Reply #60: 1. I was responding primarily to the long string of posts above, all claiming

[struggle4progress]

that the poster had an actionable case. In fact, my guess is that such a case would be thrown out:

939 F.2d 1207

60 USLW 2170

SOCIETY OF SEPARATIONISTS, INC., et al., Plaintiffs-Appellants,


v.


Guy HERMAN, Judge of the Travis County Court at Law, et al.,


Defendants-Appellees.

No. 90-8660.

United States Court of Appeals,


Fifth Circuit.

Aug. 28, 1991

... On December 15, 1987, Robin Murray-O'Hair, an American Atheist, ... at the Travis County Courthouse ... refused to take the oath required of venire members before voir dire questioning, stating that she was an atheist and could not take an oath which included a reference to God. The presiding judge, Guy Herman, offered to allow Murray-O'Hair to affirm, but the affirmation still included a reference to God, and Murray-O'Hair refused. Murray-O'Hair was told to be seated and the other jurors were sworn in.

Murray-O'Hair was told to proceed to Herman's regular courtroom, where the judge ... offered to allow her to raise her hand and make an affirmation without any reference to "God or anything of that nature." Murray-O'Hair declined, stating that she could not affirm because an affirmation "is just as religious as an oath" .... Herman and Murray-O'Hair then debated the nature of affirmations. Herman had done some legal research, based in part on cases that Murray-O'Hair had submitted to him, and he concluded that "affirmances are for atheists and other folks that do not wish to take oaths." In his view, an affirmation was not a "religious statement"; it was merely a pledge that one would give true answers to the voir dire questions and met the qualifications for jury service. Murray-O'Hair had a different view: "An affirmation, my understanding, is a religious statement" ....

Murray-O'Hair continued to refuse and, ending the heretofore patient discussion, Herman ordered her jailed ... "... until you purge yourself of the contempt by taking the affirmation" She ... released on bond approximately six hours later ....

Murray-O'Hair subsequently filed three separate law suits ... First, Murray-O'Hair petitioned ... for a writ of habeas corpus. The court denied relief, but Judge Herman subsequently commuted the contempt sentence to the six hours served. Murray-O'Hair appealed the denial of relief, but the state court of appeals dismissed ...

Second ... Murray-O'Hair ... brought suit in federal district court ... alleging a continuing pattern "whereby they (1) respond as requested for jury service in the Travis County District Court, (2) refuse to take a 'God' oath, and (3) are excluded by the presiding Judge from jury service." The district court dismissed for failure to state a claim. We affirmed, holding that there is no constitutionally protected right to serve on a jury and adding that "oreover, ... jurors are not required to swear an oath to a deity ... an affirmation the same as an oath to a deity" ....8

Third ... Murray-O'Hair and the Society of Separationists filed this ... action seeking damages and declaratory and injunctive relief against Herman, Travis County Judge Bill Aleshire, Travis County, the "Travis County court system," and the clerk, sheriff and court bailiffs of Travis County. The suit, predicated on the particular exchange between Herman and Murray-O'Hair, was styled as a class action on behalf of all individuals whose religious convictions precluded them from taking the juror oath ...

The district court decided the case on cross motions for summary judgment ... The court: dismissed the Society as a plaintiff and denied class certification; found that all defendants were either immune, were nonexistent entities, or were otherwise improperly named; held that the earlier Murray decision was res judicata; dismissed plaintiffs' pendant state claims without prejudice; and imposed Rule 11 sanctions. The court later struck the award of sanctions when the defendants failed to timely submit their request for attorney's fee. The plaintiffs appealed the remaining portions of the court's order.

We hold that the previous suit does not bar this action; reinstate the Society as a plaintiff; affirm the dismissal of the defendants other than Herman; hold that Herman did violate Murray-O'Hair's Free Exercise rights; find Herman absolutely or qualifiedly immune from suit for damages; grant declaratory relief; and decline to grant an injunction ...

http://bulk.resource.org/courts.gov/c/F2/939/939.F2d.1207.90-8660.html