Cherise Ahay's ePortfolio

New York’s Debate

on

Church and State

 

 

 

Cherise T. Ahay

Senior Legal Seminar

Professor Donsky

Culmination Paper

May 14, 2012

 

Faith:

            Faith is an aspect of human life that people often possess in order to continue with their lives during good times and bad.  Exercise of this faith manifests itself in a multitude of ways.  For some, people may exercise their faith in the form of independent worship.  For others, people may exercise their faith by congregating in churches, mosques, temples or other types of faith based communities. Church officials may not be able to afford a free-standing church or feel they can reach out to more people in a given community by the use of preexisting public spaces, sometimes within schools after school hours, in order to conduct their services and exercise their faith.

However, as of late, the ability of congregations to conduct worship services and exercise their faith after school hours has come under fire in the state of New York. This turmoil has inspired litigation and has affected administrative agency regulations.  Cases have weighed in on the issue of the constitutionality of schools allowing or denying congregations from holding religious services and other types of religious exercise on school premises after school hours.

There have been many interpretations of the statutes governing what appears to be a fusion of church and state in New York.

Rules and Regulations:

“The State of New York authorizes local school boards to adopt regulations governing the use of their school facilities. In particular, N.Y. Educ. Law § 414 (McKinney 2000) enumerates several purposes for which local boards may open their schools to public use.” (Good News Club v. Milford Central School 533 U.S. 98, 121 S. Ct. 2093, 150 L.Ed.2d 151 (2001))

In New York City, the government has empowered the Department of Education (formerly known as the Board of Education) with the right to pass regulations that control the school system.  The set of rules that governs the New York City Department of Education, known as Chancellor’s Regulations, is divided into four volumes, from Volume A through Volume D.  Volume D contains the rule relevant to the usage of public school space for private purposes.

Chancellor’s Regulation No. D-180, which contain the rules on Extended Use of School Buildings, (“Ch.Reg.D-180”) replaced a section in the Standard Operating Procedure Manual (the “SOPM”).  More specifically, Ch.Reg.D-180 replaced Section 5.11 of the SOPM.  This section outlines the basis on which schools may have “any individual, Community Based Organization (“CBO” ), or other group using a school building” (“Users”; p. 3 of Ch.Reg.D-180) utilize the school’s space during extended time, which are hours when schools are not in session.

The New York City Department of Education, on March 1, 2012, suspended Ch.Reg.D-180, Section I. Q due to pending litigation on the basis that barring church organizations from utilizing school space when school is not in session is a violation of the Constitution of the United States (the “US Constitution”) and the Constitution of the State of New York (the “NY Constitution”).  More specifically, it is a violation of the free exercise clause and overall, it is discriminatory with respect to religion.  The section of the Chancellor’s Regulation in question prohibited granting permits “for the purpose of holding religious worship services, or otherwise using a school as a house of worship” (ibid).

                The contents of Ch.Reg.D-180, before injunctive relief was granted in Bronx Household of Faith, Robert Hall and Jack Roberts v. Board of Education of the City of New York, Community School District 10 2012 WL 603993 (S.D.N.Y., 2012), seemed to contradict Article One, Section Three of the NY Constitution which states the freedom to “exercise and enjoy religious profession and worship” shall be granted to all without preference or discrimination.  In addition to appearing to contradict the NY Constitution, the US Constitution, in Amendment One, protects citizens from the government creating and/or prohibiting the exercise of religious beliefs and in Amendment Fourteen, Section One, protects citizens from states creating laws that deprive those citizens of rights granted under the US Constitution.  Essentially, Ch.Reg.D-180, appears to conflict with both the “supreme Law of the Land” (Article Six, Clause Two of the Constitution) and the state’s supreme law.

Case Law and Analysis:

            The issue regarding the practice of religious worship on school property after school hours in New York has been debated for some time.   It is an important topic currently because court decisions on this issue have the propensity to displace hundreds of churchgoers who utilize schools for Sunday worship or extended time use.  Some church organizations have been using school spaces for over a decade, such as in the case of Bronx Household of Faith v. B.O.E. of  City of New York.  As of 2008, according to The New York Times, there were sixty churches utilizing public school spaces in order to hold church services (Churches to Lose Use of School Space After a Legal Push Fails, New York Times, December 5, 2011 by Sharon Otterman).

Lewis v. Board of Education 157 Misc. 520, 285 NYS 164, NY Sup. (1935) was a decision  for an action seeking to dismiss the defendant’s defenses in response to an action brought that alleged: (i) the board of illegally allowing the usage of school premises by various religious groups, (ii) attacks the use of holy scriptures in public schools, and (iii) strikes a law as unconstitutional because of the board of education’s exclusion of scripture without notice.   The court denied the plaintiff’s motion citing that found on the basis of religious freedom and the provisions guarding rights of the board of education as elastic which included the allowance of all different groups of people to use the school facilities.

            Another case which ruled in favor of the freedom of the school board was Baer v. Kolmorgen (1958) 14 Misc 2d 1015, 181 NYS2d 230, which found that it was within the law to have Christmas decorations placed in the school during a period where school was not in session.  The decorations were privately paid for and maintained by an independent organization which means that it would not have been the burden of taxpayers.

                It is important to note the similarity between Baer v. Kolmorgen and Bronx Household of Faith et. al v. BOE of the City of New York et. al. The religious aspect of both cases occurs when class is not in session or as the Department of Education refers to it, during extended use hours.     

                The decision of the court in Hsu By and Through Hsu v. Roslyn Union Free School District No. 3 85F.3d 839 C.A.2 (N.Y.), 1996 has acknowledged religious groups within the school and has pointed to Mergens 496 US at 252, 110 S.Ct. 2373 that found “a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion.”  Through this analysis, if it would not be construed as endorsing or misleading one into believing the building is a church why shouldn’t a religious organization utilize school grounds when school is not in session to conduct it’s worship services?

                Full Gospel Tabernacle v. Comm 979 F. Supp. 214 (SDNY) (1997) was a court case that denied the plaintiff’s request for injunctive relief with respect to a school denying them access to facilities for the purpose of conducting worship services.  Although other religious groups had previously obtained permits for within the district, it was stated that the district erroneously approved the permits due to flaws in the application method.  Using Bronx Household of Faith (1997), the opining judge delineates different forums, under which a school is found to not be a “traditional public forum” or rather a “limited public forum.”

On this ground, the court rejected the plaintiff’s request for an injunction.

Bronx Household of Faith v. B.O.E. of  City of New York is a case that has spanned over a decade.  The plaintiffs currently sought and were temporarily granted injunctive relief against a regulation of the defendants which prohibited granting permits for those who wanted to perform religious services on school premises.

Favorable treatment by the Supreme Court in the matter of in Good News Club v. Milford Central School 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) encouraged Bronx Household of Faith to continue its legal battle but they were denied certiorari by the Supreme Court.  In  Good News Club v. Milford Central School, Good News Club was denied the right to hold meetings at Milford Central School.  Good News Club sued Milford Central School on the grounds that such denial was a violation of both Amendments One, that guards free speech, and Fourteen, the equal protection amendment, of the Constitution.  Justice Thomas held that the refusal by Milford Central School to allow the Good New Club to meet after hours was unconstitutional and “violates the Club’s free speech.”  The defense given by the respondents that such allowance would violate the Establishment clause of Amendment One of the Constitution was found to be invalid for the facts of this case.

Justice Thomas’ decision was influenced by the 1993 decision in Lamb’s Chapel v. Center Moriches Union Free School District 508 U.S. 384, 113 S.Ct. 2141, U.S.N.Y. (1993).  In this case, the court held that the refusal to allow a religious film to be shown was a violation of Amendment One of the Constitution. Justice White stated that the mere allowance of a religious group to show a film does not constitute an “embrace of a particular religious sect.”

The findings in the prior two cases should be applied to the case of  Bronx Household of Faith et. al v. BOE of the City of New York et. al.  More specifically the decision in  Good News Club v. Milford Central School in which the group attempted to meet for religious methodology that pertain to the “welfare of the community…. and open to the general public.” (Chancellor’s Regulations No. D-180 Section I. H).

As early as the 1950’s, there have been disputes over the legality of giving portions of public spaces to be used for private churches in order to conduct worship services.  Judge Schmidt in Lewis v. Mandeville (1950) 201 Misc. 120, 107 N.Y.S.2d 865 N.Y. Sup. 1951 ruled that it was acceptable and within the NY Constitution to allow two religious groups to temporarily utilize firehouse space to conduct worship services.  The judge did not grant an injunction on the grounds that the plaintiff had no legal right to do so and that allowing those congregations to use the firehouse was legal (79 A.L.R.2d 1148 Use of public school premises for religious purposes during nonschool time, 1961).

Unlike the current case in Bronx Household of Faith et. al v. BOE of the City of New York et. al

the situation between the two churches in the firehouse was temporary whereas Bronx Household of Faith has been a long term occupant and recipient of the services offered by the school to house them.  However, it is important to acknowledge that the church groups in both cases are granted the same ability to meet as any other group that is not in violation of any statutes, for example any discriminatory or acts that would exclude members of the community.  According to the Chancellor’s Regulations “no group or organization, which invites members of the public to a meeting in a school facility, may exclude persons on the basis of any impermissible discriminatory reason as set forth in  Chancellor’s Regulation A- 830.”

Conclusion:

            In reviewing the aforementioned cases, it is imperative to note the discourse in distinguishing preference for a religious entity or a secular entity and equal opportunity for all groups who attempt to utilize school space during hours where school is not in session.  As seen in cases such as Lewis v. Mandeville, there should be no distinction made between allowing the two religious groups to practice versus allowing any other group so long as such approval does not interfere with the “peace or safety” of the state (NY Constitution Article One, Section Three).  Doing so would constitute being discriminatory and/or abridging the rights of others to freely practice their religion in a space where other groups are allowed to exercise their beliefs, irrespective of whether they have a feminist, pro-minority, or any other, peaceful agenda.

On the other hand, as discussed in  Full Gospel Tabernacle, there are different forum categories for which different rules apply, and according to Full Gospel Tabernacle, a school is a limited public forum.

The Constitution is clear in stating that the government can make no laws that create or prohibit others from freely exercising their religion.  The mere renting of space to a church that is sustained by money of parishioners should not normally constitute a conflict.

However, as previous litigation has shown in the Bronx Household of Faith et. al v. B.O.E. Of the City of New York, one must also note the difference between denying a group not because of religious view points or “view-point discrimination” Bronx Household of Faith et. al v. B.O.E. Of the City of New York 650 F.3d 30 C.A.2 (N.Y.), 2011, but because of “content-based exclusion.”  Judges draw a fine line between restricting religious points of view and restricting the act of holding a religious service because of the content of such services and the perception of the school as becoming that of a church.

The Amendments of the US Constitution and the NY Constitution supersede the administrative regulations that are in place in order to protect those who attempt to provide their respective communities with meaningful faith based assistance.

 

References:

Statutes:

Chancellor’s Regulations No. D-180

Constitution of the State of New York

Constitution of the United States

Cases:

Lewis v. Board of Education 157 Misc. 520, 285 NYS 164, NY Sup. (1935)

Lewis v. Mandeville (1950) 201 Misc. 120, 107 N.Y.S.2d 865 N.Y. Sup. 1951

Baer v. Kolmorgen (1958) 14 Misc 2d 1015, 181 NYS2d 230

Lamb’s Chapel v. Center Moriches Union Free School District 508 U.S. 384, 113 S.Ct. 2141, U.S.N.Y.    (1993)

Hsu By and Through Hsu v. Roslyn Union Free School District No. 3 85 F.3d 839, C.A.2 (NY) (1996)

Full Gospel Tabernacle v. Comm 979 F. Supp. 214 (SDNY) (1997)

Good News Club v. Milford Central School 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001)

Bronx Household of Faith, Robert Hall and Jack Roberts v. Board of Education of the City of New        York, Community School District 10 2012 WL 603993 (S.D.N.Y., 2012)

Articles:

http://www.nytimes.com/2011/12/06/nyregion/in-failure-of-legal-bid-churches-set-to-lose-public-school-space.html

79 A.L.R.2d 1148 Use of public school premises for religious purposes during nonschool time, 1961

LATTER DAY SAINTS

Cherise T. Ahay

Senior Legal Seminar – Professor Donsky

Famous Trials Assignment – Carthage Murders

May 7, 2012

LEGAL MEMORANDUM

To:  Professor Donsky

From: Cherise T. Ahay

Date: May 7, 2012

Re:  People v. Levi Williams (Hancock County, Illinois 1845) – Murder of Joseph and Hyrum Smith

 

Questions Presented:

Should those identifiable members of the mob be charged and convicted of the murders of Joseph and Hyrum Smith?

Brief Answer: 

According to the jurors charged with deciding this case, no.

Facts of the Case:

The social instability in Hancock County was palpable during the time period Joseph Smith, Jr. arrived from Missouri.  Citizens were complaining about Joseph and his increasing presence in Hancock County, more particularly in the city of Nauvoo, religion and politics.  On June 27, 1844, Joseph and Hyrum Smith were murdered inside of Carthage Jail cell after surrendering in an effort to quell social unrest against the Mormon community he helped build up.  A mob came upon the jail. Immediately, Joseph and another detainee began to block the door to prevent the entry of the mob.  The mob then began firing shots through the door, some of which struck Hyrum.  Shortly thereafter, Joseph grabbed a firearm, opened the door slightly and began shooting, striking at least two men, who later died.  The mob proceeded to enter the cell.  After much fighting, Joseph then cried and fled through the window, pursued by the mob.  The events that ensued are unclear.  However, the mob fled before law enforcement arrived.  John Wills, Gallaher, William Voras, Thomas Sharp, Mark Aldrich, Jacob Davis, William Grover and Levi Williams were implicated but only Williams, Sharp, Aldrich, Davis and Grover were indicted for the attack on the Smith brothers.

Discussion:

Before Judge Richard Young argued prosecutor Josiah Lamborn and defense attorneys Orville Browning, William Richardson, Calvin Warren and Archibald Williams.

Defense requested a new, presumably less biased jury be selected in order to be more diverse in opinions and less “Mormon” before the trial began.

Prosecution presented a case which rested solely on eye witness accounts.  Lamborn’s witnesses included: John Peyton (who testified that members of the militia were coerced into putting a stop to growing Mormon influence), Franklin Worell (who testified seeing men disguise themselves to carry out the murders), Carthage Grey guards (who placed some of the defendants at the scene of the crime), William Daniels (who recounted some of Joseph Smith’s last moments), Eliza Jane Graham (who testified to seeing some of the defendants brag about the murders), and Benjamin Brackenbury (who placed five of the defendants in Carthage the day of the crime).

Defense questioned and in most cases invalidated the testimony of most of the state’s witnesses, including proof that some of the witnesses were not credible due to drunken incapacitation, the unknowing or unintentional fabrication of facts of the witness from one testimony to the next, and perjury.  Defense then offered it’s own witnesses to further contradict the testimony of the prosecution’s witnesses.

At closing, Lamborn dropped cases against all but three defendants: Sharp, Aldrich and Williams and held that there was evidence to prove that the remaining defendants were indeed guilty of murder.  Defense countered by stating there was insufficient evidence to support charges against the defendants specifically and that acquittal would restore peace in Hancock County.

As a result of unreliable, circumstantial evidence, all those implicated were swiftly acquitted.

In my review of this case, it appears unfortunate that prosecution relied so heavily on witness testimony.  However, given the time period and the circumstances, that was all that could be used.  The defense was just in requesting a jury of peers.  It is true that any number of men could be implicated in this horrific crime and the defendants could be used as scape goats.  In procedure, it seems that the trial was fair (due to the lack of evidence) but it seems that the verdict was politically motivated as well, due to a swelling anti-Mormon sentiment.  This anti-Mormon feeling caused Bingham Young, successor to Joseph Smith, to lead an exodus to Salt Lake City.

It is interesting to note that in a written account of William Daniels (or Lyman Omar Littlefield, per Daniels’ in court testimony), it was stated that “a light, so sudden and powerful, burst from the heavens upon the bloody scene, (passing its vivid chain between Joseph and his murderers)…” which, according to Joseph Smith happened to him in 1820 as well.  Joseph describes, “a pillar of light exactly over my head, above the brightness of the sun…” to which Smith then spent his life as a prophet of G–.  One is forced to ask themselves whether or not someone really believes this occurred or was the author just placing events from Joseph’s prior testimony into the scene of his death in order to perpetuate the image of Joseph being a prophet and martyr for the Latter Day Saints.

Conclusion:

Overall, given the evidence, the verdict in this proceeding was just.  There was not enough credible evidence to substantiate a conviction for those indicted.  In today’s day and age, technology would have definitely changed the outcome of this case in many ways.  The advances in architecture may have made it impossible to even get to Joseph and Hyrum thus they may still be here.  There would have been cameras to catch the offenders and provide more supplemental evidence as to those who were involved.  There may have still been attempts to cover up the involvement of law enforcement had an attack occurred.  All in all, it is still tragic that Joseph and Hyrum Smith would have to die for their beliefs or the effects of such beliefs in a country that was founded with the principles of religious freedom.

Sources:

 

“Joseph Smith.” Mormon.org. Official Web site of The Church of Jesus Christ of, 2011. Web. 26 April     2012. <http://mormon.org/joseph-smith/>.

Linder, Douglas. The Carthage Conspiracy Trial: An Account. N.p., n.d. Web. 26 April 2012.             <http://law2.umkc.edu/faculty/projects/ftrials/carthage/carthageaccount.html>.

http://www.sidneyrigdon.com/dbroadhu/MO/Misr1845.htm May 27, 1845 Daily Missouri Republican

 

 

 

hen in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, — That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness. Prudence, indeed, will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn that mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed. But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security. — Such has been the patient sufferance of these Colonies; and such is now the necessity which constrains them to alter their former Systems of Government. The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world.

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

He has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.

He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.

He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their Public Records, for the sole purpose of fatiguing them into compliance with his measures.

He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.

He has refused for a long time, after such dissolutions, to cause others to be elected, whereby the Legislative Powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.

He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

He has obstructed the Administration of Justice by refusing his Assent to Laws for establishing Judiciary Powers.

He has made Judges dependent on his Will alone for the tenure of their offices, and the amount and payment of their salaries.

He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people and eat out their substance.

He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures.

He has affected to render the Military independent of and superior to the Civil Power.

He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation:

For quartering large bodies of armed troops among us:

For protecting them, by a mock Trial from punishment for any Murders which they should commit on the Inhabitants of these States:

For cutting off our Trade with all parts of the world:

For imposing Taxes on us without our Consent:

For depriving us in many cases, of the benefit of Trial by Jury:

For transporting us beyond Seas to be tried for pretended offences:

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies

For taking away our Charters, abolishing our most valuable Laws and altering fundamentally the Forms of our Governments:

For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.

He has abdicated Government here, by declaring us out of his Protection and waging War against us.

He has plundered our seas, ravaged our coasts, burnt our towns, and destroyed the lives of our people.

He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation, and tyranny, already begun with circumstances of Cruelty & Perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.

He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.

He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

Nor have We been wanting in attentions to our British brethren. We have warned them from time to time of attempts by their legislature to extend an unwarrantable jurisdiction over us. We have reminded them of the circumstances of our emigration and settlement here. We have appealed to their native justice and magnanimity, and we have conjured them by the ties of our common kindred to disavow these usurpations, which would inevitably interrupt our connections and correspondence. They too have been deaf to the voice of justice and of consanguinity. We must, therefore, acquiesce in the necessity, which denounces our Separation, and hold them, as we hold the rest of mankind, Enemies in War, in Peace Friends.

We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do. — And for the support of this Declaration, with a firm reliance on the protection of Divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

http://www.ushistory.org/declaration/document/

 

Welcome to CityTech Sites. This is your first post. Edit or delete it, then start blogging!