Somewhere in Giles County, at the center of a conflict between the words of God and those of the U.S. Constitution, is a high school student known as Doe 1.
The student used the pseudonym when filing a lawsuit last week that challenged a display of the Ten Commandments at Narrows High School, claiming it violates the constitutional separation of church and state.
Public reaction has been so bitter, so widespread, that the student hopes to remain anonymous.
“I fear that if my involvement were made public, I would experience social ostracism, harassment, or threats from my school peers or community members,” the student said in an affidavit filed with the lawsuit.
Lawyers for the American Civil Liberties Union and the Freedom From Religion Foundation, which brought the suit on behalf of the student and one of his or her parents, are asking a judge to issue a protective order that would bar the release of their names.
Such requests are not without precedent, legal experts said, as lawsuits involving religion still stoke hot public sentiment nearly a half-century after the U.S. Supreme Court forbade government-sanctioned prayer in schools.
“It’s very ugly out there, and because religion matters so much to people – even when it’s government-sponsored religion – people are reluctant to be plaintiffs,” said Barry Lynn, executive director of Americans United for Separation of Church and State.
“I wouldn’t say it’s the majority ? but there are certainly a growing number of plaintiffs named ‘Doe’ in these cases,” Lynn said.
Others said allowing a plaintiff to proceed anonymously undermines the presumption of open courts.
“The general policy is that lawsuits are supposed to be public, and the public has a right to know who is suing who, and the person being sued has a right to know,” said Francis Manion.
Manion is senior counsel with the American Center for Law and Justice, which often finds itself on the opposite side of the courtroom from Lynn’s group. Neither organization is involved in the Giles County lawsuit, filed Tuesday in U.S. District Court in Roanoke.
The 4th U.S. Circuit Court of Appeals, which covers Virginia, has defined five factors for judges to consider when determining whether to allow pseudonyms: whether the request is simply to avoid annoyance or criticism; whether identification would subject the plaintiff or others to harm; the age of the plaintiff; whether the lawsuit is against a governmental body or a private entity; and the risk of unfairness to the defendants should the case proceed anonymously.
The student’s age alone could be enough. Federal courts do not identify minors by name in civil cases, often using initials instead.
But even initials could identify someone in the small community of Narrows, where just under 300 students are enrolled in the high school, ACLU attorney Rebecca Glenberg wrote in a motion seeking anonymity.
Naming the student’s parent could have the same effect, the ACLU contends.
Judge Michael Urbanski will likely rule on the anonymity matter before deciding the merits of the lawsuit, which could take months.
‘A special place in Hell’
For more than a decade, framed copies of the Ten Commandments and the U.S. Constitution hung from the walls of public schools in Giles County.
After the Freedom From Religion Foundation complained last December — and after the county school board voted to take the Ten Commandments display down before later reversing itself – public reaction was swift and fierce.
More than 200 people packed a school board meeting, students at Giles High School skipped class in protest, and objectors lit up the Internet and vented on the commentary pages of local newspapers.
“I have been alarmed by the virulent reactions of the community” the student’s parent, referred to as “Doe 2,” wrote in court papers.
The motion for a protective order provides a sampling of comments:
“Keep up the good work, you’ll have a special place in Hell,” one man wrote in an email to the ACLU.
“Sure sounds to me like non-Christians ought to move out of Giles County before things get ugly over there,” another wrote.
“You folks are allowing Satin [sic] to rule you!!!” wrote a woman identified in the pleadings as a Giles County elementary school teacher.
“We won’t let an anonymous coward tell us how to run our business,” said Eric Gentry, chairman of the board of supervisors, according to an article from the Virginian Leader, the county’s newspaper, included in court filings.
In other religious freedom cases across the country, the war of words has escalated to death threats and actual violence, according the ACLU.
The group’s motion cites one case in which a plaintiff’s home was burned down and another in which the litigant’s house was broken into by someone who killed several cats and beheaded a parrot, leaving behind a note that read: “You’re next.”
Although no explicit threats have been made in Giles County, the comments illustrate a risk of harm — especially when directed at a school-aged child, the ACLU contended in its motion.
“Urging a quick sojourn to ‘you know where’ may be a benign comment to an adult, but if directed to a minor, can be harmful,” the motion states.
Does it matter who sues?
If the wishes of Doe 1 and Doe 2 are granted, they will not have to appear in open court.
Their testimony would be taken by deposition, with lawyers for the school board prohibited from releasing their names or other identifying information – not even to school board members or other county officials.
Court officials also would be forbidden from revealing their identities, and all official records would refer to them by their pseudonyms.
But even if the judge were to deny the motion for anonymity, anyone hoping to see a dramatic courtroom appearance of the plaintiffs might be disappointed.
“As a practical matter, these cases rarely get into a courtroom, said Manion of the American Center for Law and Justice. “They are almost always decided on motions, because there is seldom a dispute of what the facts are.”
In asking to have the lawsuit dismissed, lawyers for Giles County are likely to point out that the copy of the Ten Commandments that hangs in Narrows High is just one of 10 historical documents, sharing space with the Declaration of Independence, the Bill of Rights and sheet music of “The Star-Spangled Banner.”
“The observer is looking at a panoply of documents” that present a theme of law and government – not just religion – said Mathew Staver of the Liberty Counsel, an organization representing the school board.
Although it is settled law that the Ten Commandments standing alone in a school will not pass constitutional muster, courts have differed over multidocument displays such as the one in Giles County.
The context of religious passages in the overall display is often a factor for the court to consider, as is the history of the decision-making process of government officials who approved the display.
With the court’s focus on such factors, it makes little sense to obsess over who brought the lawsuit, said David Friedman, a retired ACLU attorney involved in two Ten Commandments cases that went to the U.S. Supreme Court.
“In most of these cases, the government has done what the government has done. ? It doesn’t matter whether it’s James Jones or Sally Smith who is objecting,” Friedman said.
Yet in some cases, particularly those in small communities such as Giles County, what doesn’t come from the courthouse is often learned through word of mouth.
“There’s almost a kind of witch hunt mentality as people try to figure out who these plaintiffs are,” said Lynn, of Americans United for Separation of Church and State.
“It’s very disturbing.”