ACLU sues Fresno County over Black Lives Matter banners
A church’s free-speech rights to proclaim that “Black Lives Matter” vs. the county’s obligation to provide a politically neutral place for voters to cast ballots.
That is what is at issue in a lawsuit filed by the Unitarian Universalist Church of Fresno against the county of Fresno, and more specifically, County Clerk-Registrar of Voters Brandi Orth.
The suit, filed June 10 in U.S. District Court in Fresno, contends that Orth violated the church’s First Amendment rights when she removed it from the list of polling places for last November’s general election. Orth did so after receiving complaints over the “Black Lives Matter” banners set up on church property alongside Alluvial Avenue in northeast Fresno. The case has a scheduling conference set for September.
The issues involved in the case are complex and touch on the weighty topics of religious belief, desire for social justice and the mandate to keep balloting free of political interference.
The Unitarian Universalist church decided in 2017 to erect the banners as a way of affirming the value of African Americans. The church also was motivated by its own powerful history: Unitarian pastors went to Selma, Alabama in 1965 at the call of Dr. Rev. Martin Luther King Jr. to march for justice for black Americans. One Unitarian pastor from Boston, James Reeb, was in a group that was attacked by some white men. One of them struck Reeb in the head with a bat or pipe; two days later he died from the injury. It was the Selma march that prompted President Lyndon Johnson to introduce the Voting Rights Bill.
The Fresno church itself has known grief since the banners went up. Being along the street, drivers passing by see the display. Shortly after the banners went up, they were vandalized and had to be replaced. Even now, the Rev. Tim Kutzmark says obscenities and racial epithets are regularly yelled at the church. Another time, three men and three women in lifted pickups sporting American and Confederate flags stopped in the church parking lot studying the display. They verbally confronted Kutzmark, and he took photos of the license plates just in case. He’s had to call police several other times when he thought trouble might be brewing.
Despite the headaches, the church would not agree to Orth’s request to take down the banners for Election Day. The desire for racial justice is deep within the Unitarians’ religious view, and to have agreed would have meant denying that belief. Further, the church considered her request a violation of its First Amendment right of free expression.
County officials would not be interviewed for this editorial because the suit is ongoing litigation. But in a statement issued several days after the suit was filed, Orth said she removed the church as a polling place “in the best interests of the electorate.” In advance of Election Day, she moved the polling to another church on Nees Avenue. The suit says the county received complaints from people who found religious symbols and slogans at that church objectionable.
The lawsuit lays out several facts that make the church’s case strong: The banners were more than 100 feet from the polling place, per state election code requirements, and the “Black Lives Matter” banners did not promote any candidate, which is not allowed.
As a defender of the First Amendment, The Bee agrees that the Unitarian church had the right to post its banners as it did.
The suit, filed by the ACLU’s Northern California chapter, seeks to have the court recognize that Orth violated the church’s First Amendment rights. It further asks the court to keep Orth from seeking removal of the banners if the church is used as a voting location in the future.
However, that may be unlikely. For next March’s primary election, Fresno County will enter a new era of a drastically scaled back use of polling places. Rather than have 268 voting precincts, as was done last fall, the county will open just 50 voting centers countywide. And all registered voters will get mail-in ballots to use if they wish.
As Orth puts together the list of those places, she would do well to steer clear from using churches, as sad as that conclusion is to reach.
As the Unitarian Universalist case shows, in today’s superheated political environment, messaging — however heartfelt and well intentioned — can become a problem when it might be construed as politically offensive. If the Unitarian church’s banner had read “Blue Lives Matter,” in support of police, that would have likely led to complaints as well.
When it comes to places for voters to cast ballots, it is better to avoid conflict altogether by separating state from church.