Freethought Today · Vol. 28 No. 1 January/February 2011

Published by the Freedom From Religion Foundation, Inc.

State Church Bulletin Jan 11

Appeals court nixes Mount Soledad cross

The 43-foot-tall Latin cross on public land on Mount Soledad in San Diego is an unconstitutional “government endorsement of religion,” the 9th Circuit U.S. Court of Appeals ruled Jan. 4, the latest decision in a case that goes back to 1989. The unanimous three-judge appeals court sent the case back to a district court to determine if the religious cross can by some stretch of the imagination somehow be modified to “pass constitutional muster” as a war memorial.

The Mount Soledad Easter cross, erected in 1913, was first challenged in 1989 by the late Philip Paulson, the recipient in 2006 of FFRF’s first Atheist in Foxhole Award. (He died at age 59 of liver cancer shortly after accepting the honor). Federal courts ruled in his favor in 1991 and 2005, but removal of the cross was thwarted by various machinations, including transfer of the land by Congress to the U.S. Department of Defense in 2006.

After Paulson’s illness was diagnosed, Steve Trunk, another San Diego-area vet and atheist, became party to the complicated lawsuit. Trunk, a longtime Foundation Board Member, had come up with the idea of an award for foxhole atheists.

In a 56-page opinion, Judge M. Margaret McKeown wrote that “having considered its history, its religious and non-religious uses, its sectarian and secular features, the history of war memorials and dominance of the Cross — we conclude that the Memorial, presently configured and as a whole, primarily conveys a message of government endorsement of religion that violates” the constitutional provision of separation of church and state.

In recent years, small plaques have been placed on walls at the base of the cross in remembrance of military veterans. McKeown said that did not change the fact that the cross is primarily a Christian symbol.

Defendants in the case are the city of San Diego, the U.S. government and Secretary of Defense Robert Gates.

According to San Diego City Attorney Jan Goldsmith, the practical effect of the appeals court decision is that the cross will have to be removed unless a full panel of appeals judges reverses the ruling or the Supreme Court accepts review and reverses it.

Trunk discussed the victory on the Jan. 8 Freethought Radio show:

In God We Trust, then horse manure

The next order of business for the Norco, Calif., City Council after voting 4-0 to install “In God We Trust” in its chambers was to put off a vote on whether to hire Chevron to study turning the city’s huge supply of horse manure into energy. Lots of people ride horses around Riverside County.

“I believe it will snowball from here,” Councilman Harvey Sullivan said at the Dec. 15 meeting. [He likely meant snowballing public trust in God, not in efficient energy from horse manure, which, as manures go, is quite light and nowhere near as dense as cow pie.]

The Riverside Press-Enterprise reported that six people spoke in favor of the motto and no one opposed it. “It’s not a question of church versus state,” said resident Linda Dixon. “Our current educators should teach the true history of what has made this country great and not question the validity of everything good.”

In a letter to Mayor Berwin Hanna from FFRF trying to head off the resolution, Co-President Annie Laurie Gaylor, disagreed. “Elected officials should not use their government position and government buildings as a place for promoting their religious views,” wrote Gaylor.

Since 2001, a California group called In God We Trust America Inc. has worked to put the statement in “every city, county and state chamber in America.”

Court: Commandments display ‘a sham’

A three-judge panel of the 6th Circuit U.S. Court of Appeals on Feb. 2 upheld a district court decision that ruled a courtroom Ten Commandments display unconstitutionally endorsed religion.

The case dates to 2000 when Judge James DeWeese of the Richland County [Ohio] Court of Common Pleas hung a Ten Commandments in his courtroom. The American Civil Liberties Union of Ohio sued and won. In 2006, DeWeese hung another poster with the Ten Commandments but entitled “Philosophies of Law in Conflict.” The ACLU filed a new suit in 2008.

The appeals court rejected DeWeese’s argument that the poster constitutes protected speech.

“DeWeese’s posters are situated in a courtroom, a public space, and were placed on the wall by a sitting judge charged with the decoration of that space while in office and presiding in the same courtroom. As such, we reject DeWeese’s contention that the display constitutes private religious expression protected by the Free Speech Clause, falling beyond the bounds of Establishment Clause scrutiny,” wrote Judge Eric Clay. “[T]he history of Defendant’s actions demonstrates that any purported secular purpose is a sham.”

The court rejected what it called DeWeese’s attempt “to veil his religious purpose by casting his religious advocacy in philosophical terms.”

50th state first to stop prayer

The state Senate in Hawaii by unanimous vote Jan. 20 agreed to stop opening daily sessions with prayers, making it the first state legislative body in the nation to halt the practice.

Senate rules previously said each session “shall open with an invocation.”

Majority Leader Brickwood Galuteria said new rules are flexible and allow prayers at the Senate’s discretion, such as on the opening day of each session, according to the Honolulu Star-Advertiser. House leaders are still drafting rules and opened the new session with a moment of silence.

As reported in Freethought Today [Dec10], Mitch Kahle, president of Hawaii Citizens for the Separation of State and Church and an FFRF member, was assaulted by security in the Senate last April while standing to verbally object to the prayer. In December, a judge chastised the state for trying to prosecute Kahle. He has filed a lawsuit.

Sen. Sam Slom, the chamber’s sole Republican, was the only one to speak against the rule change in debate.

Kahle’s group has also objected to the consolidated city-county government of Honolulu giving churches free garbage collection.

“With 849 churches on Oahu, receiving service twice per week, it is reasonable to assume this giveaway is costing taxpayers at least $1 million annually in revenue from lost fees,” said Kahle’s Jan. 7 letter. “In addition, the cost of providing said services must also result in substantial direct cost to taxpayers, including but not necessarily limited to, expenditures for trucks, equipment, maintenance, employee salaries and benefits and disposal costs.”

The free service is illegal, Kahle said, because of a provision in the state Constitution that bans tax levies or spending “except for a public purpose.”

Kahle, who will be named Freethinker of the Year at FFRF’s 2011 convention, discussed his battle against legislative prayer Jan. 29 on Freethought Radio:

Newdow petitions for SCOTUS review

California attorney Michael Newdow filed a petition Jan. 11 asking the U.S. Supreme Court to review an appeals court’s 2010 rejection of his challenge to the placement of “In God We Trust” on U.S. currency as a violation of the separation of state and church.

“Devout atheists are forced to choose between not using what is often the only available legal tender and committing what they consider blasphemy,” Newdow argued in his petition. Newdow has separately challenged the phrase “So help me God” in the presidential oath and said he will also petition the court to remove “one nation under God” from the Pledge of Allegiance.

Newdow told McClatchy News that the odds are stacked against him. “I think it is a sheer cliff with any court comprised of justices who are not atheists themselves. I think they would rather avoid the political fallout than do what they are paid to do and uphold the rights of this disenfranchised minority; i.e., atheists.”

The court gets about 8,000 petitions a year and only hears about 80 cases. Four justices would have to agree to hear Newdow’s appeal.

Another battle over church and plate

The state of Vermont agreed in January to issue a vanity plate that says JN36TN to Shawn Byrne of West Rutland. It refers to John 3:16 in the New Testament.

The Vermont DMV had refused to issue it due to a policy barring religious messages. The 2nd Circuit U.S. Court of Appeals overruled a district court and said the ban was unconstitutional. Vermont Assistant Attorney General Bridget Asay said the state decided not to appeal to the U.S. Supreme Court.

UW Regents contest Catholic club ruling

The University of Wisconsin System Board of Regents asked the U.S. Supreme Court on Nov. 30 to review a 2010 federal appeals court ruling that required UW-Madison to fund religious worship activities.

The 2-1 decision in Badger Catholic Inc. v. Walsh by the 7th Circuit U.S. Court of Appeals said the university’s refusal to fully fund Badger Catholic, a registered student group formerly called the Roman Catholic Foundation, violated its rights to free speech.

Badger Catholic had requested $253,000 in student fees. The university funded most of that, but declined to approve about $35,000 earmarked for six religious worship activities. The university maintains it may limit use of public funds for religious worship within the limited public forum it has created for expressive student activities.

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