attack my religion I won't let them hide behind anonymity".
Posted by: Rev Matt | August 5, 2009 11:05 AM
It seems likely, doesn't it? I am even sympathetic to judges making rulings on narrow technical grounds even when it contradicts common sense (the rule of law, and all) but I don't even see narrow technical grounds for denying the motion in this case. The judges quotes from relevant federal regulations seem to imply he understands them. So if we rule out a) a valid technicality that justifies this ruling, b) that the judge is just incompetent and doesn't understand the technicals, then the only possibility that remains (in my mind at least) is c)the judge is ruling maliciously.
I'd like to posit a different explanation, but I just don't have one.
Posted by: James Sweet | August 5, 2009 11:20 AM
Could a motion be filed with the court to move this case to another jurisdiction based on the likely harassment and danger caused by the ruling? Can a motion like that be appealed to another bench?
I concur with the others who said Colorado is a very diverse population with deeply religious types and wildly liberal types in the same district, sometimes on the same block.
Posted by: MikeMa | August 5, 2009 11:27 AM
Is it possible that the judge has a pre-existing bias against those wishing to remove religion from the public square? Perhaps the judge wants the plaintiffs to feel pressure - if something does happen to the plaintiffs, it may be a deterrent in that future citizens will remain quiet for fear of harassment or violence.
Posted by: Muddy | August 5, 2009 11:51 AM
This decision was made by the Magistrate Judge of the case, not the District Court Judge who is officially in charge. The preliminary "housekeeping" matters of a case are often delegated to a Magistrate Judge, but hir decisions are always appealable to the the District Court Judge. In this kind of situation, where breach of anonymity is irreversible, you can count on the plaintiffs' counsel doing just that.
If the District Court Judge also refuses anonymity (which would be really strange given that it was unopposed) the plaintiffs could request an interlocutory appeal.
Posted by: D. C. Sessions | August 5, 2009 11:56 AM
Thanks D.C. I assumed there was a hope of reversing this motion on appeal. A good check on judges with an axe to grind.
Posted by: MikeMa | August 5, 2009 12:00 PM
Along the lines of what Jesse Helms once said about a school prayer bill that failed in the Senate - This is an opportunity for the plaintiffs to come out in the open about their minority beliefs, and to let the rest of the community let them know exactly how they feel about them. Nothing like being shunned, and a swift kick to the testicles to get a child's mind focused, and his beliefs corrected.
Posted by: soboco | August 5, 2009 12:26 PM
Indeed. The usual suspects are sharp today.
Posted by: xebecs | August 5, 2009 12:49 PM
Could the plaintiff's "accidentally" list the judge's home address in their filings (and later correct to the proper address)? I mean what is the harm if there is no risk of violence?
Posted by: The Schwa | August 5, 2009 5:35 PM
Uhh...yeah, right, all they did was provide "anecdotal" stories of how every other person to try this has been harassed. They did not provide any real proof that "they" would be harassed. I guess maybe their time machine is broken and they were unable to adequately prove future events to the Judges satisfaction.
Sigh...there are times when I seriously doubt our legal system will ever return to sensibility and justice. This is one of them.
Posted by: ausador | August 5, 2009 5:47 PM
I'd be asking the judge to recuse himself, because he is showing the very bias that the request was meant to avoid.
Posted by: Mandamus | August 5, 2009 6:20 PM
Plaintiffs:
"Kitzmiller! No"?
Judge:
"We will not let you go
under pseudonyms".
*ducks*
Posted by: eddie | August 5, 2009 7:29 PM
Magnifico, eddie.
Posted by: Mike Haubrich, FCD | August 5, 2009 11:37 PM
kersham #7
heh!
Posted by: Dr X | August 6, 2009 12:07 AM
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.
I assume you flipped around "did not" and "did". I do that, sometimes. Assume, I mean.
soboco "Nothing like being shunned, and a swift kick to the testicles to get a child's mind focused, and his beliefs corrected."
If you think it's tough being an unpopular minority, try being a popular majority. It's pretty bad. Sometimes they don't get everything they want. They cry themselves to sleep every night, I hear.
Posted by: Modusoperandi | August 6, 2009 12:43 PM
Splendidelles discusses the complaint. Its a secondary source, so caveat lector.
Posted by: eric | August 6, 2009 1:57 PM