January 2003 People & Events

Ala. 'Ten Commandments' Judge Files Notice Of Appeal In AU Lawsuit

Alabama Supreme Court Chief Justice Roy Moore has announced that he will appeal a federal court ruling ordering him to remove a Ten Command­ments monument from the State Judicial Building in Montgomery.

Moore's attorneys filed a formal notice of appeal Dec. 10. In a statement announcing the court action, Moore declared, "Federal district courts have no jurisdiction or authority to prohibit the acknowledgment of God that is specifically recognized in the Constitution of Alabama....For a federal court to say we cannot acknowledge God contradicts our history and our law."

U.S. District Court Judge Myron H. Thompson ruled on Nov. 18 that Moore's display violates the separation of church and state. The suit against Moore was brought by Americans United, the American Civil Liberties Union of Alabama and the Southern Poverty Law Center.

Richard Cohen, an attorney for the Southern Poverty Law Center, said Moore's statement indicates ignorance of the law. "I think what we have heard today echoed George Wallace," Cohen said. "[Moore] said the federal courts have no authority to order him to do anything Alabama law doesn't require him to do. Whatever views Moore has about this, federal law is supreme."

The lawsuit, Glassroth v. Moore, is expected to move up to the 11th U.S. Circuit Court of Appeals.

In other news about religious symbols on government property:

 Americans United attorneys have written to government officials in Crestview, Fla., warning them not to follow through with a plan to post the Ten Commandments on city property.

City residents in November approved a non-binding referendum calling on the community to display the Ten Com­mand­ments, the U.S. Constitution and the Bill of Rights on town property and to use public funds to defend the display in the event of a legal challenge.

Since the referendum was non-binding, the AU legal team advised Kathleen Bowman, president of the Crestview City Council, and other council members not to erect the display. Bowman had earlier backed the proposal, calling it "a reminder of God's law." Another council member, Brenda Bush, said the display would be a way to "honor Him," referring to God.

These comments, AU attorneys asserted, are evidence of a religious motivation for the display. In a Dec. 4 letter to the council, AU Legal Director Ayesha N. Khan and Legal Fellow Kerry Kornblatt Jowers noted that the council originally planned to display the Ten Commandments alone and only proposed adding the other documents when church-state concerns were raised.

"The statements of Council members, together with the belated addition of other "historical documents," makes the City's unconstitutional purpose clear," wrote Khan and Jowers. 

 The National Park Service is resisting a federal court ruling ordering the removal of a five-foot cross in a remote area of the Mojave Desert in southern California.

There has been a cross atop Sunrise Rock for about 70 years. Over the years, crosses have been knocked down by vandals and fallen prey to the harsh desert climate, but residents have continued to erect replacements. The most recent version consists of two metal pipes welded together in a concrete base. Cross defenders insist it is a war memorial, but the American Civil Liberties Union disagrees, asserting that a sectarian symbol cannot memorialize war dead from many faiths. The ACLU won a legal challenge against the cross last year, but the Park Service is appealing.

The Washington Post reported that U.S. Rep. Jerry Lewis (R-Calif.), who represents the area in Congress, has proposed that the Park Service sell the parcel of land that the cross sits on to a private entity. Some critics have objected, however, saying it would set a bad precedent to sell off any portion of a national park. (Buono v. Norton)

The New Hanover, N.C., Board of Education has voted down a proposal to post the Ten Commandments in schools, thanks in part to efforts from an AU activist in the area.

Buddy Owens, who represents Americans United in eastern North Carolina, addressed the board about the matter on Dec. 2. Owens urged members not to post the Ten Commandments, pointing out that the action would spark litigation and distract the schools from their primary mission of education. Owens also noted that the schools should welcome all students.

"Children who are not of the religious majority do not need to be marginalized further," Owens told the board. "I hope New Hanover County chooses the neutral path. We must respect the religions of all our students."

According to the Wilmington Star-News, the proposal would have required schools to post "documents and objects of historical significance that have formed and influenced the United States legal or governmental system and that exemplify the development of the rule of law." The proposal called on schools to post nine documents, including the Declaration of Independence, the Preamble to the North Carolina Consti­tution and the Magna Carta. The Ten Commandments was the only explicitly religious document on the list. The board subsequently voted against the proposal. After the meeting, one board member told Owens that his comments had persuaded her to vote no.  

Battle Over Vouchers Expected To Come Early In New Congress

A fierce battle over voucher aid to religious schools is expected to erupt in Washington when Congress reconvenes this month.

Republicans, who now hold a majority in both the House of Representatives and Senate, have already added provisions that would create a voucher program in Washington, D.C., to pending appropriations bills. The idea of using the District of Columbia as a laboratory for vouchers was promoted by former House Majority Leader Dick Armey (R-Texas), who retired last year. Although Armey is gone, several pro-voucher Republicans have picked up the crusade.

Ironically, residents of Washington, D.C., don't even want vouchers. A recent poll conducted for the National School Boards Association by Zogby Inter­national found that 76 percent of D.C. voters oppose vouchers if they would mean less money for public schools. Eighty-five percent of African-American voters opposed the voucher plan.

The poll also indicated that D.C. residents believe that private schools that accept vouchers should be accountable to the taxpayer. Eighty percent said they would expect any private school that accepts vouchers to be held accountable to the public.

Armey's bill is expected to receive favorable treatment in the Senate and House this year. In the Senate, the new chairman of the Health, Education, Labor and Pensions Committee, which has jurisdiction over voucher proposals, is Sen. Judd Gregg (R-N.H.), a voucher supporter.

In other news about vouchers:

 Pro-voucher and Religious Right legal groups are in the courts trying to force states to set up voucher plans.

In Maine, attorneys with TV preacher Pat Robertson's American Center for Law and Justice have filed a federal lawsuit, asserting that the state is discriminating against religious schools. At the same time, the pro-voucher Institute for Justice is suing in state court. Maine, like other largely rural New England states, allows communities that do not have their own high schools to pay tuition at secular private schools.

The U.S. Supreme Court upheld Ohio's voucher plan in June. But shortly after that ruling, Maine Attorney General G. Steven Rowe issued a legal opinion stating that Maine was not required to offer vouchers or pay tuition at religious schools.

Sarah Forster, an assistant attorney general in Maine, told The Boston Globe, "A decision that says a state may pay tuition at religious schools doesn't mean you must."

The Institute for Justice in November also announced plans to sue Vermont, which has a limited school choice plan similar to Maine's. State officials there are gearing up to oppose the pro-voucher suit.

Attorneys with Americans United are already assisting the anti-voucher forces in the case in Maine's state courts and will offer assistances to other states as well.

 A legislative battle over vouchers is expected this year in Louisiana. The state has a long tradition of diverting tax money to religious and other private schools. In addition, the Catholic Church is well organized politically and often presses for parochial school aid.

Louisiana ranks 41st in the amount it spends per public school student, and its teachers are among the lowest paid in the nation. But that hasn't stopped pro-voucher forces. Opponents expect a fierce legislative fight.

"I think it is going to be one hell of a fight," Billie Smith, an English teacher at McKinley High School in Lake Charles, told the Baton Rouge Advocate recently.

Some surveys show Louisiana residents open to vouchers for low-income families or for pupils in poorly performing schools. But one poll showed 65 percent of state residents opposed to vouchers if the plan resulted in less money for public education.

Americans United, Allies Oppose 'Faith-Based' Funding In Wisconsin Case

Americans United and two national Jewish groups are asking a federal appeals court to strike down a Wisconsin program that funds a "faith-based" substance abuse and employment training program.

The controversy centers on Faith Works Milwaukee, a group that helps men overcome addictions and find jobs. In its bylaws, the organization says its offers "a holistic, faith-based approach to bring healing to mind, body, heart and soul."

The organization has received $600,000 from the Wisconsin Depart­ment of Workforce Development and $110,000 from the state Department of Corrections. In 2001, the Madison-based Freedom From Religion Foundation sued, asserting that the grants violate the separation of church and state.

U.S. District Judge Barbara Crabb last year struck down the Workforce Department's grant to Faith Works, holding that it is direct government funding of religious activity. However, Crabb upheld the grant to the Department of Corrections, saying that men on probation could choose Faith Works among other agencies, not all of which were religious. Crabb said that made the program similar to a voucher system, which the high court upheld in June.

The Freedom From Religion Foun­dation appealed the second part of the ruling, insisting that the Department of Corrections grant is also unconstitutional. In a friend-of-the-court brief, Ameri­cans United, the American Jewish Com­mittee and the Anti-Defamation League agreed.

The brief, written by AU Litigation Counsel Alex Luchenitser, asserts that Faith Works is the only viable choice for men on probation. It notes that only Faith Works offers a nine-to-12 month program, and that it is the only agency that offers employment counseling. Correct­ions officials, the brief contends, strongly urge probationers to enroll in Faith Works.

The case, Freedom From Religion Foundation v. Thompson, is currently on appeal to the U.S. 7th Circuit Court of Appeals.

Georgia Gov. Seeks Input From State Christian Coalition

Georgia's new governor, Sonny Per­due, is eagerly soliciting input from the state branch of the Christian Coalition as Republicans prepare to take the reins of state government for the first time since Reconstruction.

Perdue's win was engineered by Ralph Reed, former head of the national Christian Coalition and now chairman of the Georgia Republican Party. Reed, who runs a political consulting firm near Atlan­ta, also helped U.S. Rep. Saxby Chambliss (R-Ga.) oust incumbent Sen. Max Cleland.

In early December, Georgia Christian Coalition officials sent an e-mail message to supporters signaling that Perdue wants their ideas.

"I received a call from the Governor's transition team last week requesting a meeting with me to discuss and plan how best to implement a pro-family agenda over the course of his administration," wrote Sadie Fields, chair of the Georgia Christian Coalition. "The Governor-elect is very in tune with our values, and wants to work with us on accomplishing our goals."

Fields listed several objectives, among them new restrictions on abortion, elimination of the capital gains tax and creation of "Choose Life" license plates.

Reed helped catapult Perdue to victory by targeting rural white voters and playing up issues like gun control. The GOP also attacked Democratic Gov. Roy Barnes for removing the Confederate flag symbol from the official state flag.

Although the strategy worked in Georgia, it failed in Louisiana a few weeks later. Due to Louisiana's quirky election laws, Democratic Sen. Mary Landrieu faced Republican challenger Suzie Terrell in a runoff election Dec. 7. Mimicking the Georgia strategy, Terrell's team targeted conservative rural voters and played up emotional social issues. It didn't work, and Landrieu won by 52 percent to 48 percent.

Still, Reed remains optimistic about the GOP's future in the South. In an interview with Investor's Business Daily Dec. 10, he asserted, "I believe there are some long-term demographic, socioeconomic, cultural and political trends that make the movement of the South into a Republican region inexorable and irreversible."

Americans United, ACLU Oppose Council Prayers In Virginia County

Americans United for Separation of Church and State and the American Civil Liberties Union of Virginia filed a lawsuit in federal court Dec. 6 against the Chesterfield County, Va., Board of Supervisors for maintaining a discriminatory policy on prayer before its meetings.

The plaintiff in the case is Cynthia Simpson, a Wiccan who asserts that the Board's refusal to add her to a list of volunteer clergy who give the invocations constitutes illegal religious discrimination and an unconstitutional government promotion of religion.

The Board routinely opens its meetings with prayers, usually offered by clergy from Christian denominations. (Since 2000, Christian clergy have led the prayers at every Board meeting with one exception when two Christian clergy and one Jewish rabbi officiated.) Earlier this year, Simpson contacted the Board and asked that her name be added to the list of volunteers.

In response, County Attorney Steven L. Micas sent Simpson a letter stating, "Chesterfield's non-sectarian invocations are traditionally made to a divinity that is consistent with the Judeo-Christian tradition. Based upon our review of Wicca, it is neo-pagan and invokes polytheistic, pre-Christian deities. Accordingly, we cannot honor your request to be included on the list of religious leaders that are invited to provide invocations at the meetings of the Board of Supervisors."

Board members also ridiculed and criticized Simpson's religious beliefs. Supervisor Renny B. Humphrey told the Richmond Times-Dispatch, "I hope she's a good witch, like Glinda," a reference to a character from "The Wizard of Oz." Board Chair Kelly E. Miller said, "It is a mockery. It is not any religion I would subscribe to. There are certain places we ought not go, and this is one of them."

After the lawsuit was filed, some Board members continued to disparage Simpson's faith. "That [Wicca] is basically a non-religion," Miller told The Washington Post. "It doesn't recognize the God that we have recognized. My perspective is that we should continue to follow the Judeo-Christian perspective. In the name of diversity, we need not throw away our Christian heritage." Miller admitted that the board's prayer policy would bar Muslims and Hindus as well.

AU says the board's actions are patently unconstitutional.

"Government officials do not have the right to discriminate when it comes to religion," said Barry W. Lynn, executive director of Americans United. "The county supervisors shouldn't be sponsoring prayers at all, but when they do, they certainly can't play favorites."

The lawsuit, Simpson v. Chesterfield County Board of Supervisors, asks that Simpson be added to the list of clergy volunteers or that the Board discontinue invocations altogether.

In other news about prayers in government:

 A Utah atheist who wants to read an unconventional prayer before the Murray City Council is getting his day before the state supreme court. Tom Snyder filed legal action against Murray officials in 1994 after they refused to let him read a prayer addressed to "Our Mother, who art in heaven" that asked for deliverance from "the evil of forced religious worship now sought to be imposed upon the people."

Snyder had originally filed his case in federal court. When it was dismissed there, he moved to the state courts. A lower court rejected the case in 1999, but the Utah Supreme Court agreed to review the matter.

Murray contends that the city must permit his prayer since it allows other forms of pre-meeting invocations. (Snyder v. Murray City)

 Members of the Elgin, Ill., City Council have resumed opening their meetings with prayers. Invocations had been discontinued not because of separation of church and state but because the council could not find enough volunteers to lead them. Faculty and students at the evangelical Judson College have volunteered to lead the prayers.

"My spiritual background tells me that it's not a bad idea to call upon the presence of someone greater than we are to help us in our deliberations," Council­man John Walters told the Chica­go Tribune.

Menorah Can Be Displayed At Government Plaza In Cincinnati, High Court Says

A downtown plaza in Cincinnati is a public forum for free speech and government officials may not bar the display of religious symbols by private groups there, a Supreme Court justice ruled in December.

Acting on a request for an emergency ruling, Justice John Paul Stevens held that city officials must allow Chabad of Southern Ohio to display a menorah in Fountain Plaza. Shortly after the ruling, the group erected an 18-foot-high menorah.

City officials had earlier passed an ordinance barring all displays at the plaza from the last two weeks in November through the first week in January. The law was designed to prevent the Ku Klux Klan from erecting a cross in the area, as it has done during December in years past. The KKK display has led to protests and violent confrontations in the square.

Chabad sued, maintaining that the ordinance was unconstitutional. A federal judge agreed with Chabad and struck down the ordinance, but on appeal the U.S. 6th Circuit Court of Appeals reversed and issued a stay allowing the city to enforce the ordinance pending further legal action. Chabad then filed an emergency petition with the U.S. Supreme Court, which was referred to Stevens, who handles controversies that come out of the 6th Circuit.

The Supreme Court later refused to take up the Chabad of Southern Ohio v. City of Cincinnati case, so the menorah remained on display. In 1995, the Supreme Court ruled that the city of Columbus could not ban a KKK cross from Capitol Square because other groups had been given access to the property.         

 A minister in Airmont, N.Y., complained because the city's winter holiday display contained a Christmas tree and a menorah but no Nativity scene. The Rev. Michael Johnson of Tallman Bible Church said a cr\xe8che was included in the display in 2000 and 2001 but was left out this year. He vowed to put one up himself if the city did not.

City officials insisted that the display is permissible, asserting that Christmas trees and menorahs are secular symbols.

"We have to be careful of the separation of church and state," Village Trustee Al Spampinato told the Westchester County Journal News. Spampinato also insisted that the display was consistent with guidelines issued by the New York Conference of Mayors.

 Portland, Maine, City Manager Joseph Gray dropped a plan to ban all religious symbols from Ganley Plaza in front of city hall after several religious groups complained, but municipal officials intend to return to the issue this year and draft new guidelines.

Gray says the new policy is needed because too many groups are asking for the right to display symbols in the plaza. He intended to limit December displays to Christmas trees only but later allowed a Jewish group to erect a menorah. Gray told the Maine Sunday Telegram that he will convene an advisory group to draft a new policy governing displays in the area.

The Board of Selectmen in West­ford, Mass., voted to allow Chabad to erect a six-foot menorah on the town common in December even though another rabbi in town opposed the display. Rabbi Shoshana Perry of Congrega­tion Shalom in nearby North Chelmsford asked the board to drop the ceremony, citing concerns over separation of church and state.

The board disagreed. Board Chair Geraldine Healy-Coffin told the Boston Globe, "I think no one felt like we were doing anything but supporting a gathering of people. As long as it's legal, we're happy to have it."

Ruling On 'Standing' Means 'Under God' Lawsuit Will Continue

A California atheist whose lawsuit sparked a controversial appeals court ruling striking down the use of the phrase "under God" in the Pledge of Allegiance has won the right to continue the case.

Michael Newdow challenged the use of the Pledge at his 8-year-old daughter's public school in Elk Grove, Calif. In June, the U.S. 9th Circuit Court of Appeals ruled 2-1 that Congress violated the First Amendment when it inserted "under God" into the Pledge in 1954. The court ordered public schools to stop using the Pledge.

The court later put the ruling on hold pending further appeals. In the meantime, the mother of Newdow's daughter, Sandra Banning, who has physical custody of the child, challenged Newdow's ability to bring the lawsuit.

Banning said her daughter is a Christian and does not oppose reciting the Pledge. She asserted that because Newdow does not have custody of the child, he lacks "standing," the legal right to sue.

The 9th Circuit unanimously rejected Banning's argument Dec. 4. The court noted that although Newdow does not have custody of the girl, he remains her father and thus has an interest in her education and upbringing.

The ruling means that Newdow's case can now proceed to the entire 9th Circuit panel, which will decide whether to hear an appeal of the controversial decision. If the full circuit refuses the case, Newdow v. U.S. Congress can still be appealed to the U.S. Supreme Court.

Hair-Raising Case: Judge Approves Long Locks At Catholic School

A Catholic school sophomore in Providence, R.I., has won a legal ruling giving him the right to wear a foot-long ponytail despite a school policy banning long hair.

Rhode Island Superior Court Judge Stephen J. Fortunato Jr. ruled that St. Raphael Academy intruded "into the home and off-campus life" of 15-year-old Russell Gorman III by ordering him to cut his long blond hair. He issued a permanent injunction barring the school from expelling Gorman or banning him from school activities, reported the Providence Journal-Bulletin.

In court, William T. Murphy, the attorney for St. Raphael's, argued that as a private entity, the school has the right to enforce hair and dress codes. Fortunato disagreed, writing that Rhode Island law allows state officials to impose various regulations on private schools and their curricula.

"Private schools are different from private bowling leagues, private yacht clubs and private advocacy groups," wrote Fortunato. He asserted that the state licenses private schools "with the express condition that they educate children to be citizens in a democracy. It would be anomalous indeed if people entrusted with this important mission were permitted to impose a 24-hour rule mandating a purposeless conformity to an arbitrary hair code. Democracy does not require nor has it ever required robots."

Gorman, an honor student who does three hours of homework a night, enrolled at St. Raphael's in 2001, where his long hair at first attracted little attention. But last year a new principal, Brother Daniel Aubin, came to the school and insisted that Gorman cut his hair.                 

Gorman's father, who wears his own hair in a ponytail, praised Fortunato as "a good judge" and added, "He should be close to sainthood, that guy. This whole ordeal put an emotional strain on all of us. I give thanks to the Lord, and I'm going to take [my family] down to Florida to go to Disneyland." (Gorman v. St. Raphael's Academy)

Florida AU Chapter Fights Eviction From Public Library

Members of an Americans United chapter in Florida found themselves without a place to meet after city officials in Tarpon Springs evicted them from the public library, claiming that organizations that discuss political or religious topics may not use community facilities.

Library officials later reversed themselves and said that the Suncoast Chapter of Americans United could continue meeting in the library for a few more months but announced that all private organizations would be kicked out of the library effective September 2003.

The AU chapter had been meeting in the library once a month for about two years when it was suddenly denied access to the facility in September. Officials at the library said they came upon AU's name during a routine review of community groups that use the library and decided to deny further access.

Gerald Eckstein, president of the AU Suncoast Chapter, pointed out that the organization is non-partisan and non-sectarian, but city officials would not budge. City Attorney John Hubbard told The Suncoast News that the city "has to remain neutral and impartial when it comes to all political or religious matters. It appears that this group is both religious and political."

Attorneys with Americans United's national office believed the policy was clearly unconstitutional and let officials in Tarpon Springs know that. In a Nov. 4 letter, AU Legal Director Ayesha N. Khan and AU Litigation Counsel Alex J. Luchenitser advised Tarpon Springs Mayor Frank DiDonato and other community officials to alter the policy to permit all community groups access to the library.

Other organizations in the city have used library meeting rooms, including an investment club, the Daughters of the Am­erican Revolution, a youth soccer league and a writers' club. AU argued that the Supreme Court has clearly said that once a community opens a facility to one outside group, it must allow them all access.

Khan and Luchenitser made it clear that Americans United would pursue litigation if the AU chapter was not allowed back into the library. In response, city officials decided to deny all groups access to the library. AU called that policy an unnecessary overreaction.

La. School Board Rejects Anti-Evolution Textbook Disclaimer

Louisiana's Board of Elementary and Secondary Education has voted 7-3 to reject a proposal to add anti-evolution disclaimers to biology textbooks used in public schools.

A board committee had earlier ap­proved use of the disclaimer, which casts doubt on the validity of evolution and claims that the theory "still leaves many un­answered questions about the origin of life."

The vast majority of biologists in the country accept evolution. It is stridently opposed by many fundamentalist Chris­tians, however, who have worked to undermine instruction about the theory in public schools. Religious Right groups have pressured educators in many states to adopt the disclaimers. So far, only Alabama has done so.

Alabama's disclaimer, adopted six years ago, engendered months of controversy and led to threats of legal action. The full Louisiana board apparently had no desire to go through that.

"I am not prepared to go back to the Dark Ages," Board President Paul Pastorek said. "I don't think state boards should dictate editorial content of school textbooks."

Ohio's Board of Education, meanwhile, has adopted new science standards that require instruction about evolution but also approve "critical analysis" of the scientific concept. Critics insist that the terminology is code language for creationism.

"These new standards are dangerously vague," said Barry W. Lynn, executive director of Americans United for Separation of Church and State. "The Board needs to be on notice that any attempt to sneak creationism in through the back door of Ohio's public school system will be met with swift legal resistance."

Supporters of the neo-creationist "intelligent design" movement had pressured the board to include specific references to that concept in the guidelines. Although the board did not do so, the Discovery Institute, the leading "intelligent design" advocacy group, issued a press release hailing the Ohio vote as "historic" and asserting, "This policy will help remedy the selective presentation of evidence made by most biology textbooks today."