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Posts Tagged ‘first amendment’

Judge Gives FEMA 3 Weeks to Change Policy Banning Churches From Receiving Disaster Relief

Posted by goodnessofgod2010 on November 12, 2017

A Houston federal judge has given FEMA three weeks to decide if its going to change its policy of denying disaster relief to religious institutions, rejecting FEMA’s attempt to delay a challenge by three Texas churches.

Since the devastation by Hurricane Harvey in late August, FEMA has denied houses of worship access to federal disaster aid grants due to their religious status while allowing other nonprofits and businesses to apply, but Judge Keith Ellison has given the agency until Dec. 1 to change that policy.

If FEMA fails to change the policy within the deadline, the judge said he would issue a ruling.

“Christmas may come early for hard-hit houses of worship in Texas — the court has set the clock ticking on FEMA’s irrational religious discrimination policy,” Daniel Blomberg, counsel at Becket, the nonprofit religious liberty law firm that represents the churches, said in a statement. “It can’t come soon enough.”

(PHOTO: REUTERS/CARLOS BARRIA/FILE PHOTO)A Federal Emergency Management Agency employee waits for the arrival of U.S. President Donald Trump during a visit at FEMA headquarters in Washington, U.S., August 4, 2017.

Harvest Family Church, Hi-Way Tabernacle and Rockport First Assembly of God, which were among the first to respond in Harvey’s aftermath and continue to provide aid to their communities, sued FEMA in September.

Last month, a Roman Catholic and a Jewish group submitted friend-of-the-court briefs siding with the three evangelical churches.

The Archdiocese of Galveston-Houston pointed out in its brief that FEMA’s policy is “especially unfair,” given that many houses of worship are often at the “very forefront” of providing “immediate aid to persons in need, regardless of faith, in the aftermath of serious tropic storms and other natural disasters.”

The Congregation Torah Vachesed synagogue of Houston noted that Hurricane Harvey was “particularly unforgiving” to the city’s Jewish community. “Despite this, Jewish institutions have been greatly involved in relief efforts throughout Houston. FEMA’s policy against funding otherwise qualifying religious institutions, however, would deny these same institutions equal access to public assistance to repair flood damage,” it wrote.

Secular groups, such as the Wisconsin-based Freedom From Religion Foundation, said earlier that FEMA’s policy should remain as is. “The government can help many individuals and nonprofits rebuild, but not churches. It is a founding principal of our nation that citizens may not be taxed in support of religion and churches,” FFRF Co-President Annie Laurie Gaylor argued.

“Discriminating against houses of worship — which are often on the front lines of disaster relief — is not just wrongheaded, it strikes at our nation’s most fundamental values,” said Blomberg.

In September, four Republican senators introduced a new bill, Federal Disaster Assistance Nonprofit Fairness Act, which is aimed at giving houses of worship the right to receive federal assistance in the wake of natural disasters.

Courtesy of https://www.christianpost.com/news/judge-gives-fema-3-weeks-change-policy-banning-churches-receiving-disaster-relief-206253/

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Posted in Faith Issues in Our Times, Hot Legal News, Tim's Blog | Tagged: , , , , , , | Leave a Comment »

City of Houston demands pastors turn over sermons

Posted by goodnessofgod2010 on October 15, 2014

Annise-ParkerThe city of Houston has issued subpoenas demanding a group of pastors turn over any sermons dealing with homosexuality, gender identity or Annise Parker, the city’s first openly lesbian mayor. And those ministers who fail to comply could be held in contempt of court.

“The city’s subpoena of sermons and other pastoral communications is both needless and unprecedented,” Alliance Defending Freedom attorney Christina Holcomb said in a statement. “The city council and its attorneys are engaging in an inquisition designed to stifle any critique of its actions.”

ADF, a nationally-known law firm specializing in religious liberty cases, is representing five Houston pastors. They filed a motion in Harris County court to stop the subpoenas arguing they are “overbroad, unduly burdensome, harassing, and vexatious.”

“Political and social commentary is not a crime,” Holcomb said. “It is protected by the First Amendment.”

The subpoenas are just the latest twist in an ongoing saga over the Houston’s new non-discrimination ordinance. The law, among other things, would allow men to use the ladies room and vice versa. The city council approved the law in June.

The Houston Chronicle reported opponents of the ordinance launched a petition drive that generated more than 50,000 signatures – far more than the 17,269 needed to put a referendum on the ballot.

However, the city threw out the petition in August over alleged irregularities.

After opponents of the bathroom bill filed a lawsuit the city’s attorneys responded by issuing the subpoenas against the pastors.

The pastors were not part of the lawsuit. However, they were part of a coalition of some 400 Houston-area churches that opposed the ordinance. The churches represent a number of faith groups – from Southern Baptist to non-denominational.

“City council members are supposed to be public servants, not ‘Big Brother’ overlords who will tolerate no dissent or challenge,” said ADF attorney Erik Stanley. “This is designed to intimidate pastors.”

Mayor Parker will not explain why she wants to inspect the sermons. I contacted City Hall for a comment and received a terse reply from the mayor’s director of communications.

“We don’t comment on litigation,” said Janice Evans.

However, ADF attorney Stanley suspects the mayor wants to publicly shame the ministers. He said he anticipates they will hold up their sermons for public scrutiny. In other words – the city is rummaging for evidence to “out” the pastors as anti-gay bigots.

Among those slapped with a subpoena is Steve Riggle, the senior pastor of Grace Community Church. He was ordered to produce all speeches and sermons related to Mayor Annise Parker, homosexuality and gender identity.

The mega-church pastor was also ordered to hand over “all communications with members of your congregation” regarding the non-discrimination law.

“This is an attempt to chill pastors from speaking to the cultural issues of the day,” Riggle told me. “The mayor would like to silence our voice. She’s a bully.”

Rev. Dave Welch, executive director of the Texas Pastor Council, also received a subpoena. He said he will not be intimidated by the mayor.

“We’re not afraid of this bully,” he said. “We’re not intimidated at all.”

He accused the city of violating the law with the subpoenas and vowed to stand firm in the faith.

“We are not going to yield our First Amendment rights,” Welch told me. ‘This is absolutely a complete abuse of authority.”

Tony Perkins, the head of the Family Research Council, said pastors around the nation should rally around the Houston ministers.

“The state is breaching the wall of separation between church and state,” Perkins told me. ‘Pastors need to step forward and challenge this across the country. I’d like to see literally thousands of pastors after they read this story begin to challenge government authorities – to dare them to come into their churches and demand their sermons.”

Perkins called the actions by Houston’s mayor “obscene” and said they “should not be tolerated.”

“This is a shot across the bow of the church,” he said.

This is the moment I wrote about in my book, “God Less America.” I predicted that the government would one day try to silence American pastors. I warned that under the guise of “tolerance and diversity” elected officials would attempt to deconstruct religious liberty.

Sadly, that day arrived sooner than even I expected.

Tony Perkins is absolutely right. Now is the time for pastors and people of faith to take a stand. We must rise up and reject this despicable strong-arm attack on religious liberty. We cannot allow ministers to be intimidated by government thugs.

The pastors I spoke to tell me they will not comply with the subpoena – putting them at risk for a “fine or confinement, or both.”

Heaven forbid that should happen. But if it does, Christians across America should be willing to descend en masse upon Houston and join these brave men of God behind bars.

Pastor Welch compared the culture war skirmish to the 1836 Battle of San Jacinto, fought in present-day Harris County, Texas. It was a decisive battle of the Texas Revolution.

“This is the San Jacinto moment for traditional family,” Welch told me. “This is the place where we stop the LGBT assault on the freedom to practice our faith.”

We can no longer remain silent. We must stand together – because one day – the government might come for your pastor.

Posted in Attack on Christianity, Faith Issues in Our Times, Religious Freedom, Tim's Blog | Tagged: , , , , , , | Leave a Comment »

US Supreme Court Argument Preview: Religion, Rights, and the Workplace

Posted by goodnessofgod2010 on March 20, 2014

us-supreme-court (1) 

At 10 a.m. next Tuesday, the Supreme Court will hold ninety minutes of oral argument on the government’s authority to require private businesses to provide birth control and other pregnancy-related services to their employees under the Affordable Care Act.  Arguing for the challengers to the so-called “contraceptive mandate” will be Paul D. Clement, of the Washington, D.C., law firm of Bancroft PLLC.  Defending the mandate will be U.S. Solicitor General Donald B. Verrilli, Jr.   Each will have forty-five minutes of time, under an order issued Thursday expanding the time beyond the normal amount.  The consolidated cases areSebelius v. Hobby Lobby Stores and Conestoga Wood Specialties Corp. v. Sebelius.

Background

For the first time since the broad new federal health care law partially survived its most sweeping constitutional challenge in the Supreme Court nearly two years ago, the Affordable Care Act comes up for a new test before the Justices.  This time, the Court will be examining whether the government may enforce against private businesses owned by religiously devout owners the requirement that employee health plans provide no-cost coverage for women’s pregnancy-related services, including birth control.

These services, required under the so-called “contraceptive mandate” in the Act and in government regulations, are not themselves in legal trouble:  the only issue before the Court at this point is which businesses can be ordered to provide the services to their female workers at no cost to them.

That issue will be debated by two of the legal gladiators who met in the last test at the Court of the Affordable Care Act:  Washington attorney Paul D. Clement, a former U.S. Solicitor General, and the current Solicitor General, Donald B. Verrilli, Jr.

There probably would be a significant loophole in the contraceptive mandate’s reach if the challengers win.  Some women’s rights groups have estimated that millions of women would be affected.  Female workers of the two companies involved and those of other religiously oriented companies would have to cover personally the cost of at least some of the birth-control services — unless the government were to set up a new program on its own to do so, which is a very unlikely prospect.

Thus, the two cases that the Court has combined for review set up a direct conflict between the interests of some employers against those of their female workers of child-bearing age.  The federal government is clearly on the workers’ side, but the lower federal courts have been divided on who should win.

The dispute only involves private businesses because religious groups, as such, are given an exemption by regulations the government has issued.  Even some businesses get exemptions, too, because their employee health plans have been “grandfathered,” but before long those, too, will actually have to provide the benefits at issue, or face heavy financial penalties.

At the level of their greatest potential, the two cases raise the profound cultural question of whether a private, profit-making business organized as a corporation can “exercise” religion and, if it can, how far that is protected from government interference.  The question can arise — and does, in these cases — under either the First Amendment’s Free Exercise Clause or under a federal law, the Religious Freedom Restoration Act, passed by Congress in 1993.

In a manner of speaking, these issues pose the question — a topic of energetic debate in current American political and social discourse — of whether corporations are “people.”  The First Amendment protects the rights “of the people,” and the 1993 law protects the religious rights of “persons.”  Do profit-making companies qualify as either?

Aside from whether corporations do have any religious rights, as such, the cases also raise the question whether the religious rights of their owners — real people, who undeniably can act according to their faith — are violated by the requirement that their companies obey the contraceptive mandate.  Ordinarily, in business law, corporations are separate from their owners, but the owners in these cases resist that notion, at least so far as the owners’ religious views actually shape the business of their companies.

No one doubts that the owners of the two companies have sincere religious objections to some forms of birth control or that their beliefs do counsel them to avoid any role in providing those services to their employees.  The companies and their owners do not have to convince the Court that that is what they believe — only whether that belief controls enforcement, or not, of the mandate.

One company is Hobby Lobby Stores, Inc., and a related company, Mardel, Inc.  Headquartered in Oklahoma City, the two companies are owned — through a trust — by members of the Green family.   Hobby Lobby is a chain of more than 500 arts-and-crafts stores across the country, with more than 13,000 employees.  Mardel is a chain of Christian book stores, with 35 outlets and about 400 employees.

The Green family members signed a formal commitment to run the two chains according to Christian religious principles — closing on Sunday, advertising their religious orientation, and playing religious music in the stores.   The owners and their stores do not object to every part of the contraceptive mandate, but they do object to the use of any drugs or intrauterine devices that — in the words of their lawyers — “end human life after conception.”

They have estimated that, if they follow their faith and violate the mandate, they face fines of about $1.3 million a day, or almost $475 million a year.  They believe that cancelling their health plan to avoid obeying the mandate would put them at a competitive disadvantage with other employers.   They do not believe that the government can force them to make such choices.

The other company is Conestoga Wood Specialties Corp., a company based in East Earl, Pennsylvania, that also has operations in other states, making wooden cabinets and wood specialty products.  It has about 950 employees.

The company is owned by members of the Hahn family, who are Mennonite Christians.  Their faith teaches them that it is wrong to take a human life and to prevent its creation through drugs and intrauterine devices  If the company or its owners were to violate the mandate to adhere to their beliefs, they estimate that they would face financial penalties of about $35 million a year.

Federal appeals courts ruled in conflicting ways.  The U.S. Court of Appeals f0r the Tenth Circuit decided that Hobby Lobby was likely to win its challenge because, even though it is a profit-making business, it can, indeed, act according to faith principles.  The U.S. Court of Appeals for the Third Circuit decided that neither the company, Conestoga Wood Specialties, nor its owners could claim First Amendment religious rights — because, it found, the corporation is incapable of doing so, and because the owners had chosen the corporate form for their business and it stands apart from their personal interests.

Petitions for certiorari

The federal government asked the Supreme Court to review the Hobby Lobby case, while the Hahn family and their woodworking company did the same in their case.  As offered to the Justices, the two cases together raise both the First Amendment religious rights question and the RFRA statutory issue, as to both the companies and their owners.

The First Amendment provides that no law may be passed, at any level of government, that prohibits “the free exercise of religion.”  RFRA provides that government agencies (only at the federal level, since the Act no longer applies at the state and local levels) may not impose a “substantial burden” on the religious exercise of “a person,” even if the law is one that everyone ordinarily must obey, unless the government can justify the burden to satisfy a “compelling government interest,” and only if it is the “least restrictive means” of doing so.  It does not specifically define “person.”

On November 26, the Court agreed to review both cases and consolidated them for review.

Briefs on the merits

Hobby Lobby Stores — whose name will probably provide the label for the case in history – argued aggressively in its merits brief that the federal government was pursuing “a misguided shell game” in which only the Green family has rights and the corporation suffers alone the burden of the mandate.   That, it contended, was a move to ”drive a wedge” between the family and its corporation.

The brief insisted that, if the Court uses the definition of “person” that is in the federal Dictionary Act, it would refer not only to natural persons, but to corporations, too.  And, under the ACA regulations at issue, the filing said, the government is seeking to force employers to provide specific contraceptives, not just “an exchange of money.”  It is the contraceptives, not their cost, that burdens the Green family’s faith and the principles of Hobby Lobby Stores and the related bookstore chain, the brief argued.

Saying that the Court must apply “strict scrutiny,” the most demanding test for the validity of a government mandate or program, the Hobby Lobby brief said that the government has “not come close” to satisfying that standard.  The official claims that the mandates support public health and women’s equality are so broad that they could never meet that test, the brief said.

The retail chains’ filing said that the government has come up at the last minute with another attempted justification — that is, that the mandate is part of a comprehensive scheme of providing health benefits to all.  But that notion, the brief said, is belied by all the exemptions the government has allowed.

Because the question that the government raised in its petition in the Hobby Lobby case was restricted to the scope of the Religious Freedom Restoration Act, the retail chains’ merits brief is confined to that issue.

The merits brief for Conestoga Wood Specialties and its owners deals with its claims under both RFRA and the First Amendment.  The filing begins with a defense of the Hahn family’s claim that its members choose to practice their faith through business activity, as well as in their personal lives.  “The corporate formality of a business is not determinative of whether religious exercise occurs in that business,” it contended.

But, if the family’s religious interests could be separated from the company, the brief went on, the company itself “exercises religion, too.”  Under state law, the corporate form may be used “to pursue all lawful purposes, without excluding religion,” Conestoga’s lawyers told the Court.  The Supreme Court, they added, “has never limited religious freedom to natural persons.”

Aside from arguing that the contraceptive mandate substantially burdens the religious rights of the Hahns and of their company, the brief said that Congress in passing the Affordable Care Act did not require that contraceptive services be included in employee health plans; that was added by the federal government in ACA regulations.

And, like Hobby Lobby, the Conestoga filing asserted that “strict scrutiny” is the only valid test to apply and that the government cannot show that it has a compelling interest in enforcing the birth-control mandate against religious objectors.  If the government is intent on assuring access to birth control, the brief said, it could either expand existing programs which provide that service or create new ones.

The Obama administration’s merits brief in Hobby Lobby focused on the RFRA claim, and its separate brief in the Conestoga case sought to answer claims under both RFRA and the First Amendment.

In each filing, the government made the same basic points:  profit-making businesses do not “exercise” religion at all, for purposes of either federal law or the Constitution; the mandate only applies to corporations and not to their owners and, in any event, corporations law treats the business separate from the owner; and, even if the mandate did have to satisfy a compelling government interest, it does so by assuring that female workers have access to an important health benefit as part of a comprehensive health insurance scheme.

The contraceptive coverage requirement, according to the government, is a neutral obligation that applies to profit-making businesses in general, and does not target any religious exercise.  The exemptions that have been provided for other businesses — those whose plans are “grandfathered” and thus do not immediately have to obey the mandate — will only exist in a phased sequence, and that alone is not enough to deprive the mandate of its neutral character, the U.S. brief said.

In passing RFRA, the brief contended, Congress did not intend to “uniquely disable the government by working a dramatic expansion” of the claims for exemption based on religious liberty.  Besides, it added, there has not been a single decision by the Supreme Court that struck down a federal law — or required an exemption to it — on the theory that that was necessary “to protect the rights of a for-profit corporation or of the owners, managers, or directors of the corporation.”

The government brief also made a religious liberty argument of its own.  It said that giving for-profit businesses the chance to obtain an exemption from federal laws based on religion would threaten “the special place of religious institutions in our society.”  Congress has often given religious bodies exemptions from laws, but it has always “drawn the line at for-profit corporations,” the brief said.

If Hobby Lobby and Conestoga are legally entitled to exemptions, Congress would be discouraged from providing exemptions for non-profit religious organizations “for fear that doing so would automatically entitle for-profit corporations to the same accommodation,” according to the government’s argument.

The briefs for the government also asserted that there actually is no burden on any religious exercise by owners or corporations, because the choice to use a birth-control pill or device would be made independently by the female workers covered by a health insurance plan.   The connection between those choices and the interests of the employer who finances the plan, the brief went on, is “too indirect” to make a legal difference.

The amicus briefs

If numbers of amici were to make a difference, there is no contest in these cases:  the government drew two dozen briefs in support, while Hobby Lobby and Conestoga are backed by five dozen filings.  There are two briefs that do not take a position on how these specific cases should be decided, but they take opposite positions:  a brief by professors of history and law argues that the Court has always treated corporations differently from natural persons, while a brief by a group of traditional religious organizations urges the Court to adopt an expansive view of the right to religious exemptions from public laws.

The boldest brief in support of the government takes a position that the government did not, urging the Supreme Court to strike down RFRA as an unconstitutional attempt by Congress to scuttle a Supreme Court decision requiring religious organizations to obey laws that apply generally.  That is a brief by a disparate group of advocacy organizations, including non-believers and survivors of clergy sexual abuse of children.

There is, on the corporations’ side, a brief by constitutional law scholars seeking to answer that constitutional challenge.  That brief contends that RFRA is a valid exercise of Congress’s legislative powers, and that nullifying the law “would threaten thousands of statutes that protect religious minorities.”

There are predictable allies on each side:  civil rights and women’s rights groups, liberal organizations, professors of various disciplines, and liberal lawmakers on the side of the federal government and the ACA, and traditional religious organizations and advocacy groups, conservative and libertarian entities, professors of various disciplines, and conservative lawmakers on the side of Hobby Lobby and Conestoga.

Analysis

If the legal territory the Court enters in these cases is not entirely new, it is also not well traveled.  The Court has sort of assumed since 1886 — without ever ruling flatly — that corporations are “persons” in a constitutional sense.  And, over time, it has filled in some of the gaps on what rights corporations are to have under the Constitution.  But it has never said, explicitly, that they are endowed with the right to freely exercise a religious faith.

These two cases give it the chance to do just that, if it is so inclined, and that would be a profound constitutional shift, with deeply uncertain implications.  It would, at a minimum, pave the way for businesses to choose whom they serve according to the identities of the customers and how those square with the religious preferences of the company.

But the Court need not go that far, even if it should lean toward ruling in favor of an exemption within the business world from the ACA’s contraceptive mandate.  It could decide that the Green family and the Hahn family have a right to exercise their religious beliefs in the way they run their business firms, and that this mandate intrudes on those rights.

Along the way, of course, the Justices would have to find a way around the conventional business law notion that corporations stand apart from their owners.  But they could do that with a very narrow definition of the rights of the owners of a company that is so closely held that it is essentially not a public corporation, except in name.  Again, though, that would grow out of the rights of the owners, not of the corporate entity itself.

The problem in anticipating a victory for religious owners, though, is that the focus in that analysis may fall too heavily on the owner’s interests, and insufficiently on the interests of the employees.  What is at stake on that side of the legal controversy is the interest of female employees in managing their personal lives and their reproductive health, with obvious implications for their ability to carry on their work lives and careers.

Just as there are Justices now on the Court who would, indeed, view this controversy through sympathetic eyes for business management, there also are Justices now serving who would certainly view sympathetically the claims of female workers of child-bearing age.

In these two cases, those two perspectives seem distinctly at odds, and the chances of finding common ground between them seem remote, indeed.

For example, the easiest way to rule for a religious exemption for businesses or their owners in this case would be to interpret the Affordable Care Act as not even authorizing the government to include birth control in the requirements for employee health plans.  That is an argument that the lawyers for the businesses here actually make.  But to rule that way would be to read the purposes of the statute’s coverage of preventive health services so narrowly as to ignore the realities of the health of women who work in offices, factories, and shops.

In terms of the legal foundations for a ruling, the Court might well go into this case hoping to avoid making new constitutional law, on the institutional premise that it should not decide a constitutional question unless it has no way to avoid it.

But it would be hard to base a ruling in this case solely on the scope of the Religious Freedom Restoration Act, because that Act is essentially designed to protect constitutional rights of religious liberty.  To know what that law does protect requires knowing what the Constitution embraces — either as to corporations, or as to their owners, or both.

Only one thing, perhaps, is certain as the argument in this case approaches: whatever the Court decides, it will not decide the fate of the Affordable Care Act.  The nation’s politics, and many of its legislatures (including Congress), are absorbed with debates over whether to keep the law, to amend it, to render it unenforceable, or to repeal it altogether.  None of that depends upon the outcome of this case.

The Court has not been asked to strike down any part of the law, and it almost certainly won’t volunteer to do so.  All that is at issue is who must obey the contraceptive mandate.

Posted in Sebelius v. Hobby Lobby StoresConestoga Wood Specialties Corp. v. Sebelius,AnalysisFeaturedHealth CareMerits Cases

Recommended Citation: Lyle Denniston, Argument preview: Religion, rights, and the workplace, SCOTUSblog (Mar. 20, 2014, 3:30 PM), http://www.scotusblog.com/2014/03/argument-preview-religion-rights-and-the-workplace/

Posted in Faith Issues in Our Times, Hot Legal News | Tagged: , , , , , , , | Leave a Comment »

Federal Judge: Teacher Who Punished Student for Expressing Catholic Belief Against Homosexuality Violated Student’s First Amendment Rights

Posted by goodnessofgod2010 on June 20, 2013

news_img_3584ANN ARBOR, MI – The Thomas More Law Center today announces a victory in their lawsuit against teacher Johnson McDowell of Howell High School in Howell, Michigan. Federal District Judge Patrick J. Duggan of the Eastern District of Michigan issued his opinion yesterday.

The Court declared the teacher’s actions in punishing Daniel Glowacki for expressing his beliefs against homosexuality violated “Daniel’s First Amendment rights.” In its findings of fact—the Court described how the teacher initiated a discussion about homosexuality. The teacher wore a purple t-shirt and was promoting the homosexual agenda. In response, the Plaintiff, 16 year-old Daniel Glowacki stated that homosexuality was against his Catholic beliefs. The teacher, admittedly, became angry and threw Daniel out of class because he disagreed with Daniel’s beliefs.

The teacher in the lawsuit tried to blame Daniel and claimed he caused a disturbance in the teacher’s classroom. The teacher’s claims were wholly unsupported by all of the other evidence in the case, including affidavits of students in the classroom and the teacher’s own earlier statements. The teacher also tried to argue that Daniel’s religious statement was tantamount to “bullying.” The Court dismissed that claim as well, holding that Daniel’s speech could not be silenced because the teacher did not like Daniel’s religious beliefs and viewpoint.

The Court’s opinion echoed the longstanding legal precedent that “students do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969).

The teacher argued that Daniel’s speech that his religion did not approve of homosexuality was a bullying statement. However, Judge Duggan, citing several cases, disagreed (citations and quotations omitted).

While the Court certainly recognizes that schools are empowered to regulate speech to prevent students from invading the rights of other students, people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life. Relatedly, a listeners’ reaction to speech is not a content-neutral basis for regulation. While a student or perhaps several students may have been upset or offended by Daniel’s remarks, Tinker straight-forwardly tells us that, in order for school officials to justify prohibition of a particular expression of opinion, they must be able to show that this action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Simply put, the law does not establish a generalized hurt feelings defense to a high school’s violation of the First Amendment rights of its students.

Thomas More Law Center attorney, Erin Mersino was the lead counsel in the lawsuit. It is expected that the teacher will appeal the decision.

Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commenting on the favorable court decision, stated:

“The purpose of our lawsuit was to protect students’ constitutional rights to free speech, defend religious liberty, and stop public schools from becoming indoctrination centers for the homosexual agenda.”

The Thomas More Law Center originally filed its federal lawsuit back on December 14, 2012 against the teacher, Johnson McDowell, and the Howell Public School District. The claims against the School District were dismissed, and the Court held that the teacher alone was the responsible party.

The ACLU appeared in the case as amicus and supported Daniel’s position against the teacher.

Courtesy of http://www.thomasmore.org/

Posted in Attack on Christianity, Faith Issues in Our Times, Hot Legal News, Religious Freedom, Tim's Blog | Tagged: , , , , , , , , , , , , , | Leave a Comment »

School Forces First Grader to Remove “God” From Poem

Posted by faithandthelaw on December 27, 2012

Marion-Elementary-School-Forces-First-Grader-to-Remove-God-from-PoemA North Carolina elementary school forced a first grade student to change a poem she had written for her grandfather for a Veteran’s Day Event because a line contained the name of God in it.
The student, who attends West Marion Elementary School was selected to read the poem as part of a special school event. Her poem was a tribute to her grandfather, a Vietnam war veteran. The line that caused the controversy said: “He prayed to God for peace, he prayed to God for strength.” (source).

According to reports, a parent of another student of the school became aware of the line in the poem and complained to school officials about the religious language.

“We had one parent concerned with the use of the word ‘God’ in this program,” school employee Chris Greene explained during a recent Board of Education meeting. “This parent did not want the word ‘God’ mentioned anywhere in the program.”

As a result, school officials to the student to remove the line from the poem.

“We wanted to make sure we were upholding the school district’s responsibility of separation of church and state from the Establishment Clause,” Superintendent Gerri Martin, who made the decision along with the principal and vice principal, told the Hickory Record.

“As a principal of a public school, I must put aside my personal religious beliefs and follow the law,” added West Marion Elementary principal Desarae Kirkpatrick, “which upholds that we have freedom of speech and freedom of religion, but that we, as public schools, cannot endorse one single religion over another.” (source).

The Alliance Defending Freedom, a legal advocacy group that works all over the United States defending Christians in issue of religious liberty, issued a letter to the school informing that they violated the student’s rights in their actions:

“America’s public schools should encourage, not restrict, the constitutionally protected freedom of students to express their faith,” said Matt Sharp, legal counsel for the Alliance Defending Freedom, in a statement. “Students should not be censored when speaking about their faith or honoring those who valiantly served to protect our freedoms. … The censorship of this young student’s poem about her grandfathers is repugnant to the First Amendment rights of all students and sends an impermissible message of hostility towards religion.” (source).

In their letter, the Alliance Defending Freedom informed them that if they did not change their policy and allow religious speech of this manner, they would pursue legal action.

Continue in prayer for this school, the student and the ADF for a resolution that allows free expression, even if it is in reference to the God of the Bible. Parts of society, especially the public school system have become so hostile to God that even a reference to the name “God” in a poem results in censorship. This attitude of enmity with The Lord is all prophesied in the Bible. Jesus Christ said:

Remember the word that I said unto you, The servant is not greater than his lord. If they have persecuted me, they will also persecute you; if they have kept my saying, they will keep yours also. But all these things will they do unto you for my name’s sake, because they know not him that sent me. – John 15:20-21.

Christians will continue to see the world increase its hostility to the faith. And the response should be to continue to share the Gospel of Jesus Christ and pray for revival in the hearts and minds of the unsaved world to see the light and truth of Jesus Christ, who does not just give a soldier strength, He gives eternal life to all who will believe on Him. It is sin that has caused such a gulf between humanity and God. And the only remedy to have peace, forgiveness and reconciliation with God is faith in Jesus Christ who died for the sins of the world so that there would be a chance for forgiveness and eternal life.

This is the message Christians need to continue to proclaim and it is a blessing that a first grader has set such a fine example.

Courtesy of:

http://beginningandend.com/school-forces-first-grader-to-remove-god-from-poem/

Posted in Attack on Christianity, Faith Issues in Our Times, Religious Freedom, Tim's Blog | Tagged: , , , , , | Leave a Comment »

Did George Washington Actually Say “So Help Me God” During His Inauguration?

Posted by faithandthelaw on December 19, 2011

By David Barton 1

In December 2008 following the election of Barack Obama as president, noted atheist Michael Newdow filed suit to prohibit religious acknowledgments or activities from being part of the inaugural ceremonies, specifically seeking to halt the inclusion of “So help me God” as part of the presidential oath as well as halt inaugural prayers by clergy. 2

Newdow has an established record of bringing suits to eradicate long-standing public religious practices, including to:

  • remove “under God” from the Pledge of Allegiance 3
  • eliminate “In God We Trust” (the National Motto) from coins and currency 4
  • prohibit California textbooks from mentioning Biblical events found in Genesis 1-3 5
  • exclude clergy prayers from presidential inaugurations 6
  • reverse the time-honored tax exemptions for housing provided by churches to clergy 7
  • abolish chaplains hired by Congress 8

Newdow insists that his quest for a completely secular public square is based on constitutional mandates, Founding Fathers’ intent, and American history. Regarding the latter, in his 2008 lawsuit, Newdow claimed that the use of the phrase “So help me God” in presidential oaths was of relatively recent origin – that George Washington had not used the phrase and that it did not become part of legal oaths, especially for presidents, until the inauguration of President Chester A. Arthur in 1881. 9 Although courts and scholars have routinely rejected Newdow’s preposterous historical assertions, this specific one, for some inexplicable reason, gained traction among some media and academics, pitting them against many distinguished historical authorities.

The Chief Historian of the United States Capitol Historical Society, the Library of Congress, the U. S. Supreme Court (and numbers of its Justices), the Joint Congressional Committee on Inaugural Ceremonies, the Architect of the Capitol, and other notables have affirmed that “so help me God” is a traditional practice dating back to George Washington. Significantly, for almost two centuries, it was universally accepted that “So help me God” had actually been said as part of the official oathtaking process, but Newdow and his fellow travelers insist that everyone except themselves has been wrong for the past two centuries. 10

One of those who agrees with Newdow is Matthew Goldstein, a regular writer for atheist and secularist sites. To help prove his case, he cites with approval an article by USA Today claiming that there is “no eyewitness documentation he [Washington] ever added ‘so help me God’.” 11 (So USA Today is now an authoritative historical source? Really?) Other secularist voices have joined the chorus, including attorney/writer Jim Bendat, who claims that George Washington’s use of “So help me God” is a “legend”; 12 Professor Peter Henriques of George Mason University calls it a “myth,” adding that any such claim to the contrary “is almost certainly false”; 13 and Charles Haynes of the First Amendment Center says that not only is it a “popular myth” but also that it’s time to completely get rid of “So help me God” as part of the oath. 14

What is the historical basis for claiming that George Washington did not say “So help me God” as part of the presidential oath? According to Newdow and other critics, no records of the day specifically show Washington reciting the phrase, therefore he did not say it.

Numerous historical documents and practices disproving Newdow’s claim will be shown below, but first consider the historical unreasonableness of claiming that someone did not do something unless it is specifically written that he did so. Even Wikipedia characterizes this type of logic as an “appeal to ignorance” – an approach asserting that something is false only because it has not been proven true – that the lack of evidence for one view is substitutionary proof that another view is true. 15

Consider all the inaugural absurdities that can be “proven” under the approach taken by Newdow. For example, since there is no detailed record that President James Monroe did not launch into a string of profanities at his inauguration, then he certainly must have done so; and since no one wrote on Inauguration Day 1825 that the sun rose in the east and set in the west, then it must have been otherwise. These scenarios are ridiculous, but they illustrate the inherent fallacies in the methodology used by Newdow.

Three specific strands of historical evidence will be presented below that demonstrate the absurdity of the modern claims. First, at least seven different religious activities were part of the first inauguration, thus the proceedings were indisputably heavily religiously-permeated. Second, the entirety of American legal practice at that time, including the specific stipulations of statutory law, required the phrase “So help me God” be part of any oath administered by or to government officials. Third, Washington himself, and numerous other Founding Fathers, repeatedly affirmed that an oath of office was a religious act; they explicitly rejected any notion that an oath was secular.

1. RELIGIOUS ACTIVITIES AT GEORGE WASHINGTON’S INAUGURATION

Constitutional experts abounded in 1789 at America’s first presidential inauguration. Not only was the inauguree a signer of the Constitution but one fourth of the members of the Congress that organized and directed his inauguration had been delegates with him to the Constitutional Convention that produced the Constitution. 16 Furthermore, this very same Congress also penned the First Amendment and its religious clauses. Because Congress, perhaps more than any other, certainly knew what was constitutional, the religious activities that were part of the first inauguration may well be said to have had the approval and imprimatur of the greatest congressional collection of constitutional experts America has ever known.

That inauguration occurred in New York City, which served as the nation’s capital during the first year of the new federal government. The preparations had been extensive; everything had been well planned.

The papers reported on the first inaugural activity:

[O]n the morning of the day on which our illustrious President will be invested with his office, the bells will ring at nine o’clock, when the people may go up to the house of God and in a solemn manner commit the new government, with its important train of consequences, to the holy protection and blessing of the Most High. An early hour is prudently fixed for this peculiar act of devotion and . . . is designed wholly for prayer. 17

As subsequent activities progressed, things seemed to be proceeding smoothly, but as the parade carrying Washington by horse-drawn carriage to the swearing-in was nearing Federal Hall, it was realized that no Bible had been obtained for administering the oath, and the law required that a Bible be part of the ceremony. Parade Marshal Jacob Morton therefore hurried off and soon returned with a large 1767 King James Bible.

The ceremony was conducted on the balcony at Federal Hall; and with a huge crowd gathered below watching the proceedings, the Bible was laid upon a crimson velvet cushion held by Samuel Otis, Secretary of the Senate. New York Chancellor Robert Livingston then administered the oath of office. (He was one of the five Founders who drafted the Declaration of Independence, but had been called back to New York to help guide his state through the Revolution before he could affix his signature to the document he had helped write. Because Livingston was the highest ranking judicial official in New York, he was chosen to administer the oath of office to President Washington.)

Standing beside Livingston and Washington were many distinguished officials, including Vice President John Adams, Supreme Court Chief Justice John Jay, Generals Henry Knox and Philip Schuyler, and several others. The Bible was opened (at random) to Genesis 49; 18 Washington placed his left hand upon the open Bible, raised his right, took the oath of office, then bent over and reverently kissed the Bible. Chancellor Livingston proclaimed, “It is done!” Turning to the crowd assembled below, he shouted, “Long live George Washington – the first President of the United States!” That shout was echoed and re-echoed by the crowd. Washington and the other officials then departed the balcony and went inside Federal Hall to the Senate Chamber where Washington delivered his Inaugural Address.

In that first-ever presidential address, Washington opened with a heartfelt prayer, explaining that . . .

it would be peculiarly improper to omit in this first official act my fervent supplications to that Almighty Being Who rules over the universe, Who presides in the councils of nations, and Whose providential aids can supply every human defect – that His benediction may consecrate to the liberties and happiness of the people of the United States a government instituted by themselves for these essential purposes. 19

Washington’s inaugural address was strongly religious, and he called his listeners to remember and acknowledge God:

In tendering this homage [act of worship] to the Great Author of every public and private good, I assure myself that it expresses your sentiments not less than my own, nor those of my fellow-citizens at large less than either. No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States. Every step by which they have advanced to the character of an independent nation seems to have been distinguished by some token of Providential Agency. . . . [and] we ought to be no less persuaded that the propitious [favorable] smiles of Heaven can never be expected on a nation that disregards the eternal rules of order and right which Heaven itself has ordained. 20

Having finished his address, Washington offered its closing prayer:

Having thus imparted to you my sentiments as they have been awakened by the occasion which brings us together, I shall take my present leave – but not without resorting once more to the benign Parent of the Human Race in humble supplication [prayer] that . . . His Divine blessing may be equally conspicuous in the enlarged views, the temperate consultations, and the wise measures on which the success of this government must depend. 21

The next inaugural activities then began – activities arranged by Congress itself when the Senate directed:

That after the oath shall have been administered to the President, he – attended by the Vice-President and members of the Senate and House of Representatives – proceed to St. Paul’s Chapel to hear Divine service. 22

The House had approved the same resolution, 23 so the president and Congress thus went en masse to church as an official body. As affirmed by congressional records:

The President, the Vice-President, the Senate, and House of Representatives, &c., then proceeded to St. Paul’s Chapel, where Divine Service was performed by the chaplain of Congress. 24

The service at St. Paul’s was conducted by The Right Reverend Samuel Provoost – the Episcopal Bishop of New York, who had been chosen chaplain of the Senate the week preceding the inauguration. 25 He performed the service according to The Book of Common Prayer, including prayers taken from Psalms 144-150 and Scripture readings and Bible lessons from the book of Acts, I Kings, and the Third Epistle of John. 26

(Significantly, in his lawsuit Newdow claimed not only that “So help me God” was of recent derivation but also that the “practice of including clergy to pray at presidential inaugurations began in 1937.” 27 That claim, like so many of his others, is obviously wrong: the Rev. Provoost had offered clergy-led prayers during Washington’s inaugural activities a century-and-a-half before Newdow claimed they began.)

Significantly, seven distinctly religious activities were included in this first presidential inauguration that have been repeated in whole or part in every subsequent inauguration: (1) the use of the Bible to administer the oath; (2) solemnifying the oath with multiple religious expressions (placing a hand on the Bible, saying “So help me God,” and then kissing the Bible); (3) prayers offered by the president himself; (4) religious content in the inaugural address; (5) the president calling on the people to pray or acknowledge God; (6) church inaugural worship services; and (7) clergy-led prayers.

2. THE LEGAL STATUS OF OATHS AT THE TIME OF WASHINGTON’S INAUGURATION

Significantly, long before and long after the adoption of the Constitution, the legal requirements for oathtaking specifically stipulated that “So help me God!” be part of the official oath of all legal process, whether the oaths were taken by elected officials, appointed judges, jurors, or witnesses in a court of law.

This fact is readily demonstrated by a survey of existing laws at the time – such as those of CONNECTICUT (which will be seen were reflective of what was typical in the other states). Connecticut’s original 1639 legal code governing its very first election required that elected officials were to “swear by the great and dreadful name of the everliving God . . . so help me God, in the name of the Lord Jesus Christ.” 28 When new oath laws were subsequently passed in 1718, 1726, 1731, 1742, etc., all retained the same general form, including the mandatory use of “So help me God.” Those same provisions were retained long after the federal Constitution was adopted. 29

GEORGIA required that elected officials, judges, jurors, and witnesses take their oath “in the presence of Almighty God . . . so help me God,” and not only that they take their oath on the Bible but specifically “on the holy evangelists of Almighty God.” 30 (Like the other states, this provision was the same long before and after the adoption of the federal Constitution.)

NORTH CAROLINA required “the party to be sworn to lay his hand upon the Holy Evangelists of Almighty God . . . and after repeating the words, ‘So help me God,’ shall kiss the Holy Gospels.” 31 In SOUTH CAROLINA, officials were also required to take their “oath on the Holy Evangelists of Almighty God.” 32

Other states had similar requirements, but consider those in place in NEW YORK when President Washington was sworn in by the state’s top judicial official. At that time, New York law required that “the usual mode of administering oaths” be followed (i.e., “So help me God”) and that the person taking the oath place his hand upon the Gospels and then kiss the Gospels at the conclusion of the oath. 33 (Like the other states, these provisions remained the legal standard long after the inauguration. 34 )

Standard oath forms, both state and federal, still in use even decades after Washington’s inauguration, retained those phrases. See some examples below – and notice that each is from a period decades prior to the time that Newdow claims the practice began:


(These are just a few of the many original oath-related documents personally owned by the author; countless others are found in the records of the Library of Congress)

Clearly, using the phrase “So help me God” (as well as placing one’s hand on and then kissing the Bible) was established legal practice throughout the Founding Era.

No one disputes that Washington placed his hand on the Bible or that he kissed it, so why is it now claimed that he did not say “So help me God”? Are critics saying that Washington would not have done the easiest of the three legally required parts of oathtaking? Or would they prefer that officials stop saying “So help me God” but kiss the Bible instead? Their argument is ludicrous. Furthermore, the omission of “So help me God” from the oathtaking ceremony in the Founding Era would have been a clear and obvious aberration from established legal practice of the day, therefore it is the omission of that phrase rather than its inclusion that would have been particularly noticed and commented upon by observers; but such an omission was never mentioned by any witness.

3. THE FOUNDING FATHERS’ VIEWS: WERE OATHS INHERENTLY RELIGIOUS OR INHERENTLY SECULAR?

Five locations in the U. S. Constitution address oaths to be taken by federal officials. As has already been shown, oath clauses were not a unique or original innovation of the federal Constitution but were already in use in each of the states and the national Congress long before the Constitution was written and remained in force long thereafter.

Significantly, every existing law or legal commentary from before, during, and after the writing of the Constitution unanimously affirmed that the taking of any oath by any public official was always an inherently religious activity; and numerous Framers and early legal scholars agreed (emphasis added in each quote):

[An] oath – the strongest of religious ties. 35 JAMES MADISON, SIGNER OF THE CONSTITUTION

[In o]ur laws . . . by the oath which they prescribe, we appeal to the Supreme Being so to deal with us hereafter as we observe the obligation of our oaths. The Pagan world were and are without the mighty influence of this principle which is proclaimed in the Christian system. 36 RUFUS KING, SIGNER OF THE CONSTITUTION, FRAMER OF THE BILL OF RIGHTS

Oaths in this country are as yet universally considered as sacred obligations. 37 JOHN ADAMS, SIGNER OF THE DECLARATION, FRAMER OF THE BILL OF RIGHTS

An oath is an appeal to God, the Searcher of Hearts, for the truth of what we say and always expresses or supposes an imprecation [calling down] of His judgment upon us if we prevaricate [lie]. An oath, therefore, implies a belief in God and His Providence and indeed is an act of worship. . . . In vows, there is no party but God and the person himself who makes the vow. 38 JOHN WITHERSPOON, SIGNER OF THE DECLARATION

The Constitution enjoins an oath upon all the officers of the United States. This is a direct appeal to that God Who is the avenger of perjury. Such an appeal to Him is a full acknowledgment of His being and providence. 39 OLIVER WOLCOTT, SIGNER OF THE DECLARATION, GOVERNOR

According to the modern definition [1788] of an oath, it is considered a “solemn appeal to the Supreme Being for the truth of what is said by a person who believes in the existence of a Supreme Being and in a future state of rewards and punishments . . .” 40 JAMES IREDELL, RATIFIER OF THE CONSTITUTION, U. S. SUPREME COURT JUSTICE APPOINTED BY GEORGE WASHINGTON

The Constitution had provided that all the public functionaries of the Union not only of the general [federal] but of all the state governments should be under oath or affirmation for its support. The homage of religious faith was thus superadded to all the obligations of temporal law to give it strength. 41 JOHN QUINCY ADAMS, PRESIDENT

“What is an oath?” . . . [I]t is founded on a degree of consciousness that there is a Power above us that will reward our virtues or punish our vices. . . . [O]ur system of oaths in all our courts, by which we hold liberty and property and all our rights, are founded on or rest on Christianity and a religious belief. 42 DANIEL WEBSTER, “DEFENDER OF THE CONSTITUTION”

There are many other similar declarations. 43 And America’s leading legal authorities and reference sources likewise affirmed that taking an oath was a religious activity. For example, in 1793, Zephaniah Swift, author of America’s first law book, declared:

An oath is a solemn appeal to the Supreme Being that he who takes it will speak the truth, and an imprecation of His vengeance if he swears false. 44

In 1816, Chancellor James Kent, considered to be one of the two “Fathers of American Jurisprudence,” noted that an oath of office was a “religious solemnity” and that to administer an oath was “to call in the aid of religion.” 45

In 1828, Founding Father Noah Webster, an attorney and a judge, defined an “oath” as:

A solemn affirmation or declaration made with an appeal to God for the truth of what is affirmed. The appeal to God in an oath implies that the person imprecates [calls down] His vengeance and renounces His favor if the declaration is false, or (if the declaration is a promise) the person invokes the vengeance of God if he should fail to fulfill it. 46

In 1834, a popular judicial handbook declared:

Judges, justices of the peace, and all other persons who are or shall be empowered to administer oaths shall . . . require the party to be sworn to lay his hand upon the Holy Evangelists of Almighty God in token of his engagement to speak the truth as he hopes to be saved in the way and method of salvation pointed out in that blessed volume; and in further token that if he should swerve from the truth, he may be justly deprived of all the blessings of the Gospels and be made liable to that vengeance which he has imprecated on his own head; and after repeating the words, “So help me God,” shall kiss the holy Gospels as a scale of confirmation to said engagement. 47

In 1839, Bouvier’s Law Dictionary, considered one of America’s most popular law dictionaries (and still widely used by courts even today), stated that an oath was:

[A] religious act by which the party invokes God not only to witness the truth and sincerity of his promise but also to avenge his imposture or violated faith. . . . . Oaths are taken in various forms; the most usual is upon the Gospel by taking the book [the Bible] in the hand; the words commonly used are, “You do swear that,” &c., “so help you God,” and then kissing the book. . . . Another form is by the witness or party promising, holding up his right hand while the officer repeats to him, “You do swear by Almighty God, the searcher of hearts, that,” &c., “And this as you shall answer to God at the great day.” 48

In 1854, the House Judiciary Committee affirmed:

Laws will not have permanence or power without the sanction of religious sentiment – without a firm belief that there is a Power above us that will reward our virtues and punish our vices. 49

Early legal historian James Tyler penned an extensive work on the historical and legal nature and form of oaths and concluded:

The object of the form of adjuration [oath] should be to point out this: to show that we are not calling the attention of God to man, but the attention of man to God. . . . [T]he mode now universally adopted among us is imprecatory – the invoking of God’s vengeance in case we do not fulfill our engagement to speak the truth, or perform the specific duty, “So help me God.” 50

Significantly, courts had agreed with the conclusions of the Founding Fathers and early legal authorities, issuing numerous declarations making the same affirmations. 51 Even school textbooks in that day taught students that in the American constitutional process, an oath was always a religious act. 52

Additional sources could be cited, but the evidence is unequivocal that the taking of an oath was universally considered to be a religious activity. For this reason a secular oath was not admissible before a court of law, 53 and well into the latter half of the twentieth century, even the U. S. Supreme Court continued to reaffirm the religious nature of oaths. 54 After all, as one early court noted, to remove the religious meaning of oaths and to exclude the Bible on which they were sworn would make “an oath . . . a most idle ceremony.” 55

Returning to Washington’s inauguration, he took the presidential oath of office as prescribed in Article II of the Constitution – an oath he had helped write:

I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.

Why was the phrase “So help me God” not specifically included in the Constitution as part of the prescribed wording? Because to have added it would have been redundant: that phrase, as well as placing one’s hand on and then kissing the Bible, was already standard legal practice; there was no reason to duplicate in the Constitution what was already universally required both by law and tradition.

Significantly, Washington was so concerned that the oathtaking process remain inherently religious that in his famous Farewell Address at the end of his presidency, he pointedly warned Americans to never let it become secular:

[W]here is the security for property, for reputation, for life, if the sense of religious obligation desert the oaths . . . ? 56

— — — ◊ ◊ ◊ — — —The evidence is clear that the legal requirements for the performance of oaths long before and after the adoption of the Constitution stipulated that “So help me God!” be part of the legal process. In the critics’ attempts to weaken the religious nature of the oath by suggesting the absence of “So help me God” from Washington’s inauguration, they have actually strengthened the case that the phrase was indeed used by providing the opportunity to unequivocally demonstrate that (1) the laws and legal practices at that time required that religious acknowledgment and phraseology be part of the oathtaking process, and (2) George Washington and the other Founders saw an oath as inherently religious and would have reprobated any attempt to make it secular.


Endnotes

1. David Barton is the President of WallBuilders, a national pro-family organization that presents America’s forgotten history and heroes, with an emphasis on our moral, religious and constitutional heritage. Barton is the author of numerous best-selling books, with the subjects being drawn largely from his massive library of tens of thousands of original writings from the Founding Era. His exhaustive research has rendered him an expert in historical and constitutional issues. He serves as a consultant to state and federal legislators, has participated in several cases at the Supreme Court, was involved in the development of History/Social Studies standards for public schools in numerous states, and has helped produce history textbooks now used in schools across the nation. David has received numerous national and international awards, including multiple Who’s Who in Education, DAR’s Medal of Honor, and the George Washington Honor Medal from the Freedoms Foundation at Valley Forge. (Return)

2. Newdow v. Roberts, 603 F.3d 1002, Ct. of Appeals, Dist. of Columbia (2010) (online at: http://scholar.google.com/scholar_case?case=13559298291193146253). (Return)

3. Elk Gove Unified School District v. Newdow, 542 U.S. 1 (2004) (online at: http://www.oyez.org/cases/2000-2009/2003/2003_02_1624(Return)

4. Newdow v. Lefevre, 598 F.3d 638, Ct. of Appeals, 9th Cir. (2010) (online at: http://scholar.google.com/scholar_case?case=753698042392989497&hl=en&as_sdt=2&as_vis=1&oi=scholarr). (Return)

5. “Michael Newdow Joins CAPEEM’s Legal Team,” Capeem.org, December 17, 2007 (at: http://www.capeem.org/pressroom.php?item2=1). (Return)

6. Newdow v. Roberts, 603 F.3d 1002, Ct. of Appeals, Dist. of Columbia (2010) (online at: http://scholar.google.com/scholar_case?case=13559298291193146253). (Return)

7. “FFRF v. Geithner Parsonage Exemption,” Freedom from Religion Foundation (at: http://ffrf.org/legal/challenges/ffrf-v-geithner-parsonage-exemption/) (accessed on November 23, 2011). (Return)

8. Newdow v. Eagen, 309 F. Supp. 2d 29, Dist. Court of Columbia (2004) (online at: http://scholar.google.com/scholar_case?case=13174569001560146686&hl=en&as_sdt=2&as_vis=1&oi=scholar). (Return)

9. See, for example, Newdow v. Roberts, Complaint 1:08-cv-02248-RBW (2008). See also Cathy Lynn Grossman, “No proof Washington said ‘so help me God’ – will Obama,” USA Today, January 9, 2009 (at: http://www.usatoday.com/news/religion/2009-01-07-washington-oath_N.htm). (Return)

10. “So Help Me God in Presidential Oaths,” nonbeliever.org (at: http://www.nonbeliever.org/commentary/inaugural_shmG.html) (accessed on November 23, 2011). (Return)

11. Cathy Lynn Grossman, “No proof Washington said ‘so help me God’ — will Obama?” USA Today, January 9, 2009 (at: http://www.usatoday.com/news/religion/2009-01-07-washington-oath_N.htm). (Return)

12. Jim Bendat, Democracy’s Big Day: The Inauguration of our President 1789-2009 (New York: iUniverse Star, 2008), p. 21. (Return)

13. Peter R. Henriques, “ ‘So Help Me God’: A George Washington Myth that Should Be Discarded,” History News Network, January 12, 2009 (at: http://hnn.us/articles/59548.html). (Return)

14. Charles C. Haynes, “Inside the First Amendment: Are ‘so help me God,’ inaugural prayer still appropriate?” First Amendment Center, January 18, 2009 (at: http://archive.firstamendmentcenter.org/commentary.aspx?id=21121). (Return)

15. “Argument from Ignorance,” Wikipedia (at: http://en.wikipedia.org/wiki/Argument_from_ignorance) (accessed on November 23, 2011).(Return)

16. Significantly, many of the U. S. Senators at the first Inauguration had been delegates to the Constitutional Convention that framed the Constitution including William Samuel Johnson, Oliver Ellsworth, George Read, Richard Bassett, William Few, Caleb Strong, John Langdon, William Paterson, Robert Morris, and Pierce Butler; and many members of the House had been delegates to the Constitutional Convention, including Roger Sherman, Abraham Baldwin, Daniel Carroll, Elbridge Gerry, Nicholas Gilman, Hugh Williamson, George Clymer, Thomas Fitzsimmons, and James Madison. (Return)

17. The Daily Advertiser, New York, Thursday, April 23, 1789, p. 2. (Return)

18. Clarence W. Bowen, The History of the Centennial Celebration of the Inauguration of George Washington (New York, D. Appleton & Co., 1892), p. 52, Illustration; Library of Congress, “Bibles and Scripture Passages Used by Presidents in Taking the Oath of Office” (at: http://memory.loc.gov/ammem/pihtml/pibible.html). (Return)

19. The Debates and Proceedings in the Congress of the United States, Joseph Gales, editor (Washington: Gales & Seaton, 1834), Vol. I, p. 27. See also George Washington, Messages and Papers of the Presidents, James D. Richardson, editor (Washington, D.C.: 1899), Vol. 1, pp. 44-45, April 30, 1789. (Return)

20. The Debates and Proceedings in the Congress of the United States, Joseph Gales, editor (Washington: Gales & Seaton, 1834), Vol. I, pp. 27-29, April 30, 1789. (Return)

21. The Debates and Proceedings in the Congress of the United States, Joseph Gales, editor (Washington: Gales & Seaton, 1834), Vol. I, pp. 27-29, April 30, 1789. (Return)

22. The Debates and Proceedings in the Congress of the United States, Joseph Gales, editor (Washington: Gales & Seaton, 1834), Vol. I, p. 25, April 27, 1789. (Return)

23. The Debates and Proceedings in the Congress of the United States, Joseph Gales, editor (Washington: Gales & Seaton, 1834), Vol. I, p. 241, April 29, 1789. (Return)

24. The Debates and Proceedings in the Congress of the United States, Joseph Gales, editor (Washington: Gales & Seaton, 1834), Vol. I, p. 29, April 30, 1789. (Return)

25. Clarence W. Bowen, The History of the Centennial Celebration of the Inauguration of George Washington (New York, D. Appleton & Co., 1892), p. 54; “Chaplain’s Office,” United States Senate (at: http://www.senate.gov/reference/office/chaplain.htm) (accessed on November 29, 2011). (Return)

26. Book of Common Prayer (Oxford: W. Jackson & A. Hamilton, 1784), s.v., April 30th. (Return)

27. Newdow v. Roberts, Complaint 1:08-cv-02248-RBW (2008). (Return)

28. R.R. Hinman, A.M., Letters From the English Kings and Queens, Charles II, James II, William and Mary, Anne, George II, &C., To the Governors of the Colony of Connecticut, Together With the Answers Thereto, From 1635 to 1749; And Other Original, Ancient, Literary and Curious Documents, Compiled From Files and Records in the Office of the Secretary of the State of Connecticut (Hartford: John B. Eldredge, Printer, 1836), pp. 26-28. (Return)

29. See The Public Statute Laws of the State of Connecticut (Hartford: Hudson and Goodwin, 1808), pp. 535, Title CXXII: Oaths, Ch. 1, Sec. 6, law passed in May, 1742; 540, Title CXXII: Oaths, Ch. 1, Sec. 25, law passed in May, 1726; 541, Title CXXII: Oaths, Ch. 1, Sec. 30 & 32, law passed in May, 1718. (Return)

30. Oliver H. Prince, A Digest of the Laws of the State of Georgia (Milledgeville: Grantland & Orme, 1822), p. 3, “An Act for the case of Dissenting Protestants, within this province, who may be scrupulous of taking an oath, in respect to the manner and form of administering the same,” passed December 13, 1756. (Return)

31. John Haywood, A Manual of the Laws of North Carolina (Raleigh: J. Gales, 1814), p. 34, “Oaths and Affirmations. 1777.” (Return)

32. Joseph Brevard, An Alphabetical Digest of the Public Statue Law of South Carolina (Charleston: John Hoff, 1814), Vol. II, p. 86, “Oaths-Affirmations.” (Return)

33. Laws of the State of New- York (New York: Thomas Greenleaf, 1798), p. 21, “Chap. XXV: An Act to dispense with the usual mode of administering oaths, in favor of persons having conscientious scruples respecting the same, Passed 1st of April, 1778”; James Parker, Conductor Generalis: Or the Office, Duty and Authority of the Justices of the Peace (New York: John Patterson, 1788), pp. 302-304, “Of oaths in general.” (Return)

34. George C. Edward, A Treatise on the Powers and Duties of Justices of the Peace and Town Officers, in the State of New York (Ithaca: Mack, Andrus & Woodruff, 1836), p. 91, “Of the proceedings on the trial.” (Return)

35. James Madison, The Writings of James Madison, Gaillard Hunt, editor (New York: G.P. Putnam’s Sons, 1901), Vol. 2, p. 367, observations by Madison on the vices of the political system of the United States, April 23, 1787. (Return)

36. Reports of the Proceedings and Debates of the Convention of 1821, Assembled for the Purpose of Amending The Constitution of the State of New York (Albany: E. and E. Hosford, 1821), p. 575, Rufus King, October 30, 1821. (Return)

37. John Adams, The Works of John Adams, Charles Francis Adams, editor (Boston: Little, Brown and company, 1854), Vol. IX, p. 229, in an letter “To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts,” on October 11, 1798. (Return)

38. John Witherspoon, The Works of John Witherspoon (Edinburgh: J. Ogle, 1815), Vol. VII, pp. 139, 142, from his “Lectures on Moral Philosophy,” Lecture 16 on Oaths and Vows. (Return)

39. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: Printed for the Editor, 1836), Vol. II, p. 202, Oliver Wolcott on January 9, 1788. (Return)

40. Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution (Washington: Printed for the Editor, 1836), Vol. IV, p. 196, James Iredell on July 30, 1788. (Return)

41. John Quincy Adams, The Jubilee of the Constitution (New York: Samuel Colman, 1839), p. 62. (Return)

42. Daniel Webster, Mr. Webster’s Speech in Defense of the Christian Ministry and in Favor of the Religious Instruction of the Young, Delivered in the Supreme Court of the United States, February 10, 1844, in the Case of Stephen Girard’s Will (Washington: Gales and Seaton, 1844), pp. 43, 51. (Return)

43. See, for example, Zephaniah Swift, A System of Laws of the State of Connecticut (Windham: John Byrne, 1796), Vol. II, p. 238; Jacob Rush, Charges and Extracts of Charges on Moral and Religious Subjects (Philadelphia Geo Forman, 1804), pp. 34-35, 37, 40; Daniel Webster, Mr. Webster’s Speech in Defence of the Christian Ministry and in Favor of the Religious Instruction of the Young, Delivered in the Supreme Court of the United States, February 10, 1844, in the Case of Stephen Girard’s Will (Washington: Gales and Seaton, 1844), pp. 43, 5; From an original document in our possession, executed by John Hart on March 24, 1757; Updegraph v. The Commonwealth, 11 S. & R. 394 (Sup. Ct. Pa. 1824); City Council of Charleston v. S.A. Benjamin, 2 Strob. 508, 522-524 (Sup. Ct. S.C. 1846). (Return)

44. Zephaniah Swift, A System of Laws of the State of Connecticut (Windham: John Byrne, 1796), Vol. II, p. 238. (Return)

45. James Kent, Memoirs and Letters of James Kent, William Kent, editor (Boston: Little, Brown, and Company, 1898), p. 164. (Return)

46. Noah Webster, A Dictionary of the English Language (New York: S. Converse, 1828), s.v. “oath.” (Return)

47. James Coffield Mitchell, The Tennessee Justice’s Manual and Civil Officer’s Guide (Nashville: Mitchell and C. C. Norvell, 1834), pp. 457-458. (Return)

48. John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union (Philadelphia: T. & J. W. Johnson, 1839), s.v. “oath” (online at: http://www.constitution.org/bouv/bouvier.htm). (Return)

49. Reports of Committees of the House of Representatives Made During the First Session of the Thirty-Third Congress (Washington: A. O. P. Nicholson, 1854), p. 8, “Rep. No. 124. Chaplains in Congress and in the Army and Navy,” March 27, 1854. (Return)

50. James Endell Tyler, B.D., Oaths; Their Origin, Nature, and History (London: John W. Parker, 1834), pp. 14, 57. (Return)

51. See, for example, People v. Ruggles, 8 Johns 545, 546 (1811); Commonwealth v. Wolf, 3 Serg. & R. 48, 50 (1817); City Council of Charleston v. S.A. Benjamin, 2 Strob. 508, 522-524 (Sup. Ct. S.C. 1846); and many others. (Return)

52. William Sullivan, The Political Class Book (Boston: Richardson, Lord, and Holbrook, 1831), p. 139, §392. (Return)

53. Alexis de Tocqueville, The Republic of the United States of American and Its Political Institutions, Reviewed and Examined, Henry Reeves, trans. (Garden City, NY: A. S. Barnes & Co., 1851), Vol. I, p. 334, 344n. See also Daniel Webster, Mr. Webster’s Speech in Defence of the Christian Ministry and in Favor of the Religious Instruction of the Young, Delivered in the Supreme Court of the United States, February 10, 1844, in the Case of Stephen Girard’s Will (Washington: Gales and Seaton, 1844), pp. 43; Joseph Story, Life and Letters of Joseph Story, William W. Story, editor (Boston: Charles C. Little and James Brown, 1851), Vol. II, pp. 8-9; Zephaniah Swift, System of Laws (Windham: John Byrne, 1796), Vol. II, pp. 238. (Return)

54. Abington v. Schempp, 374 U.S. 203 (1963). (Return)

55. Updegraph v. The Commonwealth, 11 S. & R. 394 (Sup. Ct. Pa. 1824). (Return)

56. George Washington, Address of George Washington, President of the United States . . . Preparatory to His Declination (Baltimore: George and Henry S. Keatinge, 1796), p. 23. (Return)

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Alliance Defense Fund to Alabama school: Don’t silence ‘Silent Night’ in Christmas program

Posted by goodnessofgod2010 on December 17, 2011

TUSCUMBIA, Ala. — The Alliance Defense Fund sent a letterThursday to an Alabama school district to explain that it should not remove the traditional Christmas carol “Silent Night” from a Christmas program at one of its schools. The letter explains that demands made by Americans United for Separation for Church and State for the removal of the song are baseless.“It’s ridiculous that people have to think twice about whether it’s okay to include ‘Silent Night’ in a Christmas program,” said ADF Senior Counsel David Cortman. “An overwhelming majority of Americans agree that it’s okay to celebrate Christmas in schools and in the public square, and they are right. There is nothing unconstitutional about inclusion of this song in the school’s program, and that is supported by how the courts have consistently ruled.”

AU sent a letter to Tuscumbia City Schools complaining about inclusion of “Silent Night” as one of nine songs in G.W. Trenholm School’s Christmas program. AU apparently claimed that inclusion of the song or any other religious song would be unconstitutional.

“The school should not succumb to pressure from the faulty legal demands of Americans United for Separation of Church and State, which spends its time threatening and intimidating school districts with disinformation to further its own constitutionally incorrect agenda,” said ADF Litigation Staff Counsel Matt Sharp.

The ADF letter disputes AU’s claims and points out several court cases that have upheld the inclusion of religious Christmas carols in school Christmas programs.

“Here, ‘Silent Night’ is but one of the nine other songs included in the Christmas program at G.W. Trenholm,” the ADF letter explains. “Thus, as long as the inclusion of ‘Silent Night’ or any other religious Christmas song is based upon a secular reason–i.e. recognition of the religious heritage of Christmas–then the Constitution does not prohibit the inclusion of the religious song in the school’s Christmas program.”

The Alliance Defense Fund offers a free legal memo that explains the constitutionally protected rights of students, teachers, and public schools to seasonal religious expression.

ADF is a legal alliance of Christian attorneys and like-minded organizations defending the right of people to freely live out their faith. Launched in 1994, ADF employs a unique combination of strategy, training, funding, and litigation to protect and preserve religious liberty, the sanctity of life, marriage, and the family.

 

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Supreme Court to Hear Case on Church Authority, Hiring Rights

Posted by faithandthelaw on October 2, 2011

One of the most important religious cases disputed in years, involving the separation of church and state, will soon come before the U.S. Supreme Court. The legal battle could change whether or not the federal government can dictate or interfere with church authority.

Arguments in the case, Hosanna-Tabor Evangelical Lutheran Church v. the Equal Employment Opportunity Commission, will be heard Oct. 5. The case centers on “ministerial exception,” which is a law that has been on the books for some 40 years.

This “exception” protects churches and other religious groups from discrimination claims against them including issues on hiring and firing employees.

The high profile legal dispute involves Cheryl Perich, a former fourth grade teacher at the Hosanna-Tabor Evangelical Lutheran Church School. Perich was fired for insubordination and disruptive conduct in 2005. The church congregation that same year approved her termination.

“Called teachers, like Perich, normally receive tenure and may be dismissed only for cause,” according to court records.

Forcing the church to retain Perich after she was fired would be an unconstitutional restriction on its right to choose its religious leaders, church leaders said in a statement.

One of the most important arguments that will come before the Supreme Court in the case is whether the government should be allowed to decide which duties are “religious,” and which are not.

Attorneys representing the church say Perich caused a scene at the school after taking several months off to address an illness involving a sleep disorder. She ended up threatening to file a lawsuit under the Americans with Disabilities Act while discussing her job responsibilities with the principal.

The school, citing concerns about her health, had asked Perich to voluntarily resign her call to be a teacher of religion, or minister under the Lutheran Church – Missouri Synod laws. She refused and filed a complaint with the EEOC.

The EEOC and Perich then filed suit in federal district court alleging that the church had retaliated against Perich, which was in violation of the ADA.

In 2008, the district court decided against Perich, ruling that since she had been called as a commissioned minister, her firing was subject to the ministerial exception and thus was not within the court’s right to interfere.

Court records show that in 2010, the 6th U.S. Circuit Court of Appeals ruled that Perich was not covered by the ministerial exception because most of her duties were secular, and overturned the decision.

Now, a host of organizations are involved in the legalities of the case including the Becket Fund, the ACLU, the NAACP, the Americans United for Separation of Church and State, human rights organizations, bishops and the federal government.

Douglas Laycock, the attorney on record representing the Lutheran Church, told The Christian Post that this legal battle is unprecedented and could impact every church in the nation.

“Lutheran churches put a heavy weight on teachers and religious education by requiring their teachers take theology courses and they also get a ministerial housing allowance,” Laycock told The Christian Post in a phone interview Friday.

He explained that the purpose of the ministerial exception is to protect the right of religious institutions to choose their own religious leaders.

“This case has the potential to change employment relations in virtually every religious institution in the nation.”

Experts say it is a legal battle that will start massive controversy and widespread social disruptions. Questions about non-clergy qualifications, the protections of equal employment laws even if they work at religious organizations that claim exemptions to those laws and government involvement in the church, are all sensitive discussions up for debate.

The Pew Forum on Religion and Public Life analyzed the case stating the Supreme Court has never ruled on the 40-year-old legal doctrine, but judges in lower federal courts have used it to exempt religious organizations from anti-discrimination laws and other statutes that regulate how employers treat their workers.

“The big question for the Supreme Court is whether the ministerial exception rule applies to a teacher at a religious elementary school who teaches the full secular curriculum, but also teaches daily religion classes, is a commissioned minister, and regularly leads students in prayer and worship,” Laycock said.

The Supreme Court, which has three female justices, will have to find a common ground that “involve inherently religious questions,” and “if the matter is a theological dispute and belongs in the court system.”

The American Civil Liberties Union, which submitted an opinion on the case, said in a statement they hope “the justices will narrowly interpret the ministerial exception.”

Pew researchers said in a statement that “Hosanna-Tabor case offers the justices an opportunity to mold and shape a doctrine that has existed in lower federal courts for 40 years. The lack of even one prior Supreme Court decision on the doctrine makes it difficult to predict how the court ultimately will rule, but the Hosanna-Tabor case has the potential to change the ministerial exception, perhaps quite significantly.”

The Hosanna-Tabor Evangelical Lutheran Church in Redford, Mich., operated a K-8 school founded on biblical principles. Teachers at the school are required to serve as Christian role models, and they are tasked with duties such as leading students in prayer, worship, and religious study, according to the school’s website.

The congregation eventually closed the church’s school in 2009.

Courtesy of http://www.christianpost.com/news/supreme-court-to-hear-case-on-church-authority-hiring-rights-56962/

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City demands Christians get permit for Bible study

Posted by faithandthelaw on September 19, 2011

By Bob Unruh
© 2011 WND


One of San Juan Capstrano’s historic buildings

Chuck and Stephanie Fromm already have been fined $300 for holding Bible studies for their friends at their home, and they face the potential for additional fines of $500 for each study held, according to a legal team taking their case to court.

The newest conflict over Bible studies in homes in America arose in San Juan Capistrano, Calif., where city officials say city code section 9-3.301 prohibits religious organizations in residential neighborhoods without a conditional-use permit, a sometimes very expensive procedure.

The code cites “churches, temples, synagogues, monasteries, religious retreats, and other places of religious worship and other fraternal and community service organizations.”

You don’t need a permit to study America’s REAL Christian history – get the celebrated classic documentary, “Christianity and the American Commonwealth,” today only, for just $4.95!

But a Bible study in a home?

“Imposing a heavy-handed permit requirement on a home Bible study is outrageous,” said Brad Dacus, president of Pacific Justice Institute, which is working on the case on behalf of the Fromms.

In a city so rich with religious history and tradition, this is particularly egregious. An informal gathering in a home cannot be treated with suspicion by the government, or worse than any other gathering of friends, just because it is religious. We cannot allow this to happen in America, and we will fight as long and as hard as it takes to restore this group’s religious freedom.”

WND has reported on similar issues in Rancho Cucamonga, Calif., and in Gilbert, Ariz.

In this case, the city is demanding that the home Bible study is banned because it is a “church,” unless it purchases a ‘Conditional Use Permit” from the city.

Pacific Justice said it has represented larger churches that have been required to spend hundreds of thousands of dollars as part of the permit process on such items as engineering and traffic studies, architectural designs. The process includes public hearings and ultimately can result in a rejection by the city.

Pacific Justice says the Fromms already have been fined $300, and an appeal to the city was denied.

The organization points out that the city was founded as a Christian mission in the 1700s and is home to California’s oldest building still in use, a chapel where Father Junipero Serra celebrated mass.

Pacific Justice said it is appealing the city’s demands to California Superior Court in Orange County.

A message WND left with the city did not produce a return call.

A report from the city’s Dispatch newspaper said that Fromm, publisher of Worship Leader Magazine, wanted to hold Bible studies on Wednesdays that drew some 20 people, while similar studies on Sundays attracted up to 50 to their acreage that includes their home, a corral, a barn, a pool and a huge back yard.

The newspaper said city records showed someone complained, however, and a code enforcement officer first gave them a verbal warning and then issued citations in May and June.

“We don’t like lawsuits, but we have to stand up for what’s right. It’s not just a personal issue,” Stephanie Fromm told the newspaper. “Can you imagine anybody in any neighborhood, that one person can call and make it a living hell for someone else? That’s wrong … and it’s just sad.”

A trial is scheduled for Oct. 7.

The case is similar to a previous dispute in San Diego County. There, officials apologized after a code-enforcement officer tried to shut down a Bible study.

Read more: City demands Christians get permit for Bible study http://www.wnd.com/?pageId=345073#ixzz1YQOOkkMv

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Teacher says he may lose appeal in anti-Christian case

Posted by faithandthelaw on April 9, 2011

MISSION VIEJO – James Corbett, the high school history teacher successfully sued by a former student for disparaging Christianity in class, says he believes he may lose his federal appeal after being backed into a legal corner by a lower court’s ruling.

In a lengthy Letter to the Editor published Friday on the Register’s website, Corbett explained that U.S. District Judge James Selna in Santa Ana framed his ruling against Corbett in such a way that the 9th U.S. Circuit Court of Appeals may have no choice legally but to side with student Chad Farnan. The 9th Circuit is considering the appeal now.

Article Tab : High school history teacher James Corbett, pictured in this September 2010 photo speaking to members of the high-IQ society Mensa in Irvine, says he believes he may lose his appeal of a federal judge's decision that found he violated a student's First Amendment rights by disparaging Christianity in class.Two years ago, Selna applied a legal litmus test known as the Lemon Test to a series of statements Corbett made in class, ruling that the Capistrano Valley High School teacher violated student Farnan’s constitutional rights when referring to Creationism as “religious, superstitious nonsense.”

All of the other statements cited in Farnan’s lawsuit were deemed acceptable under the First Amendment’s establishment clause, a law that has been interpreted by the courts to mean government employees cannot display religious hostility.

“My attorney believed a fair application of Lemon Test would turn in my favor, but the test fails in a case such as mine both as a matter of law and of logic,” Corbett said in an interview. “Had I gone to court, I could easily have demonstrated that the recordings were edited and that Chad’s claim of ‘damages’ was false.”

Dan Spradlin, an attorney hired by the Capistrano Unified School District to defend Corbett in district court, could not immediately be reached for comment.

After Corbett was sued in December 2007, Spradlin advised him to seek summary judgment from a judge, rather than allow the case to proceed to a jury trial.

Corbett said that in retrospect, this decision prevented Farnan from being cross-examined under oath about whether he spliced and edited the lectures that he tape-recorded, and thus whether they could have been taken out of context.

“It was Selna who backed me into a corner with a ruling that, on the one hand made it appear as if Chad had a case, and on the other hand, prevented me from having a day in court,” Corbett said. “I was never asked (by Selna) about the ‘superstitious’ comment at all, so I was never given the chance to explain the context. It wasn’t even part of Chad’s complaint. Selna pulled it out by himself during the hearing, and Dan (Spradlin) did his best to explain it, but the defendant has no right to speak in a hearing, so Selna never heard from me on the phrase.”

(Click here to read Corbett’s full Letter to the Editor.)

In an interview, Farnan’s attorney, Jennifer Monk, said she believed the outcome of the case would have been the same if it had gone to a jury trial. She also denied the tapes were edited or out of context.

“It’s very easy and convenient for Dr. Corbett to say that without any proof,” Monk said. “I can’t imagine how we could have spliced it to make it sound more or less than what it is.”

If Farnan had been cross-examined, Corbett also said he would have had the opportunity to try to poke holes in Farnan’s premise that he sued his teacher because his constitutional rights were being violated.

“A trial would have revealed Chad to be a confused young man who was little more than a pawn in the hands of the Advocates for Faith & Freedom (Farnan’s attorneys), who used the publicity generated by the case to line their pockets,” Corbett said in his Letter to the Editor.

“The main charge is that I was ‘hostile’ to Chad’s religious views,” Corbett wrote. “In that regard, he was asked (in his deposition), ‘Did Dr. Corbett ever criticize any opinion that was ever expressed by any student in the class?’ Chad said, ‘Well, yes, mine.’ He continued, ‘Well, he probably didn’t know that I had that opinion. …I really didn’t say anything ever.’ My attorney asked, ‘He never criticized anything you said?’ Chad responded, ‘Well, I didn’t really say anything in class, so I guess, no.’ To put it more succinctly, Chad admits I never criticized anything he said, because he said nothing.”

Monk said that Corbett’s recent efforts to disparage his former student and question Farnan’s motives were irrelevant to the facts of the case.

“It doesn’t matter why Chad filed the lawsuit,” Monk said. “Dr. Corbett might think it matters, but it doesn’t matter legally. The law is the law.”

Although Selna ruled against Corbett on the Creationism comment two years ago, the judge also noted Corbett would not have necessarily known he was violating Farnan’s constitutional rights and thus barred the teacher from having to pay attorney fees and damages under a “qualified immunity” defense. Qualified immunity is a form of federal protection for government employees who have violated an individual’s constitutional rights.

Both sides have appealed the ruling to the 9th Circuit. Corbett is seeking to be vindicated; Farnan is seeking a stronger ruling against Corbett, and for Corbett’s qualified immunity to be tossed out.

Corbett is now represented by a team of pro-bono attorneys led by nationally renowned constitutional scholar Erwin Chemerinsky, dean of UC Irvine’s law school.

A three-member panel of federal appellate judges heard the case Feb. 11 in Pasadena; a decision is pending.

The 9th Circuit court, which has given no indication of how it might rule, has wide discretion with this case. It can rule on any or all of the arguments presented, declare portions to be moot, and/or send the case back to the trial court.

Corbett remains in his teaching position; Farnan, who brought the lawsuit as a sophomore at Capistrano Valley High in December 2007, is now a freshman at Pepperdine University in Malibu.

Contact the writer: 949-454-7394 or smartindale@ocregister.com

Courtesy of

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