The 2018 midterm elections were three months away when a grievance was aired with the county clerk and registrar of voters in Fresno, Calif.
A voter wanted to know “why it was okay to have a Black Lives Matter (a known domestic terrorist group) sign in front of our polling place,” according to court documents.
The county clerk, Brandi Orth, decided it was not okay, as she informed leaders of the Unitarian Universalist Church of Fresno, a congregation of about 450 in an affluent and mostly white part of town. In August, the county official asked the church, which had become a polling place in 2016, to remove a pair of yellow banners that say in black lettering, “Black Lives Matter.”
The signs stood by the side of the road like billboards, 200 feet from the church building. They announced solidarity with the activist movement against police violence — a cause that the church’s minister, Rev. Tim Kutzmark, called “the new face of the civil rights movement in this country today.”
The church said it would not comply with the request. The refusal prompted Orth, in September, to drop the house of worship as a polling location for the fall election, even though the banners stood beyond the 100-foot radius inside which state law prohibits “electioneering.” The issue of the perimeter aside, Kutzmark said the banners were not electioneering, and not even a political statement.
“They are a theological statement,” he said.
Now, the church is suing the county clerk in the United States District Court for the Eastern District of California, the latest chapter in a dispute that combines questions about voting, racial prejudice and religious faith. The controversy arises in a moment of heightened concern about voting rights, as new questions are emerging about how gerrymandering has unfolded along racial fault lines. Black voter turnout declined in 2016, for the first time in two decades.
The questions are especially freighted for Unitarian Universalists, members of a denomination dedicated to racial justice and yet at times beset by its own problems of diversity. The first Latino president of the Unitarian Universalist Association, Rev. Peter Morales, resigned before the end of his term in 2017 amid an outcry about the racial homogeneity of the organization.
The complaint, filed on Monday by the American Civil Liberties Union, claims that the government’s decision to abandon the church as a polling site endangered its constitutionally protected speech. The actions of the county clerk, it maintains, “violate the First Amendment by singling out Plaintiff’s messages for disfavor because of the views expressed in those messages.”
“The Church’s Black Lives Matter banners were not electioneering,” the complaint states. “They did not advocate for or against any candidate or measure on the ballot, and they were displayed more than 100 feet from the polling place at the Church.”
The signs addressed “matters of serious public concern,” the ACLU argues, particularly in a part of the country where the impacts of racism are “pervasive and profoundly harmful.” The rate of black infant mortality in Fresno County is nearly triple the county’s overall figure — and similar to rates in parts of the developing world, as the civil liberties group notes in the legal filing.
Mollie Lee, a senior staff attorney with the ACLU, said the suit aims to “call attention to the problem of systemic racism in Fresno, in addition to the violation of the church’s First Amendment free speech rights.” It seeks an order barring the county from disqualifying the church as a polling site on account of its signs.
The contest over protected voting zones has been an active one, reshaped by a judgment from the Supreme Court last year invalidating a Minnesota law barring political apparel inside polling places. But Lee said she knew of no other case in the 9th Circuit, which includes California and eight other states, involving a registrar of voters attempting to regulate speech outside a given radius.
The church’s endorsement of the Black Lives Matter movement flows directly from the principle that every person has “inherent worth and dignity,” said Kutzmark, 54.
Just as sacred, he added, is his church’s status as a polling place.
“Another of the Unitarian Universalist core religious principles is that we believe in the use of the democratic process, both in our congregations and in the community at large,” he said. “Anything that we do to promote and protect democracy — we see that as a religious act.”
Its reinstatement as a polling place would allow the church again to fulfill that function, said the minister, who grew up in Pittsburgh, studied in Boston and served his first congregation in Richmond. He has been in Fresno for nearly four years.
“The wrong has to be undone,” he said.
Orth did not return a request for comment.
The banners offer a window into the fraught efforts by the mostly white congregation to broadcast calls for racial equality.
After the Unitarian Universalist Association threw its weight behind the Black Lives Matter movement in 2015, the Fresno church undertook a process of “learning about racial bias, learning about white privilege and learning about white fragility,” Kutzmark said.
Out of that process came a proposal by the congregation’s social justice team to display Black Lives Matter banners. The idea drew some opposition, from those who thought the movement was an anti-police crusade, the minister said.
Over the course of many months, it became clear that most were supportive of the move. The signboards had already been ordered when torch-wielding white supremacists descended on Charlottesville for the “Unite the Right” rally in August 2017. But the deadly confrontation underscored the purpose of the display. “We got them up quickly,” Kutzmark recalled.
The reaction in the broader community was mixed. During a “blessing ceremony” when the banners were first raised, someone driving by shouted the n-word from a car window.
Soon after that, a vandal spray-painted “all” on top of the word “black.” The defacement turned the affirmation of the movement into a statement seen by its supporters as diluting the focus on the injustices suffered by black Americans. Then, the signs were torn down. Each time, they were restored or replaced, with a new blessing ceremony that brought together interfaith clergy, Kutzmark said.
The California primary in June 2018 passed without incident, the minister said. In fact, in-person voter turnout at the church, which topped 16 percent, exceeded the county average, which was nearly 11 percent.
But the situation was galling to the voter who labeled Black Lives Matter a terrorist group.
“I am a tax-paying citizen who has been ignored,” wrote the unnamed voter, following up on an inquiry from before the primary election, in what the ACLU maintains was the lone written complaint about the signs.
The resident asked, “Will the sign remain for the general in November?”
The answer was no.
In correspondence unveiled in court documents, Orth wrote to a member of her staff, asking her to look into the matter. The county employee responded that the banners were beyond the 100-foot marker. She further pointed out that the slogan was not “campaigning,” while allowing that it “does support a controversial movement.” She also said there had been no problems at the site in June.
In August, Orth personally requested that the church remove the signs, the complaint notes. Then, she informed her staff on Sept. 5: “The church will not take the ‘Black Lives Matter’ sign down.” She added, “please do not use this location for November. Put these voters somewhere else, nearby.”
The polling place was relocated to CrossCity Christian Church around the block. According to the legal filing, the move prompted fresh objections lodged with the county clerk, including one objecting to the way the new church “prominently displays controversial religious symbols and slogans.” There was no further relocation.
The county clerk agreed to meet with an interfaith group of clergy in January of this year. In the discussion, recounted by Kutzmark and described in court records, Orth said her intention was to ensure a “safe and neutral place to vote.”
“I said, ‘You’re looking at that though a white primacy culture lens,’” the minister said. “You’ve determined that to make this safe for one or two or three racist white people, it’s necessary to take a place that was safe for people of color to vote — and snatch that away.”
Unsatisfied with her response, the church leader took his concerns to the ACLU.
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