Religious Freedom / First Amendment Cases Being Monitored by JSPAN Church-State Policy Center

The work of the JSPAN Church State Policy Center is seemingly never done. Last week the Center met to review current cases and legislation for possible action, working through an agenda of five current items. Buono in the Supreme Court: Members of the Policy Center congratulated Ted Mann , Judah Labovitz, Jeffrey Pasek and Barry Ungar for the excellent amicus curiae brief they submitted to the United States Supreme Court in Salazar v Buono. In this case a former National Park Service superintendant is challenging the maintenance of a large religious Latin Cross in the Mohave Desert, urging that it violates the Establishment Clause of the First Amendment. The federal courts agreed with Buono’s position and ruled that the cross must be removed, but Congress then passed a law authorizing the sale of the land beneath the cross (including the cross itself) to a private party who agreed to maintain a “memorial” at the site. The government’s current position is that Buono, as a believing Christian, cannot be offended by the cross, and therefore cannot bring a legal challenge to remove it. The JSPAN brief supports Buono's claim, and explores the consequences if a member of the majority – such as Buono - cannot challenge a clear Establishment Clause violation. The brief points out that “there are still vast areas where there are few if any Catholics, and in 2500 out of America’s 3140 counties there are no Jews. Legislators in such towns and cities, knowing that no one will likely have standing to stop them … would soon find that permitting religious symbols on public lands and buildings is a winning political strategy …” We look forward to the Supreme Court’s review and decision in this case. Meanwhile the issue in Buono is current and quite relevant to us. At the edge of the City of Reading, atop Mt. Penn, is the 120 foot tall stone William Penn Memorial Fire Tower erected in 1939. A cross is lit on this tower during Easter week every year and there is a proposal to make it permanent. Put most simply, JSPAN opposes the erection of permanent religious symbols and monuments on public property. Challenges to Ministerial Exception in Court and Legislature: Religious institutions are permitted to deal with their own employees who provide significant religious service, free from the restraints of equal opportunity laws and regulations, under the time honored “ministerial exception.” Courts define and from time to time reinterpret the exception, which is a protection of the right of religious institutions under the First Amendment to enjoy free exercise of religion, unencumbered by government interference. When a Catholic school in Wisconsin fired one of its teachers and replaced her with a younger person, the teacher filed a complaint of age discrimination with the state employment commission. Ultimately the Wisconsin Supreme Court ruled that the ministerial exception applies and the claim against the church was dismissed. In Pennsylvania there is a parallel to the ministerial exception in our state Labor Relations Act, which does not extend its benefits to teachers employed by religious organizations. A bill pending in the legislature, H.B. 26, would amend the law to expand its benefits to cover lay teachers and other lay employees of religious schools. The Church-State Policy Center at its next meeting will consider whether JSPAN should support H.B. 26. Philadelphia v. Boy Scouts of America: The Federal District Court in Philadelphia continues to process one of two suits by the Boy Scouts to prevent the City of Philadelphia from evicting it from its headquarters on land owned by the City on the Benjamin Franklin Parkway. The Boy Scouts constructed the headquarters building on the site and occupy it rent free. Because the Scouts’ membership policies do not allow openly homosexual men to participate in leadership positions, the City wants to end the rent-free occupancy by the Scouts, and either begin to collect a large rental or evict the Scouts from their headquarters. The Scouts argue that their activity is free expression and association protected by the First Amendment, and moreover, that by singling them out for eviction, the City is engaged in illegal “viewpoint discrimination,” in violation of the First Amendment’s Free Speech Clause. JSPAN is considering an invitation it received to file an amicus brief in the case. Extending the Press Shield Law: Although the United States Constitution has not been interpreted to protect the confidentiality of press reporters’ sources, New Jersey and Pennsylvania have statutes that do provide protection … within limits. The case of Too Much Media v. Hale is a defamation suit arising out of material posted on a blog. The plaintiff, in addition to damages, seeks discovery of the defendant bloggers’ sources. The New Jersey shield law protects people engaged in, connected with or employed by news media for the purpose of gathering and disseminating news for the general public. The defendant blogger does not claim to be employed or to earn a living as a member of the press, but argues that her blogging activity is gathering and dissemination of news. The New Jersey trial court disagreed, holding that she and her sources are not protected by the shield law. Public funds paid to churches: When Detroit was chosen to host the 2006 Super Bowl, the city offered property owners in the downtown area 50 % of their costs if they improved the exteriors of their buildings. Three churches, among a great many other property owners, received grants. A nonprofit group, American Atheists, Inc., sued to stop the grants. The United States Court of Appeals for the Sixth Circuit recently ruled that the grant program was evenhanded and neutral in dealing with religious and other institutions, and did not violate the Establishment Clause of the First Amendment. * * Each of these disputes places First Amendment freedoms and other important rights in danger. In some instances, there seems to be no solution that does not sacrifice rights that someone holds dear. The JSPAN Church State Policy Center delves into law and policy, striving for sound answers that preserve our freedoms from each challenge. Ken Myers, Vice President