Sunday, September 20, 2009

Contempt of Court, Time to Suffer the Consequences (or Not), The Sequel

UPDATE III: As we discussed Friday, the case ain't over yet. Read the Pensacola News Journal, Group seeks change to consent decree.

UPDATE II: Not guilty -- the violation was not willful because "to say the prayer was nothing more than an old habit." Read the Pensacola News Journal, Lay, Freeman found not guilty.

You might remember that I predicted the prayer was "an old habit" defense. No Roy Moore defense here. Makes me wonder if the defense threw God under the bus to get the not guilty.

And where was the national media?

We'll discuss today during class at NoBullU.

UPDATE: Expect a crowd tomorrow at the federal courthouse in Pensacola. Until then, another opinion focusing on religion:

September 16, 2009

Viewpoint: Prayer dispute is disturbing, sad

The controversy over prayer in public schools is both sad and disturbing. It is sad because it involves people who sincerely want to follow and obey Jesus Christ as their Lord and Savior, and who think that is why they must stand firm in their resistance to the ruling of the court.

It is sad because many have been taught and encouraged by their pastors to think this way, and to insist on their right to pray whenever, wherever and however they believe they are called by God to do so.

It is sad because nowhere in Holy Scripture are those of us who seek to love and serve the Lord, and to follow and obey Jesus Christ, taught that prayer is a right, or that it is to be used as a way to witness.

We who would follow Jesus are taught what the consequences of honest prayer will be: We will "do justice, and love kindness, and walk humbly with our God.''

We are taught by Jesus that prayer will lead to a transformation of our hearts and minds to reflect more of the compassion, mercy, forgiveness and generosity of God.

We are taught that by prayer, which is the opening of ourselves to the Holy Spirit, we will be led and empowered to love the Lord our God with all our hearts, and soul, and mind, and strength, and to love our neighbor as ourselves.

Paul teaches the followers of Jesus that the liberty we have in Christ is not to be used willfully if, by so doing, we might lead astray a weaker brother or sister, or a non-believer.

The sad and disturbing aspect of the controversy is that the First Amendment to the Constitution of the United States of America is being used as a higher authority than the teachings of Jesus by many who insist on their right to pray as they want in the public schools.

Jesus was specific when he taught his followers not to make a public issue or spectacle of prayer, but to "pray in secret, and our heavenly Father who hears in secret will reward us,'' and will hear and respond to us.

If we who profess to follow Jesus put constitutional rights ahead of his teachings and example, and demand our right rather than allowing prayer to be the way God works his Grace in our lives, blessing, reconciling, healing and loving others through us, then we will most likely not encourage anyone who is on the fence when it comes to believing in God to draw nearer to the throne of Grace.

And we will probably convince those who gave up on God long ago that they were right.

The Rev. Robert Graves is priest associate at Christ Church of Pensacola.

As I said before, given that the clerk was cleared in the prayer suit, where her actions were clearly more planned and deliberate than an impromptu blessing of the food and the standard of proof in her civil contempt case was substantially less than a criminal contempt case, the U.S. Attorney's Office should save everyone time and money and just dismiss the criminal contempt proceeding against Lay and Freeman.

The local debate continues to focus on the religious aspects of the case with a series of opinion pieces in the local paper, the Pensacola News Journal, which I republish here, in chronological order, in case you missed them (and because after two week the articles are removed from public access):

First an opinion from ,J. Earle Bowden, editor emeritus of the Pensacola News Journal and a local historian and preservationist:

August 8, 2009

Learn in school, worship in church

I shall not argue the prayer issue in Santa Rosa County schools, now reaching federal criminal velocity, an unnecessary legal twist in which few will be pleased. Forging lawsuits and standing before the bar of justice for uttering a Christian prayer on school grounds grinds down to more emotion than trying to understand and accept the Jeffersonian essence of religious freedom, a true gift to American governance.

After many debatable years since the high court prevailed in limiting prayers in schools, validating Thomas Jefferson's appreciation for a wall of separation between church and state, I'm amazed by the misunderstood religious freedom phrase in the American Bill of Rights, an outgrowth of the Virginia Statute for Religious Freedom written in 1779 by Jefferson and enacted by the Virginia General Assembly in 1786.

The religious freedom act is one of only three accomplishments Jefferson instructed be put in his epitaph, included authorship of the Declaration of Independence and founder of the University of Virginia.

His friend James Madison said the Virginia law "extinguished forever the ambitious hope of making laws for the human mind."

Jefferson's First Amendment idea flows from the Virginia law: "No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities. We are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present, or to narrow its operation, such act shall be an infringement of natural right."

Naturally, Jefferson gained a reputation as an enemy of religion. Thirty years later he wrote that "the priests indeed have ... thought it proper to ascribe to me ... anti-religious sentiments. ... They wished him to be thought atheist, deist, or devil, who could advocate freedom from their religious dictations."

Religious belief, or non-belief, is important to every person's life; freedom of religion affects every individual. Religious institutions that use government power in support of themselves and force their views on persons of other faiths, or of no faith, undermine all our civil rights. Moreover, state support of an established religion tends to make the clergy unresponsive to their own people, and leads to corruption within religion itself.

Erecting the "wall of separation between church and state" is absolutely essential in a free society.

Jefferson replied to the critical Baptists in 1808: "We have experienced the quiet as well as the comfort which results from leaving every one to profess freely and openly those principles of religion which are the inductions of his own reason and the serious convictions of his own inquiries." He also wrote, "The constitutional freedom of religion is the most inalienable and sacred of all human rights."

I hope we Americans understand that public schools are for educating American youth for life's journey; churches, without governmental hindrance, are free to offer worship to free Americans who choose to believe.

Next a response which it appears from the following opinions to have been written by our veritasphobia Congressman:

August 22, 2009

Viewpoint: J. Earle Bowden sidesteps on Jefferson, Pace prayer

After reading J. Earle Bowden's Aug. 8 column ("Learn in school, worship in church"), one would think that Thomas Jefferson was the final and only authority on all church and state issues during the founding years of our country. We are left to believe that the First Amendment came out of the "Jeffersonian essence of religious freedom."

But what Bowden fails to mention is that there were 90 framers of the First Amendment, and Thomas Jefferson was not one of them. While Jefferson was serving as minister to France, Congress debated the wording of the Bill of Rights. According to the Congressional Record from 1789, not once during the months of debate did the framers mention the words "separation of church and state."

The origination of this phrase comes from a letter newly elected President Jefferson penned to a group of Baptists in Danbury, Conn., in 1802 regarding religious freedom. There is probably no other occasion in history where a sentence from a personal note, taken out of context, has become the foundation for U.S. policy.

When we put the Danbury letter in perspective, we see that Jefferson was responding to the question of religious establishment. The Baptist congregation specifically questioned the government's interference in the church, not the religious principles of our governmental leaders. Jefferson accurately responded that the First Amendment precluded the government from establishing a religion or denomination. Jefferson did not state that religion has no place in our government.

The "wall of separation between church and state" is a one-way wall. It was not the founders' intent to keep God out of the government, but to keep the government out of the church.

There are hundreds if not thousands of documented expressions of the importance of religion and Christian principles by our Founding Fathers. From the Mayflower Compact to the Declaration of Independence and beyond, early American leaders believed as George Washington believed that "it is impossible to rightly govern the world without God and Bible."

It was not until the late 1940s when a liberal Supreme Court began to misinterpret Jefferson's words. Earlier courts held that the government may step in only when religious principles turn into dangerous actions such as polygamy or human sacrifice. But the government has no right, and is in fact prohibited from interfering with religious practices and beliefs, whether that be in the church or in the classroom.

Although Bowden sidesteps the issue of Pace High School and prayer in our schools, I will not. Precluding prayer at student events is wrong. Prohibiting a class president from speaking at graduation because she might mention God is offensive. And prosecuting a man as a criminal for offering a prayer before a meal is abhorrent.

I am proud of the Pace community for standing up for our country's founding principles of a faith in God that cannot be broken. Americans must be free to worship when they please, free to pray where they please, and free to speak what they please. These are the very basics of our American liberties and the foundation upon which this country was built.

For as Thomas Jefferson argued, "The constitutional freedom of religion is the most inalienable and sacred of all human rights."

Followed by an opinion written by Bruce Partington, a partner at the law firm of Clark Partington Hart (where I believe Judge Rodgers once worked) and a member of the vestry at Christ Episcopal Church in Pensacola:

September 5, 2009

Viewpoint: Miller got it wrong on church, state

Congressman Jeff Miller's viewpoint on the debate about prayer at Pace High School, and the doctrine of the "separation of church and state," is incorrect both historically and theologically ("J. Earle Bowden sidesteps on Jefferson, Pace prayer," Aug. 22). Unfortunately, the fundamental aspects of this debate seem to have been largely ignored, with the focus being principally on the political arguments.

Theologically, the concept of separation between church and state finds its genesis in the Gospel itself. At the time of Christ, the Romans, recognizing the importance of their faith to the Jewish people, granted the Jews an exemption from the requirement that the emperor be regarded as divine. In Mark we find Christ's direction to give the emperor the things that are the emperor's, and God the things that are God's — in short, a direction by Christ himself to observe a distinction between government and faith.

During the Protestant Reformation, Martin Luther published in 1523 his work "On Secular Authority" which articulated what is now known as the "Doctrine of the Two Kingdoms" and urged that church and state confine themselves (or be confined) to their separate realms. In 1599, John Calvin urged the same in his "Institutes of Christian Religion." In 1644, Roger Williams, the forbear of the Baptist traditions, spoke of "a hedge or wall of separation between the garden of the Church and the wilderness of the world."

The founders of our nation were not only steeped in the Reformation, but mindful that the new nation had foundational traditions of religious tolerance and diversity. Indeed, the Puritans, Quakers and others had come to our shores to escape religious persecution and found a nation free of the constraints of a government-imposed faith.

In 1773, Isaac Backus, a prominent Baptist minister, wrote that when "church and state are separate, the effects are happy, and they do not at all interfere with each other: but where they have been confounded together, no tongue or pen can fully describe the mischiefs that have ensued."

In 1779, Thomas Jefferson authored the Virginia "Statute for Religious Freedom" which was, in part, the model for the "Establishment Clause" of the Bill of Rights. Likewise, James Madison wrote of the importance of the "total separation of the church from the state." Madison also declared that the "practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States." In a letter, he wrote "We are teaching the world the great truth that Govts do better without Kings and Nobles than with them. The merit will be doubled by the other lesson that Religion flourishes in greater purity, without than with the aid of Govt." These writings came squarely in the period (1789-1791) during which the First Amendment was being ratified by the states.

Finally, we arrive at the Treaty of Tripoli, ratified by the U.S. Senate in 1797 (when many of those who developed our Constitution and Bill of Rights were still serving) which states in Article 11 that "the Government of the United States of America is not, in any sense, founded on the Christian religion. ..."

In short, the debate about the propriety of religious advocacy by governmental employees must be considered in the full historical and theological context.

First, the founders were unequivocal about the separation of religion from the process of governing. Second, that view comes not from the desire to impose atheistic views on the populace or to squelch religion, but was originated and espoused by theologians to avoid demeaning the Christian faith they were striving to reform.

Finally an opinion by Ken Bell, also a partner at the law firm of Clark Partington Hart, and a former justice of the Florida Supreme Court:

September 15, 2009

Federal courts wrong on the issue of prayer

Bruce Partington is a brilliant lawyer and great friend; but, I cannot agree with his viewpoint on the theological and historical understanding of the "separation of church and state" in 1791, when the First Amendment was ratified ("History, theology elude Rep. Miller," Sept. 6).

Bruce expresses well the underpinning of the recent judicial decisions that apply the extra-constitutional phrase "separation of church and state." But this perspective is far from the theological understanding and political theory of our Founding Fathers and the church reformers.

The Founders (and the reformers) would explain the "separation of church and state" by using the "sword/key" dichotomy described in the Westminster Confession of Faith (as modified in America in 1789, two years before the First Amendment was ratified). They believed that God established "civil magistrates to be under Him, over the people, for His own glory and the public good; and to this end, has armed them with the power of the sword, for the defense ... of them that are good, and for the punishment of evil doers."

These civil magistrates could not assume "the administration of the Word, and sacraments; or the power of the keys of the kingdom of heaven; or ... interfere in matters of faith. Yet, as nursing fathers, it is (their) duty ... to protect the Church ... without giving the preference to any denomination of Christians above the rest, in such a manner that all ecclesiastical persons whatsoever shall enjoy the full free, and unquestioned liberty of discharging every part of their sacred function without violence or danger."

This separation of church and state under God without giving preference to any denomination was our Founding Fathers' church/state perspective.

Importantly, the First Amendment itself was written more narrowly. It provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." The constitutional proscription was solely against Congress' legislative powers.

The Founders' understanding of church/state (both under God) and the narrower constitutional proscription on legislative powers are mirrored in our state constitution. The preamble to the Florida Constitution states, "We the people of the State of Florida, being grateful to Almighty God for our constitutional liberty, in order to secure its benefits ... do ordain and establish this constitution." Article I, section 3 provides that, "There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof."

So how did we get to a federal court proceeding where governmental employees face criminal charges for the non-legislated expression of gratitude to God for sustenance? "Incorporating" the First Amendment through the post-Civil War 14th Amendment, the federal courts expanded its express limitation on congressional legislation to the states. Once incorporated, the courts exceeded the plain text and original intent by prohibiting non-legislative "religious" activities. In other words, the courts made a policy decision to go beyond the constitutional text and apply the "separation of church and state" doctrine to curtail non-legislative actions of state government employees. Relying on a revisionist history, the courts have erected a "wall of separation" that extends far beyond the separation originally understood and intended by the Founders.

Let me be clear: I write solely to explain that our Founding Father's doctrine of "separation of church and state" was starkly different than Bruce's and the recent federal courts. And, more importantly, no matter how far the First Amendment case law has strayed from the plain constitutional text and its original intent, every trial judge must follow and apply the applicable case law.

Finally, Bruce and I have enjoyed a spirited but respectful discussion on this contentious issue. We remain good friends. We hope that those on either side will do the same.

All very interesting, but I think they miss the point of the contempt proceeding -- whether Lay and Freeman violated the Court's preliminary injunction/order:

Court Order
It should be noted that Lay was personally named as a defendant in the original lawsuit and specifically "admitted liability" in that lawsuit and agreed to the Court's preliminary injunction/order, which enjoined him from "[p]romoting, advancing, aiding, facilitating, endorsing, or causing religious prayers or devotionals during school-sponsored events."

For everything you need to know about contempt of court, which is the issue (the issue is not religion), read the U.S. Attorney's Manual, 9-39.000 Contempt of Court.