Troy council approves "National Day of Prayer" permit (again)

American Family Association of Michigan
NEWS RELEASE www.AFAMichigan.org

FOR IMMEDIATE RELEASE: Tuesday, April 19, 2005

CONTACT: Gary Glenn 989-835-7978
Troy City Manager 248-524-3330

Religious freedom groups threatened federal civil rights lawsuits

Troy council approves National Day of Prayer permit (again)

TROY, Mich. — After months of controversy, flip-flops, and threats of legal action, the Troy City Council at 2:00 a.m. Tuesday morning voted 4-to-3 to approve Councilman Dave Lambert’s motion to once again approve a local citizens group’s application for a permit to hold a National Day of Prayer ceremony May 5th at Veterans Plaza in front of city hall, the site of the same group’s event each of the last five years.

Lambert and city council members Cristina Broomfield, Jeanne Stine, and Martin Howrylack voted in favor of the permit, while Mayor Louise Schilling and council members Robin Beltramini and David Eisenbacher voted against it.

Gary Glenn, president of the American Family Association of Michigan, testified Monday night before city council, telling members that “the machinations of the last two months would lead a reasonable person to believe that some members of city council are guilty of willful collusion to deny the National Day of Prayer Task Force its constitutionally guaranteed religious freedom, free speech, and equal access rights.”

“After routinely allowing all manner of organizations to meet at Veterans Park, including this very same Christian prayer group each year for a decade, you cannot now arbitrarily deny the National Day of Prayer Task Force equal access to city hall,” Glenn said, “and cannot make the group’s free exercise of its constitutional rights contingent on the presence of other groups who share a different faith.”

“It’s not up to the mayor and city council to decide or dictate the terms under which private citizens can peacefully exercise their constitutional free speech rights, including on city property routinely allowed to be used as a public forum,” he said.

AFA-Michigan’s national legal affiliate last week faxed a formal demand letter to city hall advising Troy officials that if they continued to refuse to approve the permit, they would face a federal civil rights lawsuit.

“The National Day of Prayer group has a constitutional right to use the Veterans Plaza, and denial of the forum under these circumstances is unconstitutional,” wrote Steven M. Crampton, chief legal counsel fo rthe American Family Association Center for Law & Policy, headquartered in Tupelo, Mississippi. “We therefore demand that the City promptly grant the initial NDP application for permission to use Veterans Plaza and cease and desist from its efforts to interfere with the rights of the NDP group.”

“If we do not receive written confirmation of the City’s (approval) no later than close of business Tuesday, April 19, 2005, we shall have no choice but to seek relief in federal court,” Crampton wrote.

The city was also threatened with a lawsuit by the Thomas More Law Center of Ann Arbor.

Glenn praised the council’s approval of the meeting permit but said AFA-Michigan and its legal counsel will remain on alert until the May 5th event has come and gone. “Given the schitzophrenic, on-again, off-again nature of the city council’s position on the Day of Prayer event, we think it’s prudent to remain skeptical. With over two weeks to go before the event, it’s not over ’til it’s over.”

He was particularly critical of City Attorney Lori Grigg Bluhm, who at one point during Monday’s meeting told council members that their earlier rejection of the Christian group’s application was not “content discrimination” based on the group’s religious views, then later specifically said the reason it had been rejected was because the group was exclusively Christian. Even some council members seemed skeptical of Bluhm’s conflicting legal advice, Glenn said, and the majority avoided the threatened federal civil rights lawsuits only by refusing to follow Bluhm’s counsel.

Background

The Troy City Council April 4th had deadlocked 3-to-3 on a motion to approve a permit for the local chapter of the National Day of Prayer Task Force. City Council members Broomfield, Lambert, and Stine voted in favor of approving the permit, while Mayor Louise Schilling and Council members Beltramini and Eisenbacher voted against it. Council member Martin Howrylack was absent. (See April 4th Troy City Council minutes at: http://www.ci.troy.mi.us/council/Minutes/04042005-Draft.pdf)

City officials weeks earlier had initially rejected the group’s application for a meeting permit, then later reversed themselves, passing a single motion on March 28th that approved the National Day of Prayer group’s permit along with a second permit for a similar ceremony the same day by an “interfaith” group. (See March 28th Troy City Council minutes at: http://www.ci.troy.mi.us/council/Minutes/03282005-7.00-Special.pdf)

However, at its regular meeting April 4th, after the “interfaith” group balked at the arrangement and decided not to hold an event at city hall, the Troy City Council withdrew its approval of a permit for the National Day of Prayer group’s Christian event, instead adopting a resolution merely “inviting all residents and any groups” to use city parks and other property — but not Veterans Plaza — to mark the occasion.

Glenn said city officials “had taken the ludicrous position that a Christian group’s permit would be denied unless a permit for another group of different faiths was also approved; in other words, that the Christian prayer group has no constitutional right to meet at Veterans Plaza unless a non-Christian group meets the very same day. By that ‘politically correct’ reasoning, how can Mayor Schilling justify approving permits for only two groups unless she also recruits a local witches coven, a group of atheists, and representatives of every other variation of belief to hold ceremonies at city hall the same day?”

He said the city’s refusal to approve a freestanding permit for the National Day of Prayer Task Force “is part of a long pattern of insensitivity, disrespect, and intentional offense by Mayor Schilling toward this particular group of city residents.” He said when Schilling last year was invited to make opening comments for the 2004 prayer event, as previous mayors had traditionally done, the mayor intentionally offended the group by appearing only long enough to introduce and — without permission or prior notice — turn the microphone over to a representative from a local Hindu temple she had personally invited to attend.

“If Mayor Schilling doesn’t stop using her position and authority as mayor to implement a ‘politically correct’ personal agenda of hostility and disrespect toward this particular group of Christian citizens, we will ask a federal judge to provide her some ‘constitutionally correct’ instruction in the matter,” Glenn said prior to Monday’s meeting.


AMERICAN FAMILY ASSOCIATION
CENTER FOR LAW AND POLICY

April 13, 2005

VIA FACSIMILE (248-524-0851)

John Szerlag, City Manager

City of Troy
500 West Big Beaver
Troy, Michigan 48084

Re: Troy, Michigan National Day of Prayer Event

Dear Mr. Szerlag,

This firm represents Gary Glenn and the American Family Association of Michigan, including supporters who are local citizens of Troy. We have been asked to review the issue of the rights of Christians to hold a National Day of Prayer event at the Troy Veterans’ Plaza on May 5, 2005 from 12:00 noon to 1:00 p.m. (1)

It is our understanding that the City initially denied certain Christians a permit to hold the event at Veterans’ Plaza, then approved it along with a second meeting permit for a so-called “interfaith� group, then most recently revoked the Christian group’s permit when the “interfaith� group said it would not hold an event at Veterans Plaza. It is our opinion that the City’s denial of the forum constitutes a violation of the Christians’ First Amendment rights to free speech, the free exercise of their religion, and the right to peaceably assemble, as well as their Fourteenth Amendment right to equal protection under the law.

As the City Attorney correctly opined in her memorandum of March 1, 2005, the Troy Veterans’ Plaza almost certainly constitutes a public forum, because it has been used in the past for various events that were not City-sponsored, not the least of which is the National Day of Prayer (NDP) event itself, which has been held for ten consecutive years at the Veterans’ Plaza. (2)

Therefore, the NDP group has every right to use the forum, subject only to reasonable, content-neutral time, place and manner regulations. Of course, the City has not chosen to adopt any such regulations to date, and the forum was obviously available as of the date of the first request by the NDP. Under these circumstances, denial of the use of the forum solely because a Judeo-Christian viewpoint will be expressed constitutes not government neutrality, which the Establishment Clause requires, but government hostility, which the Establishment Clause forbids. See, e.g., Board of Education v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (“There is a crucial difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.�); see also Westside Community Schools v. Mergens, 496 U.S. 226, 248, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990) (“if a State refused to let religious groups use facilities open to others, then it would demonstrate not neutrality but hostility toward religion�).

As you should know, a similar case was recently decided by the United States Supreme Court. In Good News Club v. Milford Central School, 533 U.S. 98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001), a local school board was held to have violated the First Amendment by refusing to allow a private Christian organization to use its facilities after hours to sing songs, hear Bible lessons, memorize scripture, and pray. Like the City here, the school board did not want the facility used for purposes of religious worship. Like the City, the school board permitted use of the facility for other civic and recreational uses. The Supreme Court held that the school could not constitutionally prohibit the club from use of the facility solely because the club viewed things from a religious perspective, and permitting the club to meet there would not violate the Establishment Clause. Accord, Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S.Ct. 2141, 124 L.Ed.2d 352 (1993).

We understand the City’s concerns that it not violate the Establishment Clause. However, such concerns do not allow the City to run roughshod over the free speech and free exercise of the NDP group here. Indeed, we believe the NDP group has an even greater right to access the Veterans’ Plaza than did the church in Lamb’s Chapel, because in addition to free speech rights, the NDP group has claims under the free exercise and free assembly clauses as well. Such claims were absent from the Lamb’s Chapel case.

It certainly defies logic to argue that merely permitting private citizens to use Veterans’ Plaza for their own purposes somehow results in the establishment of a religion. Any reasonable observer would conclude that mere use of the facility by a private group does not ipso facto transform the viewpoints expressed into government speech, especially when the history of the forum is considered. Moreover, in light of the Supreme Court precedent directly on point, further denial of the clearly established rights of the NDP group may result in the imposition of punitive damages against City officials in their individual capacity.

In conclusion, based upon the facts as we know them, the National Day of Prayer group has a constitutional right to use the Veterans’ Plaza, and denial of the forum under these circumstances is unconstitutional. We therefore demand that the City promptly grant the initial NDP application for permission to use Veterans’ Plaza, and cease and desist from its efforts to interfere with the rights of the NDP group.

In light of the urgency of this matter, if we do not receive written confirmation of the City’s action no later than close of business Tuesday, April 19, 2005, we shall have no choice but to seek relief in federal court.

Sincerely,

Stephen M. Crampton
Chief Counsel

SMC:st

cc: Mr. Gary Glenn

(1) We have not been retained by the Troy National Day of Prayer Christian Task Force and instead write independently on behalf of the clients identified above, who individually and collectively have a valid interest in safeguarding the general constitutional principles and rights at issue against violations by the City that may encourage government officials in other communities in Michigan to similarly violate such rights.

(2) The after-the-fact attempts by the City and its counsel to now argue that the Plaza is not a public forum are of no legal effect. The fact is that the history of the location emphatically establishes its status as a public forum, and once so established, the City is without power to unilaterally designate it something different.

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