Rob
Sherman Advocacy
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Rob
Sherman Advocacy
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"Fighting injustice, one victory at a time."
As I was driving to the federal court house on Friday afternoon to file the lawsuit challenging the constitutionality of Chicago's municipal prayer service scheduled for this coming Wednesday, the cell phone rang. On the phone was one of Mayor Daley's top attorneys. She wanted to know, "Could we talk about this?"
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I responded that it had always been my preference to resolve the dispute without going to court. I would be more than happy to divert to her office, located in the fancy office building at 30 North LaSalle Street across the corner from City Hall, rather than going to the court house. We agreed to meet in about an hour, just as soon as I could make it the rest of the way downtown through the heavy Friday afternoon traffic. If a solution could not be achieved, the lawsuit could always be filed on Monday morning.
One of my two plaintiffs was going to meet me at the court house. I called him on the phone and asked him to meet me at the City Hall lawyer's office, instead.
The plaintiff and I met with three attorneys from the Commercial and Policy Litigation Division of the City of Chicago's Department of Law. The attorneys, Mardell Nereim, Lisa Fike and Tom Forgue, were very pleasant, courteous and professional.
Both sides agreed that the standard for determining the Constitutionality of the ceremony was the three-part "Lemon Test," in which the Supreme Court of the United States held that an action by government must have a secular purpose, must be neutral towards religion and must not excessively entangle government with religion. The Lemon Test is the fourth paragraph down in Roman Numeral II in the Supreme Court case Lemon v. Kurtzman, 403 U.S. 602 (1971).
The attorneys stated that it is the position of the City that the design of the ceremony is consistent with the Lemon Test. They asserted that commemorating the 9/11 tragedies constituted a secular purpose. They also asserted that there were only a few religious elements in a program that contained many secular components, so the program would be neutral towards religion and would not constitute an excessive entanglement between government and religion. For those reasons, they contended that the City would prevail in any litigation.
I did most of the speaking for our side. The plaintiff added important points, too.
I concurred that the program clearly met the first prong of the Lemon Test for the reason that they stated but, just as clearly, the program completely failed the other two prongs of the test, for the following reasons:
Mayor Daley personally stated at his news conference, and repeated in his press release, that prayer will be "the centerpiece" of the ceremony (see the sixth paragraph down in Mayor Daley's press release), and not just any prayer, but a prayer specifically created for this ceremony and selected by the Office of Special Events for inclusion in the ceremony. I told the city attorneys that making a specially-created prayer the centerpiece of a government ceremony, asking citizens to recite the prayer during the ceremony, asking churches to ring their church bells at a particular point during the ceremony, asking schools to suspend regular activity while the ceremony is going on so public school children will have the opportunity to recite the prayer in unison with everybody else, and then distributing the prayer to houses of worship throughout the city, is hardly being neutral towards religion.
The city attorneys countered that, despite the Mayor's statements to the contrary, the prayer really isn't the centerpiece of the ceremony because the prayer will only take up a few minutes of a ceremony that will last the better part of an hour, and that there would be other messages, such as poems, contained in the ceremony.
I responded that the prayer will, indeed, be the centerpiece for quite a number of reasons, which include the following:
First of all, the Mayor had gone out of his way to establish that the prayer will be the centerpiece. All of the newspapers picked up the Mayor's assertions and published it. Surely, the community has already been led to subscribe to that perspective, so denying it now is too little, too late.
Secondly, the prayer is the only one of the ceremony messages that is being printed and distributed to the audience. They're not duplicating and distributing any of the other messages. Only the prayer will be getting this favored, special treatment.
Thirdly, the prayer is the only message that the audience will join in reciting with the speaker at the podium.
Fourthly, the prayer is the only ceremony message that will be distributed to houses of worship throughout the city. They're not going to be distributing those poems to the houses of worship, are they? I don't think so.
So, even if the prayer will only take up a few minutes out of the 30-to-45 minute ceremony, it really is the centerpiece of the upcoming event. Denying that the prayer will be the centerpiece is merely an exercise in what we in Chicago call denying the obvious.
Furthermore, contending that its role as a centerpiece is diminished by the short amount of time taken up by the prayer is like saying that fireworks are not the centerpiece of the City's Fourth of July celebration (which actually takes place on July Third each year, so as not to compete with suburban celebrations). The fireworks may only last twenty minutes, and the Grant Park Symphony may play classical music for two hours before that, but that doesn't make the concert the centerpiece of the celebration. People don't come down to the Lakefront on July Third to watch a bunch of old guys play the violin. They come down to see the fireworks!
Similarly, when people come down to the Daley Center (Civic Center) Plaza this week on Wednesday to attend the memorial event, they won't be coming down to hear a bunch of poems. They'll be coming down to find out what's in the Chicago Prayer.
The city attorneys then offered to include a disclaimer stating that the religious views expressed in the prayer are those of the private party reciting the prayer and not the opinion of the City. I replied that such a statement would lack any credibility, whatsoever, because the prayer is called the Chicago Prayer of Hope, Unity and Remembrance. Why would the City refer to the prayer as The Chicago Prayer, make a special point of including it in a city program and repeatedly call it the centerpiece of that program if the opinions expressed in the prayer weren't fully and completely embraced by the city government? Are we really to believe that a copy of the prayer hasn't been shown to Mayor Daley and that he hasn't approved of its content? As I discussed in Friday's Liberal News & Commentary, Cardinal George was shown a copy of the prayer. Do you think a guy who calls himself His Eminence would be shown the prayer before Hizzoner was shown a copy?
After additional discussion, I made it clear that the only way that the City could come close enough to making the event constitutional was if the City took the prayer out of the ceremony. They responded that they were not authorized to remove the prayer from the ceremony. I thanked them for taking the time to meet with us, but said that we would file a lawsuit on Monday in federal court, asking that a judge rule on whether the city memorial ceremony as planned violated the First Amendment state/church separation requirement, and particularly whether the ceremony constituted government neutrality towards religion.
They thanked us for coming in and were effusive in complimenting me on the style and manner of my presentation. I assured them that I had similar admiration for them with regard to how they treated us at the negotiations.
The lawsuit will be filed tomorrow. I will attempt to obtain an electronic copy of the lawsuit from my attorney so that I can post a copy of it here at this website, complete with the names of the two plaintiffs. All of the news media, including CNN, have expressed substantial interest in the Rob Sherman Advocacy plaintiffs' lawsuit against Chicago, so there will be plenty of coverage from a variety of perspectives for you to look at.
It cost Rob Sherman Advocacy several thousand dollars to have the attorney produce the litigation documents. Now would be a really good time for you to show your support for my efforts by sending a check to Rob Sherman Advocacy. Thanks, in advance.
Rob Sherman P. O. Box
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