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Religious Freedom Amendment
Background and Talking Points

Religious Freedom Amendment
on Congressional Agenda
by Conrad Goeringer

October 7, 1997

The House Constitution Subcommittee will again be taking up the controversial Religious Freedom Amendment, (H.J. Res 78), proposed by Rep. Ernest Istook, on Thursday, October 23, 1997. Legislative alerts note that no other business is before the Subcommittee which means that the measure could be "fast tracked" for a quick vote in the House of Representatives.

The proposed amendment is brief, well-crafted, and has serious consequences for the First Amendment separation of state and church in America. This version reads:

"To secure the people's right to acknowledge God according to the dictates of conscience: The people's right to pray and to recognize their religious beliefs, heritage or traditions on public property, including schools, shall not be infringed. The government shall not require any person to join in prayer or other religious activity, proscribe school prayers, discriminate against religion, or deny equal access to a benefit on account of religion."


Background: Cracks In The Religious Right Facade

Although mixing prayer in the affairs of government -- and, in particular, returning the prayer ritual to the public schools -- has been a major objective for modern religious right groups, that effort has enjoyed little success. Supreme Court decisions in the early 1960s (Engle v. Vitale; Murray v. Curlett; Schempp v. Abington Township School District) helped to end, in theory anyway, Bible recitation, prayer chanting and other forms of coercive religious ritual in public schools. Religious groups fought this trend, in part, by proposing so-called "voluntary prayer" amendments. Various forms of this legislation grudgingly conceded that while students should not be "forced" to participate in the prayer, or even given the "option" of leaving the classroom while the prayer was being recited, some form of religious ritual should be permitted. Courts have taken a dim view of these disingenuous proposals, though, noting that especially in the lower grades and even in high school, students who chose to not pray were subject to ostracism, marginalization and even physical violence. Atheists noted that permitting prayers from "minority faiths" or scams like the "moment of silence" -- presumably, silent meditation to a deity -- was simply a form of stealth religious ritual, and still did not address the basic problem with prayer, or the deeper constitutional issues involved.

The rise of the modern religious right -- its "second wave" form embodied in politically active groups like the Christian Coalition -- re-ignited efforts to pass some form of school prayer amendment. The CC emerged as a central force in this debate, staking out an ideological and political position different from its predecessors in the 1960s and 1970s and into the 1980s who had carried the banner for "voluntary prayer." Insisting that government had become "hostile to the people of faith" (Ralph Reed, Pat Robertson), the Coalition and its allies framed the school prayer debate in a larger context, that of so-called "religious liberty" or "religious freedom." Reed set the new clarion call for the religious right when he insisted that "People of faith have grown increasingly distressed by the hostility of public institutions toward religious expression. The erosion of the time-honored rights of religious Americans has been abetted by a court system which stands the plain meaning of the First Amendment on its head..."

For the Coalition and other religious right activist groups, bringing back some form of school prayer required two things. First was a "linkage" to other state-church separation issues, such as display of nativity creches and other "sacred symbols" on government land (misleadingly termed "the public square.") Second was the realization that no school prayer law would likely pass constitutional muster; despite cracks in the "wall of separation," legal standards involved in the crucial Lemon v. Kurtzman case (which required a government neutrality in matters of religion) would probably strike down any legislative remedies. Only a full, constitutional amendment would suffice.

Following the 1994 elections, the Coalition was generally recognized as a major player on Capitol Hill and in Republican politics. Christian evangelicals and fundamentalists had been mobilized in increasing numbers to where that segment of the society was one of the most active voting blocks. Over 75,000 participating churches had distributed the CC's questionable "Voters Guides" (that number escalated to 125,000 in just the last election.) The Coalition also could take credit for handing control of the both the U.S. House of Representatives and the U.S. Senate to the Republican Party for the first time in forty years. The GOP's "Contract With America" took off; and the Coalition soon crafted its own social-agenda version which it labeled, "The Contract With The American Family." It called for a wide, activist role for the state in defending "family values," including legislation against abortion rights, curtailing gay rights, and returning prayer to the schools and public square. The latter was to be achieved through what the Coalition proposed as the "Religious Equality Amendment" (REA).

Several factors, though, worked against the passage of the REA. Americans, and many Republicans inside the beltway, were enthused about the economic agenda in the "Contract With America," but less invigorated about the social programs of religious right groups. People were more receptive to tax cuts than they were to discomforting and divisive issues such as ending abortion. In addition, some religious groups could not support the original Religious Equality Amendment. A split in religious right groups soon emerged, with some organizations like the Family Research Council taking the position that REA was simply not sufficient to achieve their objective of a greater involvement of religion with government. Competing versions of the REA soon emerged.

Attempts to compromise these versions has met with limited success. Last July, a "fusion version" was introduced by House Majority Leader Dick Armey and repackaged as the Religious Freedom Amendment. It picked up the lukewarm support of House Judiciary Committee Chairman Henry Hyde, who had supported earlier competing versions. Despite efforts to "fast track" the measure, it never cleared committee for a floor vote.


The "Best of the Worst" -- For the Record

The present version before the House Judiciary Committee enjoys more support among the different religious right groups than previous efforts managed to achieve. This version has been amended; and both supporters and critics note that the present wording is artfully constructed, deceptively simply, and stands a better chance of surviving the Capitol Hill grist mill than its predecessors. One crucial piece of phrasing speaks of denial of "equal access to a benefit." Those words would essentially legitimize government funding of religious groups and "faith based" outreaches. When combined with other provisions of the Act, the RFA would "gut" the Establishment Clause of the First Amendment and reduce state-church separation to the "one-directional" function envisioned by Reed, Robertson and others whereby government would never interfere in the "practice" of religious groups, regardless of effects.

Should the RFA clear the Judiciary Committee as expected, it would still have a rough road ahead first in the House, then in the Senate. It would then have the arduous task of winding its way through the respective state legislatures for the necessary ratification. Even so, getting the Religious Freedom Amendment onto the floor of the House and Senate serves a secondary purpose, explicitly mentioned by Christian Coalition strategists. It would put incumbent Representatives and Senators "on the record" where their votes could be used in the 1998 and 2000 elections as being "for prayer" or "against religious faith."


Talking Points On RFA

The Religious Freedom Amendment is a major constitutional assault on state-church separation, the rights of those who profess a minority religious view, and the tens of millions of Americans who identify themselves as atheists or non-believers of some kind. It is not about "freedom" but the orchestrating religious ritual in government and public institutions. It is a response to a pseudo-problem based on questionable "horror stories" of alleged abuse involving religious practitioners. Ironically, while RFA supporters give lip service to notions like freedom and free expression, they support invasive legislation in other areas of life.

RFA Would "Gut" the Establishment Clause

    The act would essentially overturn decades of judicial and constitutional protection on behalf of the separation of state and church. In particular, the RFA targets the "Lemon" test (Lemon v. Kurtzman) which says that government may engage in no practice the purpose of which is not secular, may not favor one religion over another (or religion over non-religion), and may engage in no conduct which results in the "excessive entanglement" between state and church. In addition, decisions which have protected children and others from invasive forms of ritualized prayer -- Murray v. Curlett, for instance -- would be cast aside.

RFA Would Violate the Rights of Minority Religious and Non-believers Alike

    Any form of prayer in the public schools or halls of government results, in practice, in violating the rights of members of minority faiths, and certainly the rights of millions of Americans who profess no religion. Shabby attempts to craft a "non-denominational" prayer which would supposedly reach the various deities of all faiths still violate the rights of atheists. Disingenuous schemes like "the moment of silence" do the same thing.

    The RFA would legitimize so-called student-initiated prayer; the Act is thus "sold" to the public, presumably on the technicality that it is students, not school officials who are conducting and orchestrating the event. But courts have noted that this is simply an "end run" around state-church separation, and does not address the more basic questions of whether the prayer should take place in the first place, or whether students who choose not to pray have any better remedy under this system than they would where the prayer was led by teachers, school administrators or others. Student-led prayer in the classroom is still unconstitutional; it serves to marginalize non-participants, including atheists, and divides students. (Also, religious leaders have been known to direct youthful followers to lead prayers in schoolroom situations so as to appear spontaneous.)

    In practice, religious rights -- and the rights of atheists and non-believers -- are best protected in a political arrangement emphasizing the separation of state and church, along with free expression and general civil liberties for all. The Religious Freedom Amendment jeopardizes these things. Remember, also, those promoting the RFA have a wider, anti-Civil Liberties agenda too.

Do Students Need to Pray?

    The RFA is proposed at a time of organized cultural religious resurgence, when mystical incantations and rituals are being peddled in a widely diverse "belief bazaar." This comes at a time when schools, for instance, are cutting back on science program. The rationalist world view is under assault, from both religious fundamentalist and New Age pseudoscience hucksters. Government endorsed or sponsored religious ritual is part of this wider problem, and needs to be questioned and opposed. American Atheists suggests that content-rich programs, particularly in the sciences, are needed now, more than ever, in our public schools -- not more prayer. The schools, in particular, can be a venue for imparting progressive and humane values as part of a wider, Enlightenment agenda which emphasizes the positive, creative and liberty-oriented character of science and technology.

The RFA Is Not Necessary, Even for Religious Groups

    There are over 350,000 churches, mosques, temples, chapels and other places in the United States where "people of faith" may practice their religious beliefs, on their own time and at their own expense (and tax-exempt to boot!). This figure, in fact, may be low since it does not include tens of thousands of "weekend congregations" which rent facilities like hotel meeting rooms, or gather in community buildings (often for free or for a ridiculously low rent), or in members' homes. Religious persons may also pray, chant, sing and perform rituals in their houses and apartments, alone or with others.

    In public schools, religious students may pray on their own time, alone or in groups. They are free to form clubs and to pray in the hallways or cafeteria. They may pray on the school bus. What they are not allowed to do and should not be "free" to do, however, is to make a public display of their religious beliefs in a controlled situation like the classroom where students are gathered as part of the "official" school day.

    Such remedies as leaving the class room, which the Act would give non-participants, are not legitimate options. If non-believers are permitted to leave a room during a prayer ritual, why not ask that those praying leave the room instead?

RFA is the "Wedge" of a Wider Religious Agenda Which Emphasizes Religion over Non-Religion

    After gutting the Establishment Clause, proponents of the RFA will be well on their way in their efforts to create a society besotted with religiosity. We would truly be "one nation under (somebody's) 'god'"; and in such a climate, with the protections of the First Amendment seriously vitiated, what would be the fate of non-believers? the RFA ultimately emphasizes religion over non-religion. Proponents on Capitol Hill state that their legislation would protect minority faiths, and even include representatives of these beliefs -- say, Muslims or Hindus -- in the public prayer process. That may be the case, and Islamist children may indeed be leading their classes in prayer on a particular day of the week. But where is the line to be drawn? Would Scientologists be included? What about Wiccans? Satanists? And even if all of these groups are permitted "equal access" under the RFA, it is atheists and other non-believers who remain at the ultimate target. (And when have atheists or people of non-Christian faiths ever had equal or fair treatment under any Christian regime? -- Cliff Walker)

    "Equal access" is not what state-church separation is about.

The Religious Freedom Amendment Is a "Raiding Party" on the Public Purse and the American Taxpayer

    Under the "denial of a benefit" portion of the Act, religious groups would be given equal access to public monies and appropriations. "Faith based" groups and social outreaches would be permitted -- which means that atheists (and everyone else) would end up footing the bill for religion-based social programs. Already, religious groups have reaped a fortune in the administration of social services which under the law are required to retain the veneer of secularism. Catholic Charities, for instance, now receives over 60 percent of its funding through direct and indirect government grants; and it tacks on another 10 to 12 percent for "administration" costs. The RFA would abolish those few remaining constraints. Passage of the act would be a financial windfall for religious groups, programs -- and hucksters operating in the "faith" business.

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Win For Separation In Hawaii
by Gonrad Goeringer

October 7, 1997

In Hawaii, state-church separation activist Mitch Kahle and the Hawaii Citizens for the Separation of State and Church have scored a major First Amendment victory. A press release from the group notes that Honolulu Mayor Jeremy Harris "has agreed to end the City's long-standing policy of religious discrimination. For years, the City and County of Honolulu has practiced religious discrimination by favoring a Christian display over all others included in and excluded from the Honolulu City Lights program."

Mr. Kahle, in letters to the Mayor, said that the practice "constituted a governmental endorsement of religion in general over non-religion and a preference for Christianity over all other religions." At issue were policies which permitted only religious groups to participate in the city-orchestrated event, and giving preferential display space to Christians. "The new rules, as currently proposed by the City," notes Kahle, "are content neutral and grant any non-profit group equal opportunity to participate."

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Charlotte Officials Opt for
Televised Prayer Ritual
by Jim Senyszyn (with Conrad Goeringer)

October 9, 1997

"And thou, when thou prayest, thou shall not be as the hypocrites are; for they love to pray standing in the synagogues and in the corners of the streets, that they may be seen of men..."

"But thou, when thou prayest, enter into thy closet, and when thou has shut thy door, pray to thy Father which is in secret..."

-- Matthew 6:5-6

Mecklenburg County, North Carolina, Commissioners have voted to ignore the exhortation of the New Testament, and instead pray openly whenever their board meets, especially when television cameras are present. The 5 to 4 vote doubles the previous amount of prayer time, notes the Charlotte Observer newspaper, since previous policy called for public prayer only at twice-monthly formal meetings.

As noted earlier, the prayer flap is part of a larger culture-war issue food fight taking place in Charlotte, North Carolina (former home of disgraced televangelist Jim Bakker and his defunct PTL group.) In August, a City Council member proposed the erection of a Ten Commandments display in the local government building complex. At the County level, Commissioners began debating the issue of prayer when board member Lloyd Scher accused his fellow solons of hypocrisy because they prayed only during the televised meetings. Republican Commissioner George Higgins then proposed that the board pray at all meetings. His measure was supported by fellow GOP'ers Tom Bush, Bill James and Joel Carter, and even Democrat Hoyle Martin. Martin told reporters earlier this week, "You can't divorce your sense of morality because you become involved in government," and added that elected officials need prayer because they were often "confronted with too many temptations" and might "succumb."

Commissioners boosting the prayer resolution are the same group dubbed "Gang of Five" last spring when they voted to slash funding to the local Arts and Sciences Council over the production of public plays with gay themes.

The new prayer policy calls for members to invoke a deity on a rotating basis. On Tuesday, Commissioner Darrel Williams -- who opposed the prayer resolution -- lead the invocation, imploring:

"Dear Father, please help us ... focus on the real issues facing this community. Help us understand that we will not be judged by how often we pray before meetings or whether we pray a silent prayer..."

Commissioner Scher faces opposition in the next election in Mecklenburg County from Rusty Loudermilk. He told officials and the media that commissioners who did not support the prayer resolution "fail to realize you would not be able to make the decisions you have to" without prayer to the divine.

Meanwhile, American Atheist member Jim Senyszyn told commissioners that prayer should not be held in public. "We strongly object to this because it casts aspersions on our non-belief," he said, adding that "We're not preventing people from praying. What we [atheists] object to is making it a public spectacle."

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Jim Senyszyn's
Opposition Statement

Statement to Mecklenburg
County Commissioners
from Jim Senyszyn, American Atheist

October 7, 1997

Atheists consider public prayer invocations to be unconstitutional violations of the principle of separation of church and state found in the establishment clause of the first amendment in the Bill of Rights of the U.S. Constitution. An issue of American Atheist magazine, August 1995, was devoted to the question of prayer.

To quote the complaint in Murray v. Curlett, the landmark case in which Bible readings and prayer recitations were found unconstitutional by the the U.S. Supreme Court in 1963:

"[government sponsored prayer] threatens or religious liberty by placing a premium on belief as against non-belief and subjects our freedom of conscience to the rule of the majority."

"[it] renders sinister, alien and suspect our beliefs and ideals, promoting doubt and question on our morality, good citizenship, and good faith."

Public prayer is inextricably intertwined with the issue of the Ten Commandments display. The most notorious case ... is [that of] Judge Roy Moore, an Etowah County, Alabama jurist who begins judicial proceedings with a Baptist invocation, and has erected a hand-carved Ten Commandments plaque over his dais. He is defying court orders to "cease and desist" on the prayer as well as to remove the Decalogue. Here in Charlotte, the Charlotte Observer and the Charlotte Christian News have reported that the Ten Commandments proposal was inspired by the preaching of an evangelist, Luis Palau. According to the Observer Palau "urged his listeners to pray in public, post the commandments and proclaim that Christ is the foundation on which America is built."

How can a Christian preacher ignore Jesus Christ's own teaching to his followers to pray in private, found in Matthew 6:5-7?

We are not preventing anyone from praying. Commissioners can pray quietly at their desks, and members of the audience can pray in their seats. There are hundred of venues in Charlotte: churches, synagogues, and mosques, where people can pray in a religious setting. People can pray at home, work, or when traveling. What we object to is making it a public spectacle: forcing others to watch and listen to their praying. People who do not want to pray or do not believe in prayer should not be forced to watch or listen to it.

Just exactly who is praying, anyway, when a group is led by one person during an invocation? One person is praying and the others are spectators, along for the ride. More prayers would occur and the prayers would be more genuine if individuals had to pray on their own initiative. Similarly, church establishment during Colonial times sapped the initiative and energy of preachers by granting state sponsored monopolies and subsidies to certain churches. Only 17 percent of colonial America was churched on the eve of the Revolution. Religious adherence took off once this church establishment was dropped and it was left to the initiative of individuals to spread religion. Likewise here, more prayer and better prayer would result if government were not expected to promote it.

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Faulkenberry, Roy Moore
Subject of ABC Segment
by Conrad Goeringer

October 16, 1997

This evening's installment of the ABC network program "20/20" will include segments on the notorious "prayer wars" in Alabama, including Judge Roy Moore, the Etowah County jurist who posts a copy of the Ten Commandments and opens sessions with a Baptist invocation. Also covered will be the heroic efforts of Alabama Freethought Society activist Al Faulkenberry to challenge this and other violations of state-church separation.

We hope that ABC provides the American people with a fair and informative segment on the important constitutional issues behind this case.

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ABC Not Seeing 20/20
On Alabama Prayer War

ABC's Coverage of
Alabama Controversy
is Tepid at Best
But Carol Faulkenberry Says,
"I'm Glad They Ran It Anyway"
by Conrad Goeringer

October 17, 1997

A segment of the "20/20" program which aired last evening (Friday, October 16) and purportedly covered the debate over prayer and other religious ritual in the Alabama courtroom of Judge Roy Moore, was less than complete. The program gave little coverage to one of the major players in this important state-church separation battle, atheist Al Faulkenberry. ABC did give considerable time, however, to Judge Moore who has attracted national support from religious groups for his posting of a hand-carved plaque of the Ten Commandments above his dais in his Etowah County courtroom, and his practice of opening judicial proceedings with a Baptist invocation. Also covered was Alabama Governor Fob James, a defender of Moore, who told ABC that he would resist any Supreme Court order to remove the Decalogue plaque, and wanted to see "a direct order" from the President of the United States to do so.

James has previously fueled passions over the issue with similarly bombastic statements, including his assertion that he would call out the Alabama national guard, state police, and even the University of Alabama football team if necessary to resist any court orders not to his liking over the religious controversy.

Al Faulkenberry and others in the Alabama Freethought Society filed suit to end Judge Moore's outrageous practices. In the ABC coverage, a brief film clip showed Mr. Faulkenberry announcing in Moore's court that he would not pray, wherein he walked out of the room. Faulkenberry was never identified as a freethinker or atheist, nor was the role of the Alabama Freethought Society mentioned. The American Civil Liberties Union received coverage, and an ACLU attorney talked about his own belief in a god; so did a Baptist church activist. But the issue of the non-believer's rights in this debate received little mention.

Carol Faulkenberry notes that ABC cameras visited their home in Gadsden, Alabama in early September, and interviewed her husband for nearly an hour. Mr. Faulkenberry discussed the importance of state-church separation, and challenged Judge Moore's often-echoed claim that the United States is a "Christian nation" founded upon religious, and specifically Christian principles. Those remarks never made it out of the video editing room.

Coverage of the prayer rally held last April on the steps of the State Capitol in Montgomery was also somewhat biased. The camera shots showed a sea of frenetic supporters of Judge Moore waving tablet-shaped signs and singing, but made no mention of a small but principled counter-demonstration organized by Adam Butler, a Birmingham, Alabama state-church separationist. ABC noted that over 80 percent of the state's population apparently agrees with Moore's stand on displaying religious items in his courtroom.

Carol Faulkenberry said this afternoon that she disputes those figures. "A lot of the polls which claim to show support for Moore and Fob James are done by television stations which ask viewers to call in. And we know who's likely to pick up the phone," she added, referring to fundamentalists who would support the courtroom prayer.

She also noted that in August, a rally in Gadsden which included a top Gospel Music group, where Moore received a public award, attracted only 200 persons. Nearly two-dozen protesters, however, were across the way making their statements on behalf of state-church separation in America. "We were amazed," Ms. Faulkenberry said. "If everyone's supporting Roy Moore, why aren't more people coming to these public events to show their sympathy?"

Despite the tone of the coverage, Carol Faulkenberry was upbeat about last night's program. "All in all, it was fairly good. We wanted to have more time to refute some of what Roy Moore and James were saying, but I'm just glad that the networks did this and are covering it."

Faulkenberry added, "Somebody, somewhere will see a program like that and begin thinking. Maybe they'll learn something."

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Alabama Governor
Uses Public Funds
for Religious Pilgrimage
by Larry Mundinger (with Conrad Goeringer)

October 23, 1997

Alabama Governor Fob James, the elected public official who says that he will mobilize the state guard, police and even the University of Alabama football team if necessary to resist any "federal order" putting an end to prayer and Ten Commandment displays in courtrooms, is now using taxpayer funds to underwrite a two-week pilgrimage to the "Holy Land." James, a Christian fundamentalist and his superstitious wife, Bobbie, said that their trip to Israel -- ostensibly a trade mission -- was timed to coincide with the eight-day Feast of Tabernacles, or Sukkot, which began last week. James also claimed that he wanted to inspect Israel's military industry, although he would not discuss the value of that action with the media.

Mrs. James has expressed concerns that the Governor's official mansion is "haunted," and ordered several portraits of Confederate historical figures removed. She also keeps a Christian "spiritualist" guru as a personal advisor.

One stop for the James couple was a hut or "sukka" constructed by observant Jews to commemorate the tale about the Israelite's forty year wanderings in the desert wilderness. They were the guests of Rabbi Eliot Sherman, the religious leader who was shipped to Montgomery, Alabama for James' 1995 inauguration where he blew a ram's horn used in Jewish religious ritual. Rabbi Sherman underscored the religious nature of James' publically funded excursion, telling Associated Press, "The are specifically coming at this time of the year because the non-Jewish world gets a blessing for coming to Jerusalem [during Sukkot]."

Like many Christian fundamentalists, James and his wife are obsessed with Israel and its role in religious history and prophecy. They believe that the reconstitution of the state of Israel in 1948 was a "sign" for the Second Coming of Christ, or parousia.

"Mrs. James, citing scripture that God will bless those who bless Israel, has linked Alabama's oil lease windfall during her husband's first term to the state's decision in 1981 to honor Israel's Independence Day," notes an Associated Press dispatch.

While the Governor and Mrs. James insist that their "trade mission" benefits the state and is not a taxpayer-funded religious pilgrimage, facts suggest otherwise. At a press conference in his Jerusalem hotel, James claimed, "The reason for this trip has to do with expanded trade between Alabama and not only with Israel, but this part of the world." But the official itinerary does not include any tours of neighboring Arab nations, or meetings or meetings with Arab or Palestinian representatives or trade groups, except for one encounter with the Jordanian ambassador to Israel.

Other stops are clearly religious in nature, though. They include visits to the Western Wall, the Golan Heights and the controversial Jewish settlements in the West Bank area. James is also scheduled to meet with Prime Minister Benjamin Netanyahu, Parliament Speaker Daniel Tichon, and Defense Minister Yitzak Mordechai.

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Atheists File Second Motion
to Stop Bogus Sale of
Mt. Davidson Cross
by Conrad Goeringer

October 31, 1997

American Atheists is in federal court in San Francisco, today, filing a new lawsuit to enjoin the City and County of San Francisco from selling the 103-foot-high Mt. Davidson cross and surrounding plot of land to the Council of Armenian American Organizations of Northern California. This follows an action last month when the organization tried unsuccessfully to intervene in the original suit. Plaintiffs who had challenged the constitutionality of public ownership of the cross and land said they were "satisfied" that the sale of the religious monument and 0.38 acres of real estate on which it sits to the Armenian group met constitutional requirements.

But Dave Kong, California State Director for American Atheists, charged that the bogus sale which took place at a little-publicized "auction" was simply a ruse to keep the religious icon standing in the middle of a public park. Under the proposed "sale" agreement, the Mt. Davidson real estate -- a mere 0.38-acre sliver of land -- would be "private" yet open to public access. One stipulation of the transfer was that if the cross were removed, the land would then revert back to City ownership. Mr. Kong described that and other sales requirements as "ludicrous."

"Clearly, they're just trying to find a way to keep the Mt. Davidson cross in the middle of a huge public park," he said.


Down Come Hawaii's Kolekole Pass Cross
and Oregon's Skinner's Butte Cross

In March of this year, the U.S. Supreme Court let stand a Ninth Circuit Court of Appeals ruling that the Mt. Davidson cross violated the No Preference Clause of the California State Constitution. The ruling also affected the Skinner's Butte cross, a 57-foot-high concrete and steel Christian monument which stood in a public park in Eugene, Oregon. There, public officials decided to comply with state-church separation and had the cross dismantled.

Two weeks ago, the fate of another cross was decided: the 37-foot-high Kolekole Pass Cross at the Schofield Barracks in Hawaii. Hawaii Citizens for the Separation of State and Church (HCSSC) challenged the constitutionality of the monument, and Army officials announced that they would dismantle the structure which was built in 1962 with taxpayer funds.

In San Francisco, though, public officials worked to find a loophole to keep the Mt. Davidson cross standing. The cross and 0.38 acres of land surrounding it was sold to the Armenian group for a mere $26,000; the transfer was then approved by the San Francisco Board of Supervisors. The sale was then placed on a city ballot for the November 4 election as Proposition F.

When American Atheists tried to intervene, some of the original defendants who had challenged the cross instead came out in support of the transfer. An attorney for defendants had remarked that though they had gone to court to dispute ownership of the Mt. Davidson Christian cross, her clients "had great respect for religion and for religious symbols," adding that removal of the cross was not the goal of their action. The American Atheist motion to intervene was rejected in a court hearing on December 10. Mr. Kong, in a statement today to the media, said "The motion was denied because of technicalities, and the real issues were never addressed."

American Atheists charged that the transfer was a ruse. Ellen Johnson, President of the organization, accused public officials and community groups of "trying to do by indirect means what they know they cannot do by direct means, namely, keep the Mt. Davidson cross standing" in a public park.

Today's action, filed on behalf of Mr. Kong and American Atheist member John Messina, asks for a preliminary injunction against the sale and transfer of the cross and land. It names as defendants the City and county of San Francisco; the San Francisco Recreation and Parks Commission; Joel Robinson, General Manager of the Recreation and Park Department; and the Armenian American Organizations of Northern California.

"Ultimately, American Atheists seeks permanent injunctive relief against any sale for the sole purpose of maintaining the Mt. Davidson cross," notes a media release about today's action.


San Diego Land Sale Ruled Not Religiously Neutral

Another cross is being challenged in San Diego. There, the City filed a Notice of Appeal on October 18, 1997 in the Federal District Court. Judge Gordon Thompson, Jr. has ruled that the sale of the property with the Mt. Soledad Christian cross to a "Memorial Association" was not religiously neutral. In December of 1991, Thompson ruled that the cross was unconstitutional.

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Judge Sets Rules on Religion in
Alabama Schools; Orders Monitor
for DeKalb County
by Kendal Weaver
The Associated Press

October 30, 1997

Montgomery, Alabama -- A federal judge today barred Alabama public schools from allowing vocal prayers or Bible devotionals on school property, but laid down guidelines for permissible religious activities, including a student's brief thanks to God at graduation.

The ruling by U.S. District Judge Ira DeMent also ordered that a monitor be named and training sessions be held for teachers and administrators in DeKalb County schools, where schoolhouse prayers, Bible distribution and student harassment have been alleged.

DeMent's ruling extended his previous orders striking down Alabama's 1993 school prayer law and rejecting Gov. Fob James' claim that the states, not the federal government or courts, can set their own laws on religious conduct in public places.

DeMent's ruling raised the threat of contempt proceedings against any state or public school official who violates his order.

Donald Sweeney, an attorney for school boards, said the judge's opinion gives educators across Alabama clear guidelines to follow concerning a subject that had been "confusingly complex."

"Before this opinion, some schools were following the law in good faith; others were not," Sweeney said in a statement. "... No longer will well-intending persons, political or otherwise, be able to argue to our principals or educators that `the law is not clear, or the law doesn't apply in your city or county so do what you want and what we want you to do. You won't get in trouble."'

"With Juge DeMent's order, anyone from the governor down, anyone who violates the law or encourages others to do so, will face the possibility of contempt."

DeMent's ruling bars Alabama public schools from allowing any "school rganized or officially sanctioned religious activity," including vocal prayer, Bible devotionals, distribution of religious materials and discussions of a devotional nature.

But it gives specific examples of what is permissible: use of religious texts in an academic context, such as homework or artwork or reports that are part of a course of study; and the display of religious symbols or clothing with religious messages, so long as they are in accordance with applicable "time, place and manner restrictions."

The order bars prayers, invocations or devotional messages at commencement exercises, but it allows "a brief personal expression by a student which contains religious references" during graduation ceremonies.

For example, DeMent wrote, "a student may express thanks to Deity for his or her academic success."

The order bars devotional messages or scripture readings over public address systems at schools, but it allows students to make announcements about "noncurricular religious clubs" over the public address system.

The Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, said the ruling "sends a timely reminder that America's public schools are for education, not indoctrination."

Americans United, along with the Alabama Civil Liberties Union, filed the suit on behalf of Michael Chandler, assistant principal of Valley Head High School, who said a son had been harassed and that school officials refused to follow court rulings against coercive religious activities in public schools.

"This is a very sweeping ruling," said Americans United Legal Director Steven K. Green. "The judge clearly means to remind Gov. James and DeKalb school officials that the church-state separation provisions of the U.S. Constitution apply in Alabama."

James and Republican Attorney General Bill Pryor were not immediately available to return phone calls seeking comment. Chandler also was away from his office and not immediately available for comment.

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U.S. Judge Bars Prayer at Schools
by Shelly Haskins and Yvonne White
The Huntsville Times

October 30, 1997

Montgomery -- A federal judge today barred Alabama public schools from allowing vocal prayers or Bible devotionals on school property, but laid down guidelines for permissible religious activities, including a student's brief thanks to God at graduation.

U.S. District Judge Ira DeMent's ruling extended his previous orders striking down Alabama's 1993 school prayer law and rejecting Gov. Fob James' claim that the states, not the federal government or courts, can set their own laws on religious conduct in public places.

Donald Sweeney, an attorney for Alabama school boards, said the judge's opinion gives educators across Alabama clear guidelines to follow concerning a subject that had been "confusingly complex."

Huntsville area school officials say they already bar student-led prayers at graduation, but were unsure how the ruling would affect student-led prayer services such as "See You At the Pole," where students pray at the flag pole before school, and religious club meetings that they have permitted.

"I would certainly hope that the rally around the pole and the volunteer activities that are student-initiated would not be affected by that," said Scott Erwin, the Huntsville school board vice president.

"As far as doing it in the classroom, we don't even allow like a moment of silence," he said.

Madison County officials had allowed voluntary, student-led prayer at graduation until May.

Ken Hogan, Madison County's director of secondary education, said county high schools were told not to allow even student-led prayer because DeMent's last ruling nullified Alabama's 1993 law allowing student-led prayer.

Despite the order not to allow student-led graduation prayers, Hogan said Sparkman High School students initiated a prayer at graduation anyway.

"Basically our policy has been that we allow groups to meet on campus as long as it wasn't initiated by faculty members and they did it on their own before or after school and it didn't interfere with school," Hogan said.

Doug Clark, promotions coordinator for "See You At The Pole" and director of field ministries for the National Network for Youth Ministries, said, "As far as I'm concerned, the ruling doesn't have anything to do with 'See You at The Pole.' It would be a gross violation of the students' rights of freedom of speech. It has nothing to do with religion.

"Students may gather around the flag pole and talk about anything, and the school districts or states can't restrict what they talk about or if they pray. From President Clinton on down, even those who don't like it, affirm SYATP's legality."

He said in 1995 Clinton had Education Secretary Richard Riley issue guidelines about appropriate religious activity at schools, and a broad spectrum of groups, including the ACLU, the Christian Legal Society and the Americans United for the Separation of Church and State, were unanimous in affirming the legality of "See You At the Pole."

He said in 1990 the Supreme Court, in an 8-1 vote, affirmed the equal access legislation passed by Congress in 1984 and upheld a 1990 case giving students the right to have Bible clubs on campus if other extracurricular clubs were allowed to meet.

The ruling by DeMent ordered that a monitor be named and training sessions beheld for teachers and administrators in DeKalb County schools, where schoolhouse prayers, Bible distribution and student harassment have been alleged.

DeMent's ruling raised the threat of contempt proceedings against any state or public school official who violates his order.

"Before this opinion, some schools were following the law in good faith; others were not," Sweeney, the Alabama school boards attorney, said in a statement. "... No longer will well-intending persons, political or otherwise,be able to argue to our principals or educators that the law is not clear, or the law doesn't apply in your city or county so do what you want and what we want you to do. You won't get in trouble.'"

"With Juge DeMent's order, anyone from the governor down, anyone who violates the law or encourages others to do so, will face the possibility of contempt."

DeMent's ruling bars Alabama public schools from allowing any "school organized or officially sanctioned religious activity," including vocal prayer, Bible devotionals, distribution of religious materials and discussions of a devotional nature.

But it gives specific examples of what is permissible: use of religious texts in an academic context, such as homework or artwork or reports that are part of a course of study; and the display of religious symbols or clothing with religious messages, so long as they are in accordance with applicable "time, place and manner restrictions."

The order bars prayers, invocations or devotional messages at commencement exercises, but it allows "a brief personal expression by a student which contains religious references" during graduation ceremonies.

For example, DeMent wrote, "a student may express thanks to Deity for his or her academic success."

The order bars devotional messages or scripture readings over public address systems at schools, but it allows students to make announcements about "noncurricular religious clubs" over the public address system.

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