Bill Donohue has written a piece for Newsmax on the Obama administration’s recent filing of an amicus brief in favor of religious invocations at government meetings. In his article he considers possible motives for the administration’s position. To read it, click here.

By Bill Donohue
This article was originally published at Newsmax.com on August 27, 2013.

No administration in recent history has been less religion-friendly than the Obama administration, so it came as a surprise to learn that it has filed an amicus brief in favor of religious invocations at government meetings; the U.S. Supreme Court has agreed to hear the case in the fall. Some conservatives are cheering this development. They should be more cautious.

Lawyers for the administration are arguing that even if council meetings in Greece, N.Y. (outside of Rochester) open with Christian prayers, that “does not amount to an unconstitutional establishment of religion merely because more prayer-givers are Christian and many or most of the prayers contain sectarian references.”

This position is in direct contradistinction to the ruling by the Second Circuit of Appeals: it ruled that to the “reasonable observer,” the invocation is an “endorsement” of a “Christian viewpoint.”

The Second Circuit ruling, however, was undercut by the 1983 decision in Marsh v. Chambers. In that ruling, the high court said that a prayer offered by a chaplain opening the Nebraska legislature was not unconstitutional. Chief Justice Warren Burger, writing for the majority, said that opening deliberations with a prayer “is deeply embedded in the history and tradition of the country.”

Indeed, the Nebraska legislature, as well as the U.S. Supreme Court, Burger noted, both begin their sessions with the invocation, “God save the United States and this Honorable Court.”

Furthermore, the Marsh ruling explained that “where, as here, there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief,” then “the content of the prayer is not of concern to judges.”

The Obama team properly cited Marsh in defense of its lawsuit. Champions of religious liberty, of course, do not find fault with prayer invocations at government meetings. No doubt about it, the Obama administration is on the right side of this issue in Greece, but its hostility to religious liberty (see my four-part Newsmax series, September 10, 12, 13, 14, 2012) demands a closer look at its reasoning.

It is not sufficient to be on the right side of an issue; what matters is whether reasoning is right. At issue in Greece is whether the right standard is being used by the Obama administration to override arguments invoking the “establishment of religion” provision of the First Amendment (it is not a “clause,” literally or constitutionally, as it is commonly held).

The U.S. Supreme Court had virtually nothing to say about disputes involving religious liberty and the establishment of religion until after World War II; previously such matters were seen as state concerns. From the founding to the Everson decision in 1947, Madison’s interpretation of the First Amendment was operative: the federal government could not establish a national church or give preference to one religion over another.

However, in Everson, Justice Hugo Black, who wrote the majority opinion, went beyond Madison’s prescription by holding that neither a state nor the federal government can pass a law favoring religion, even if it treats all religions equally. This ruling obviously widened the role of the U.S. Supreme Court to police First Amendment provisions on religion.

In 1971, the U.S. Supreme Court crafted a new standard. In Lemon v. Kurtzman, the high court developed a three-prong test: the statute in question must have a clear, secular purpose; the statute must neither advance nor inhibit religion; the statute must not result in “excessive” government “entanglement” with religion. The Lemon test has been criticized for its vagueness. What constitutes “excessive”? What does “entanglement” mean?

The endorsement test was proposed in 1984 by Justice Sandra Day O’Connor in a case involving a crèche on public property. In her concurring opinion in Lynch v. Donnelly, she argued that no statute can pass constitutional muster if its purpose, or effect, is to convey to the public a government endorsement or disapproval of religion. This test also has its critics. For example, is there not a difference between accommodation and endorsement?

Justice Anthony Kennedy offered a “coercion” standard in the 1992 case, Lee v. Weisman. Could prayers at a graduation ceremony be seen as violating the rights of students who are atheists, for example? The court reasoned that because it was a clergy-led prayer at an event sanctioned by the school district, objecting students would be subjected to peer pressure. In its ruling, the court noted that the Constitution “guarantees that government may not coerce anyone to support or participate in religion or its exercise.”

Critics note that prayer at government events has been seen as constitutional since the founding, and that “coercion” is too loosely defined.

It matters greatly which test is invoked in Greece; some are more religion-friendly than others. By choosing the endorsement standard, the Obama lawyers seek to directly challenge the test as applied by the Second Circuit: the appeals court said that a “reasonable observer” would conclude that a town council’s prayer amounted to “an endorsement” of Christianity.

The administration sees no endorsement, and eschews sitting in judgment of the content of a prayer.

On the face of it, the Obama team has taken a commendable position. But it also had other options. It could have chosen one of the other standards. Or, if it were truly interested in expanding the meaning of religious liberty, it could have cited the Declaration of Independence — it has four specific references to God — as evidence that the founders never envisioned subordinating religious liberty to establishment concerns (the Declaration was mentioned once in the government’s brief, but not in this regard).

The Obama lawyers know that some Supreme Court justices are not pleased with the various tests that have been used in these cases. Indeed, these justices have even made plain their interest in seizing on a new case to clarify, and expand, the meaning of religious liberty. Justice Antonin Scalia, for instance, has referred to the Lemon test as a “late night ghoul that refuses to die.”

It is not known what provoked the Obama team to file a brief in Greece. Was it because of a sincere interest in advancing religious liberty? If so, what is its progeny? Moreover, how can this new-found interest in religious liberty be squared with the administration’s relentless pursuit of the Health and Human Services mandate that abridges the rights of Catholic non-profits?

To put it bluntly, is the Obama brief an exercise in damage control? Is it trying to get out in front of this issue by filing a brief protecting religious liberty on grounds that are the least threatening to its secular vision? Does it seek to ward off the specter of a new standard, one that is much more religion-friendly than the tests we have become accustomed to? As I said, we don’t know what the true motive is. But forgive me if I’m skeptical.

Dr. William Donohue is the president of and CEO of the Catholic League for Religious and Civil Rights, the nation’s largest Catholic civil rights organization. The publisher of the Catholic League journal, Catalyst, Bill is a former Bradley Resident Scholar at the Heritage Foundation and served for two decades on the board of directors of the National Association of Scholars. The author of five books, two on the ACLU, and the winner of several teaching awards and many awards from the Catholic community, Donohue has appeared on thousands of television and radio shows speaking on civil liberties and social issues.

Bill Donohue comments on the movie, “Paradise: Faith,” which opens in New York and Los Angeles today:

A “devout” Catholic woman masturbates with a crucifix, flagellates herself, walks around the house praying on her knees, goes door-to-door with a statue of the Virgin Mary, and fights off her paraplegic Muslim husband who tries to rape her. The New York Times finds it “riveting,” and NPR declares it “recommended.” Last year, it won a special jury prize at the Venice Film Festival.

It is not certain whether the filmmaker, Ulrich Seidl, who is Austrian, is related to another Austrian, Mr. Adolf Hitler, though he could be. Like Hitler, Seidl is a vicious anti-Catholic ex-Catholic. When questioned why it was necessary to show the “devout” Catholic woman profaning a sacred symbol, he said, “it is right to show her masturbating using a cross, as she is making love to Jesus. Just because it might be a taboo doesn’t mean I won’t show it.” But it depends: he won’t show a “devout” Jew masturbating with the Star of David. That would be disrespectful. And NPR and the New York Times would never approve.

Fortunately, almost no one will see this movie. Not only is it in German and Arabic, with subtitles, it is only being shown in Los Angeles and New York; even there it is hard to find. But that doesn’t mean our elites are not taking notice: it merited over 800 words in the Times, and NPR said that notwithstanding its “occasional missteps,” it is a “success.”

If I had known in advance it was opening in the East Village, I would have hired a photographer, and a few researchers, to take pictures and interview the theater-goers. It would be instructive to know who likes this kind of fare. One thing is for sure: they take their ideological cues from NPR and the New York Times. Don’t all independent thinkers?

Bill Donohue comments on the California bill that would allow those who claim they were molested in a private institution more time to file lawsuits:

On August 14, SB 131 lost in the Assembly Appropriations Committee by a 6-4 vote; there were seven abstentions. Yesterday, it passed 12-4. The bill now heads to the Assembly; it could be voted on as early as Monday.

It was the Democrats who made the difference between last week and this week. Last week, they were indecisive; this week they decided to cast their vote in favor of a bill that discriminates against the Catholic Church.

We need a lawmaker who will introduce a bill that discriminates against the public sector. The bill should suspend the statute of limitations in cases involving the sexual abuse of minors who were victimized in a public school or any other public entity. All private institutions, including Catholic schools, would be given a pass.

This is the only way to send a message to the public about this phony war on child abuse. Anyone who is serious about this issue would never entertain a bill that had selective application. 

Bill Donohue comments on New York State Gov. Andrew Cuomo’s friends at NARAL Pro-Choice:

There is no organization that Gov. Cuomo loves more than NARAL, the most radical pro-abortion organization in New York State. And there is only one organization in New York State that received an exemption from his new lobbying reporting law for tax exempt groups—NARAL.

The New York Times reported today that the lone exemption to NARAL was granted by the state ethics commission because it contended that its donors might face “harm, threats, harassment, or reprisals”; these conditions are grounds for exemption. But the decision to grant the exemption was done in private, behind closed doors, thus contradicting Cuomo’s call for transparency.

What the Times did not disclose is that this same slippery exemption was written into the regulations broached by New York Attorney General Eric Schneiderman on June 7: this regulation, which applies to the political expenditures of non-profits, is being touted for its “groundbreaking effort to bring transparency to the political process.” Will NARAL be exempt from this regulation as well?

The only New York politician with the guts to do anything about this outrageous scam is Senate GOP leader Dean Skelos. In his August 1 letter to Daniel Horwitz, Chairman of the Joint Commission on Public Ethics, Skelos said of the donor disclosure law, “This regulation should be repealed and the information should be made public.” We agree.

NARAL-NY is corrupt. In 2011, Kelli Conlin, who headed the group for 19 years, pleaded guilty to stealing $75,000 from NARAL; in 2012, she was slapped with another lawsuit accusing her of ripping off hundreds of thousands to finance her extravagant lifestyle. Are we to believe that no one at NARAL knew about her illegalities? And this is the group that is being given preferential treatment in skirting the law? Thus far this year, NARAL-NY has spent $425,000 in lobbying, and no one has benefited more than Cuomo.

We are contacting New York lawmakers, Ethics Chairman Horwitz, and others, asking them to support Sen. Skelos’ requests.

Contact Daniel Horwitz: dhorwitz@lchattorneys.com

Bill Donohue comments on the three-part PBS documentary, “The Life of Muhammad,” which debuts tonight:

No one likes to see his religion trashed, and from everything we have learned about “The Life of Muhammad,” Muslims have nothing to worry about. The New York Daily News says the film could be subtitled “Islam 101,” boasting that “If it helps with greater understanding, it has done its job.” A professor who appears in the series praises it for its “balance.”

However, a look back at PBS’ treatment of the Catholic Church yields few films that could reasonably be dubbed “Catholicism 101,” or that could in any way be praised for promoting “greater understanding.” In fact, most of the films were flagrantly imbalanced.

Nowhere is Muhammad depicted in the series. This is said to be in keeping with Koranic prohibitions against showing images of the prophet. But the Koran only condemns idolatry; it does not forbid representations of human beings. Indeed, there are illustrated Korans that depict Muhammad. Also, if showing human figures is taboo, why did Muhammad allow his wife, Aisha, to play with dolls? (She was 6-years-old when he married her, and 9 when the marriage was consummated; he was in his fifties.) Moreover, Muhammad himself kept copies of Jesus and Mary from destruction.

Oxford professor Tariq Ramadan erroneously says in the film that “We never represent or have any images of any of the prophets.” Faris Kermani, the producer and director, does not deny that Ramadan is wrong. He simply says that he decided to respect “the current Muslim view, understanding that this has not always been the case.” So kind.

PBS has a long history of disparate treatment when it comes to portrayals of Islam and Catholicism. I hasten to add that its treatment of Islam has not always been fair, either. Click here to read more about this issue.

Bill Donohue explains why the need for a petition:

The Catholic community, led by the bishops, has voiced its objections to the Health and Human Services (HHS) mandate on several occasions. The Obama administration has made “accommodations” and other revisions, but the fundamental problem remains: the HHS mandate adopts a definition of what constitutes a “religious employer” that is entirely too narrow; and the religious liberty abridgement entailed in this edict represents an unfair burden on Catholic non-profit organizations, and Catholic-owned private businesses.

The amount of time and money spent trying to reconcile the HHS mandate with legitimate First Amendment concerns has been considerable, and without a satisfactory conclusion. Indeed, almost 70 lawsuits have been filed. The only sensible outcome is for the administration to withdraw the mandate altogether.

The problems inherent in ObamaCare are serious. From delaying “out-of-pocket costs” to postponing the employer mandate, it is evident that even those who support this legislation are growing weary. Add to this the more than a thousand waivers that have been granted, and the loss of support by labor unions, and the result is alarming. But none of these factors are as important as the constitutional issues that the HHS mandate presents: even if ObamaCare can be salvaged, the problems posed by the mandate remain.

The petition drive that we are launching today will end September 30, six weeks from today. We will forward the petitions to HHS Secretary Kathleen Sebelius on October 1. Please encourage family, friends and members of your parish to sign it. To sign it, click here.

Bill Donohue comments on a California bill, SB 131, that would suspend the statute of limitations for one year in cases where someone claims he was molested when he was a minor in a private institution; the law applies to those who were 26-years-old in 2002:

Good news: SB 131 never got out of committee today. While the bill can still be voted on during this legislative session, time is running out. The fact that it stalled today is encouraging.

This bill has more to do with punishing the Catholic Church for offenses alleged to have been committed decades ago than it does with protecting minors today. The bill is also an affront to fairness on another level: it gives the biggest offenders of all—those who work in the public schools—a pass.

The Catholic League salutes the California bishops, ably led by Los Angeles Archbishop José Gomez, and the California Catholic Conference. We also commend all those Catholic League members in California who let their voices be heard; we were happy to lead them. It goes to show that if our side is to win, we must raise our voices. No one can hear those who speak softly.

Bill Donohue comments on the inconsistent way Facebook applies its global standards for unacceptable fare:

On July 1, the Catholic League filed a complaint with Facebook about an entry that showed an edgy picture of the Virgin Mary with the inscription, “Virgin Mary Should’ve Aborted.” This was the reply: “We reviewed the page you reported for containing hate speech or symbols and found it doesn’t violate our community standard on hate speech.” When others continued to protest, the page was taken down, but then other pages, similar in content, appeared; they are still posted.

Alison Schumer, who works in Facebook’s communication department, said in June that “hate speech” is defined as “direct and serious attacks on any protected category of people,” but that “distasteful humor” does not qualify. That is an eminently defensible definition. But if that policy was violated when a cartoon of a naked Muhammad was posted—this happened last September when a French magazine took liberties with the prophet—then why does Facebook currently allow the Virgin Mary to be assaulted? It censored the French page.

Two other issues are involved. First, the policy that Schumer defended speaks to categories of people, not individuals. But it was invoked against the French magazine because of its assault on an individual. The point being that if the anti-Muhammad post had to be taken down, why not the anti-Virgin Mary page? Second, the cartoon (not a photo) was a depiction of Muhammad lying on his stomach, with his butt exposed. If the reason for taking down this page is nudity, then how does Facebook explain doctored photos of Sarah Palin sitting on a chair with her legs spread, wearing a blouse, panties, nylons, and high heels? It’s still up.

Overall, Facebook does a very fair job. But it owes Catholics an explanation. Better yet, simply treat Mary the way it treats Muhammad.

Contact Facebook’s press room: press@fb.com

Bill Donohue comments on the fate of SB 131:

Tomorrow, the California Assembly Appropriations Committee will once again take up the issue of suspending the statute of limitations for cases involving minors who allege they are victims of sexual abuse. SB 131 would allow anyone who was 26-years-old in 2002, and claims to have been molested, one year to file suit. To those interested in justice, the bill appears to be fair. But there is just one problem: most of those who meet the criteria are not legally permitted to file suit. How can this be? Because it does not apply to anyone who was violated by a public employee, such as a public school teacher, aide, counselor or coach. For them—and they account for the lion’s share of abuse—it’s just too bad.

The purpose of this outrageous bill is to sock it to the Catholic Church. In California, lawmakers already suspended the statute of limitations for private institutions; they did so in 2003. But public school teachers have never been subjected to this condition. In other words, the bill is nothing more than a vindictive effort to punish the Catholic Church.

Leading the fight against this bill are the California bishops, and the California Catholic Conference; we are particularly taken by the aggressive leadership of Los Angeles Archbishop José Gomez. We are proud to play a support role: The Catholic League has contacted well over 10,000 members in California asking them to weigh in on this issue.

If California lawmakers are truly serious about combating the sexual abuse of minors (most surely are), then they should a) not make exceptions for private or public institutions and b) concentrate on current cases of abuse. To do any less—to carve out a privileged position for some, or to focus on the past, not the present—is an exercise in grandstanding. It is not what leadership is all about.

Contact the chairman of the California State Assembly Committee on Appropriations,
Mike Gatto: assemblymember.gatto@assembly.ca.gov