Church & State

Faith-Based Postal Services? No Way, JSPAN Tells Federal Appellate Court

Citizens should not have to endure religious proselytizing to buy stamps, mail a letter or transact other business with the Post Office. That is the gist of the argument JSPAN presented to the United States Court of Appeals for the Second Circuit in Cooper v. U.S. Postal Service. The Cooper case began in Manchester, CT, where the Postal Service was not able to provide all of the postal services needed in the community. Rather than open a branch Post Office, it contracted with the Full Gospel Interdenominational Church, Inc. to operate a contract postal unit (CPU). The Post Office utilizes hundreds of CPUs around the country to provide services at a lower cost. The church began to proselytize and distribute religious messages as an inseparable part of its postal operations. Patrons were forced to watch religious videos as they stood in line, and various types of religious literature were displayed. To read the JSPAN brief, click here.

Hear Ye! Hear Ye! JSPAN Files Its First United States Supreme Court Brief!

JSPAN's Church-State Policy Center has filed six "Amicus" (Friend of the Court) briefs over the past two years, the last one just two weeks ago in a case called Pleasant Grove City v. Summum. This one was of great significance to JSPAN, not only because it was our first such brief filed in a case pending before the United States Supreme Court, but also because the JCPA ("Jewish Council for Public Affairs"), after studying our brief, joined in it on behalf of the 14 national Jewish organizations and 127 Jewish communities in America whose social justice activities it coordinates. Boston-based JALSA ("Jewish Alliance for Law and Social Action") joined in it as well. This is a major coup for JSPAN, and we owe our thanks to Alan Garfield, Seth Kreimer and Ted Mann for their work on the brief. This is an extremely difficult case and they managed to make our arguments in a very succinct manner. By way of background, the case arose in Pleasant Grove City, Utah, where Pioneer Park contains 15 permanent displays, including 11 that were donated to the City by private groups. One of these is a Ten Commandments monument that was donated by the Fraternal Order of Eagles. Summum, the plaintiff in the case, is a private religious organization that asked the city to display a stone monument, similar in size and nature to the Ten Commandments monument, containing the "seven aphorisms" of the Summum faith. When the city refused, Summum sued, alleging that the refusal of the city to permit installation of the proposed monument violated the Free Speech Clause of the United States Constitution as well as provisions of the Utah Constitution. The trial court denied the request, but a panel of the Tenth Circuit reversed and remanded the case with instructions to enter a preliminary injunction in favor of Summum. Characterizing the earlier Ten Commandments monument as private speech, the Court of Appeals then determined that the city had created in the park a traditional public forum for the erection of monuments. Thus, it could not deny Summum the right to erect its monument based on content-based restrictions that were unlikely to pass strict scrutiny usually reserved for limits on free speech rights. The full court denied rehearing by an equally divided vote.

Religion in the Schools Case Argued Before the Third Circuit

Can a school district prevent the mother of a kindergarten student from reading from the Bible to her son's classmates? That issue is at the heart of a legal dispute that was argued a few weeks ago before the Third Circuit Court of Appeals. JSPAN filed a friend of the court brief urging the court to uphold the actions of the school district. The case arose when Donna Busch, an Evangelical Christian, attempted to read from Psalm 118 to her son's class in the Marple Newtown, Pennsylvania school district. She came to the classroom as part of a curricular program known as the "All About Me" week during which parents are invited to share a talent, short game, small craft or story. After the teacher and and administrator acted to prevent Busch from reading Psalm 118 to the class, she sued. Backed by a religious right group, she claimed that the school district had engaged in "viewpoint discrimination" in violation of her First Amendment rights. A federal judge in Philadelphia ruled against Busch, but he also held that the school district had engaged in viewpoint discrimination. In her appeal, Busch contended that any restrictions on her speech must be viewpoint neutral, even in a school setting. She claimed that it violated her free speech rights for the school to restrict her speech based on its religious viewpoint.

High School Can Prevent the Football Coach from Continuing to Join with his Team in Organized Group Prayer

After 23 years of leading his team in organized group prayer at pregame dinners and just prior to the start of football games, Coach Marcus Borden was ordered to stop by administrators of the East Brunswick High School in New Jersey. Although he quit leading the prayers, he invited the team captains to solicit the team members to see if they wanted to continue the practice of praying in a student led effort. The coach then began to bow his head and “take a knee” with the team as a member of the team led the prayer. Again, school officials intervened, ordering him to stop. He sued, claiming that his First Amendment rights were being violated. Remarkably, a federal district court judge in Newark agreed with the coach and the school board appealed. This week, the United States Court of Appeals for the Third Circuit sided with the school board. Based on the history of the coach’s conduct, a three-judge panel ruled that the coach’s acts cross the line and constitute an unconstitutional endorsement of religion. Although the coach claimed to be engaging only in an act of team unity, “a reasonable observer would perceive his actions as endorsing religion,” whether or not that was his intent. The opinion was written by former Pennsylvania Attorney General D. Michael Fisher and was joined by Judges Theodore McKee and Maryanne Trump Barry. Both McKee and Barry wrote separate concurring opinions. McKee suggested that he would have issued a broader ruling finding the coach’s conduct violative of the Establishment Clause regardless of his history of prior prayer with the team. Judge Barry joined Fisher’s opinion on the narrower ground. JSPAN participated in the case by joining with the American Jewish Congress in a friend of the court brief to the Court of Appeals. The JSPAN brief, written by attorney Marc Stern, relied on a Supreme Court case decided last year holding that when public employees act pursuant to their official duties, their speech is not entitled to protection under the First Amendment. JSPAN told the court that “over and above the compelling interest of the school in complying with the Establishment Clause …, public schools have an important interest in preserving the perception amongst students and parents that the schools and their employees are neither political nor religious partisans.”

Join JSPAN on December 6th for an Historic Reunion as we Celebrate the Publication of Ellery’s Protest

Ellery Schempp was a 16 year-old student at Abington High School when he defied tradition by refusing to participate in mandatory school prayer and Bible reading. Ejected from class for his actions, Ellery turned to the ACLU, which connected him with Ted Mann, the brilliant young lawyer who would draft a complaint on his behalf. That complaint eventually resulted in the Supreme Court’s landmark ruling on school prayer, which prompted a conservative backlash that continues to this day.

Church & State Policy Center


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Background and general principles For Jewish activists in America it is almost an article of faith that the entanglement of religion and govern

Religious Liberty on Trial: JSPAN's Far-Reaching Legal Briefs in Support Both Free Exercise and Establishment Clause Principles

by Ted Mann, JSPAN Board member Blowing your horn, patting yourself on the back, is not an admirable trait. But I hope the reader will agree with me that every once in a long while it is permissible, even admirable -- especially if it is not my horn that’s blown, but JSPAN’s. So here goes.. Two weeks ago, for the fourth time in a year and a half, JSPAN became an amicus, a ”friend of the court”, in religious liberty litigation. Count them: Opposing inclusion of “intelligent design” theory as an alternative to evolution in high school biology courses, opposing the Redevelopment Authority’s attempt to transfer property valued at more than $800,000 to a religious institution for the construction of a “faith based” elementary school, supporting a school district in New Jersey in its effort to stop a high school football coach from kneeling and bowing his head as the team prays before a game, and most recently, opposing home-schooling parents in their claim that it violates their religious beliefs to allow the Department of Education to determine whether they are meeting the state’s secular educational requirements.

Can a High School Prevent the Football Coach from Praying with the Team?

School boards have an absolute right, consistent with the First Amendment, to insist that their employees not participate even symbolically in the prayer activities of their students, according to a brief that JSPAN filed with the United States Court of Appeals for the Third Circuit. The case involves the East Brunswick New Jersey football coach who for 25 years, in open defiance of settled law, led his football team in prayer at pregame dinners and just prior to the game.

JSPAN prompts Florida Republican Party to repudiate bigoted remarks by Representative Katherine Harris

According to a copyrighted story in the Sarasota Herald Tribune, Florida GOP leaders have finally repudiated offensive comments by Congresswoman Katherine Harris. According to the newspaper, "The Republican Party of Florida pointedly said in a late September letter to [JSPAN] that it does not 'condone' Harris' position." "While candidates like Congresswoman Harris are affiliated with the Republican Party, they do not necessarily speak for it," wrote Carole Jean Jordan, Florida GOP chairwoman. The controversy arose in August when Harris was quoted in the Florida Baptist Witness as saying, "If you are not electing Christians, tried and true, under public scrutiny and pressure, if you're not electing Christians then in essence you are going to legislate sin." She also claimed that the separation of church and state was "a lie." When confronted by Fox News, Harris tried to sidestep her remarks by saying that she supported the State of Israel and Holocaust education. JSPAN President Jeff Pasek immediately wrote to leaders of both the Florida Republican Party and the Republican National Committee calling on them to repudiate Harris' comments, noting that "neither support for Israel nor endorsement of Holocaust education will smooth over open pandering to religious bigotry."

The Public Expression of Religion Act of 2005: A Bill That Is Intended to Eviscerate the Establishment Clause

By Marci Hamilton Recently, Rep. John Hostettler (R-IN) introduced the Public Expression of Religion Act of 2005 (PERA). PERA enjoys the support of forty-five other sponsors (all Republicans save one), and of the American Legion. James Madison, however, must be rolling over in his grave. PERA is a creative attempt to forestall Establishment Clause attacks on public displays of religion - from statues and plaques of the Ten Commandments placed at courthouses, to government placement of religious symbols such as crosses and menorahs in public areas. Indeed, PERA's language goes so far that it could even protect government-sponsored sectarian prayers from Establishment Clause challenge. If enacted into law, PERA would forbid awards of damages, and awards of attorneys' fees in cases involving the Establishment Clause. As a result, such lawsuits would end, at most, in injunctions - and plaintiffs' lawyers would have to accept the cases on a pro bono basis, or not at all.
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