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As if the Fourth U.S. Circuit Court of Appeals isn’t busy enough this week. Not only will it decide on ObamaCare, it got the above question, too, in a case in which The Family Foundation filed an amicus brief last year. Now asked, another three judge panel will decide the constitutionality of the prayer policy of the Forsyth County, N.C. — but with national implications.

The policy, drafted by the Alliance Defense Fund, allows for anyone of any faith to pray before county government meetings on a first come, first serve basis. The content of the prayers are not reviewed by government officials. Plaintiffs represented by the ACLU contend that, because most of the “prayers” at the meetings over an eighteen month period were “sectarian,” the policy is unconstitutional. According to ADF attorneys, plaintiffs have argued in briefs that any prayer before public meetings is unconstitutional.

Judges Harvie Wilkinson, Paul Niemeyer and Barbara Keenan comprise the panel. If their questioning of attorneys arguing the case is any indication of where they stand on the issue, Judge Keenan is clearly in the ACLU camp. Appointed to the court by President Obama, she was particularly hostile toward ADF’s arguments and clearly favored the idea of “inclusive” prayers if there were going to be any prayers at all. Judge Niemeyer appeared much more favorable toward public prayer, stating that prayers without mentioning a specific deity are “just words.” Judge Wilkinson seemed like the swing vote, questioning both sides on multiple issues throughout the hour and ten minute hearing.

The details of this case date back to March 2007 when the ACLU and Americans United for Separation of Church and State filed suit against North Carolina’s Forsyth County Board of Supervisors, stating:

[the Board] does not have a policy which discourages or prohibits those whom [the Board] has invited to deliver prayers from including references to Jesus Christ, or any other sectarian deity, as part of their prayers.

As ADF Senior Legal Counsel Mike Johnson, who argued in favor of the policy, aptly pointed out, “An invocation according to the dictates of the giver’s conscience is not an establishment of religion. If it was, you’d have to argue that the drafters of the U.S. Constitution were violating the Constitution in the prayers and invocations that they themselves offered.” (Mike Johnson testified, at Family Foundation request during the 2009 General Assembly, on behalf of the rights of state police chaplains to pray in Jesus’ name. See video.)

A primary issue in the case is whether or not a voluntary prayer before a government meeting is “government” or private speech. If private, it is clearly protected by the First Amendment. But by the ACLU’s logic, anything said at a government meeting by a private individual is government speech just by virtue of saying at that meeting.

Several Virginia legislators also signed on to an amicus brief in support of religious liberty in Joyner v. Forsyth County. They include Delegates Kathy Byron (R-22, Lynchburg), Bill Carrico (R-5, Galax), Bob Marshall (R-13, Manassas), and Brenda Pogge (R-96, Yorktown); and Senators Mark Obenshain (R-26, Harrisonburg) and Jill Holtzman Vogel (R-27, Winchester).

It seems like every day we hear about another assault on our First Amendment right to free religious exercise. From the silencing of prayers at high school graduations and government meetings to nondiscrimination policies intended to thwart religious activity, the message of leftist elites is clear — you can believe what you want (for now) but keep it to yourself.

It makes us all the more thankful that we have advocates like the Alliance Defense Fund on our side. Yesterday, The Family Foundation joined ADF to co-host a luncheon briefing for attorneys and pastors on a religious liberty case that will be heard by the U.S. Supreme Court next Monday. This case (Christian Legal Society v. Martinez) arose when the University of California Hastings College of Law in San Francisco denied recognition to CLS, including equal meeting space and most means of communicating on campus. The reason? Although CLS welcomes everyone to all its events, CLS would not agree to eliminate its Statement of Faith requirement for officers and its voting members.

Hastings deemed CLS’ Statement of Faith and its interpretation that Christians should not engage in extramarital sexual activity to violate the religion and sexual orientation portions of its nondiscrimination policy. Hastings has since interpreted its rule as prohibiting all groups from excluding anyone from voting membership or leadership on the basis of beliefs of any kind. The Ninth U.S. Circuit of Appeals, widely recognized as the most radical appeals court in the country, upheld Hastings’ decision in a two sentence, unpublished decision.

Casey Mattox, legal counsel to the Alliance Defense Fund, and co-counsel on this case alongside CLS attorneys, told luncheon attendees about the impact this case may have on university campuses as well as the far-reaching impact it may have on any Christian ministry. In essence, if the left gets its way, any organization or church that receives state support — including tax exempt status — would be discriminated against if it does not accept behaviors that are contrary to their beliefs.

At the same time, The Family Foundation is working with ADF in seeking legislators who will sign onto amicus briefs it has drafted in a religious liberty case in Forsyth County, N.C. There, a lower court decreed that all prayers at government meetings must be so-called “non-sectarian.” If the lower court is not overturned by the Richmond-based Fourth Circuit Court of Appeals, it could mean that — for the first time in American history — prayers offered before sessions of legislatures, city councils, and all other public bodies in at least the states of North Carolina, South Carolina, Virginia and West Virginia, must be censored to exclude all references to a particular deity (e.g., Jesus). The lower court opinion ignores the instruction of the U.S. Supreme Court and other federal appellate and district courts that previously considered this issue and upheld the cherished American tradition of uncensored legislative prayer.

Meanwhile, our policy team is focusing much of our summer research efforts on how we can best protect our First Amendment right to religious expression through the legislative process. We still have yet to see the General Assembly remedy the situation for state police chaplains who remain prohibited from praying publically according to their beliefs, and too many of our local governments have censored prayers at their meetings under the bullying of radical secularists at the ACLU. This must stop.

It is safe to say that our constitutionally protected right to freely exercise our faith in public is in peril. For many of our political leaders the Constitution itself is a nuisance. We must continue to work to ensure that the rights of all religious Americans are protected — and we will.

From Concord, North Carolina, we have this: A kiosk vendor, who trades as Free Market Warrior and sells conservative swag at one of that state’s most popular malls, is getting kicked out for practicing his freedom of expression rights by displaying three bumper stickers and a t-shirt with anti-Barack Obama messages.

Mary Curtis, who has the story at Politics Daily, calls it the Battle of Concord — Mall. It’s led to protesters at, and boycotts of, the mall. Meanwhile, the vendor, Loren Spivak, is selling his t-shirts and stickers, including those with pro-life messages, faster than a hungry Tar Heel can scarf down a BBQ sandwich. But the kibosh of the First Amendment doesn’t stop there. From Curtis, herself:

Mall offices were closed on Sunday, according to the security guard who eventually shooed me away for reporting without permission. …

A letter to the editor published in the Charlotte Observer started the controversy. It read, in part:

While freedom of speech is a Constitutional right it’s difficult not to believe that something just isn’t quite right here.

It’s not surprising. In fact, it’s the leftist-liberal canon — very much like “health care reform” — you do whatever you want except for what we say you can do.

Yesterday,we reported on the VEA’s proud go-along at the NEA national convention endorsing same-sex marriage (see here). Instead of concetrating on issues that matter to teachers and improving education, the VEA has endorsed advocating a radical left-wing policy in contradiction of the Virginia Constitution and statutory law.

The president of the VEA, Dr. Kitty J. Boitnott, responded to our post with a long comment on the thread stating that our take on the VEA/NEA position wasn’t exactly what the convention meant with its lock-step adoption of the radical homosexual agenda. She goes on about “social justice.” What any of this has to do with teaching clearly is beyond most parents’ concerns for their children’s education. 

Not only is the  homosexual marriage resolution contrary to the views of a majority of Virginians, she did not answer our concern about whether the VEA, with this policy position, now will encourage its member teachers to ignore the new traditional marriage guidelines to the Family Life Education curriculum. A true conflict of interest now is on the record.

Adopting a radical agenda contrary to Virginia law. Wasting time on matters completely non-germane to education. A significant conflict of interest.

We report. You decide. Below is the resolution:

NEA Representative Assembly New Business Items (NBIs)
NEW BUSINESS ITEM E
ADOPTED

“Resolutions B-13 (Racism, Sexism, Sexual Orientation, and Gender Identification Discrimination) and I-13 (Civil Rights) set forth NEA’s opposition to the discriminatory treatment of same-sex couples and its belief that such couples should have the same legal rights and benefits as similarly-situated heterosexual couples. The Legislative Program is in accord: NEA supports “obtaining, preserving, and strengthening basic civil and human rights under law,” and specifically calls for “passage of a federal statute prohibiting employment discrimination on the basis of sexual orientation or gender identity and expression.” Section IV(b). In implementation of the foregoing policies, the Representative Assembly adopts the following action plan with regard to same-sex couples:

1. NEA will support its affiliates seeking to enact state legislation that guarantees to same-sex couples the right to enter into a legally recognized relationship pursuant to which they have the same rights and benefits as similarly-situated heterosexual couples, including, without limitation, rights and benefits with regard to medical decisions, taxes, inheritance, adoption, and immigration.

2. NEA does not believe that a single term must be used to designate this legally recognized “equal treatment” relationship, and recommends that each state decide for itself whether “marriage,” “civil union,” “domestic partnership,” or some other term is most appropriate based upon the cultural, social, and religious values of its citizenry.

3. NEA will support its affiliates in opposing state constitutional and/or statutory provisions that could have the effect of prohibiting the state and its political subdivisions from providing the same rights and benefits to same-sex couples as are provided to similarly-situated heterosexual couples.

4. NEA will take such actions as may be appropriate to support efforts to (a) repeal any federal legislation and/or regulations that discriminate against same-sex couples, and (b) enact federal legislation and/or regulations that treat same-sex couples and similarly-situated heterosexual couples equally with regard to social security, health care, taxation, and other federal rights and benefits.

5. NEA recognizes that the term “marriage” has religious connotations and that same-sex marriages may not be compatible with the beliefs, values, and/or practices of certain religions. Because of its support for the separation of church and state and the right to religious freedom guaranteed by the First Amendment to the United States Constitution, NEA supports the right of religious institutions to refuse to perform or recognize same-sex marriages.

The Executive Committee will monitor the implementation of this New Business Item, and keep NEA affiliates informed of actions taken to achieve its objectives.”

Monday, February 23, 2009

The Constitution of the Commonwealth of Virginia states:

“That all men shall be free to profess, and by argument to maintain, their opinions in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities.” [Emphasis added]

Today, thanks to the action of the Virginia State Police Superintendent and its endorsement by Governor Tim Kaine, Thomas Jefferson’s words are little more than ink on paper. The words of the Statute for Religious Freedom that is the foundation for the tradition of religious liberty in our nation and the precursor to the First Amendment rings hollow in the ears of those state police chaplains who have had their opinions in matters of religion diminished and their civil capacities affected simply because they refuse to silence their faith.

As is usual with the issue of religious liberty, the debate surrounding the policy and legislation before the General Assembly to correct it, including several editorials in the Richmond Times-Dispatch, is replete with misinformation, misunderstanding and confusion. Some, such as the American Civil Liberties Union, falsely claim that prayers offered before legislative or government bodies must be nonsectarian or non-denominational. Fortunately, the First Amendment and case law regarding this issue is absolutely clear and on the side of the chaplains.

Simply put, in no case involving public prayer at government-sponsored events (with the exception being public schools) does either the U.S. Supreme Court or any circuit court require that prayers offered be so-called “nonsectarian” or “nondenominational.” In fact, the opposite is true. In the clear words of the Supreme Court’s Marsh v. Chambers decision:

“In light of the history, there can be no doubt that the practice of opening legislative sessions with prayer has become part of the fabric of our society. To invoke divine guidance on a public body entrusted with making the laws is not, in these circumstances, a violation of the Establishment Clause; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country.”

Recently, the Eleventh Circuit Court of Appeals in Pelphrey v. Cobb dismissed the argument that Marsh permits only “nonsectarian” prayers:

“The taxpayers argue that Marsh permits only “nonsectarian” prayers for commission meetings, but their reading is contrary to the command of Marsh that the courts are not to evaluate the content of the prayers absent evidence of exploitation. … The court never held that the prayers in Marsh were constitutional because they were “nonsectarian.”

Supporters of censorship, like the ACLU, are claiming that the Fourth Circuit Court’s Turner v. Fredericksburg decision requires the state police’s policy of censorship. Again, this is blatantly false.

While that case upheld a policy in Fredericksburg that censors prayers, it does not require that policy. In fact, in the words of Sandra Day O’Connor, who wrote the Turner decision:

“We need not decide whether the Establishment Clause compelled the Council to adopt their legislative prayer policy because the Establishment Clause does not absolutely dictate the form of legislative prayer.”

Again, in Pelphrey, the Eleventh Circuit says:

“Although it upheld the policy of the [Fredericksburg City] Council, the Fourth Circuit expressly declined to hold that Marsh required a policy of nondenominational prayers.” Adding, “[The courts] . . . have applied the precedents of the Supreme Court irrespective of the level of government involved.”

Interestingly, in arguing against legislation reversing the state police policy in a recent Washington Post article, Kent Willis of the Virginia ACLU makes our case saying, “Maybe the worst part of all this is now you have the government deciding what’s a proper prayer and what’s not a proper prayer.”

I couldn’t agree more! The government should not be telling people how to pray or not to pray, and that is exactly what the state police policy does. Whether Christian, Muslim, Jewish or any other faith, chaplains should be able to pray at public events according to their beliefs, and those prayers should not be censored by the government. The legislation that has been presented to the General Assembly this year would simply protect chaplains of every religion.

Virginians are growing tired of these attacks on public faith. Our Commonwealth and nation are founded on Judeo-Christian principles, and no amount of revisionist history or politically motivated anti-religious bigotry will erase the truth. The First Amendment and the Statute for Religious Freedom protect the right of individuals to profess their faith in public. They do not protect a crowd from hearing about an individual’s faith.

Once again our sacred rights are being sacrificed on the altar of political correctness. Unfortunately, expunging our religious heritage from the public square seems all too in vogue in 21st century America, with elected officials and their political appointees leading the way. In the name of tolerance, public faith is not tolerated. While we would hope that Virginia’s rich heritage of freedom would insulate us from such discrimination, recent history proves this not to be the case.

The United States Department of Health and Human Services last week announced new regulations that protect the right of conscience of pro-life medical professionals (see Washington Post, here). The Family Foundation and the Virginia Catholic Conference urged you to send public comments to HHS this past fall in support of these new rules. Your work, and that of thousands of others, paid off.

The new regulations establish needed clarification and enforcement mechanisms to ensure that medical personnel are not coerced into participating in procedures, such as abortions, that violate their moral, ethical and religious convictions.

Tony Perkins, President of The Family Research Council said:

This is a huge victory for religious freedom and the First Amendment. No one should be forced to have an abortion, and no one should be forced to be an abortionist. These regulations will ensure that conscience protection statutes will be strongly enforced by the government just as other civil rights laws are.  It’s also a victory for the right of patients to choose doctors who agree with their personal beliefs.

Pro-abortion groups, such as Planned Parenthood and NARAL, already are urging the incoming Obama administration to reverse the regulations. 

For several years The Family Foundation has worked to extend Virginia’s current conscience clause protection to pharmacists who are often forced, against their beliefs, to distribute abortifacient chemical drugs like the so-called emergency contraceptive “Plan-B.” Planned Parenthood sees this issue as a major threat to their financial well-being. Remember, for several years, the federal government provided financial supplements to Planned Parenthood’s purchase of Plan-B.

At a time when religious liberty rights are under constant threat and are gradually being removed, this is a tremendous victory for the right of conscience. Despite the cries of radical pro-abortion groups, these new regulations will in no way threaten or diminish real health care. They will simply provide protections for people whose religious convictions forbid them from participating in abortion related services.

Here’s the news release we issued last week regarding the on-going state police “chaplain-gate” controversy. We’ll post more on this shortly and over the next few days. 

Family Foundation Urges Grassroots Action in Response to State Policy Prayer Policy

- Pro-family group reviewing legal and legislative remedies -

RICHMOND — The Family Foundation of Virginia today announced that it is mobilizing its members to urge Governor Tim Kaine (contact here) and State Police Superintendent W. Steven Flaherty (contact here) to reverse a new policy that forbids chaplains from praying according to their conscience. The pro-family organization is also exploring the possibility of legislative and legal action should the policy remain in place.

“The birthplace of religious freedom in America, Virginia, should not become a graveyard for religious expression,” said Victoria Cobb, president of The Family Foundation. “This policy decision by the state police is extremely concerning and we believe may be unconstitutional. We are working to seek a solution that protects the religious liberty and free speech rights of those involved.”

The Family Foundation has notified its members and the members of its pastors outreach arm, Pastors For Family Values, and urged them to contact Governor Kaine and Superintendent Flaherty. E-mail alerts to both groups went out over the past two days.

When informed of the prayer decision last week, The Family Foundation contacted Alliance Defense Fund, a nationally recognized law group that specializes in religious liberty cases. Representatives from ADF then contacted one of the troopers involved. They are reviewing the facts of the case to consider what action may be appropriate.

“A prayer at public events shouldn’t be banned or censored just because a Christian or religious person delivers it. The First Amendment allows public officials to acknowledge our nation’s religious heritage and to pray according to the dictates of their own consciences,” said Alliance Defense Fund Senior Legal Counsel Mike Johnson. “The practice of opening public meetings with uncensored prayer dates back to the First Congress. The Constitution clearly protects public officials and appointed chaplains who choose to invoke divine guidance and blessings upon their work.”

“There is no doubt that Virginians are very concerned that the precious right to religious liberty is being reduced on an almost daily basis,” added Cobb. ”We urge Governor Kaine and Superintendent Flaherty to reverse this policy decision immediately and restore the right of conscience of the troopers involved. Forbidding chaplains to pray to the God of their faith in the name of political correctness, as this policy does, violates everything this Commonwealth was founded upon.”

Where are all the PC police now that so-called comedian Sandra Bernhard has used more misogynistic language toward Governor Sarah Palin than any neanderthal would dream? (Read about it here. There are sound bytes, too, but they are profanity laced and not linked here.) Of course, it’s art — can’t temper that. Can’t condemn foul mouthed artists who make threats to an elected official. In fact, her outburst is funny in and of itself: Seems that whenever the Angry Left goes nuts, it’s always for the sake of art. Nice haven. But God forbid a conservative or Christian point of view get published on a college campus, or a conservative speaker appear to give a presentation. The First Amendment doesn’t apply, there, apparently.

If you haven’t heard yet, Ms. Bernhard warned Gov. Palin not to come to Manhattan or she would be sure to have her “big, black brothers” “rape” her. Classy. Racist, too. And these people are supposedly helping Barack Obama?

Last week, a three-judge panel of the 4th Circuit U.S. Court of Appeals ruled that the Rev. Hashmel Turner, a member of the Fredericksburg City Council, could not open council meetings with a prayer in the name of Jesus Christ. Former United State Supreme Court Associate Justice Sandra Day O’Connor sat on the panel as a guest judge, and wrote the opinion (click here to read the opinion).

At issue was whether government could regulate prayer. Fredericksburg councilmen traditionally take turns offering a prayer to open city council meetings. When it was Turner’s turn, he offered prayers ”in the name of Jesus Christ.” Predictably, the ACLU threatened a lawsuit, so city council changed its policy prohibiting such specificity, allowing a so-called non-sectarian praise of God, instead.

Turner and his lawyers, from the Charlottesville-based Rutherford Institute, plan an appeal to the United State Supreme Court. As Rev. Turner told The Fredericksburg Free Lance-Star, “I don’t believe the last say-so in the matter should be left up to Justice O’Connor, so I intend on going ahead to the Supreme Court.”

Here is the First Amendment in its entirety:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

According to The Free Lance-Star, Justice O’Connor wrote “that the city’s policy makes the prayers more inclusive and does not violate Turner’s First Amendment rights to free speech.”

What too many people, including, unfortunately, justices and judges, don’t seem to understand is the “or prohibiting the free exercise thereof” part of the establishment clause (see a good post here from American Sentinel). While they pontificate about a “separation of church and state” which is nowhere mentioned in the amendment, they are dead silent on the non-prohibiting part, which is expressly stated. If the government, which is charged to protect free speech and exercise of faith can’t protect such practices on its own grounds, who’s to say they will protect it elsewhere?

As far as the establishment clause, so often misapplied, there’s nothing in Rev. Tuner’s prayer, nor in allowing him to pray, that establishes a state-run church. The Fredericksburg City Council is not Congress, for starters. Second, many faiths worship Jesus Christ, so that doesn’t establish a specific church, such as Southern Baptist, Lutheran, Presbyterian, etc. (Sorry, ACLU, “Christian” isn’t a church, just like Islam doesn’t define all of the denominations within that faith.) Third, it would have to be one powerful prayer to create a national church in such a swoop.

In fact, the council prayer isn’t directed to the citizens of Fredericksburg or even public school students — not even Midshipmen at the Naval Academy. It’s directed to the councilmen, so that they may have the wisdom to make good decisions. They should be able to pray as they wish. It is a freedom of speech issue as much as a freedom from government mandated or written prayer as anything else. It’s funny how liberals scream government should not sanction formal prayers, such as a daily school prayer. But here’s government — the city council — going so far as to mandate the deity and phraseology Rev. Turner can reference or use (they allowed “Almighty God” and “Heavenly Father”). What forms of government do state-regulated prayer bring to mind?

It certainly is confounding how such simple and plain language is so wrongly interpreted, especially when the framers of the constitution wrote extensively and clearly about the content of the constitution. We’ll keep praying for Rev. Turner and like-minded public officials, as well as for judges to finally learn to get it right. At least as long as the government lets us.