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Commissioner Kirsanow Sends Letter to Houston Mayor Regarding Religious Liberty
This morning, Commissioner Peter Kirsanow of the U.S. Commission on Civil Rights sent a letter to Houston Mayor Annise Parker. Commissioner Kirsanow expressed his concern regarding the city’s decision to subpoena numerous documents from area pastors regarding their views on, among other things, the city’s equal rights ordinance, civil rights, homosexuality, and gender identity. Commissioner Kirsanow wrote:
A subpoena that requires a pastor to turn over an e-mail to his neighbor about the details of the Equal Rights Ordinance, or a draft book chapter on the Bible and homosexuality that discusses the Equal Rights Ordinance, is clearly overbroad. Yet both of these documents come within the ambit of the discovery request in the subpoena. Both the e-mail and the draft come within the definition of “documents,” and the subject matter would come within at least one item on the lengthy list.
No government entity should be in the business of requiring private citizens to turn over private communications about the issues of the day.Obviously this discovery request would tend to have a chilling effect on political speech, which is the speech subject to the greatest First Amendment protection. When he is out of the pulpit, a pastor has the same free speech rights as any other person. “[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence.” Still more must political speech prevail against discovery requests designed to discourage pastors from publicly opposing the City’s preferred policies.
Furthermore, in this instance it is impossible to disentangle the religious aspects of much of the speech from the political aspects. Discovery request 1.m. requests any documents related to the Equal Rights Ordinance and “the topics of equal rights, civil rights, homosexuality, or gender identity”. Given that the recipients of these subpoenas are pastors, it is almost inevitable that their views on homosexuality and gender identity are informed by their faith, if not almost entirely rooted in their faith. Indeed, the views of many people on homosexuality and gender identity are rooted in their ultimate commitments. A person’s religious views on civil rights, equal rights, homosexuality, and gender identity have nothing to do with whether there are enough valid signatures to place a referendum on the ballot. Neither does the pastors’ understanding of the ordinance or petition have anything to do with the number of valid signatures. This discovery request impermissibly probes the religious beliefs of private citizens simply because they supported a political effort. [citations omitted]
The entire letter is available here.
Supreme Court upholds legislative prayer in Town of Greece
This morning the Supreme Court issued its decision in Town of Greece v. Galloway. Two citizens of the town of Greece, New York, challenged the town’s practice of having a brief prayer before meetings of the town board as a violation of the Establishment Clause.
The point of contention was that the majority of prayer givers were Christian clergy from various local churches. The town of Greece lacks the teeming religious diversity of larger cities, and in fact appears to have only one non-Christian house of worship within its boundaries. The Christian prayer givers often gave explicitly Christian prayers. The town allowed non-Christians to give the opening invocation (this included a Wiccan priestess and a representative of the local Baha’i community), but by and large the prayer givers were Christian. The respondents sought to restrict prayers to generically religious themes, rather than permitting them to use whichever religious themes and terms they chose – which, given the demographics of the town, were almost always Christian.
Justice Kennedy’s majority opinion was joined in full by the Chief Justice and Justice Alito, and Justices Thomas and Scalia joined the opinion except as to Part II-B. Justice Kennedy held that the town’s legislative prayer practice did not violate the Establishment Clause. The majority refused to hold that legislative prayers must be nonsectarian, writing:
To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town’s current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. (Kennedy, J. at 12-13).
Justice Kennedy’s opinion, along with the concurring opinions of Justices Alito and Thomas, relies heavily on the history of legislative prayer in the United States (“The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents.” (Kennedy, J., at 24)) The practice actually precedes the existence of the United States as an independent entity, as Samuel Adams suggested and initiated the practice at the beginning of the Continental Congress in 1774. (Kennedy, J. at 15; cf. Alito, J., at 10). That first prayer was offered by the Rev. Jacob Duché and was an explicitly Christian, indeed Anglican, prayer. Many of the prayers since offered before Congress have been explicitly Christian, or Jewish, or Buddhist. It would be odd, the majority suggests, if a practice initiated by the Founders and continued through the ratification of the Constitution and Bill of Rights and to this very day, was suddenly declared unconstitutional.
Additionally, Justice Kennedy writes, the dissent’s focus on the lack of diversity in prayer givers is mistaken. The town has made it clear that it welcomes invocations of people of any faith or no faith. The town initially contacted prayer givers by consulting a publication from the local Chamber of Commerce. There was not a deliberate policy or effort to invite only Christian prayer givers and exclude non-Christians.
So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote “a ‘diversity’ of religious views” would require the town “to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each,” a form of government entanglement with religion that is far more troublesome than the current approach. (Kennedy, J., at 17-18) (citations omitted).
Read the full decision here: Town of Greece v. Galloway