Tag Archives: Court: 2nd Circuit

Rick Garnett at Mirror of Justice: First, I think it would be a good thing if the possibility Eugene raises – i.e., that the Court might re-examine the so-called “endorsement test” — came to pass. I think the criticisms directed at that test in Steven Smith’s 1987 article had and have force. Next, even if the justices leave the “endorsement test” in place, I hope they do not follow the Second Circuit in importing that test into the legislative-prayer context.

Brett Harvey appeared on the Don Kroah Show to discuss Galloway v. Town of Greece. | MP3 audio 7:31 mins

David Cortman appeared on the Hugh Hewitt Show to discuss Galloway v. Town of Greece.| MP3 audio 7:31 mins

KRQE (AP): The town is represented by Alliance Defending Freedom, an Arizona-based group that presses faith-based cases in courts nationwide. ADF senior counsel David Cortman said the framers of the Constitution prayed while drafting the Bill of Rights. “Americans today should be as free as the Founders were to pray,” Cortman said.

NC Register: “It is perfectly constitutional to allow community members to ask for God’s blessing according to their conscience,” Brett Harvey, senior counsel with the Alliance Defending Freedom, told Catholic News Agency on May 21. “A Supreme Court ruling reaffirming this historic tradition and making clear that prayer-givers are permitted to pray consistent with the dictates of their own conscience would both uphold the original understanding of the Constitution and provide needed clarity to put an end to these attacks on our American heritage.”

Patheos: Furthermore, the Alliance Defending Freedom, a Christian non-profit organization based in Arizona where I live, appealed this case to the Supreme Court in briefs with support from 49 members of Congress and 18 state attorneys general.

Christian News Network: “Americans today should be as free as the Founders were to pray,” stated ADF senior counsel David Cortman. “The Founders prayed while drafting our Constitution’s Bill of Rights, and the Supreme Court has ruled that public prayer is part of the ‘history and tradition of this country.’ America continues this cherished practice.”

Brett Harvey appeared on radio to discuss the case. | A Closer Look with Sheila Liaugminas at Relevant Radio – MP3 audio 13:48 mins | The Drew Mariani Show on Relevant Radio — MP3 audio 12:05 mins

Blog.Lawyers.com: The court could limit its ruling to legislative prayer, or it could broaden it to encompass governmental prayer in general. “It could invert the rule and the exception, and turn the general rule that government cannot endorse religion into a much narrower rule that the government cannot endorse religion in the public schools and that the government can do what it likes outside of the public schools,” says Lund.

FRC Washington Update: Given the long tradition of legislative prayer in America, there’s plenty of reason to be optimistic about the case. If our friends at ADF prevail, there’s a strong possibility that the Court will not only affirm public prayer but significantly strengthen the religious freedom rights of all Americans. In the meantime, I encourage you to pray–publicly!–that the Supreme Court sides with America’s First Freedom!

CBN: “A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like,” Harvey said. “Because the authors of the Constitution invoked God’s blessing on public proceedings, this tradition shouldn’t suddenly be deemed unconstitutional.”

USA Today: The Arizona-based Alliance Defending Freedom appealed and the high-court ruling, expected by June 2014, will resolve conflicting appeals-court rulings about religious expression. Tuesday’s invocation was to have been given by Serah Blain, executive director of the Secular Coalition of Arizona. But Mendez said House staff had no record of his request to allow Blain’s remarks, so he offered the remarks himself.

CNA/EWTN on DFW Catholic: “The founders prayed while drafting our constitution’s Bill of Rights,” he said. “America continues this cherished practice, and a few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like.” Harvey said there have been 20 different federal lawsuits filed against local governments asking that they abandon their traditions of prayer. “A ruling against the Town of Greece would multiply the attacks on the historic practice of seeking divine guidance at public meetings and would suggest that the authors of the Bill of Rights were violating the Constitution, even as they were writing it,” he said.

Christian Examiner: “Americans certainly should have the same freedom as the Founders did,” Cortman told Baptist Press. “[Praying before government meetings] was a practice that was established over 200 years ago and certainly should be just as constitutional today.” The fact that most of the prayers offered were by Christians only reflected the town’s makeup, Cortman said. “The policy is open and neutral to anyone in the community,” Cortman said. “It’s merely a matter of the demographics of the community that make up the balance of prayers. What is a town to do? Engage in a religious Gerrymander and begin busing in people from all over the state and ask them, ‘What do you believe? What is your religion? How will you pray?’ That is the exact opposite of what the city should be doing. They should just open the forum and let the people in the community pray according to the dictates of their conscience. That’s what this town was doing.”
If the town begins monitoring the prayers and not allowing certain words, you have the “the local government controlling” the prayers — which itself would be unconstitutional, Cortman said.

Lyle Denniston at Constitution Daily: When the court agreed to hear the new prayer case from the city of Greece, New York, a community of about 100,000 people near Rochester, it stepped into a case in which a prayer practice at the opening of the town board meeting was struck down by a lower court using the endorsement theory. And, by granting review of that specific decision, the justices may well have been telegraphing a desire to second-guess the endorsement theory when prayers are recited at the outset of a public meeting of a government agency, with adults making up most of the audience.

Christian Post: “A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like,” Brett Harvey, a senior counsel with Alliance Defending Freedom, said, according to USA Today. “Because the authors of the Constitution invoked God’s blessing on public proceedings, this tradition shouldn’t suddenly be deemed unconstitutional.”

Florida Today: Alliance Defending Freedom, an Arizona-based Christian nonprofit group, appealed the case to the Supreme Court. It is supported in separate briefs by 49 mostly Republican members of Congress and 18 state attorneys general.

Robert Barnes at the Washington Post: The religious legal organization Alliance Defending Freedom represented the town of Greece — a community of about 100,000 residents near Rochester — in challenging the appeals court decision. “Americans today should be as free as the Founders were to pray,” senior counsel David Cortman said in a statement. “The Founders prayed while drafting our Constitution’s Bill of Rights, and the Supreme Court has ruled that public prayer is part of the ‘history and tradition of this country.’ ”

Business Insider: Thomas Hungar, representing Greece’s city hall with support from Alliance Defending Freedom, a social conservative group, said “legislative prayer” is deeply rooted in American history. “We hope the court will reaffirm the settled understanding that such prayers, offered without improper motive and in accordance with the conscience of the prayer-giver, are constitutional,” the lawyer said.

Stephen Prothero at CNN: That is unlikely to happen, since there is, as Alliance Defending Freedom has argued, an “unambiguous and unbroken history” of prayer in government bodies in the United States. But there is an equally long history of ensuring that these prayers are, as Americans United has observed, “inclusive and non-sectarian.” And those in Greece were neither.

Associated Baptist Press: David Cortman, senior counsel of Alliance Defending Freedom, which is representing the town, told the Post the framers of the Constitution prayed while drafting the Bill of Rights. “Americans today should be as free as the Founders were to pray,” he said.

Salon: As reported by USA Today: . . . David Cortman, a lawyer for the town, said in a statement that prayer at council meetings is consistent with a longstanding tradition of prayer at government functions: “Americans today should be as free as the founders were to pray,” he said. “The founders prayed while drafting our Constitution’s Bill of Rights.”

JD Journal: The non-Christian town residents will be presented by Americans United for Separation of Church and State, while the town will be represented by Alliance Defending Freedom, whose senior counsel, David Cortman, claims the framers of the Constitution prayed during the drafting of the Bill of Rights, and, as the Washington Post reports, “Americans today should be as free as the Founders were to pray.”

Democrat and Chronicle: Alliance Defending Freedom, the national religious defense group representing Greece pro bono, said the court “affirmed America’s long-standing practice of opening public meetings with prayer in 1983 and now has the opportunity to do so again.” It is supported in separate briefs by 49 mostly Republican members of Congress and 18 state attorneys general . . . “The practice of legislative prayer is firmly embedded in the history and traditions of this nation,” said Thomas Hungar of Gibson, Dunn and Crutcher, the attorney who filed the challenge. “We hope the court will reaffirm the settled understanding that such prayers, offered without improper motive and in accordance with the conscience of the prayer-giver, are constitutional.”

GOP USA: Recent legal attacks by people offended by such prayers have created significant confusion in the lower courts. “A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like,” said Brett Harvey, a senior counsel with Alliance Defending Freedom.

Religion News Service at Washington Post: Alliance Defending Freedom, an Arizona-based Christian nonprofit group, appealed the case to the Supreme Court. It is supported in separate briefs by 49 mostly Republican members of Congress and 18 state attorneys general.“A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like,” said the ADF’s senior counsel, Brett Harvey.

Christianity Today: The Alliance Defending Freedom, which is representing the town in the case, says a previous, 30-year-old ruling still stands, settling the matter.

Ken Klukowski at Breitbart: ADF then asked Thomas Hungar of Gibson Dunn & Crutcher, one of the most accomplished Supreme Court litigators in the nation—to become lead counsel on the case and join with ADF in asking the Supreme Court for review by filing a petition for certiorari. Today the Supreme Court granted that petition. ADF’s David Cortman says: Americans today should be as free as the Founders were to pray. The Founders prayed while drafting our Constitution’s Bill of Rights, and the Supreme Court has ruled that public prayer is part of the “history and tradition of this country.” American continues this cherished practice.

ALLIANCE DEFENDING FREEDOM NEWS RELEASE May 20, 2013 – FOR IMMEDIATE RELEASE CONTACT MEDIA AND PUBLIC RELATIONS: (480) 444-0020 orwww.adfmedia.org/home/contact   Prayer will be heard on high US Supreme Court to weigh in on prayers presented before public meetings   WASHINGTON — The U.S. …

Adam Liptak at NY Times: In 1983, in Marsh v. Chambers, the Supreme Court upheld the Nebraska Legislature’s practice of opening its legislative sessions with an invocation from a paid Presbyterian minister, saying that such ceremonies were “deeply embedded in the history and tradition of this country.” David Cortman, a lawyer for the town, said its practices were consistent with that tradition. “Americans today should be as free as the founders were to pray,” he said in a statement. “The founders prayed while drafting our Constitution’s Bill of Rights.”

Wall Street Journal (PR Newsire): Family Research Council (FRC) commends the U.S. Supreme Court for its decision today granting review in Town of Greece v. Galloway. If the Court decides in favor of the town of Greece, the decision could become the most significant religious liberty victory in half a century. Director of FRC’s Center for Religious Liberty, Ken Klukowski, J.D., submitted an amicus brief on behalf of 49 Members of Congress supporting the Alliance Defending Freedom’s petition in this case addressing public prayer before town meetings.

AP: Reacting to the court action Monday, the Rev. Barry W. Lynn, Americans United executive director, said, “A town council meeting isn’t a church service, and it shouldn’t seem like one.” The town is represented by Alliance Defending Freedom, an Arizona-based group that presses faith-based cases in courts nationwide. ADF senior counsel David Cortman said the framers of the Constitution prayed while drafting the Bill of Rights. “Americans today should be as free as the Founders were to pray,” Cortman said.

AP: The Supreme Court said Monday it will hear a new case on the intersection of religion and government in a dispute over prayers used to open public meetings.

Religion Clause Blog: The U.S. Supreme Court today agreed to weigh in on the extensively litigated issue of opening city council meetings with prayer.

Americans United for Sep. of Church and State: Supreme Court Should Rule Against Sectarian Prayers Before Town Board Meetings, Says Americans United

U Legal Director Ayesha N. Khan, who directed the litigation for Americans United and will argue the Town of Greece v. Galloway case before the Supreme Court, said the justices should uphold the lower court’s ruling. “Legislative bodies should focus on serving the community and stay out of the business of promoting religion,” Khan said.

Reuters: The Alliance for Defending Freedom, a group that describes itself as an advocate for the rights of people to express their faith, is spearheading the town’s legal fight. The group’s lawyers point out that the town has never regulated the content of prayers and did not discriminate in selecting prayer-givers. “A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like,” Brett Harvey, one of the town’s lawyers, said in a statement. Galloway and Stephens have the support of another advocacy group, Americans United For Separation of Church and State.

Headline and Global News: Brett Harvey, senior consul for Alliance Defending Freedom, an advocacy group whose aim is “transforming the legal system and advocating for religious liberty, the sanctity of life, marriage and family,” according to their website, argues that a few offended people shouldn’t be able to bring down a longstanding tradition. “A few people should not be able to extinguish the traditions of our nation merely because the heard something they didn’t like,” Harvey said. “Because the authors of the Constitution invoked God’s blessing on public proceedings, this tradition shouldn’t suddenly be deemed unconstitutional.”

USA Today: “A few people should not be able to extinguish the traditions of our nation merely because they heard something they didn’t like,” said Brett Harvey, a senior counsel with Alliance Defending Freedom. “Because the authors of the Constitution invoked God’s blessing on public proceedings, this tradition shouldn’t suddenly be deemed unconstitutional.” Thomas Hungar of Gibson, Dunn and Crutcher, the attorney who filed the challenge, said, “The practice of legislative prayer is firmly embedded in the history and traditions of this nation. We hope the court will reaffirm the settled understanding that such prayers, offered without improper motive and in accordance with the conscience of the prayer-giver, are constitutional.”

Lyle Denniston as posted an updated at SCOTUS Blog.

But that would have meant the organization would have to be a political committee under New York law, just as candidate committees and political parties are. The organization would then have to register with the state board of elections, comply with recordkeeping requirements, and comply with extensive, periodic reporting requirements.

Democrat and Chronicle: The U.S. Supreme Court on Monday postponed deciding whether to review a prayer case involving the town of Greece.

How Appealing reports: The U.S. Court of Appeals for the Second Circuit today issued an interesting per curiam ruling reminding counsel that repeated extensions of time in which to file a brief are disfavored, even for exceptional circumstances.

Religion Clause Blog: In Hollander v. Members of the Board of Regents of the University of the State of New York, (2d Cir., April 10, 2013), the 2nd Circuit dismissed on collateral estoppel grounds an action claiming that the state and federal governments have violated the Establishment Clause by providing funding to Columbia University which maintains an Institute for Research on Women’s and Gender Studies and a Women’s Studies program.

Reuters: A federal appeals court rebuked a Connecticut judge on Tuesday for allowing his views on Facebook and the growth of child pornography to influence the sentence he handed a woman in a case unrelated to the Internet.

Sentencing Law and Policy: I noted in this prior post the must-read opinions from a split Second Circuit panel in US v. Broxmeyer, No. 10-5283 (2d Cir. Aug. 27, 2012) (available here), in which the panel upholded the reasonableness of a 30-year sentence for possession and attempted production of child pornography.

Religion Clause Blog: In A.M. v. Taconic Hills Central Hills School District, (2d Cir., Jan. 30, 2013), the U.S. 2nd Circuit Court of Appeals rejected a free speech claim by a middle school student, the co-president of student council, who was not permitted to include a religious blessing at the end of her remarks at the school’s Moving-Up Ceremony.

WBTA1490.com: A religious freedom lawsuit involving the town of Greece could end up before the U.S. Supreme Court. The group Alliance Defending Freedom has asked the high court to reconsider an appeals court ruling involving prayers used to start Greece Town Board meetings.

Democrat and Chronicle: David Cortman is senior counsel with Alliance Defending Freedom, which has represented Greece at no charge since the case was filed in 2009 by two Greece residents who objected to the prayers. He blasted the appellate court decision, noting a long history in the U.S. of opening legislative sessions with prayer. “The town of Greece had a constitutional practice of allowing citizens to voluntarily deliver a prayer according to the dictates of their own conscience,” he said via email. “While the district court upheld the practice, the appeals court found it unconstitutional because the town did not invite non-Christian clergy from outside its borders.”

Chris Gacek of FRC at the Washington Times: In May 2012, the U.S. Court of Appeals for the 2nd Circuit issued an aggressive, secular ruling in a “legislative” prayer case arising from a small town in western New York. In Town of Greece v. Galloway . . . The court applied a totality-of-the-circumstances analysis that paid close attention to the content of the prayers. The court recognized the prayers “did not preach conversion, threaten damnation to nonbelievers, downgrade other faiths, or the like.” Nevertheless, the court balanced factors like the proportion of prayers offered by self-identified Christians, whether prayers “contained uniquely Christian references,” and finally whether the person offering the prayer used first-person plural pronouns (“we” or “us”).

Liberty Institute: oday, on behalf of several distinguished Christian theologians and scholars, Liberty Institute filed a friend-of-the-court brief in the United States Supreme Court supporting a request for the High Court to hear an important religious freedom case that could determine the future of prayers before legislative bodies throughout the U.S. The theologians seek to overturn the U.S. Court of Appeals for the Second Circuit’s ruling in the case Galloway v. Town of Greece, which declared the town’s legislative prayers unconstitutional because they were not religiously diverse. A copy of the brief may be found here.

Alliance Defending Freedom attorneys filed suit against the New York Department of Motor Vehicles in 2004 for rejecting a pro-adoption group’s application to sponsor a “Choose Life” specialty plate as part of a state program.

In May, the U.S. Court of Appeals for the 2nd Circuit said that, because the town contains predominantly Christian clergy, it should invite non-Christians from other jurisdictions to invite to pray at its own town meetings and take other uncommon steps to ensure that non-Christians do not “feel like outsiders.”

AP: A federal appeals court in Manhattan has become the second in the nation to strike down the Defense of Marriage Act as unconstitutional. | Windsor v. U.S.

Religion Clause Blog: In Caviezel v. Great Neck Public Schools, (2d Cir., Oct. 12, 2012), the 2nd Circuit Court of Appeals affirmed the district court and rejected parents’ constitutional challenges to New York’s denial to them of a religious exemption from the requirement their children be vaccinated in order to attend public schools.

AP: A federal appeals court panel forced a Justice Department lawyer into an awkward position Thursday, making him explain the government’s decision to abandon defending the Defense of Marriage Act . . .

Reuters: The next battle over a U.S. law that defines marriage as a union between a man and a woman will be waged in a federal appeals court in New York on Thursday.

Religion Clause Blog: In Fortress Bible Church v. Feiner, (2d Cir., Sept 23, 2011), the U.S. 2nd Circuit Court of Appeals affirmed a New York federal district court’s decision that the Town of Greenburgh, New York violated RLUIPA’s “substantial burden” provisions, as well as the free exercise and equal protection provisions of the U.S. and New York constitutions, in denying an application by Fortress Bible Church to build a new facility to house the church and its school.

NY Law Journal: There is no shortage of advice for the U.S. Court of Appeals for the Second Circuit as it prepares to decide whether the Defense of Marriage Act’s definition of marriage as exclusively between one man and one woman is constitutional.

National Law Journal: A divided federal appellate court has affirmed the 30-year prison sentence given to a former field hockey coach for soliciting pornographic images from a girl he coached and sharing them with another teen girl with whom he sought to have sex. | United States v. Broxmeyer, 10-5283-cr

NYT: A federal appeals court ruling has affirmed a lower court decision upholding the arrest of two protesters who refused to leave a no-demonstration zone across from Madison Square Garden during the 2004 Republican National Convention in New York. | Courthouse News Service: Anti-Abortion Activists Lose RNC Protest Suit – The anti-abortion activists were represented by the D.C.-based Alliance Defense Fund, a Christian legal group. They have no affiliation with the NYCLU or its pending class action. | Marcavage v. NYC

Reuters: A federal appeals court on Thursday threw out the conviction of a medical researcher because child pornography found in his home was improperly seized by authorities, who had a warrant for a different apartment in the same building. | United States of America v. Voustianiouk, No. 10-4420

How Appealing links to reports and the ruling 94th Street Grocery Corp v. NYC Board of Health.

Reuters: A New York man imprisoned for possessing and receiving child pornography cannot argue that he was wrongly convicted because he never stored the images on his computer, a federal appeals court has ruled. In an opinion on Monday, a three-judge panel of the 2nd U.S. Circuit Court of Appeals in New York considered for the first time whether viewing forbidden images on the Internet constitutes knowingly receiving and possessing them. | U.S. v. Ramos, No. 10-4802-cr

WWNTRadio: Former Alabama Chief Justice Roy Moore (R) from Gallant announced that he and the Foundation for Moral Law legal organization in Montgomery, Alabama, have filed an amicus curiae brief in the U.S. Court of Appeals for the 2nd Circuit.

Alan Sears at TellADF: Few cases illustrate so clearly the lengths to which many in today’s legal culture will go to undermine your Christian heritage and religious liberties as one Alliance Defense Fund attorneys are currently appealing in Greece, New York.

The New American: Oster pointed out that the U.S. Constitution “has never required any local government to engage in such gymnastics to have prayer, as is clearly seen by the prayers of America’s Founding Fathers. Prayer-givers have a right protected …

Fox News: The Alliance Defense Fund, an Arizona-based group that presses faith-based cases in courts nationwide, represented the town in court. It said it will appeal the ruling.
Joel Oster, senior counsel for ADF who argued the town’s case, called the ruling “highly inconsistent” with what the Supreme Court has said on the issue and said it means towns will have to “complete an obstacle course” before they can qualify to say a prayer before a meeting. “The town has no obligation to go outside of its borders as if it’s an affirmative action program,” he said.

Findlaw: “The court wants the town to be prayer monitors, to determine how many prayers in Jesus’ name are too many,” which would violate the Establishment Clause, the Alliance Defense Fund’s Joel Oster told Thomson Reuters News & Insight.

One News Now: . . . ADF attorney Joel Oster tells OneNewsNow prayers have been offered according to the “conscience of the speaker.” “There is no legal reason why a town cannot engage in this practice today with people from within its own community,” he asserts. “The district court rightly affirmed the constitutionality of the town’s policy, and we will appeal the Second Circuit’s decision. Secularist groups cannot be allowed to force local governments to engage in strange hoops and hurdles that effectively eliminate prayers by making them too difficult to take place.”

Federal News Radio: The Alliance Defense Fund, an Arizona-based group that presses faith-based cases in courts nationwide, represented the town in court. It said it will appeal the ruling. Joel Oster, senior counsel for ADF who argued the town’s case, called the ruling “highly inconsistent” with what the Supreme Court has said on the issue and said it means towns will have to “complete an obstacle course” before they can qualify to say a prayer before a meeting. “The town has no obligation to go outside of its borders as if it’s an affirmative action program,” he said.

2nd Circuit says town should go outside its borders to search for non-Christians

Reuters: Joel Oster of the Alliance Defense Fund, which represents Greece, said the town was prepared to appeal the case as far as the Supreme Court. “The court wants the town to be prayer monitors, to determine how many prayers in Jesus’ name are too many,” he said. That outcome violates the Establishment Clause, he said. Oster pointed to a 2008 ruling by the 11th Circuit in Pelphrey v. Cobb County, Georgia, upholding a county commission’s opening prayer policy.| Galloway v. Town of Greece, No. 10-3635-cv

Hartford Courant: Former U.S. Attorney and District Court Judge Christopher F. Droney officially became a member the U.S. Court of Appeals for the Second Circuit Monday during an induction ceremony that took place in Hartford before an crowd of luminaries from the bar, the judiciary, politics and law enforcement.

Religion Clause: Yesterday, the U.S. 2nd Circuit Court of Appeals issued an order (full text) in the case, clarifying that the TRO applies only to evicting Bronx Household of Faith, and does not apply to protect other churches that are not parties to the litigation.

Religion Clause: In Dayner v. Archdiocese of Hartford, (CT Sup. Ct., release date 8/2/2011), the Connecticut Supreme Court adopted the Second Circuit’s version of the “ministerial exception” doctrine and dismissed claims by the principal of a Catholic school that she she was wrongfully terminated from her position. In reaching this conclusion the court focused on a split among circuits . . .