Petition for Writ of Certiorari — Okwedy v. Molinari (No. 06-676)

Supreme Court brief2007

Ask Donna

What actually matters in this document.

Text

(9) Suprame Court, U.S.

Ay ahh as

No.

| | 96-676 NOV 13 2006

In The OFFICE OF THE CLERK

Supreme Court of the Anited States

KRISTOPHER OKWEDY and

KEYWORD MINISTRIES, INC.,

Petitioners,

GUY V. MOLINARI, individually and in his

official capacity as President of the Borough of

Staten Island, New York, PNE MEDIA. LLC,

Respondents.

> a

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

STEPHEN M. CRAMPTON

Counsel of Record

BRUCE W. GREEN

BRIAN FAHLING

MICHAEL J. DEPRIMO

AFA CENTER FOR LAW & POLICY

100 Parkgate Drive, Suite 2-B, Post Office Drawer 2440

Tupelo, MS 38803

(662) 680-3886

Attorneys for Petitioners

COCKLE LAW BRIEF PRINTING CQ) sti) 225-0904

OR CALL COLLECT (402) 542-283)

QUESTION PRESENTED

Whether the City of New York violated the Establish-

ment Clause prohibition against hostility toward religion

when it condemned a message on a billboard containing

quotes taken directly from the Bible as “bigoted,” “intoler-

ant” and “unwelcome,” and as conveying “bigoted views,”

among other things?

PARTIES TO THE PROCEEDING

Petitioners are Rev. Kristopher Okwedy, an ordained

minister, and Keyword Ministries, Inc., a not-for-profit

corporation organized and existing under the laws and

constitution of the State of New York (collectively, “Ok-

wedy”). Respondent is the City of New York, New York.’

" Petitioners had originally sued Guy V. Molinari, then President of

the Borough of Staten Island, in both his official and individual

capacities, and PNE Media, LLC. The claims against Mr. Molinari in

his individual capacity were subsequently dismissed, and Petitioners

settled their claims against PNE.

TABLE OF CONTENTS

Page

QUESTION PRESENTED ....ccccorcvocsscssseovosesssversonseneeeoes i

PARTIES TO THE PROCEEDING ..............c:cccsseeeeees ae

TA Sr BU ee Ee cer csscicnrsinnsiecemcnemevionsiatens Vv

PETITION FOR A WRIT OF CERTIORARI................. 1

ee SN i inisatcseticsesnibansniniegecetnincaiincnsabiniadinniin 1

FF i wiitnuiinisciiinsincisieniiaiiitenupibveciivaniaaciaaaaniaieaitaie 1

CONSTITUTIONAL AND STATUTORY PROVI-

SIE stsiconciidibhaneninsipiinénianiciaiaantaneaealionniaaiamadamabenan 1

Be EE sitvsiscrvcnasiisdsitseicsnaeentinasiiinininebicaaaecaanel 2

REASONS FOR GRANTING THE PETITION............. 7

I. THE SECOND CIRCUIT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW

THAT HAS NOT BUT SHOULD BE SET-

TRA? EEE SERRA SURE coitetzetciermeginimmmanate

A. The Principle of Government Neutrality

Toward Religion Is Well Established ..........

B. Although Cases Holding that the Govern-

ment Has Violated the Establishment

Clause by Official Promotion of Religion

Abound, the Parameters Governing Gov-

ernment Hostility Against Religion Are

PE Be sicccssiicecstuninpsivonraccaneneniasieien

C. The Growing Tension Between Broadly

Worded Laws Against Discrimination and

the Right to Proselytize and Express Reli-

gious Beliefs Should Be Addressed by This

GIT i ceciisianacebrnndseeeuetaonsa baliantoaaieeiieds

TABLE OF CONTENTS - Continued

Page

Il. THE DECISION OF THE SECOND CIRCUIT

CONFLICTS WITH THE LAW OF THIS

COURT AND OF OTHER CIRCUITS................ 14

A. The Second Circuit Decision Conflicts with

Decisions of This Court ..........cccscccrsccscessceees 15

B. The Second Circuit Decision Conflicts with

Decisions from Sister Circuits..................0.. 17

ET sissnsdiioni sinc teutenivenbiineciiceioininiambiaienseaininein 19

TABLE OF AUTHORITIES

Page

CASES

American Family Ass’n, Inc. v. City and County of

San Francisco, 277 F.3d 1114 (9th Cir.), cert. de-

A BIT EAs TD ID cc cecisacanansvesnnncepasianaenvveneeves 9,12

Board of Educ. of Kiryas Joel Village Sch. Dist. v.

Grumet, 512 U.S. 687, 114 S.Ct. 2481, 129

Fe eC deissincrcnudstcnudidninssnciulocriamaticumiians 15, 16

Boy Scouts of America v. Dale, 530 U.S. 640, 120

S.Ct. 2446, 147 L.Bd.2d 554 (2000) ...................ssssecenees 12

Brown v. Polk County, Iowa, 61 F.3d 650 (8th Cir.

EE hcscccinsiisvsckeiibaniisdadedbeianaidestce an etaameiemoenedal AE, i7

Buono v. Norton, 212 F.Supp.2d 1202 (C.D.Cal.

2002), aff’d, 371 F.3d 543 (9th Cir. 2004).......... eee 9

Chandler v. James, 180 F.3d 1254 (11th Cir. 1999).......... 17

Chandler v. Siegelman, 230 F.3d 1313 (11th Cir.

2000), cert. denied, 533 U.S. 916 (2001) ...................02 17

Church of the Lukumi Babalu Aye, Inc. v. City of

Peiaeehs, GODT. BE CLOG) wcesesncccvccecessosinccconssssnvecs 8, 10

Committee For Public Ed. and Religious Liberty v.

Nyquist, 413 U.S. 756, 93 S.Ct. 2955 (1973)... 11

County of Allegheny v. American Civil Liberties

Union Greater Pittsburgh Chapter, 492 U.S. 573

(1989) 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) .....8, 9, 15

Doe v. Santa Fe Independent School Dist., 168 F.3d

I i Fe etna is viihacccapedideeeriztnicehisetionmiaaten 18

Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1,

GF CE, BOG, SE Ka Bee. TEE CRE i vccivcsictitentsinesnsastcssuanecen 16

TABLE OF AUTHORITIES -— Continued

Page

Granzeier v. Middleton, 955 F.Supp. 741 (E.D.Ky.

1997), aff’d on other grounds, 173 F.3d 568 (6th

INL: SAP TIITIED siicsaudsietsoiatiniandnnciocaeianagbadaanichciianialedpaetinaidianiisdpadbineaGin 9

Lawrence v. Texas, 5389 U.S. 558, 123 S.Ct. 2472,

Se ee ee IN Seiitdscpsnticcieconeiiinicichinibaiticialacceapbiiietias 13

Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120

cm Ne A SUIT iessihsstttssieesinicnieniceeetninsacccansaiabicestiiicities 10

Lemon v. Kurtzman, 403 U.S. 602 (1971)......... cee eeeeeeee 6,12

Linnemeir v. Board of Trustees of Purdue Univ., 260

ee ee 6 A Ne IB isnicetdiddicshabvevincieeccniicbinecommesene 17

Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79

I I a ce ice ah lid hese iedet eins 10, 17

McCreary County, Ky. v. American Civil Liberties

Union of Ky., 125 S.Ct. 2722 (2O0S).....scscvescrccseeescccsseceses 8

McDaniel v. Paty, 435 U.S. 618 (1978) ....... ce eeeeeees 10, 11

Okwedy v. Molinari, 150 F.Supp.2d 508 (E.D.N-Y.

2000), aff’d in part and rev'd in part, 333 F.3d

339 (2d Cir. 2003), 69 Fed.Appx. 482, 2003 WL

21492487 (2d Cir. 2003), and 2006 WL 2374263

SII xsssicscnkconentcadasinaasnnbadnsiicaneasatanane 1, 3, 5, 6,

Peck v. Baldwinsville Central School Dist., 426 F.3d

SE Sa a SI viccissccedsensctaincaciiineenacdaaiuceeisinieninaneias

Robinson v. Edmond, 68 F.3d 1226 (10th Cir. 1995).........

Rosenberger v. Rector & Visitors of Univ. of Va., 515

U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995)........

Santa Fe Independent School Dist. v. Doe, 530 U.S.

EE ED cistinicieshicanenicaineseeeiaensdabiiniebiianaiiasiiedlebeldamacaniiiis

Saxe v. State College Area Sch. Dist., 240 F.3d 200

SE ANNE UIE ies essissunscesne-sitisiccedeibshebeindun iteabaasiaiaedeaaaliaea

TABLE OF AUTHORITIES — Continued

Page

School Dist. of Abington Township v. Schempp, 374

ee Se 6 ee witctscasiseiinbiniiediadinninaticuincisidiuigadeses 7, 13, 16

Simpson v. Chesterfield County Bd. of Supervisors,

292 F. Supp.2d 805 (E.D.Va. 2003), aff’d in part,

rev'd in part, 404 F.3d 276 (4th Cir.), cert. denied,

Fe a Se Ne ieiibenice a saccinibeseceniaiintbinsiacsichinmanieiiiniis 18

Startzell v. City of Philadelphia, 2006 WL 1479809

TG Ey TE ubilkniinccdiesatnciilesimacctsonaesakiinaisiddioldsiglatiatsiaiel 13

Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999)...............00 11

Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854,

I TB eT Ce iatsciisineniihatintiaiindcinenceninaiiines 8,9

Wallace v. Jaffree, 472 U.S. 38, 105 S.Ct. 2479, 86

Bog Re See PIED ceschicssnisatraschicondestociusieilaadbbanaieamamacntien 8,15

West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624, 63 S.Ct. 117, 87 L.Ed. 1628 (1948)................ 14

X-Men Sec., Inc. v. Pataki, 196 F.3d 56 (2d Cir.

BD viincsralscinsssiaibuipeshshnscdaceiibaditieigebcip acti aisle tinibaaehaiacaa Aaeaaatas 14

Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct.

BOBO, 15D FT BG Ge cecctcsieceniscnsvscssveivercecisetcntens 8

STATUTES AND RULES

es Ae Ed cicteahsvcieledincevastennciiarhighsendinimalbgiaainhitaniaetibaaiaanes 1

D.C. Code, Art. I, Bill of Rights (2001 Ed.)...........0.... 13

Conn. Gen. Stat. Ann. § 4a-60a (1991) 0.0... eee eeeeeeeeeeees 12

Baar. Taow. Dhak. § BOB-1 (IGG GD wescicrvesivccvssstnccsencvsscsenenecsnves 12

Me. Rev. Stat. Ann. § 4552 (2005)................-scccsseeceeeeeeeeees 12

Mass. Gen. Laws Ann. 272 § 98 (1989)..............csseeeeee 12, 13

Vili

TA ..° OF AUTHORITIES — Continued

Page

Md. Code, Art. 49B, § 5 (2004)............cccccccccscscocessosescoseoee 12

Minn. Stat. Ann. § 363A.02 (2002) oo... eeesssecceseeeeeees 13

Nev, Rev. Stat. 253.010 (1BG1) ...0...ccscescsoosesvcevsceesesscoosevers 13

N.J. Stat. Ann. 10:5-3; N.M. Stat. Ann. § 28-1-7

CED scocaxvirsvsinsinconixnramentonsitesiane suntan pi cisaisintnitatiaaelas 13

PES, BGmh, Ripe, 9 BB DT CRF cen csccccictsctcncsmnnverprectnnteics 13

N.Y. Civ. Rights Law § 40-c; R.I. Gen. Laws § 11-24-

DC dcncitsniictiihaniaieaictedtnenbiiiin andinmmminit ies ate 13

R.1. Gen. Laws § 11-242 (19GG)......cscscccccorssessvocsssveceseseccses 13

Wh. SCR, Fm, F Ge CE ivcisatttvitasetivndintcmcscieomaareamedens 13

OTHER AUTHORITIES

Andrew R. Cogar, Note, Government Hostility to

Religion: How Misconstruction of the Establish-

ment Clause Stifles Religious Freedom, 105 W.

Wie, Ris Te BS stecssrncicsvrctwcscsnisiesnadbetschearnccenonts i, 12

New York City Admin. Code § 8-101...................ceeeeeee 2, 3,6

Wash. Rev. Code § 49.60.010 et seq. (2006)... eee 13

PETITION FOR A WRIT OF CERTIORARI

The undersigned counsel of record, on behalf of

petitioners Kristopher Okwedy and Keyword Ministries,

Inc., respectfully petitions that a writ of certiorari issue to

review the judgment of the United States Court of Appeals

for the Second Circuit.

OPINIONS BELOW

The initial opinion of the district court is reported at

150 F.Supp.2d 508 (E.D.N.Y. 2000). On the first appeal,

the Second Circuit issued two opinions of which one is

reported at Okwedy v. Molinari, 333 F.3d 339 (2d Cir.

2003); the second was unreported, but may be found at 69

Fed.Appx. 482, 2003 WL 21492487 (2d Cir. 2003). The

opinion of the district court after remand is unreported.

The Second Circuit’s summary order may be found at 2006

WL 2374263 (2d Cir. 2006).

JURISDICTION

The judgment of the court of appeals was entered on

August 15, 2006. App. 1. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS

The First Amendment to the United States Constitu-

tion, which has been held to apply against the States and

their political subdivisions, provides in relevant part that

“Congress shall make no law respecting an establishment

of religion, or prohibiting the free exercise thereof; or

abridging the freedom of speech, or of the press. ... ” The

pertinent provisions of the Citys Human Rights Law,

N.Y.C. Admin. Code § 8-101 et seq., are as follows:

In the city of New York, ... there is no greater

danger to the health, morals, safety, and welfare

of the city and its inhabitants than the existence

of groups prejudiced against one another and an-

tagonistic to each other because of their actual

or perceived differences, including those based

on race, color, creed, ... sexual orientation....

The council hereby finds and declares that preju-

dice, intolerance, bigotry, and discrimination ...

threaten the rights and proper privileges of its

inhabitants and menace the institutions and

foundations of a free democratic state.

See App. 25 (Opinion and Order at 5).

STATEMENT

This case involves the tension between a policy pro-

hibiting discrimination on the basis of sexual orientation

and religious speech describing homosexual conduct as

sinful. Acting pursuant to a general policy against dis-

crimination and, according to the repeated representations

of the City’s legal counsel, pursuant to its Human Rights

Law, the City condemned Okwedy’s religious message.

* The City maintained this position consistently throughout five

years of litigation. See, e.g., App. 22, 58. On the second appeal, however,

the City suddenly reversed itself and contended that the representa-

tions of counsel were inadvertent, and that it had not acted pursuant to

(Continued on following page)

Indeed, the City admitted without reservation that its

“actions had the intended secular effect of curtailing

intolerant pronouncements to the general populace of

Staten Island.” App. 58.

Okwedy’s message was contained on two billboards

he rented on Staten Island, on which the following was

expressed:

Word on the Street

4 WAYS TO SAY LEVITICUS 18:22

THOU SHALL NOT LIE WITH MANKIND AS

WITH WOMANKIND; IT IS ABOMINATION

(KING JAMES)

YOU SHALL NOT LIE WITH A MALE AS WITH

FEMALE; THAT WILL BE LOATHSOME

(JAMES MOFFAT) :

DO NOT LIE WITH A MAN AS WITH A

WOMAN; IT IS DETESTABLE (BERKLEY

VERSION)

HOMOSEXUALITY IS ABSOLUTELY FOR-

BIDDEN FOR IT IS AN ENORMOUS SIN (LIV-

ING BIBLE)

I AM YOUR CREATOR.’

§ 8-101. The Second Circuit accepted the City’s argument and ruled

that § 8-101 was not implicated here. See 2006 WL 2374263 at *1

(finding statements of defense counsel were “legal theories rather than

facts”). Okwedy disputes that ruling, but asserts that regardless

whether the policy is rooted in § 8-101 or in the City’s general policy

against discrimination, its actions constituted a violation of the

Establishment Clause and/or Okwedy’s Free Speech and Free Exercise

rights.

> Okwedy v. Molinari, 333 F.3d 339, 341 (2d Cir. 2003).

The billboards were posted in early March, 2000.

| Within days, Molinari joined a growing chorus of offended

citizens and publicly declared the signs “mean-spirited.”

See, e.g., 35, 38, 41. Shortly thereafter, Molinari faxed a

letter to PNE, the owner of the billboard, on official Staten

Island letterhead and signed in his capacity as Borough

President, stating that the quoted Bible verse “is com-

monly invoked as a biblical prohibition against homosexu-

ality.” The letter also stated that he and others found the

message “unnecessarily confrontational and offensive.” He

then wrote: “As Borough President of Staten Island I want

to inform you that this message conveys an atmosphere of

intolerance which is not welcome in our Borough.” App. 9-

10 (Opinion and Order at 2-3). He further stated that PNE

owned “a number of billboards on Staten Island,” and

derived “substantial economic benefits” from them, and

urged PNE to contact Daniel Master, Molinari’s legal

counsel and Chair of his Anti-Bias Task Force. Id.

Prior to sending the letter, Master and others in

Molinari’s office had placed numerous phone calls to PNE

to discuss the content of the billboards, but were unable to

reach a representative.

Subsequent to Molinari’s public comments and the

same day Molinari’s letter was sent, PNE removed the

billboards, breaching its contract with Okwedy. PNE also

released Pastor Okwedy’s name to the media, resulting in

a frenzy of calls, interviews, and hate mail. App. 29.

Okwedy was insulted, threatened, and sent a suspicious

package he and his wife believed might contain a bomb.

When he contacted the City police, however, they refused

to come investigate, instructing him instead to simply

open the package.’ App. 28.

Once Okwedy’s name was revealed, the City sent two

detectives from the Bias Crimes Unit to Keyword Minis-

tries. Although Rev. Okwedy was not there, the two

interrogated Okwedy’s wife and brother-in-law about the

church’s doctrines and teachings on the subject of homo-

sexuality. App. 26-29, 32-34. The inquiry was prompted by

complaints about the biblical quotes on Okwedy’s signs,

and was investigated as a possible hate crime. Jd. The men

made offensive comments about Rev. Okwedy’s national

origin (Nigeria), and asked why Keyword Church placed

the Bible verse on the billboards. Jd. Although Rev. Ok-

wedy had received threatening messages and even death

threats,” these police officers never asked about them. App.

28.

Initially, the lower court dismissed the complaint

against all parties, finding Molinari’s letter “within the

boundaries of permissible expression by public officials

that the Second Circuit has recognized.” 150 F.Supp.2d

508, 514. The court also held that there was no Establish-

ment Clause violation because the letter “condemns the

‘intolerance’ of the message” but “expresses no hostility

toward plaintiffs’ religion or any other religion.” Jd.

* Okwedy refused, and eventually a bomb squad was dispatched. In

the end, the package was found to contain sexually explicit homosexual

magazines. App. 28.

* Among the threats received by Rev. Okwedy was the following:

“You f---ing nigger, go back to your country, I’m going to kill you, we’re

coming to get you.” App. 42.

On the first appeal, the Second Circuit affirmed on all

grounds but one, reversing and remanding on the free

speech claim to allow discovery as to whether there was

any coercion by the government in obtaining removal of

the billboards. See Okwedy, 333 F.3d at 340-41. On the

Establishment Clause claim, tue court held that since

there was no “denominational preference” or violation of

the Lemon test,” the dismissal should be affirmed. Jd.

On remand, Okwedy amended the complaint to

challenge the facial constitutionality of Section 8-101, the

Human Rights Law, on which the City had claimed to rely

in condemning Okwedy’s message and which both the

lower court and the Second Circuit had cited as authority

for the City’s actions. See App. 4. After discovery, the

district court granted summary judgment for both the City

and PNE, and denied leave for Okwedy to amend a second

time, deeming the exercise futile. App. 20.

On the second appeal, the Second Circuit affirmed. In

its summary order, the court found that the City had not

acted pursuant to § 8-101, despite its own prior determina-

tion that “Molinari acted pursuant to the general policy

against ‘intolerance’ and ‘bigotry’ expressed in New York

law and the New York City Administrative Code § 8-101.”

See 69 Fed.Appx. 482, 484. It further held that even if the

City had acted pursuant to a policy when it criticized

Okwedy’s speech, it would not have violated the Constitu-

tion. App. 4.

* The Second Circuit, however, engaged in no analysis of the three-

pronged test set forth in Lemon v. Kurtzman, 403 U.S. 602, 29 L.Ed.2d

745, 91 S.Ct. 2105 (1971).

REASONS FOR GRANTING THE PETITION

I. THE SECOND CIRCUIT HAS DECIDED AN

IMPORTANT QUESTION OF FEDERAL LAW

THAT HAS NOT BUT SHOULD BE SETTLED

BY THIS COURT.

While repeatedly acknowledging that the Establish-

ment Clause prohibits hostility toward religion, this Court

has not squarely addressed the types of conduct that

constitute such hostility. And, although lower federal

courts carefully scrutinize claims of endorsement of

religion and find in them Establishment Clause violations

with hair-trigger sensitivity, the same is not true of hostil-

ity claims.

The lack of decisions holding that government acted

with hostility toward religion is significant at this time

because conflicts between governmental conduct and

expression protective of a certain segment of society on one

hand, and religious adherents seeking to express them-

selves and proselytize on the other, is increasing at an

alarming rate. The question naturally arises, May gov-

ernment further its interest in preventing discrimination

by condemning religious beliefs and curtailing religious

expression? The question begs for an answer from this

Court.

A. The Principle of Government Neutrality

Toward Religion Is Well Established.

It has long been held that the government’s attitude

toward religion must be one of “wholesome neutrality.”

School Dist. of Abington Tp., Pa. v. Schempp, 374 U.S. 208,

222, 83 S.Ct. 1560, 10 L.Ed.2d 84 (1963). “The First

Amendment forbids an official purpose to disapprove of a

particular religion or of religion in general.” Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520,

532, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (citations

omitted).

“[Glovernment must not make a person’s religious

beliefs relevant to his or her standing in the political

community by conveying a message ‘that religion or a

particular religious belief is favored or preferred.’” County

of Allegheny v. American Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573, 627, 109 S.Ct. 3086, 106

L.Ed.2d 472 (1989) (O’Connor, J., concurring in part and

concurring in judgment) (quoting Wallace v. Jaffree, 472

U.S. 38, 70, 105 S.Ct. 2479, 86 L.Ed.2d 29 (1985)

(O'Connor, J., concurring in judgment)). “Manifesting a

purpose to favor one faith over another, or adherence to

religion generally, clashes .with the ‘understanding,

reached ... after decades of religious war, that liberty and

social stability demand a religious tolerance that respects

the religious views of all citizens... .’” McCreary County,

Ky. v. American Civil Liberties Union of Ky., 125 S.Ct.

2722, 2733 (2005) (quoting Zelman v. Simmons-Harris,

536 U.S. 639, 718, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002)

(Breyer, J., dissenting)).

B. Although Cases Holding that the Govern-

ment Has Violated the Establishment

Clause by Official Promotion of Religion

Abound, the Parameters Governing Gov-

ernment Hostility Against Religion Are

Woefully Lacking.

As recently observed in the case of Van Orden v. Perry,

“this Court’s precedent permits even the slightest public

recognition of religion to constitute an establishment of

religion.” IJd., 545 U.S. 677, __, 125 S.Ct. 2854, 2866

(2005) (Thomas, J., concurring) (citing Granzeier v. Mid-

dleton, 955 F.Supp. 741, 743, and n. 2, 746-747 (E.D.Ky.

1997), aff’d on other grounds, 173 F.3d 568, 576 (6th Cir.

1999) (sign at courthouse alerting public that building was

closed for Good Friday and containing crucifix held uncon-

stitutional); Buono v. Norton, 212 F.Supp.2d 1202, 1204-

1205, 1215-17 (C.D.Cal. 2002), aff’d, 371 F.3d 543 (9th Cir.

2004) (cross erected to honor World War I veterans in the

Mojave Desert Preserve violated Establishment Clause);

and Robinson v. Edmond, 68 F.3d 1226 (10th Cir. 1995)

(city seal)).

Such claims may be raised by mere passersby who are

“free to ignore [such symbols or signs], or even to turn

their backs, just as they are free to do when they disagree

with any other form of government speech.” County of

Allegheny v. American Civil Liberties Union, Greater

Pittsburgh Chapter, 492 U.S. 573, 664, 109 S.Ct. 3086, 106

L.Ed.2d 472 (1989) (Kennedy, J., concurring in part and

dissenting in part).

By contrast, Okwedy and others similarly situated

cannot ignore the hostile actions of the government di-

rected against them. Indeed, they are typically singled out

and targeted by the government. In this very case,

Okwedy sought only to communicate with his fellow

citizens; he took no action toward the government. Yet he

found himself at the center of a concerted effort to silence

his religious speech, led by high-level City officials. See

also American Family Ass’n, Inc. v. City and County of

San Francisco, 277 F.3d 1114, 1119, 1122-23 (9th Cir.),

cert. denied, 537 U.S. 886 (2002) (upholding resolution

condemning Christian ministries’ “hateful rhetoric

against gays” in their “Truth in Love” campaign seeking

to proselytize homosexuals; holding that primary effect of

resolution was not hostility, but “encouraging equal rights

for gays and discouraging hate crimes”).

This Court has unequivocally asserted on numerous

occasions that just as the government may not promote

religion, neither can it demonstrate hostility toward

religion. See, e.g., Rosenberger v. Rector & Visitors of Univ.

of Va., 515 U.S. 819, 845-46, 115 S.Ct. 2510, 132 L.Ed.2d

700 (1995) (denying access to private speaker on basis of

religious viewpoint “risk[s] fostering a pervasive bias or

hostility to religion, which could undermine the very

neutrality the Establishment Clause requires”); Church of

the Lukumi Babalu Aye, supra, 508 U.S. 520, 532 (“[tlhe

First Amendment forbids an official purpose to disapprove

of a particular religion or of religion in general”); Lee uv.

Weisman, 505 U.S. 577, 589, 112 S.Ct. 2649, 120 L.Ed.2d

467 (1992) (“The First Amendment’s Religion Clauses

mean that religious beliefs and religious expression are too

precious to be either proscribed or prescribed by the

State”); Lynch v. Donnelly, 465 U.S. 668, 673, 104 S.Ct.

1355, 79 L.Ed.2d 604 (1984) (the Constitution “affirma-

tively mandates accommodation, not merely tolerance, of

all religions, and forbids hostility toward any. ... Indeed,

as we have observed, such hostility would bring us into

‘war with our national tradition as embodied in the First

Amendment’s guaranty of the free exercise of religion.’”)

(citations omitted); id., 465 U.S. at 692 (“What is crucial is

that a government practice not have the effect of commu-

nicating a message of government endorsement or disap-

proval of religion.”) (O’Connor, J., concurring) (emphasis

added); McDaniel v. Paty, 435 U.S. 618, 641 (1978) (“The

Establishment Clause does not license government to treat

religion and those who teach or practice it, simply by

virtue of their status as such, as subversive of American

ideals and therefore subject to unique disabilities.”)

(Brennan, J., concurring in judgment); Committee For

Public Ed. and Religious Liberty v. Nyquist, 413 U.S. 756,

788, 93 S.Ct. 2955, 2973 (1973) (“our cases require the

State to maintain an attitude of ‘neutrality, neither

‘advancing’ nor ‘inhibiting’ religion”).

Yet despite the consistent recognition by this Court of

the impropriety of exhibiting hostility toward religion,

cases squarely holding that a government action or pro-

nouncement was unconstitutional on that basis are virtu-

ally non-existent. See Peck v. Baldwinsville Central Sch.

Dist., 426 F.3d 617, 635 (2d Cir. 2005) (dismissing kinder-

gartner’s hostility claim resulting from school district’s

censorship of environmental poster depicting Jesus Christ

as “the only way to save our world” because, among other

reasons, district sought to avoid appearance of endorse-

ment of religion); Strout v. Albanese, 178 F.3d 57, 60-64

(1st Cir. 1999) (rejecting assertion that excluding sectarian

schools from a tuition program demonstrated hostility

toward religion); but see Brown v. Polk County, Iowa, 61

F.3d 650, 658-59 (8th Cir. 1995) (en banc) (order by county

supervisor to employee to “cease any activities that could

be considered to be religious proselytizing, witnessing, or

counseling” held to exhibit “a hostility to religion that our

Constitution simply prohibits”).

The tacit message communicated to government

officials by lower federal courts seems to be that while

hostility is theoretically proscribed, in practice it is almost

never transgressed. See Andrew R. Cogar, Note, Govern-

ment Hostility to Religion: How Misconstruction of the

Establishment Clause Stifles Religious Freedom, 105 W.

Va. L. Rev. 279, 307-10 (2002) (arguing that Lemon test is

ill-suited to religious discrimination and hostility claims).

C. The Growing Tension Between Broadly

Worded Laws Against Discrimination and

the Right to Proselytize and Express Re-

ligious Beliefs Should Be Addressed by

this Court.

In spite of the reluctance on the part of the courts to

find impermissible government hostility toward religion,

there is an unmistakable and increasing tension between

religious freedom and the continued expansion of non-

discrimination laws. See, e.g., Boy Scouts of America v.

Dale, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000)

(New Jersey Law Against Discrimination as applied to Boy

Scouts impermissibly infringed right of expressive associa-

tion); Saxe v. State College Area Sch. Dist., 240 F.3d 200,

215 (3d Cir. 2001) (school district’s anti-harassment policy

prohibiting “unwelcome verbal, written or physical con-

duct which offends, denigrates or belittles an individual

because of” one of the enumerated characteristics, which

included “sexual orientation,” declared facially unconstitu-

tional on challenge by Christian parents and students

seeking to share their faith); American Family Ass’n, Inc.,

supra, 277 F.3d 1114 (municipality’s interest in prohibiting

discrimination justified criticism of religious message).

The wave of new statutes granting legal protection

from discrimination on the basis of sexual orientation

places citizens of faith in peril.’ Their deeply held religious

’ See, e.g., Conn. Gen. Stat. Ann. § 4a-60a (prohibiting discrimina-

tion in contracts with the government); Haw. Rev. Stat. § 368-1 et seq.;

5 Me. Rev. Stat. Ann. § 4552; Md. Code, Art. 49B, § 5; Mass. Gen. Laws

(Continued on following page)

convictions are increasingly labeled hateful, homophobic

and discriminatory. The rights of well-meaning religious

citizens to proselytize are minimized and infringed in the

name of preventing discrimination. For example, hate

crime laws have also been employed to criminalize the

expression of religious beliefs. See, e.g., Startzell v. City of

Philadelphia, 2006 WL 1479809 (E.D.Pa. 2006) (Chris-

tians attempting to proselytize peacefully at gay pride

“Outfest” event in downtown Philadelphia arrested and

charged with eight different crimes, including “ethnic

intimidation,” a felony).

As our nation continues to embrace tolerance and

diversity, there is a corresponding intolerance for certain

religious convictions. Few topics elicit a more heated

response today than religion in the public square. Al-

though the majority is certainly free to enshrine tolerance

as the highest virtue, it must never be permitted to in-

fringe the rights of the minority to peacefully express their

views, however unpopular. The Free Exercise clause “has

never meant that a majority could use the machinery of

the State to practice its beliefs.” Schempp, supra, 374 U.S.

203, 226.

Open and robust debate on the issues of the day has

been the cornerstone of our republic. But since this Court’s

ruling in Lawrence v. Texas,* the spark of polarization has

Ann. 272 § 98 (public accommodations); Nev. Rev. Stat. 233.010; Minn.

Stat. Ann. § 363A.02; N.J. Stat. Ann. 10:5-3; N.M. Stat. Ann. § 28-1-7

(1978); N.Y. Civ. Rights Law § 40-c; R.1. Gen. Laws § 11-24-2 (1956); 9

Vt. Stat. Ann. § 4503 (housing); Wash. Rev. Code § 49.60.010 et seq.;

D.C. Code, Art. I, Bill of Rights (2001 Ed.). Municipal codes too numer-

ous to list provide similar protections.

* 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003).

ignited the culture war as never before. Allowing one side

to silence the opposition risks the establishment of a de

facto orthodoxy of belief on the great issues unless this

Court acts. In the end, this heavy-handed methodology

benefits no one: “Those who begin coercive elimination of

dissent soon find themselves exterminating dissenters.

Compulsory unification of opinion achieves only the

unanimity of the graveyard.” West Virginia State Bd. of

Educ. v. Barnette, 319 U.S. 624, 641, 63 S.Ct. 117, 87 L.Ed.

1628 (1943).

Il. THE DECISION OF THE SECOND CIRCUIT

CONFLICTS WITH THE LAW OF THIS COURT

AND OF OTHER CIRCUITS.

Certiorari should also be granted here because the

decision of the Second Circuit conflicts both with previous

decisions of this Court and with decisions of her sister

circuits. Whereas the Second Circuit found that the City’s

condemnation of Okwedy’s religious beliefs was permissi-

ble under the government speech doctrine,’ this holding

conflicts with the opinions of this Court, which require a

different standard when religion is implicated.

* Characterizing the policy as “criticizing speech deemed to be

intolerant,” the Second Circuit stated: “When the government speaks, it

is not bound by principles of viewpoint neutrality and can make

persuasive arguments for its own favored point of view.” 2006 WL

2374263 at *2 (citations omitted). The court held that the speech is

permitted provided only that it does not “threatlen], coercle], or

intimidatle].” Jd. (quoting X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 71 (2d

Cir. 1999)).

A. The Second Circuit Decision Conflicts with

Decisions of This Court.

For example, Justice O’Connor wrote that when

an Establishment Clause case involves “government-

sponsored speech or displays,” the endorsement test

“captures the essential command of the Establishment

Clause, namely, that government must not make a per-

son’s religious beliefs relevant to his or her standing in the

political community by conveying a message ‘that religion

or a particular religious belief is favored or preferred.’”

County of Allegheny, supra, 492 U.S. 573, 627 (O’Connor,

J., concurring in part and concurring in judgment) (quot-

ing Wallace v. Jaffree, supra, 472 U.S. 38, 70 (O’Connor, J.,

concurring in judgment)).

Here, of course, there can be little doubt that the

City’s opprobrium diminished Okwedy’s standing in the

political community — he was a pariah after the City’s

public condemnation of his beliefs. The City did not merely

make Okwedy’s religious beliefs relevant to his standing in

the community; it made his religious beliefs the exclusive

criterion for subjecting Okwedy to vicious attacks and

ostracism.”

Justice O’Connor couched her approach in slightly

different terms in Board of Educ. of Kiryas Joel Village

Sch. Dist. v. Grumet: “Cases involving government speech

on religious topics ... seem to me to fall into a different

category and to require an analysis focusing on whether

the speech endorses or disapproves of religion, rather than

Indeed, when Okwedy’s lawsuit was dismissed, Master charac-

terized the defeat as “a victory for all Staten Islanders.” Okwedy and

Keyword were residents of Staten Island at the time.

on whether the government action is neutral with regard

to religion.” Jd., 512 U.S. 687, 720, 114 S.Ct. 2481, 129

L.Ed.2d 546 (1994) (O’Connor, J., concurring). Thus, where

Justice O’Connor requires only that government speech on

a religious topic “disapprove” of religion in order to violate

the Establishment Clause, the Second Circuit requires

that it threaten, coerce, or intimidate. Under Justice

O’Connor’s analysis, the City undoubtedly violated the

Establishment Clause; under the Second Circuit’s, it

arguably did not.”

The Second Circuit’s decision also conflicts with the

long-held rule that Establishment Clause violations ought

to be addressed at the earliest opportunity. A. this Court

stated in Schempp:

[I]t is no defense to urge that the religious prac-

tices here may be relatively minor encroach-

ments on the First Amendment. The breach of

neutrality that is today a trickling stream may

all too soon become a raging torrent and, in the

words of Madison, ‘it is proper to take alarm at

the first experiment on our liberties.’ Memorial

and Remonstrance Against Religious Assess-

ments, quoted in Everson [v. Board of Ed. of Ew-

ing Tp.], 330 U.S. 1, 65, 67 S.Ct. 504, 536, 91

L.Ed. 711 (1947).

Schempp, supra, 374 U.S. 203, 225.

" The court also held that the City was not criticizing Okwedy’s

religion, but only Okwedy’s discrimination against homosexuals. This is

a distinction without a difference, especially where, as here, the

message consisted entirely in quotes taken directly from a sacred text.

B. The Second Circuit Decision Conflicts with

Decisions from Sister Circuits.

In addition to conflicting with decisions of this Court,

the Second Circuit’s summary order also conflicts with

decisions of other circuits. For example, in Chandler v.

James,” the Eleventh Circuit wrote: “If endorsement is

unconstitutional because it ‘sends a message to nonadher-

ents that they are outsiders, disapproval [of religious

speech] is unconstitutional because it ‘sends the opposite

message.” Jd. at 1261 (quoting Lynch, 465 U.S. at 688

(O’Connor, J., concurring)). Thus the Eleventh Circuit, like

Justice O’Connor, requires no threat, coercion, or intimida-

tion in order to find an Establishment Clause violation

where government speech is involved.

Similarly, in upholding the Free Exercise rights of a

religious supervisor, the en banc Eighth Circuit has stated

that if the government were to have removed the supervi-

sor’s religious displays from his office due to their “offen-

siveness,” “the county would be taking sides in a religious

dispute, which, of course, it cannot do under either the

establishment clause or the equal protection clause.”

Brown v. Polk County, lowe, supra, 61 F.3d 650, 659; see

also Linnemeir v. Board of Trustees of Purdue Univ., 260

F.3d 757, 762 (7th Cir. 2001) (“It is axiomatic that govern-

ment speech that endorses religion, or evidences hostility -

toward a particular religion, is constitutionally improper

under the Establishment Clause.”) (Coffey, J., dissenting);

id. at 765 (“A state-sponsored disparagement of a particu-

lar belief sends the message to its believers that they and

” 180 F.3d 1254 (11th Cir. 1999), cert. granted, opin. vacated, 530

U.S. 1256 (2000), opin. reinstated on remand, Chandler v. Siegelman,

230 F.3d 1313 (11th Cir. 2000), cert. denied, 533 U.S. 916 (2001).

their firmly held convictions are disfavored members of

the community.”); Doe v. Santa Fe Independent School

Dist., 168 F.3d 806, 825 (5th Cir. 1999) (“When the gov-

ernment restricts sectarian and proselytizing religious

speech, while embracing ecumenical religious speech, the

government has engaged in illegitimate, viewpoint dis-

crimination.”) (Jolly, J., dissenting).

Because Okwedy’s billboard consisted of nothing more

that a direct quote from the Bible, criticism of Okwedy’s

message was criticism of his religious beliefs, and a

corresponding preference for religious beliefs that accept

or approve of homosexuality. The Second Circuit’s holding

in favor of the City thus conflicts with the Fourth Circuit’s

affirmance in Simpson v. Chesterfield County Bd. of

Supervisors,’ wherein it was stated: “If the Establishment

Clause means anything, it means that government is not

to demonstrate any preference for one set of religious

beliefs over another, or for that matter, over the lack of

any religious belief.” 292 F.Supp.2d at 823.

Finally, the City’s repeated attempts to censor Ok-

wedy’s message, together with its sending two detectives

to visit Keyword Ministries, were driven by animus

against Okwedy’s religious message. Plainly, Okwedy was

made to feel like an “outsider.” See Santa Fe Independent

School Dist. v. Doe, 530 U.S. 290, 309-10, 120 S.Ct. 2266,

147 L.Ed.2d 295 (2000).

'* 292 FSupp.2d 805 (E.D.Va. 2003), aff’d in part, rev’d in part,

404 F.3d 276 (4th Cir.), cert. denied, 126 S.Ct. 426 (2005).

CONCLUSION

This petition for a writ of certiorari should be granted.

Respectfully submitted,

STEPHEN M. CRAMPTON

Counsel of Record

BRUCE W. GREEN

BRIAN FAHLING

MICHAEL J. DEPRIMO

AMERICAN FAMILY ASSOCIATION

CENTER FOR LAW & POLICY

P.O. Drawer 2440

Tupelo, MS 38803

(662) 680-3886

Counsel for Petitioners

APPENDIX TABLE OF CONTENTS

Page

Document

U.S. Court of Appeals for the Second Circuit Opin-

Sete Teed Aaneat 1G, FOO wscsincsnsivosecixecovsssestcseensaens App. 1

District Court Opinion and Order dated October 12,

WO isetsccsetcdssineninnsatenasaseincediasiniadiadbsconpuaenuaeial App. 7

Partial Transcript of Oral Argument, April 9, 2001 ... App. 21

New York City Administrative Code § 8-101........... App. 25

Declaration of Bridget Okwedy dated February 3,

INI 0. n0acedactnrinciniinetcanesutpecsienagiaaiadaaisipienmatncmoniannil App. 26

Declaration of Kristopher Okwedy dated February

SF, SHOUD inccinreiniisccrinchissatssecsedeaedidieisiniasaaiae App. 30

Declaration of Kenneth Jones dated February 3,

SEG sxécisenicdoconaninbpesnaiataenietasmmbeshicuugia dann aan App. 32

New York Times article, dated March 9, 2000......... App. 35

Advance article, dated March 10, 2000.................... App. 37

New York Post article, dated Sunday, March 12,

I nies cccsasnioieelchea eee ee App. 41

Advance article, dated March 13, 2000.................... App. 45

Advance article, dated March 17, 2000.................... App. 50

Advance article, dated March 30, 2000.................... App. 52

City Defendants’ Memorandum of Law in Support of

Motion for Summary Judgment, pp. 1, 22-23........ App. 57

App. 1

2006 WL 2374263

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

(Filed Aug. 15, 2006)

_At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moyni-

han United States Courthouse, 500 Pearl Street, in the

City of New York, on the 15th day of August, two thousand

and six.

PRESENT:

HON. CHESTER J. STRAUB,

HON. ROSEMARY S. POOLER,

HON. ROBERT D. SACK,

Circuit Judges.

KRISTOPHER OKWEDY and |

KEYWORD MINISTRIES, INC.,

Plaintiffs-Appellants,

SUMMARY ORDER

No. 05-6217

CITY OF NEW YORK,

Defendant-Appellee,

Appearing for the Appellants: Stephen M. Crampton

(Brian Fahling and

Michael J. DePrimo, on the

brief), AFA Center for Law

& Policy, Tupelo, MS.

App. 2

Appearing for the Appellee: Alan G. Krams

(for Michael A. Cardozo,

Corporation Counsel of the

City of New York; Kristin

M. Helmers, of counsel),

New York, NY.

Appeal from the United States District Court for the

Eastern District of New York (Nina Gershon, Judge).

AFTER ARGUMENT AND UPON DUE CONSID-

ERATION, IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that the judgment of the District Court be and

it hereby is AFFIRMED.

Plaintiffs-Appellants, Kristopher Okwedy and Key-

word Ministries, Inc., appeal from an order of the District

Court, entered October 12, 2005, which granted defendant-

appellee City of New York’s motion for summary judgment

and denied plaintiffs’ motion for leave to amend the

complaint. This case was before the District Court follow-

ing a June 25, 2003, remand order by this Court. We

assume that the parties are familiar with the facts, the

procedural history, our earlier decision, and the scope of

the issues presented on appeal. See Okwedy v. Molinari,

333 F.3d 339 (2d Cir. 2003); 69 Fed. Appx. 482 (2d Cir.

2003).

We conclude that the District Court properly granted

summary judgment on the facial and as-applied constitu-

tionality of Section 8-101 of New York City’s Administra-

tive Code, known as the Human Rights Law (“Section 8-

101”). See N.Y.C. Admin. Code § 8-101. Section 8-101

states an official policy against “prejudice, intolerance,

App. 3

[and] bigotry” and establishes an agency to combat dis-

crimination in housing, employment, and public accommo-

dations, as well as “to take other actions against prejudice,

intolerance, bigotry, discrimination and _bias-related

violence or harassment.” See id. Section 8-101 does not

itself prohibit or regulate speech.

Indeed, plaintiffs do not argue that the text of the

statute is unconstitutional but rather that officials have

construed it in a way that makes it so. Although plaintiffs

are correct that we must look beyond the text to “authori-

tative constructions” of the law, see Forsyth Cty., GA v.

Nationalist Mumt., 505 U.S. 123, 131 (1992), plaintiffs fail

to cite any construction that supports their theory that the

City interprets the Human Rights Law to suppress speech

that conflicts with its anti-discrimination policy. Plaintiffs

claim that statements made by defense counsel during the

course of trial are authoritative constructions of the law on

par with the text of the statute. But these statements are

legal theories rather than facts, and as such cannot

constitute binding judicial admissions attributable to the

City. See New Amsterdam Cas. Co. v. Waller, 323 F.2d 20,

24 (4th Cir. 1963) (“The doctrine of judicial admissions has

never been applied to counsel’s statement of his conception

of the legal theory of the case.”).

We further conclude that the District Court properly

entered summary judgment for defendant on the as-

applied constitutionality of Section 8-101. In order to

prevail on an as-applied challenge, plaintiffs must show

that they were injured “as a result of the statute’s opera-

tion or enforcement.” Babbitt v. United Farm Workers Nat.

Union, 442 U.S. 289, 298 (1979). Plaintiffs have offered no

App. 4

evidence that any City official saw himself as enforcing

Section 8-101 in responding to plaintiffs’ billboards.*

Even if we were to conclude that city officials acted

pursuant to a policy or custom — whether contained in

Section 8-101 or elsewhere — of criticizing speech deemed

to be intolerant, such a policy or custom would not violate

the First Amendment, as applied to the states through the

Fourteenth Amendment. When the government speaks, it

is not bound by principles of viewpoint neutrality and can

make persuasive arguments for its own favored point of

view. See Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819, 833 (1995); Downs v. L.A. Unified Sch. Dist.,

228 F.3d 1003, 1014 (9th Cir. 2000); Connell v. Signoracci,

153 F.3d 74, 82 (2d Cir. 1998) (“The Mayor is privileged,

for example, to organize a rally against pornography, to

call the topless bars a ‘black eye on the community and a

‘slimy business,’ and to call for a boycott of the establish-

ments.”). Such speech is permissible as long as the gov-

ernment does not “threat[en], coerc[e], or intimidatie].” See

X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 71 (2d Cir. 1999).

Government speech criticizing Okwedy and his message,

* Jn our earlier summary order, we noted that “plaintiffs acknowl-

edge that [Borough President] Molinari acted pursuant to the general

policy against ‘intolerance’ and ‘bigotry’ expressed in New York law and

the New York City Administrative Code $ 8-101.” Okwedy, 69 Fed. Appx.

at 5. Insofar as that language may have suggested that we read Section

8-101 to authorize or require the City’s response to the billboards, we

take this opportunity to clarify that such is not the case. Rather, our

earlier order was meant to explain that plaintiffs had produced no

evidence that Molinari’s intent, in criticizing their billboards, was to

suppress religious expression, and that, to the contrary, Molinari’s

actions were supported by the city’s “general policy” against discrimina-

tion, of which Section 8-101 is one expression. Jd. at 1 (emphasis

added).

App. 5

alone, does not constitute “viewpoint discrimination” or

violate the First Amendment.

Finally, we conclude that the District Court properly

denied plaintiffs’ motion for leave to amend the complaint

as futile. The District Court previously dismissed many of

plaintiffs’ First Amendment claims, and this Court af-

firmed. Plaintiffs now seek to revive these claims on the

basis of modified facts. The new allegations include (1)

statements concerning the City’s interpretation of Section

8-101, and (2) the visit by New York City’s Bias Crimes

Task Force to Keyword Ministries. Plaintiffs’ first new

allegation, that the City called plaintiffs’ billboards dis-

playing Bible verses “bigoted,” is the functional equivalent

of the statement we deemed inactionable in our prior

summary order: that the message espoused by the bill-

boards was “intolerant.” See Okwedy, 69 Fed. Appx. at 3.

Because neither statement “create[s] a denominational

preference or violate[s] the Lemon test,” allowing plaintiffs

to amend their complaint to reassert an Establishment

Clause claim would be futile. Jd. at 6 (citing Lemon v.

Kurtzman, 403 U.S. 602 (1971)).

Plaintiffs also seek to amend their complaint to allege

that in visiting Keyword Ministries, the police were

implementing the City’s policy underlying Section 8-101

and trying to suppress plaintiffs’ speech. However, “a

municipality can be held liable [under Section 1983] only

if the alleged unconstitutional action implements an

official policy or custom [of the municipality], whether

made by its lawmakers or by those whose edicts or acts

may fairly be said to represent official policy.” Morris v.

Lindau, 196 F.3d 102, 111 (2d Cir. 1999) (internal quota-

tion marks omitted). “A single incident alleged in a

complaint, especially if it involved only actors below the

App. 6

policymaking level, generally will not suffice to raise an

inference of the existence of a custom or policy.” Dwares v.

New York, 985 F.2d 94, 100 (2d Cir. 1993). Plaintiffs’ new

allegations, even if proven, would not indicate any official

policing policy sufficient to support a claim under Section

1983. As a result, we conclude that the District Court did

not exceed its allowable discretion in denying leave to

amend the complaint.

For the foregoing reasons, we AFFIRM the judgment

of the District Court.

FOR THE COURT:

ROSEANNE B. MACKECHNIE, CLERK

/s/ Lucille Carr

BY:

App. 7

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KRISTOPHER OKWEDY and

KEYWORD MINISTRIES, INC.,

Plaintiffs, OPINION & ORDER

00 CV 5426 (NG) (CLP)

(Filed Oct. 12, 2005)

Vv.

GUY V. MOLINARL CITY

OF NEW YORK, and PNE

MEDIA, LLC,

Defendants.

GERSHON, United States District Judge:

Plaintiffs’ Amended Complaint brings claims under 42

U.S.C. § 1983, alleging that the defendants’ conduct

deprived them of their rights under the First and Four-

teenth Amendments to the United States Constitution and

also violated the laws of the State of New York. I dismissed

plaintiffs’ original Complaint in its entirety in a July 18,

2001 Opinion. See Okwedy v. Molinari, 150 F.Supp.2d 508

(E.D.N.Y. 2001), vacated in part by 333 F.3d 339 (2d Cir.

2003), and aff'd in part, 69 Fed.Appx. 482 (2d Cir. 2003).

The Court of appeals vacated the dismissal of plaintiff's

First Amendment Free Speech claim and affirmed the

dismissal of all other claims asserted in the original

complaint. Okwedy v. Molinari, 333 F.3d 339 (2d Cir.

2003); Okwedy v. Molinari, 69 Fed.Appx. 482 (2d Cir.

2003). Familiarity with all prior decisions is presumed.

After remand, in an Amended Complaint, plaintiffs assert

new claims and reassert the dismissed claims, identified

as the First and Second “Causes of Action” in the July 18,

2001 Opinion, in order to preserve “the issues for further

App. 8

appeal after final judgment.” Amended Complaint at 8-9.

At a September 9, 2004 Pre-Motion Conference before me,

plaintiffs voluntarily dismissed the Third, Fifth, Seventh

and Ninth Causes of Action in the Amended Complaint

and dismissed Guy V. Molinari as a defendant. Thus, the

remaining claims in the Amended Complaint are: (1)

plaintiffs’ First Amendment claim that New York City

Administrative Code (“NYC Admin. Code”) § 8-101 is

unconstitutional’ (the “Fourth Cause of Action” — against

defendant City of New York (“the City”)); (2) plaintiffs’

claim that PNE’s actions violated New York Executive Law

§ 296-5(b) (the “Sixth Cause of Action” — against Defen-

dant PNE Media LLC (“PNE”)), and plaintiffs’ claim that

PNE’s actions constituted Breach of Contact (the “Eighth

Cause of Action” — against PNE). The City and PNE move

for summary judgment or dismissal on all remaining

claims against them, pursuant to Fed. R. Civ. Proc. 56.

Plaintiffs oppose summary judgment and have moved to

amend the Amended Complaint. For the reasons set forth

below, defendants’ motions are granted and plaintiffs’

motion is denied.

' This claim is distinct from the First Amendment claim that was

raised in plaintiffs’ original complaint, which was based entirely on Guy

Molinari’s communications to PNE and the removal of plaintiffs’

billboards. The Second Circuit reversed the dismissal of that claim and

remanded, but plaintiffs have now voluntarily dismissed that claim

because discovery revealed that removal of the billboards began before

Molinari communicated with PNE and therefore there is no evidence

supporting the original First Amendment claim.

App. 9

Background

Unless otherwise indicated, the following facts are

undisputed:

Plaintiff Kristopher Okwedy, an ordained minister, is

the pastor of Keyword Ministries, “a Christian church

dedicated to promoting traditional biblical values, which

includes teaching that homosexual behavior is a sin before

God.” On or about March of 2000, plaintiffs posted bill-

boards in two locations in the borough of Staten Island,

New York, which each stated “Thou shall not lie with

mankind as with womankind. It is an abomination,” and

equivalent messages. The messages cited the biblical verse

“Leviticus 18:22” as their origin. The billboards being used

by plaintiffs were owned and operated by PNE. On the

morning of March 8, 2000, at some point between 7:30a.m.

and 8:30a.m., PNE arranged for the signs to be removed

and ultimately covered them with different messages.

Later in the day, at approximately 12:00p.m., Guy V.

Molinari, then Borough President of Staten Island, sent a

letter, via facsimile, to PNE, which stated:

For the last two days we have attempted to con-

tact your office, without success, at your listed

telephone number (908) 810-1176.

I write regarding the recent appearance on two of

your Staten Island billboards of four translations

of Leviticus 18:22. As you are probably aware

this particular biblical verse is commonly in-

voked as a biblical prohibition against homo-

sexuality.

The sponsor for the billboard message is nowhere

apparent on the billboard, so I am writing to you

with the hope that I can establish a dialogue

App. 10

with both yourself and the sponsor as quickly as

possible.

Both you and the sponsor of this message should

be aware that many members of the Staten Is-

land community; myself included, find this mes-

sage unnecessarily confrontational and offensive.

As Borough President of Staten Island I want to

inform you that this message conveys an atmos-

phere of intolerance which is not welcome in our

Borough.

P.N.E. Media owns a number of billboards on

Staten Island and derives substantial economic

benefit from them. I call on you as a responsible

member of the business community to please

contact Daniel L. Master, my legal counsel and

Chair of my Anti-Bias Task Force at (718) 816-

2056 to discuss further the issues I have raised

in this letter.

Also on March 8, 2000, PNE issued a press release an-

nouncing that the billboards had been removed.

The publicity surrounding the events described above

caused Detective Kevin Czatoryski, of the New York City

Police Department (“NYPD”) Hate Crimes Task Force, to

visit Keyword Ministries at some point in the spring of

2000. Detective Czatorski [sic] spoke with plaintiffs and

left his card, but the exact date, the nature, and the

purpose of the detective’s visit are in dispute. This visit

and other facts relied upon by plaintiffs are addressed

infra.

App. 11

Discussion

I. Summary Judgment Standard

Summary judgment shall be granted if “the plead-

ings, depositions, answers to interrogatories, and admis-

sions on file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of

law.” Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of

summary judgment, after adequate time for discovery and

upon motion, against a party who fails to make a showing

sufficient to establish the existence of an element essential

to that party’s case, and on which that party will bear the

burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The standard for granting summary

judgment mirrors the standard for a directed verdict

under Rule 50(a), which permits the court to grant a

motion for judgment as a matter of law when “there is no

legally sufficient evidentiary basis for a reasonable jury” to

decide an essential issue in favor of the non-moving party.

Fed.R.Civ.P. 50(a)(1); see id. at 323. The burden is on the

moving party to demonstrate that there are no material

facts genuinely in dispute. See Weinstock v. Columbia

Univ., 224 F.3d 33, 41 (2d Cir.2000). When the moving

party has carried its burden under Rule 56(c), its opponent

must do more than simply show that there is some meta-

physical doubt as to the material facts. Matsushita Electric

Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986). To prevail, the non-moving party must come

forward with “specific facts showing that there is a genu-

ine issue for trial.” Fed.R.Civ.P. 56(e); id. at 587. A motion

for summary judgment cannot therefore be defeated by

“mere speculation or conjecture.” Giordano v. City of New

York, 274 F.3d 740, 749-50 (2d Cir.2001). In deciding a

App. 12

motion for summary judgment, the court must view the

inferences to be drawn from the facts in the light most

favorable to the party opposing the motion. Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,

587 (1986); Howley v. Town of Stratford, 217 F.3d 141, 150-

151 (2d Cir.2000).

II. Constitutionality of New York City Administra-

tive Code § 8-101

Plaintiffs contend that NYC Admin. Code § 8-101 is

both facially unconstitutional and unconstitutional as

applied to plaintiffs. Specifically, plaintiffs assert that

Section 8-101 “imposes an affirmative duty on New York

City Government officials to act to eliminate all forms of

perceived intolerance toward homosexuality, including

peaceful speech,” and that Section 8-101 “unconstitution-

ally prescribes what shall be orthodox in politics ...

religion, or other matters of opinion.” Amended Complaint

{1 63, 65 (internal quotation marks omitted).

Section 8-101 is a policy statement and a mandate for

the creation of an agency. Other portions of the New York

City Human Rights Law proscribe discrimination in public

accommodations. The text of Section 8-101 reads as

follows:

In the city of New York, with its great cosmopoli-

tan population, there is no greater danger to the

health, morals, safety and welfare of the city and

its inhabitants than the existence of groups

prejudiced against one another and antagonistic

to each other because of their actual or perceived

differences, including those based on race, color,

creed, age, national origin, alienage or citizen-

ship status, gender, sexual orientation, disability,

App. 13

marital status, status as a victim of domestic vio-

lence or status as a victim of sex offenses or

stalking, whether children are, may be or would

be residing with a person or conviction or arrest

record. The council hereby finds and declares

that prejudice, intolerance, bigotry, and discrimi-

nation, bias-related violence or harassment and

disorder occasioned thereby threaten the rights

and proper privileges of its inhabitants and men-

ace the institutions and foundation of a free de-

mocratic state. A city agency is hereby created

with power to eliminate and prevent discrimina-

tion from playing any role in actions relating to

employment, public accommodations, and hous-

ing and other real estate, and to take other ac-

tions against prejudice, intolerance, bigotry,

discrimination and bias-related violence or har-

assment as herein provided; and the commission

established hereunder is hereby given general

jurisdiction and power for such purposes.

A. Facial Challenge

Plaintiffs’ facial challenge to NYC Admin. Code § 8-

101 cannot survive the motion for summary judgment. In

order to prevail on a facial attack of Section 8-101, plain-

tiffs “must demonstrate that the challenged law either

‘could never be applied in a valid manner’ or that even

though it may be validly applied to plaintiff[s]; and others,

it nevertheless is so broad that it ‘may inhibit the constitu-

tionally protected speech of third parties.’” New York State

Club Association v. City of New York, 487 U.S. 1, 11 (1988).

“Invalidating any rule on the basis of its hypothetical

application to situations not before the Court is ‘strong

medicine’ to be applied ‘sparingly and only as a last re-

sort.’” Hobbs v. County of Westchester, 397 F.3d 133, 155

App. 14

(2d Cir. 2005) (quoting FCC v. Pacifica Foundation, 438

U.S. 726, 743 (1978)). Plaintiffs have failed to demonstrate

that Section 8-101 is facially unconstitutional under either

prong of the standard articulated in New York State Club

Association. Section 8-101’s language, opposing “prejudice,

intolerance, bigotry, and discrimination, bias-related

violence or harassment and disorder occasioned thereby,”

expresses the desire of the City to foster an atmosphere of

tolerance. The statute does not impose civil or criminal

penalties for expression of any viewpoint. Nor does it

direct city employees to discriminate against any view-

point. Rather, it creates a city agency whose purpose is te

eliminate discrimination in employment and public ac-

commodations, goals that the City is undoubtedly author-

ized to pursue under the Constitution. Indeed, the United

States Supreme Court rejected a facial challenge to the

New York City Human Rights Law almost twenty years

ago. See New York State Club Association, 487 U.S. at 11-

14 (holding that “[t]he facial attack based on the claim

that Local Law 68 is invalid in all of its applications must

therefore fail” and that the Court could not “conclude that

the Law is substantially overbroad and must assume that

whatever overbreadth exists should be cured through case-

by-case analysis of the fact situations to which its sanc-

tions, assertedly, may not be applied.”). Thus, plaintiffs’

attack on the New York City Human Rights Law may

succeed only if they can demonstrate that it is unconstitu-

tional as applied to them.

B. As-Applied Challenge

Plaintiffs’ as-applied challenge rests on six alleged

“facts.” First, plaintiffs cite Molinari’s November 8, 2000

letter to PNE, quoted above. Plaintiff’s Br. at 13. Second,

App. 15

plaintiffs cite Molinari’s failure to initiate discussions with

plaintiffs following the covering of plaintiffs’ billboard

messages. Jd. at 14. Third, plaintiffs cite the City’s re-

sponse to Plaintiffs’ Interrogatory No. 12, “in which the

City characterized the Bible verses contained on Plaintiffs’

billboards as ‘convey|[ing] bigoted views of homosexuals.’”

Id. at 15. Fourth, plaintiffs cite defendants’ July 25, 2001

press release which describes the initial dismissal of

plaintiffs’ suit as a “victory for all Staten Islanders.” Jd. at

16. Fifth, plaintiffs cite the fact that the City kept a

number of newspaper articles written about the instant

dispute where the word “discrimination” appears in an

unknown hand on each of the clippings. Jd. Sixth, plain-

tiffs cite “the special trip made by two police officers from

the Bias Crimes Unite [sic] to Keyword church, ostensibly

to speak with Rev. Okewdy [sic] but in reality a clumsy

attempt to intimidate Plaintiffs from posting any more

messages deemed offensive by the City.” Id. at 17.

In order to challenge the constitutionality of Section 8-

101 as it is applied to them, plaintiffs “must demonstrate a

realistic danger of sustaining a direct injury as a result of

the statute’s operation or enforcement.” See Babbitt v.

United Farm Workers Nat. Union, 442 U.S. 289, 298

(1979). However, “persons having no fears of state prosecu-

tion except those that are imaginary or speculative, are

not to be accepted as appropriate plaintiffs.” Jd. (quoting

Younger v. Harris, 401 U.S. 37, 42 (1971)). Considering all

of the evidence in the light most favorable to plaintiffs,

plaintiffs identify only two actions that could be construed

as manifestations of the policy expressed in Section 8-101:

(1) Detective Czatoryski’s visit with his partner to Key-

word Ministries and (2) Borough President Molinari’s

communication to PNE regarding plaintiffs’ billboards.

App. 16

Plaintiffs’ other “facts,” described above, presumably are

introduced in order to evidence defendants’ state of mind

with regard to these actions.

However, plaintiffs have failed to produce any evi-

dence supporting their assertion that the state actions in

question were taken pursuant to Section 8-101. To begin

with, as described above, Section 8-101 neither requires

particular conduct or views by citizens, nor imposes any

civil or criminal penalties on conduct or views. It is merely

a policy statement justifying the creation of an agency

empowered to deal with discrimination.’ Molinari testified

at his deposition that he contacted PNE because of public

safety concerns stemming from his prior experience with

anti-homosexual violence. See City’s Motion for Summary

Judgement Exhibit G, Deposition of Guy Molinari at 9

(hereinafter “Molinari Dep.”). He further testified that he

was not generally familiar with Section 8-101 at the time

of his deposition and that he had not even known of its

existence during his tenure as Staten Island Borough

President. See Molinari Dep. at 20. Detective Czatoryski

testified that he was unfamiliar with Section 8-101 and

that he did not know what the Public Accommodations

Law was. See City’s Motion for Summary Judgement

Exhibit J, Deposition of Kevin Czatoryski at 11 (hereinaf-

ter “Czatorski Dep.”). He further testified that his visit to

Keyword Ministries was not related to Section 8-101. See

Czatoryski Dep. at 11.

* The “city agency” created by the New York City Human Rights

Law is the New York City Human Rights Commission. See Website of the

City of New York, available at http://www.nvc.gov/html/cchr/home.html

(last visited — Oct. 11, 2005).

App. 17

Thus, plaintiffs do not present the typical situation of

an as-applied challenge where an individual is prosecuted

or threatened with prosecution under a statute allegedly

in violation of the Constitution. See, e.g., United States v.

Rybicki, 354 F.3d 124, 127 (2d Cir. 2003) (rejecting appel-

lants’ as-applied challenge to wire fraud statute under

which they were convicted), cert. denied, ___ U.S. ___, 125

S.Ct. 32 (2004). Rather, plaintiffs have identified state

action directed at them and have asserted, without any

proof, that this state action was carried out under the

auspices of Section 8-101. Plaintiffs cannot defeat sum-

mary judgment with “mere speculation” that Borough

President Molinari and Detective Czatoryski were at-

tempting to enforce Section 8-101, especially when Section

8-101 has no enforcement mechanism.’ See Giordano, 274

F.3d at 749-50. Plaintiffs have not alleged or offered

evidence of any role by the city agency whose creation was

mandated by Section 8-101. Nor have plaintiffs produced

any testimony or records that support a connection be-

tween defendants’ actions and Section 8-101. Thus, plain-

tiffs have failed to demonstrate that there is a material

fact in dispute with regard to plaintiffs’ remaining claim,

and defendants’ motion for summary judgment must be

granted.

* Ultimately, plaintiffs appear to be inappropriately conflating

their challenge to Section 8-101 with their Section 1983 Establishment

Clause claims, which were dismissed in my July 18, 2001 Opinion.

Okwedy, 150 F.Supp.2d at 519-521, affd. in relevant part, 69 Fed.Appx.

482 (2003).

App. 18

Ill. Motion to Amend

Plaintiffs’ motion for leave to amend the Amended

Complaint seeks: (1) to reassert plaintiffs’ Establishment

Clause claim, with modified facts; (2) to reassert plaintiffs’

“Free Speech/Free Exercise/Establishment Clause Hybrid”

claim, with modified facts; and (3) to add new facts and a

new party, Frank J. Nataro, to plaintiffs’ state law claims

against PNE. At this stage of litigation, “a party may

amend the party’s pleading only by leave of court or by

written consent of the adverse party; and leave shall be

freely given when justice so requires.” Fed. R. Civ. Proc.

15(a). Nonetheless, “the district court has the discretion to

deny leave if there is a good reason for it, such as futility,

bad faith, undue delay, or undue prejudice to the opposing

party.” Jin v. Metropolitan Life Insurance, 310 F.3d 84, 101

(2d Cir. 2002). An amendment is futile “if the proposed

new claim cannot withstand a 12(b)(6) motion to dismiss

for failure to state a claim.” Milanese v. Rust-Oleum Corp.,

244 F.3d 104 (2d Cir. 2001).

Here, plaintiffs’ first and second proposed amend-

ments, the Establishment Clause claim and the Free

Speech/Free Exercise/Establishment Clause Hybrid amend-

ment, have already been dismissed, and the dismissals

were affirmed by the Court of Appeals. The only difference

between the old claims and the new is that plaintiffs have

replaced their allegations about Molinari’s communica-

tions to PNE with allegations about the acts of City

officials publicly condemning the plaintiffs’ billboards and

labeling plaintiffs’ perspective “bigoted” in the course of

litigation, as well as allegations about the police visit to

Keyword Ministries. These claims could not survive a Rule

12(b)(6) motion to dismiss since they suffer from the same

deficiencies as plaintiffs’ original allegations. See Okwedy,

App. 19

69 Fed.Appx. at 484 (“Although Molinari’s letter indicated

he was aware of the biblical source of the quotations on

the billboards, the letter did not ‘differentiate among

sects,’ nor did it make ‘explicit and deliberate distinctions

between different religious organizations.’”) (quoting

Hernandez v. Comm’r, 490 U.S. 680, 695 (1989)) (internal

citation omitted). The statements by city officials that

plaintiffs wish to use as a basis for the Second Amended

Complaint do not even rise to the level of Molinari’s broad

statement in his letter, denouncing plaintiffs’ biblically

based message as “intolerant.” With regard to the visit by

a member of the NYPD hate crimes unit to Keyword

Ministries, plaintiffs have alleged only that the officer

visited the church, asked questions in a gruff manner, and

left a card. Plaintiffs do not identify specific statements or

actions on the part of the officer evincing any intent to

harass, but only their subjective feelings about the visit to

Keyword Ministries. Accepting plaintiffs’ allegations about

the nature of the visit, as I must, plaintiffs fail to state a

claim under Section 1983 where they allege only that the

officers conducted an entirely legal “investigation.” There-

fore it is clear that the proposed amendments are futile

and leave to amend is denied. Because I decline to exercise

supplemental jurisdiction, as described below, I deny leave

to amend with regard to plaintiffs’ state law claims.

IV. State Law Claims Against PNE

As all of plaintiffs’ federal claims have been dismissed,

the court declines to exercise supplemental jurisdiction

over the remaining state law claims against PNE, see 28

U.S.C. § 1367(c)(3), and the claims are dismissed without

prejudice.

App. 20

Conclusion

The City’s motion for summary judgment is granted.

PNE’s motion to dismiss is granted. Plaintiffs’ motion for

leave to amend their complaint is denied.

SO ORDERED.

/s/

NINA GERSHON

United States District Judge

Dated: Brooklyn, New York

October 12, 2005

App. 21

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

OKWEDY, et al., CV 00-5426

Plaintiffs, United States Courthouse

" Brooklyn, New York

MOLINARI, et al., April 9, 2001

2:30 p.m.

Defendants. xX

TRANSCRIPT OF PROCEEDINGS

BEFORE THE HONORABLE NINA GERSHON

UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Plaintiff: MICHAEL DePRIMO, ESQ.

For Defendant NYC: NEW YORK CITY LAW

DEPARTMENT

Office of Corporation Counsel

BY: DANA BIBERMAN, ESQ.

For Defendant PNE: DONALD ROSENTHAL, ESQ.

Court Reporter: Burton H. Sulzer

225 Cadman Plaza East

Brooklyn, New York 11201

(718) 260-4526

Fax (718) 260-4504

* * *

[2] (Open Court).

THE COURT: All right, counsel. Does the city

want to start?

App. 22

MS. BIBERMAN: Yes, your Honor. I think your

Honor has heard much of this before and it was fully

briefed in our papers, but I'll just reiterate at this time

that it’s the Borough President’s position, the city’s posi-

tion that the plaintiffs have set forth no viable claim under

the First Amendment, either a violation of the freedom of

speech, a violation of the free exercise clause, or a violation

of the establishment clause. There has been no unlawful

state action here and no violation of plaintiffs’ rights. |

Plaintiffs’ billboard, through using Biblical quotes,

expressed open hostility toward and intolerance of homo-

sexuality. Plaintiffs don’t deny that their quotes expressed

intolerance towards homosexuality, although they may

call it something different.

Not only does this violate New York City Administra-

tive Code, Section 8-101, which prohibits such expressions

of bigotry or intolerance —

THE COURT: I didn’t understand you to be

taking that position in your briefs, so perhaps I better —

MS. BIBERMAN: I think I mentioned in the

brief that the Administrative Code —

THE COURT: The Administrative Code sec-

tions, do [3] they do anything beyond assuring no violation

of employment rights and so on?

Are you saying that the Administrative Code would

bar expressions of speech?

MS. BIBERMAN: No. I’m saying that the policy

of the Administrative Code, the human rights law, says

that there is danger to the health, safety and welfare of

New York City inhabitants by expressions of antagonism

App. 23

toward people based upon perceived differences, and

included among those perceived differences is sexual

orientation.

What the Borough President was responding to were

statements that —

THE COURT: There is no ban on speech in the

Administrative Code?

MS. BIBERMAN: No. What the Borough Presi-

dent was responding to were the expressions of intolerance

which were included in the statements in the plaintiffs’

billboards. These billboards called homosexuality an

abomination, loathsome, detestable, forbidden and an

enormous sin.

Whether these were quotes from the Bible or not, they

were nonetheless statements which the Borough President

said in his letter to PNE were unnecessarily confronta-

tional and offensive, didn’t belong in the Staten Island

community, and in his letter to PNE media, requested a

dialogue with the billboard’s sponsor, recognizing in his

letter to PNE Media, [4] who put the billboard up, that the

sponsor of the billboard was not identified and conse-

quently he was contacting PNE Media in an effort to —

THE COURT: May I ask you about your posi-

tion? In your papers, at some point you say that this is an

expression of Mr. Molinari’s personal opinion.

You're not claiming that he wasn’t acting as a gov-

ernment official, are you?

MS. BIBERMAN: He expressed his personal

opinion, but he was acting as Borough President, and as

Borough President he was expressing the sentiments of his

App. 24

constituency in terms of what had been the public response

and public outcry when these billboards appeared.

This sentiment was brought to his attention and he

was responding, I believe, both in terms of his personal

view, although I’d have to read into his mind for that, but

he was certainly responding as Borough President, ex-

pressing the concerns of his constituents, which is his

obligation and responsibility to so do.

It is significant here, and | think in the cases that we

cite in our papers it’s significant as well, that the Borough

President in fact has absolutely no power to revoke or to

issue permits for billboards or signs. That is a power that lies

only in the commissioner of the Department of Buildings.

# * *

App. 25

New York City Administrative Code

Chapter 1. Commission on Human Rights

§ 8-101 Policy. In the city of New York, with its great

cosmopolitan population, there is no greater danger to the

health, morals, safety and welfare of the city and its

inhabitants than the existence of groups prejudiced

against one another and antagonistic to each other be-

cause of their actual or perceived differences, including

those based on race, color, creed, age, national origin,

alienage or citizenship status, gender, sexual orientation,

disability, marital status, whether children are, may be or

would be residing with a person or [sic] conviction or

arrest record. The council hereby finds and declares that

prejudice, intolerance, bigotry and discrimination and

disorder occasioned thereby threaten the rights and proper

privileges of its inhabitants and menace the institutions

and foundation of a free democratic state. A city agency is

hereby created with power to eliminate and prevent

discrimination from playing any role in actions relating to

employment, public accommodations and housing and

other real estate, and to take other actions against preju-

dice, intolerance, bigotry and discrimination as herein

provided; and the commission established hereunder is

hereby given general jurisdiction and power for such

purposes.

App. 26

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

BROOKLYN DIVISION

KRISTOPHER OKWEDY ) Case No.

and KEYWORD MINISTRIES, ) 00 CV 005426 (NG)

INC., ) (CLP)

Plaintiffs,

Vv. )

CITY OF NEW YORK, )

NEW YORK, PNE MEDIA, LLC, ?

and FRANK J. NATARO, :

Defendants. )

DECLARATION OF BRIDGET OKWEDY

I, Bridget Okwedy, declare under oath as follows:

1. I am married to Pastor Kristopher Okwedy, Pastor of

Keyword Ministries, a Christian church.

2. I work at the church, assisting my husband and

working in various capacities for the ministry.

3. On a Saturday in March, 2000, shortly after all the

media and controversy about the billboards Keyword and

Pastor Okwedy had posted containing a scripture verse, I

was present at the church with my brother, Kenneth

Jones, when two men arrived. They asked for Pastor

Okwedy. I told them he was not there.

4. The men were quite large, well over six feet tall, and

dressed all in black. I felt intimidated by them, and

worried they were going to arrest Pastor Okwedy.

App. 27

5. The men told us they were from the New York Police

Department Bias Crimes Unit. Their manner was short

and rather gruff.

6. I asked them what bias they were investigating, and

they told me some homosexual men clamed [sic] they had

been beaten up because of their homosexuality.

7. I asked them why they thought Keyword and Pastor

Okwedy might be involved. They admitted they had no

evidence connecting Pastor Okwedy, Keyword, or anyone

from our congregation to the crimes other than the bill-

board Pastor Okwedy and Keyword had posted containing

biblical verses about homosexuality.

8. The men asked us about the billboard and Pastor

Okewedy’s beliefs, and whether they could have been

misinterpreted by some seeing the billboard or hearing one

of Pastor Okwedy’s sermons, presumably leading them to

go out and beat up homosexuals.

9. One of the men also asked whether Pastor Okwedy

preaches to make people angry.

10. I assured the men that Pastor Okwedy does not

preach to make people angry. I also told them there was no

way Pastor Okwedy or the billboard could have been

misunderstood, and that he did not advocate violence

against anyone.

11. They also asked why Pastor Okwedy had put this

particular verse on the billboard. I explained that Key-

word and Pastor Okwedy intended to post a series of

billboards containing messages on several different

themes, using scriptural verses for each. So it was not his

words, but God’s words.

App. 28

12. One of the men told us he did not like the Old Testa-

ment. I told him we planned to include passages from the

New Testament as well.

13. The man made a derogatory comment to the effect

that if we put up a billboard about adultery or sex outside

of marriage, most of the city would be guilty of sin.

14. Their actions and comments led me to believe they

wanted to discourage Pastor Okwedy and Keyword from

putting up any more billboards in the future.

15. After only a few minutes, one of the men asked to use

the bathroom. I escorted him to the restroom, concerned

from his demeanor that he might wander around the

building looking for something to link us to a crime. Later,

the other man also asked to use the bathroom.

16. Although we had called the police and reported

several death threats and harassing telephone calls and e-

mails, these men made no mention of the attacks against

us.

17. Because of the attitude of these men, and their

apparent dislike of us and our message, we did not feel it

would be of any use to ask them about the threats made

against us.

18. In fact, when we called the police on another occasion

to report what we thought was a bomb contained in a

package delivered outside our door, the police told us not

to worry about it and even to just open it. We did not take

their advice, and left the package where it was. Shortly

thereafter, a bomb squad arrived and removed the pack-

age, which turned out to have graphic homosexual maga-

zines in it.

App. 29

19. In fact, despite our diligently reporting the numerous

death threats made against us, and forwarding to the

police copies of the many hateful e-mails we had received,

no one from the police department ever came to interview

us about them.

20. When the men were ready to leave, one of them gave

us his card and asked us to be sure to have Pastor Okwedy

call him. The name on the card was Detective Kevin

Czartoryski.

I declare under penalty of perjury that the foregoing

statements are true and correct

/s/ Bridget Okwedy

Briaget Okwedy

App. 30

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

BROOKLYN DIVISION

KRISTOPHER OKWEDY ) Case No.

and KEYWORD MINISTRIES, 00 CV 005426 (NG)

INC., (CLP)

Plaintiffs,

Vv.

CITY OF NEW YORK,

NEW YORK, PNE MEDIA, LLC,

and FRANK J. NATARO,

Defendants.

i de i i

DECLARATION OF REV. KRISTOPHER OKWEDY

I, Kristopher Okwedy, declare under oath as follows:

1. I am the Pastor of Keyword Ministries, a Christian

church, and one of the Plaintiffs in this action. At all times

material, I was a resident of Staten Island.

2. In early March of 2000, I entered into two contracts

with PNE Media for the display of two billboards on

Staten Island containing four translations of the biblical

verse, Leviticus 18:22.

3. This message contained what I believe to be the Word

of God. It is also a message that reflected my own sin-

cerely held religious beliefs and religious creed.

4. I was not present at the church in March of 2000

when two men claiming to be from the New York Police

App. 31

Department’s Bias Crimes Unit came, but was informed

shortly thereafter by my wife, Bridget Okwedy.

5. Bridget gave me the card of one of the men, Kevin

Czartoryski, and said he had asked me to call him.

6. I therefore placed several calls to Mr. Czartoryski at

the number on the card. He was not available, so I left

messages.

7. Mr. Czartoryski never called me back. So I called yet

again, and finally was able to reach him.

8. He sounded surprised that I called, and he had no

questions for me. He said his visit to the church was

“routine,” and that he did not need to speak to me any

longer.

9. Our conversation then ended, after a very short time.

10. I never heard from Mr. Czartoryski or any other

police officer again, nor was I ever contacted by Mr. Moli-

nari or anyone else and invited to discuss the billboards or

their message. I declare under penalty of perjury that the

foregoing statements are true and correct.

/s/ (IMegible}

Kristopher Okwedy

App. 32

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

BROOKLYN DIVISION

KRISTOPHER OKWEDY ) Case No.

and KEYWORD MINISTRIES, ) 00 CV 005426 (NG)

INC., ) (CLP)

Plaintiffs,

v. )

CITY OF NEW YORK, )

NEW YORK, PNE MEDIA, LLC, ?

and FRANK J. NATARO,

Defendants. )

DECLARATION OF KENNETH JONES

I, Kenneth Jones, declare under oath as follows:

1. I am the brother-in-law of Kristopher Okwedy, Pastor

of Keyword Ministries, a Christian church.

2. On one day in March, 2000, shortly after the media

has reported Pastor Okwedy’s name and address in the

context of the billboard controversy, I was present at the

Keyword church with my sister, Bridget Okwedy, when

two men arrived. They asked for Pastor Okwedy. Bridget

told them he was not there.

4. The men were big, dressed in black, and seemed

biased against us, as if we had committed a crime simply

for expressing our views. In fact, I wondered whether they

might be homosexual themselves by the way they acted

and their hostile attitude toward us.

App. 33

5. The men told us they were from the New York Police

Department Bias Crimes Unit.

6. They said they were there because some homosexual

men had been beaten up because of their homosexuality.

7. When Bridget asked why they thought Keyword and

Pastor Okwedy might be involved, they said they did not

have any evidence connecting Pastor Okwedy to the

crimes other than the billboard.

8. The men asked us about Pastor Okwedy, the billboard,

and why it had been posted at all. They also asked

whether the billboard or one of Pastor Okwedy’s sermons

could have been misinterpreted, and lead someone to beat

up homosexuals.

9. We assured them that Pastor Okwedy meant no harm.

They seemed intent on making us out to be “gay bashers,”

making insulting comments about Pastor Okwedy being

from Nigeria and the like, but we were not hateful toward

homosexuals at all.

10. They asked specifically why Pastor Okwedy had put

this particular verse, Leviticus 18:22, on the billboard. We

told them that the words were not Pastor Okwedy’s, but

God’s, and that it was not personal.

11. We also told them that Keyword and Pastor Okwedy

planned to post a series of billboards containing messages

on several different themes, using scriptural verses for

each.

12. One of the men told us he did not like the Old Testa-

ment. I told him there were passages similar to Leviticus

18:22 in the New Testament as well, such as Romans

chapter 1.

App. 34

13. When one of the men asked to use the bathroom,

Bridget walked him to the restroom.

14. Shortly thereafter, the other man asked to use the

restroom, too. I told him where it was, but did not walk

with him to the door.

15. When the men got ready to leave, one of them gave

us his card and asked us to be sure to have Pastor Okwedy

call him. The name on the card was Detective Kevin

Czartoryski.

I declare under penalty of perjury that the foregoing

statements are true and correct.

/s/ Kenneth Jones

Kenneth Jones

App. 35

New York Times, March 9, 2000

Bible Verses on Homosexuality Are

Covered Up on Billboards

By JULIAN E. BARNES

Two Billboards on Staten Island that angered civic

and gay leaders by using a Biblical verse to condemn

homosexuality were covered up yesterday, just as the

identity of the man responsible for the messages was

revealed.

The man, the Rev. Kristopher Okwedy of Keyword

Ministries in Staten Island, said he had paid $1,800 to

post the two signs for one month. The signs, in the St.

George and Port Richmond neighborhoods, cited four

translations of Leviticus 18:22. One read, “Thou shall not

lie with mankind as with womankind: it is abomination.”

The messages disappeared a day after they were

denounced by the Staten Island borough president, Guy V.

Molinari, and local gay leaders. Yesterday, the signs were

covered with images of McGruff the Crime Dog and

Smokey Bear.

Mr. Okwedy had remained anonymous until yester-

day, when the billboard company, with his permission,

released his name. He said he believed that the company

had improperly censored him.

“This is the land of the free, home of the brave,” he

said. “You are supposed to protect the rights of free

speech. I paid money and did not violate any city laws.”

Donald Rosenthal, a lawyer for PNE Media of Union,

N.J., which owns the billboards, said the signs were

App. 36

removed because the advertisements did not disclose who

paid for the message.

But Mr. Okwedy said that the billboards were de-

signed by the company and that officials never told him he

had to put his name on them. Originally, he said, he chose

to remain anonymous because God had inspired him to

post the message. But, he added, he would have put his

name on the sign if asked.

Daniel L. Master, the legal counsel for Mr. Molinari,

said the company should not have printed the message

even if Mr. Okwedy’s name had been attached.

“A responsible member of the business community

would not have printed this,” he said.

Mr. Rosenthal said that PNE Media respected adver-

tisers’ free speech rights, but that the company’s practice

was to review the editorial content of the billboards.

App. 37

Advance, March 10, 2000

Anti-gay signs down, preacher’s defenses up

MICHAEL J. PAQUETTE

The Rev. Kristopher Okwedy denies his billboard

message was reflection of strong feelings against homo-

sexuality in his homeland of Nigeria.

Taboo.

It’s a rarely used word that still packs a dark stig-

matic punch, long after having been chucked from the

popular lexicon by free-living 20th-century Americans.

Yet, the obsolete expression is among the first to slip

from the mouths of African immigrants when discussing

how homosexuality is viewed back home.

“It’s taboo. It is not talked about,” says Ndubisi

Obiorah, a human rights lawyer and Nigerian national.

Then, as if repeating for emphasis, he adds, “There’s a

very strong traditional social taboo against it.”

So strong, in fact, that gay sex in Nigeria is a felony

that carries a maximum 14-year prison sentence.

Nothing is more frowned upon there — and in most

other African nations — says Obiorah, “short of incest.”

Combine those powerful cultural prohibitions with

traditional Christian notions about sin, and it comes as

little surprise that a Nigerian fundamentalist preacher

would choose a controversial passage from the Old Testa-

ment book of Leviticus — referring to homosexuality as an

“abomination” — to kick off his campaign bringing “the

App. 38

word of God” to Staten Islanders via billboards in St.

George and Port Richmond.

After local politicians and gay community leaders

roundly condemned the signs, the media company that

owns the billboards promptly replaced them with new ads.

Still, the preacher insists his biblical message is part

of the right prescription to help cure America’s social ills,

and, he says, his heritage has nothing to do with it.

“I’m not influenced by that,” says the Rev. Kristopher

Okwedy, a self-described “Bible-believing Christian” who

immigrated to Staten Island 10 years ago. “I see myself as

a Christian first and foremost. I don’t speak as an African.

I just happen to be from Africa.”

Resolutely, he continues: “I have a newfound tradition

and culture and it’s based on the word of God. It is my

standard. It is my measuring stick. My acts, what I do or

don’t do, I measure against the word of God, not the

African culture ... Just about every ethnic tradition I

have, I count as lost.”

What’s more, the Rev. Okwedy, pastor of the 2-year-

old nondenominational Key Word Ministries in Mariners

Harbor, claims ignorance when it comes to his homeland’s

anti-homosexuality measures.

“I don’t know about any law of that nature,” he says.

“During my 27 years in Nigeria I never heard about

anybody being persecuted or put in jail for that.

Indeed, Obiorah says, he has firsthand knowledge of

just two prosecutions under the law for all of last year in

the west African nation of 120 million. Fifty percent of

App. 39

Nigerians are Muslim and 40 percent Christian, with the

remainder following indigenous beliefs.

“The police do not go out actively seeking to arrest

homosexuals,” says Obiorah, who works for the Manhat-

tan-based Human Rights Watch. “Their general policy is

to ignore homosexuality as long as it is kept underground.”

Gay activity can be so clandestine in Nigeria — and

many regions throughout the continent — that one local

Roman Catholic priest even questions its very existence

there.

“When you talk of homosexuality in Africa as a whole,

there are taboos, unwritten laws,” that, because they are

derived from natural law, are much stronger than gov-

ernmental laws, says the priest, who comes from Nigeria

and asked not to be identified.

“Homosexuality is not even in the culture,” he states

emphatically. “The society will not allow it.”

Willis Logan, director of the Africa Office of the

National Council of Churches in Manhattan, believes that

because of the deep taboo, Nigeria as a nation has not

embraced an “open, public conversation” on homosexual-

ity, which might keep some in the dark regarding the

government’s official stance.

Despite the Rev. Okwedy’s claim that his decision to

kick off the North Shore Bible campaign with the conten-

tious verse from Leviticus is not informed — at least in part

— by his cultural background, some in the Island’s blos-

soming African-immigrant community believe it could not

be otherwise.

App. 40

“Africans are strong, committed in what they believe

in,” says Togba R. Porte, President of the Staten Island

Liberian Community Association. “It gives them more of a

desire, more of a courage to speak out about what they

believe in.”

According to the priest, African immigrants may be so

“shocked” and “surprised” by America’s frank public

discourse on homosexuality, they sometimes handle their

extreme unease with the popular culture by disassociating

from it entirely.

And some may go even further.

“The guy with the billboards, that may be his way of

dealing with it,” the priest speculates.

The Rev. Okwedy maintains that just isn’t so.

“I believe that this country is the greatest country on

the face of the Earth,” he says. “It is the only country that

creates an environment for all peoples of all colors to excel

... The primary reason that that is, is because the foun-

ders of this country ascribed to the word of God.”

As to the citywide stir created by his billboards, he

says: “The word of God has this cutting edge. It cuts deep.

It is like having a surgery without anesthesia.”

“I have a newfound tradition and culture and it’s based on

the word of God. It is my standard. It is my measuring

stick. My acts, what I do or don’t do, I measure against

the word of God, not the African culture.” —

Rev. Kristopher Okwedy

App. 41

New York Post, Sunday, March 12, 2000

A most hateful way to stifle free speech

ROD DREHER

Does free speech have any place on Staten Island? Not

if you believe in the Old Testament — which is to say, the

Hebrew Bible — or adhere to Islam or any other religious

faith that prohibits homosexuality.

On Staten Island, they expect you to shut your trap,

or else stand accused of being a hateful bigot. In fact, gay

leaders, civic officials and businessmen will shut your trap

for you, all in the name of tolerance.

The same crowd that lectures you to be forebearing

when a public art museum desecrates an image of the

Virgin Mary will tell you you have no moral right to quote

from your own holy scripture in public.

So learned the Rev. Kristopher Okwedy last week,

when he rented space on two Staten Island billboards to

post a Bible verse, Leviticus 18:22, which reads, “Thou

shalt not lie with mankind as with womankind: it is

abomination.”

Hundreds of millions of devout people the world over

believe this and have for millennia. Quite a lot of them are

so inconsiderate as to live in New York City.

It is not illegal — yet— to hold or state this view. But

outraged Staten Island gay leaders rose up to condemn the

billboard as evidence of “hate.” Borough President Guy

Molinari joined in the chorus of condemnation, and the

billboard owner ripped the offending Bible verse down.

App. 42

Scapegoated by the borough government and others

for speaking out about his religious beliefs, Okwedy, 37, a

born-again pastor from Nigeria who ministers to the

inner-city poor, is now receiving death threats from the

tribunes of tolerance.

“Somebody called me from a city office phone” —

Okwedy has Caller ID — “and told me they were going to

kill me, that I was a nigger and a bastard. Another person

said they were going to come after me when this cools

down and throw acid in my face.”

A supporter suggested he contact the American Civil

Liberties Union to fight the billboard company in court.

Okwedy thinks that’s futile.

“I don’t think the ACLU is for Christians,” he sighed.

Okwedy has obviously learned a lot in his 10 years in

America. He has surely observed how quick gay activists

are to employ the word “hate” to impugn the motives of

those who disagree with them and to discredit their

opponents’ actions.

That majority of California voters who balloted

against gay marriage on Tuesday, did so out of “hate,” we

are told. Dr. Laura Schlessinger, an Orthodox Jew who

has the audacity to actually believe her religion, is excori-

ated as “the Queen of Hate Radio” for voicing disapproval

of homosexuality. And on and on.

This is the bully tactic used by self-absorbed adoles-

cents throwing a temper tantrum because they can’t

persuade their parents to agree to their demands: “You

hate me! You hate me!”

App. 43

But it is proving a brilliant political strategy. As soon

as a dissenting opinion is labeled “hate,” it need not be

countered with reason, and those who hold that opinion

need not be taken seriously — except inasmuch as they are

a threat to decency and order and must be suppressed.

Gay activists are quick to employ the word “hate” to

impugn the motives of those who disagree with them.

The presumption is that no one can object to homo-

sexuality for any reason other than uncut malice. This

fails to consider that orthodox religious faithful believe

moral and theological truth exists outside mankind’s will.

That truth is for us to discern, not create. And often

the moral truths taught by religion will speak propheti-

cally to the community at large.

“The word of God is not just there to make you feel

good,” Okwedy says. “It’s there for correction, too.”

Nowadays, almost everyone agrees that the coura-

geous black ministers who led the civil-rights movement

were indeed prophets of a just cause. Back then, Southern

segregationists tried to silence those ministers by de-

nouncing them s* “eommunists” trying to upset the peace

and saying they tad no right to speak out as religious

believers on political matters.

Those Southerners were wrong, not only in their

support of segregation but in their views on the proper

place of religion in public life. Today, those Northerners

clamoring for pastor Okwedy to be silent should recognize

that the rights of religion to challenge secular orthodoxies

are not contingent upon whether or not religion supports

political goals of the left or the right.

App. 44

They do not have to agree with Okwedy. If their

conscience demands it, they should try to convince him

(and everyone else) that he’s wrong. They do not have the

moral right to put on the rhetorical jackboots to demonize

Okwedy and his point of view, particularly when he

speaks for so many.

In his 1993 book, “The Culture of Disbelief,” Yale law

professor Stephen Carter argues that liberal democracy is

ill-served by haranguing diverse voices like Okwedy’s out

of the public square.

“What is needed,” writes Carter, “is a willingness to

listen, not because the speaker has the right voice but

because the speaker has the right to speak.

“Moreover, the willingness to listen must hold out the

possibility that the speaker is saying something worth

listening to; to do less is to trivialize the forces that shape

the moral convictions of tens of millions of Americans.”

@ E-mail: dreher@nypost.com

App. 45

Advance, March 13, 2000

Prayer vigil held to protest anti-gay billboards

@ Islanders call for tolerance and continued watchfulness

in the face of bigotry.

By LESLIE PALMA-SIMONCEK

ADVANCE RELIGION EDITOR

Close to 90 people ventured out in the rain yesterday

morning to attend a prayer vigil celebrating the removal of

a billboard quoting the Bible on homosexuality, and to

encourage continued vigilance.

The billboard on Bay Street in St. George, where the

vigil was held, and an identical one on Decker Avenue in

Port Richmond, showed up on March 3 giving four differ-

ent translations of a verse from Leviticus often used to

demonstrate that homosexuality is unacceptable from a

biblical perspective.

The signs were covered over with new ads on Thurs-

day after gay activists labeled them a bias attack and

Island elected officials expressed concern that they could

promote violence against homosexuals.

“This time, the good people of Staten Island did

something,” said Tom Hamilton of the Staten Island

Independence Party.

The Rev. Kristopher Okwedy, founder of KeyWord

Ministries in Mariners Harbor, paid $2,000 for the signs to

PNE Media, a Union, N.J. company that ultimately called

for them to be covered because no sponsoring organization

was identified on the billboards.

App. 46

“His $2,000 would have been better spent by a dona-

tion to Project Hospitality or the AIDS Task Force,” said

James Smith, a St. George resident who is president of

Lambda Associates of Staten Island, an educational and

social organization for gay men and lesbians.

Rev. Okwedy, in a telephone interview yesterday, said

he has received death threats since his identity became

public, and on Saturday the Police Department’s bomb

squad was at his home investigating a package sent with

no return address. The package contained gay and lesbian

magazines.

“What's at issue is not homosexuality, it’s unbelief,”

Rev. Okwedy said. “People refuse to believe the word of

God.”

During his worship service yesterday, the Nigerian-

born pastor told his members that, just like police officers

who are licensed to carry a gun, “I am licensed to use the

word of God.”

He said the billboards were not a condemnation of

homosexuals, but of the sexual acts involved.

“I am not against a group of people,” he said. “God

makes a distinction between the people and the act.”

Yesterday’s vigil, sponsored by 21 individuals and

organizations, was an opportunity “for us to unite and say

it’s wrong.” said city Public Advocate Mark Green.

“Words can be hammers,” Green noted as he urged

continued resistance against racism based on “race,

religion and now, sexual orientation.”

App. 47

Councilman Jerome X. O’Donovan, a Democrat whose

North Shore district includes both billboard sites, climbed

the ladder used as an impromptu podium to say, “I know

the Bible too, and there’s a passage in it called the Golden

Rule that says ‘do unto others as you would have them do

to you.’

“This is exactly the opposite of the Golden Rule,” he

said of the billboards. “This should not happen ever

again.”

Also speaking at the vigil were City Council Members

Stephen DiBrienza of Brooklyn and Christine Quinn of

Manhattan.

Lee Covino, representing Borough President Guy V.

Molinari’s office and his Anti-Bias Task Force, said if

there’s a “silver lining” to be found to the incident, it can

be seen in how far Islanders have come in accepting and

welcoming diversity.

“It’s important to be vigilant and important to be

inclusive,” said Covino. “I’m hoping we don’t have to meet

again under similar circumstances.”

A spokesman for North Shore Assemblywoman Eliza-

beth Connelly said the assemblywoman would continue to

press for hate-crime legislation on the state level.

Many speakers touched on the importance of keeping

up the fight.

Owen Pahl Greene, a Manhattan resident who says he

“just happens to show up every time there’s a gay issue,”

urged those gathered to “put [their] money where [their]

mouths |[are].”

App. 48

Greene said he stamps all his money with the words

“say money” in pink ink, and he urged others to follow

suit. He also suggested contacting, or boycotting, the

companies whose advertisements ran alongside Rev.

Okwedy’s billboard.

“The company that sold him the space also has to be

made aware that this is unacceptable,” Greene said.

“Eternal vigilance is the price of liberty,” observed

New Brighton resident Nick Dowen.

“If you attack any single group, you attack us all,”

said Concord resident Tom Schroeder. “And that is not

acceptable.”

Noting that many Christians believe in the inerrancy

of the Bible, the Rev. Hattie Smith Davis said, “I think we

should not judge one another.”

“I believe that God has said we have to live from

Genesis through Revelation,” said Rev. Davis, who came

on her own accord and did not represent any church. “But

speaking from my heart, I believe every one of us has

something in our lives ... that I’m sure God is not pleased

with. I do know that God is a forgiving God. Let God do

the judging. You guys should live in peace.” she said,

referring to activists.

Yolanda and Matt Cohen, who were married Saturday

night at Congregation Temple Emanu-El in Port Rich-

mond, went to the rally to lend their support.

“We feel very strongly about this,” said Matt Cohen.

“We couldn’t think of a better way to celebrate our first

day as a couple.”

App. 49

Bonita Nathan Sussman, coordinator of the Staten

Island HIV Care Network and one of the organizers of

yesterday's event, said everyone who attended was asked

to fill out a form that identified their religion and gave

their feelings about the billboards.

Reading each one aloud, she found statements of

support from Roman Catholics, Jews, Episcopalians,

Lutherans, Baptists, Presbyterians, atheists and those

who said they had no religious affiliation.

A statement of support from the Staten Island Rab-

binical Association, which represents some of the Island’s

Reform and Conservative rabbis, also was read.

“This reinforces the importance of coalition,” Mrs.

Sussman said as the 90-minute rally broke up.

The Rev. Dr. George McClain, a minister in the

United Methodist Church and former executive director of

the Methodist Federation for Social Action, closed the

gathering with a prayer and a nudge to his clergy col-

leagues to use the issue of the billboards as “a teachable

moment.”

He said frank discussions can be “a way of helping us

understand more clearly what the core of our religious

traditions are.”

Rev. McClain also urged “graciousness” toward Rev.

Okwedy and suggested that the activists find ways to

engage in dialogue with him.

App. 50

Advance, March 17, 2000

Clergy to rally for pastor, his anti-gay stance

ADVANCE STAFF REPORT

Clergy and members of 17 churches on Staten Island

and in Brooklyn will rally tomorrow in support of the Rev.

Kristopher Okwedy, whose billboards carrying a biblical

message against homosexuality stirred such controversy

that the signs were removed.

James Howarth, a member of Calvary Assembly of

God in Eltingville, is organizing the rally, which will begin

with a prayer service at 9 a.m. in Calvary Assembly.

The group will then gather at 11 a.m. on the steps of

Borough Hall in St. George.

“There we will publicly proclaim our support for God’s

word, our support for Pastor Okwedy and our support of

the freedom of speech to say so,” Howarth said.

Rev. Okwedy’s billboards went up in St. George and

Port Richmond on March 3, drawing an immediate re-

sponse from the Island’s gay community and prompting

reaction from several of the Island’s elected officials.

The company that owns the billboards, PNE Media of

Union, N.J., called for the signs to be covered over on

March 8, saying they violated company policy by failing to

identify the sponsoring organization.

Rev. Okwedy, founder of KeyWord Ministries in

Mariners Harbor, said he paid $2,000 to have the signs

displayed for 31 days. He said his right to free speech was

violated when the signs were covered with new ads.

App. 51

Ninety people attended a rally Sunday in support of

the Island’s gay and lesbian community.

Calvary Assembly of God is located at 4055 Richmond

Ave.

App. 52

Advance, March 30, 2000

City launching a new attack on hate crimes

@ $5 million initiative will create a task force doubling

the number of cops investigating bias incidents

By FRANK WILLIAMS

ADVANCE STAFF WRITER

Mayor Rudolph W. Giuliani is expected to announce

today a $5 million initiative that will create a Hate Crimes

Task Force and double the number of police officers

probing bias crimes.

The 40-member police officer task force will replace

the Police Department’s current 20-member citywide Bias

Crimes Unit.

Borough President Guy V. Molinari heralded the

mayor’s announcement during a meeting last night of

Borough Hall’s Anti-Bias Task Force.

The mayor hopes the new unit will dramatically

enhance the crime-fighting and investigative ability of the

Police Department to solve and prevent future bias inci-

dents, according to the borough president.

“] think it’s a positive step,” said Deputy Inspector

Kathleen Kearns, who attended last night’s meeting at

Borough Hall. “Anything they can do to add to it is a win-

win situation.”

“Anything that would reduce hate crimes would be

beneficial, but I’ll have to get a better feel for what [the

mayor! is going to do before I can make a judgment,” said

App. 53

Edward Josey, president of the Staten Island branch of the

NAACP.

“Obviously, there is a need to double the amount of

officers,” said Camille Zarelli, president of the Staten

Island Civic Organization. “It will make offenders under-

stand that this will not be tolerated. We will not tolerate

- intolerance.”

The recent controversy over two anti-gay billboards on

the North Shore, the boroughs’ 25 recorded hate crimes

last year and its two so far this year, and concerns about

educating the Island’s youth against prejudice headlined

the anti-bias panel’s discussion. Forty-two of the panel’s

80 members showed up for the meeting.

Molinari opened the meeting with a personal reflec-

tion on the presence of hate crimes on Staten Island.

“During my State of the Borough recently, I told you

how well everything is working here, but all the decency

here is lost if we don’t have a community that loves each

other,” said the borough president. “I like to think that

here on Staten Island we can do better and show the rest

of the country what a community can do by reaching out to

each other.”

Molinari said, “Now we are a more diverse community

and we’re richer for it.”

He said he believes hate crimes are caused by fear and

ignorance.

“A special responsibility rests on my shoulders and I

say this because | believe it — I’m not running for office

again,” said Molinari.

App. 54

Molinari also discussed the rejection by Community

Board 3 Tuesday night of a group home fro six adults with

developmental disabilities in Greenridge. He’s asked the

board to reconsider its vote.

“Those of us in leadership positions have to stand up

to this and show the way,” he said.

“People were grasping for excuses to oppose it,”

Molinari said of the raucous Board 3 meeting, where

nearly 200 audience members cheered when the board

voted against the proposal. “I’ve seen neighborhoods torn

apart by this.”

Last night’s discussion did not specifically touch on

recent racially charged cases in the city, such as the police

shooting of Patrick Dorismond, the acquittal of police

officers charged in the killing of Amadou Diallo, or the

conviction of two Staten Island cops in the Abner Louima

sexual torture case.

Instead, debate centered on two anti-gay North Shore

billboards that were posted, and quickly covered up,

earlier this month.

The borough president defended his condemnation of

the billboards, which carried biblical messages condemn-

ing homosexuality. Molinari explained that he didn’t order

the billboards covered up, but instead asked to meet with

PNE Media, the company that owns the boards, and the

Rev. Kristopher Okwedy, of KeyWord Ministries, who put

up the messages. He explained to both how people in the

community found the signs offensive.

“Rev. Okwedy] has a constitutional right to put up

what he wants, but I also have an obligation to stop the

escalation of what people in the community find offensive,”

App. 55

said Molinari. “I’m trying to keep peace, and keep people

from hurting each other.”

Eventually, the signs were taken down by PNE Media

because the company requires that the name of the person

or organization responsible for the message be seen on the

board. Rev. Okwedy’s name did not appear on the board.

But the Rev. David Beidel, pastor of the New Hope

Community Church in New Brighton, used the word of

God to defend Rev. Okwedy’s anti-gay billboards.

“I know [Rev. Okwedy]. I’ve prayed with him and he’s

a good guy trying to do the right thing,” said Rev. Beidel.

“He believes in the word of God. You know, the truth is the

truth. Sometimes it’s like a hammer — a powerful force

intended to build. If I throw out the hammer, I can’t build.

I don’t want to be criticized in the papers as a Bible freak,

but the Bible is the root of Western civilization’s codes and

what was on the billboard is in there.”

Daniel Master, chairman of the borough’s Anti-Bias

Task Force and Molinari’s counsel, agreed that Rev.

Okwedy has the right to “say what he wants,” but not

everywhere.

“I feel that in a multicultural society, someone

shouldn’t act so confrontationally,” said Master.

“We have to respect each other and deal with sins

ourselves,” said Joseph Valentin, president of 122nd

Precinct Community Council.

Dr. Mohamed Yousef, a computer science professor at

the College of Staten Island and an adherent of Islam, said

that the controversy is relative.

App. 56

“In the Koran, homosexuality is not approved of, but

this isn’t what the issue is about. If I put up a billboard

that said, ‘Jesus is not the Son of God, but he is a prophet’

— because that is what I believe — it would be offensive to

many in the community,” said Yousef.

“If you go deep into any religion and take away

everything manmade, you come to the same truth,” said

Veera Konka, of the Asian-American Coalition of Staten

Island. “Jesus says the same thing that is in the Bhaga-

vad-Gila which was written 3,000 years before Jesus.

Fundamentalism always brings about confrontation. We

have to look at each other and say, ‘There’s a fellow

citizen.’”

Master reported there were 25 bias crimes on Staten

Island that year. There were also 25 bias crimes in 1998, a

significant drop from the 47 in 1997.

There were 16 bias-related arrests last year and 10 of

the suspects were under the age of 16, he said.

“It’s the 13-, 14-, 15-, and 16-year olds that are com-

mitting these crimes,” said Master. “So we are focusing

our attention in the schools.”

“The problem is the parents and the education that

these kids are getting,” said Dr. Ronald J. Sheppard, of the

College of Staten Island. “Many of us are taught that our

own religions are right and the rest are wrong. We are

taught to believe in our own sameness. But teach them

that African-Americans are the same as everyone else —

with the same problems — same with Jewish people. We

have to reach out of withdraw to sameness. Society’s fate

will be dependent on this.”

App. 57

Index No. 00 CV 5426 (NG)(CLP)

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

KRISTOPHER OKWEDY and

KEYWORD MINISTRIES,

Plaintiffs,

- against -

GUY V. MOLINARI, CITY OF

NEW YORK, PNE MEDIA LLC,

Defendants.

CITY DEFENDANTS’ MEMORANDUM

OF LAW IN SUPPORT OF MOTION

FOR SUMMARY JUDGMENT

(Filed Feb. 24, 2005)

MICHAEL A. CARDOZO

Corporation Counsel of the City of New York

Attorney for City Defendants

100 Church Street

New York, N.Y. 10007

Of Counsel: Dana. Biberman (DB9878)

Tel: (212) 788-0817

NYCLIS No. 00OAL100695

GABRIEL TAUSSIG,

ROBIN BINDER,

DANA BIBERMAN

Of Counsel.

NADIA RIVERA,

JONATHAN GOLDSTEIN,

On the brief.

App. 58

This portion of the Court’s decision was affirmed by

the Second Circuit, which stated: “Plaintiffs have alleged

no facts that suggest that Molinari’s purposes or the

purpose of the New York law was to single out plaintiffs’

religious expression.” Summary Order at 4, Exhibit A. In

fact, the Second Circuit noted that “plaintiffs acknow]l-

edged that Molinari acted pursuant to the general policy

against ‘intolerance’ and ‘bigotry’ expressed in New York

law and the New York City Administration Code § 8-101.”

Id. The City defendants’ actions had the intended secular

effect of curtailing intolerant pronouncements to the

general populace of Staten Island.

Nothing was revealed in discovery to suggest anything

different. In fact, it was definitively established through

both deposition testimony and documents that PNE made

its decision to remove the billboards hours before Borough

President sent his March 8th letter. As a consequence,

plaintiffs have dismissed the former Borough President as

a defendant in this action and have withdrawn their claim

of a violation of their free speech rights based on this

letter. See transcript at 5, 8, 24-25, Exhibit B. Thus, it is

eminently clear that the government placed no burden

whatsoever on plaintiffs’ practice of their religious beliefs,

nor interfered with any of their rights under the First

Amendment.

Having failed in their individual Free Speech, Free

Exercise and Establishment Clause claims, plaintiffs now

assert that Molinari’s letter, when taken together with the

City defendants’ interrogatory responses, the “investiga-

tion” conducted by the police department’s Hate Crimes

Task Force, and notations on press clippings in the Borough

President’s office “demonstrate government disapproval

of Plaintiffs’ religious beliefs concerning homosexuality.”

App. 59 |

Plaintiffs’ Motion for Leave to File Second Amended

Complaint and Memorandum of Law in Support Thereof

(“Plaintiffs’ Memo”) at 18. However, that is simply not the

case.

The City defendants’ responses to plaintiffs’ Interroga-

tories in no way express “government disapproval of

Plaintiffs’ religious beliefs” and cannot be a basis for

creating a new “hybrid” claim or resurrecting already

dismissed claims. First, plaintifis point to defendants’

response to Interrogatory No. 12, which reads as follows:

Interrogatory No. 12: With respect to the

March 8, 2000 letter, please identify the factual

and/or legal basis for the statement, “this mes-

sage conveys an atmosphere of intolerance which

is not welcome in our Borough.”

Objection and Response to Interrogatory

No. 12: Statements such as those in plaintiffs’

billboards convey bigoted views of homosexuals.

Such messages, whether targeted against a ra-

cial or ethnic group, against immigrants, or

against individuals of a particular sexual orien-

tation, foster and condone intolerance within the

community and can lead to unlawful discrimina-

tory conduct and behavior.

See Defendants’ Responses and Objections to Plaintiffs’

First Set of Interrogatories Propounded to Defendant City

of New York, dated January 16, 2004, annexed to Biber-

man Decl. as Exhibit N. Plaintiffs assert that this Inter-

rogatory Response indicates that “the City holds the

position that the Holy Scriptures, in particular Leviticus

18:22, ‘convey bigoted views against homosexuals.’”

Plaintiffs’ Memo at 10. The City’s interrogatory response

expresses no such position. The City’s response that

App. 60

plaintiffs’ message is of the type of statement that conveys

“bigoted views of homosexuals,” is no different from

Borough President’s Molinari’s statement in his March 8,

2000 letter in which he found “th[e] message unnecessarily

confrontational and offensive” and “conveyling] an atmos-

phere of intolerance which is not welcome in our Borough.”

Molinari Letter, Exhibit E. And, as such, it no more

expresses “hostility toward religion” or “disapproval of

plaintiffs’ religious beliefs” than did the Borough Presi-

dent’s letter itself. The interrogatory response was nothing

more than the explanation that plaintiffs

* * *

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.