Opposition Brief — Okwedy v. Molinari (No. 06-676)

‘ FILED

JAN 17 2007

No. 06-676

In the

Supreme Court of the United States

KRISTOPHER OK WEDY and

KEYWORD MINISTRIES, INC.,

Petitioners,

-against-

GUY MOLINARI, et ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF IN OPPOSITION

MICHAEL A. CARDOZO

Corporation Counsel of the

City of New York

_ Attorney for Respondent

City of New York

100 Church Street

New York, New York 10007

(212) 788-1010

LEONARD J. KOERNER

Chief Assistant Corporation Counsel

Counsel of Record.

KRISTIN M. HELMERS,

ALAN G. KRAMS,

of Counsel.

=—= EEE

|

QUESTION PRESENTED

Whether the City of New York violated the

Establishment Clause when one of the City’s five

borough presidents and City attorneys criticized as

intolerant petitioners’ anonymous billboards

containing biblical quotations describing

homosexuality as sinful behavior?

PARTIES TO THE PROCEEDING

The petition’s caption inaccurately identifies the

respondents. Respondent is the City of New York

(“City”), as petitioners acknowledge (Pet. at ii & n.1).

The defendants listed on the petition’s cover as

respondents have been dismissed from the case, with

petitioners’ consent. Guy V. Molinari, former borough

president of the New York City Borough of Staten

Island, was dismissed in the District Court (infra p. 2).

PNE Media, LLC (PNE) settled with petitioners while

the case was pending in the Court of Appeals, and the

suit against it was discontinued (C.A. Docket Sheet,

entries dated Mar. 27 & Apr. 6, 2006).

TABLE OF CONTENTS ©

Page

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REASONS WHY THE PETITION

SHOULD BE DENIED

Il. THIS CASE DOES NOT PRESENT THE

ISSUE RAISED BY PETITIONERG......................... 3

Il. PETITIONERS HAVE NOT SHOWN ANY

CONFLICT BETWEEN THE SECOND CIRCUIT

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-iii-

TABLE OF AUTHORITIES

Page

CASES

Am. Family Ass'n v.

City & County of San Francisco,

277 F.3d 1114 (9th Cir.), cert. denied, 537

ele ME GI ike ritvesteccivarsasnsees teres aiisincinin 3,6

Epperson v. Ark.,

Are eC UE eid cvivesviasriciaccciontesokivastueebereaenass 6

McGowan v. Md.,

Fe IE OO BN aii vinsicnadirsivcnsiaesdieiseeetsuloetiaresses 7

Okwedy v. Molinan,

69 Fed. Appx. 482 (2d Cir. 2003) .........00..0000 2, 5, 6

Okwedy v. Molinari,

ae Fae Gre (26 Cit. ZOOS)... .ccccsccsressevees 1,2, 3,3

Okwedy v. Molinan,

150 F. Supp. 2d 508 (E.D.N.Y. 2001),

affd in part, 69 Fed. Appx. 482,

FOGG TA BOE, SOS FD SOP vis cectcsecsccccecsnsstsetessecosees 5

Pembaur v. City of Cincinnati,

Fe re I ee aces rdlissonscsansstiseeisorereannuidine 3

MUNICIPAL CHARTER AND LAWS

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Pea Maes ME Be ise dsc tase eseccs Sicpirunttiersoue 2

-]V-

No. 06-676°

In the

Supreme Court of the United States

KRISTOPHER OKWEDY and

KEYWORD MINISTRIES, INC.,

Petitioners,

-against-

GUY MOLINARI, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

BRIEF IN OPPOSITION

STATEMENT OF THE CASE

This case has changed course substantially since it

began. Petitioners, Rev. Okwedy and Keyword

Ministries, Inc. (collectively referred to as “Okwedy’),

initially complained that their First Amendment rights

under the Free Speech, Free Exercise, and

Establishment Clauses were violated by Guy Molinari,

then president of the Borough of Staten Island. Mr.

Molinari wrote to PNE Media, Inc. (PNE), owner of the

billboards where Okwedy’s messages were posted,

complaining about the billboards and asking the

owner to contact his office. See generally Okwedy v.

Molinan, 333 F.3d 339, 341-42 (2d Cir. 2003).

The District Court dismissed the complaint for

failure to state a claim. Id. at 342. The Court of

Appeals affirmed as to the Free Exercise and

Establishment Clause claims, Okwedy v. Molinan, 69

Fed. Appx. 482, 484-85 (2d Cir. 2003), but held that it

was premature to dismiss the Free Speech claim

because “Molinari’s letter could be found to contain an

implicit threat of retaliation if PNE failed to accede to

Molinari’s requests.” Okwedy, 333 F.3d at 344.

After remand, evidence produced during discovery

established that Molinari’s letter had nothing to do

with PNE’s decision to remove Okwedy’s signs (C.A.

App. at Al46, A164, A166). Okwedy agreed to dismiss

his suit against Molinari (id. at A256-—57).

This left the City as the only remaining

governmental defendant. Okwedy now pressed a newly

added claim that Molinari’s criticisms of Okwedy

violated the Establishment Clause and _ were

undertaken to implement’ the _ City’s anti-

discrimination policy, stated in § 8-101 of the New

York City Administrative Code (Pet. App. at 25).

Section 8-101 is the policy statement at the beginning

of the City’s Human Rights Law. See N.Y.C. Charter

§ 900 (defining Human Rights Law). The policy

statement deplores the socially corrosive effects of

various types of invidious discrimination, including

discrimination based on sexual orientation.

Okwedy’s only claim in this Court is that because

his message was grounded in his religious beliefs, the

City violated the Establishment Clause when Molinari

and the City’s attorneys’ cniticized Okwedy’s

characterization of homosexuality as sinful (Pet. at i,

2-3 & n.2). While not relevant to his stated

constitutional issue, the petition alleges absence of

eo

police concern about threats against Okwedy, stating

that the anti-bias officers who visited his church did

not ask abit those threats (Pet. at 5 & n.4); however,

the recor: ntains police reports showing that local

police officcis responded when Okwedy’s wife reported |

delivery of a suspicious package. When it turned out to

contain “graphic homosexual magazines” (C.A. App.

A97), police investigated in an unsuccessful effort to

track down the sender (id. at A233-47).

REASONS WHY THE PETITION

SHOULD BE DENIED.

I. THIS CASE DOES NOT PRESENT THE ISSUE

RAISED BY PETITIONERS.

Since the City is the only remaining defendant,

Okwedy needed to show that the _ allegedly

unconstitutional criticisms of his _ billboards

constituted City policy. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 478-81 (1986). However, as

the Second Circuit explained, the critical statements

could not be attributed to the City. They were made by

a borough president who was not implementing the

City’s anti-discrimination policy and by City attorneys

in legal argument and _ interrogatory § responses.

Okwedy, Pet. App. at 3-4; C.A. App. at A189 (reprinted

in City Legal Memorandum, Pet. App. at 59). As the

District Court noted, Borough President Molinari had

no formal role in carrying out the City’s Human Rights

Law, and he was only vaguely aware of its contents.

Okwedy v. Molinari, Pet. App. 7, 16 (E.D.N.Y. 2005),

-aff'd, Pet. App. 1; compare id. with Am. Family Ass'n v.

City & County of San Francisco, 277 F.3d 1114, 1118-

19 (9th Cir.) (governing body sent letter and adopted

formal resolution condemning newspaper

advertisements calling homosexuality sinful), cert.

em

denied, 537 U.S. 886 (2002). Since no City action is at

issue, Okwedy would not have a claim in this lawsuit

even if his constitutional arguments were correct.

II. PETITIONERS HAVE NOT SHOWN ANY

CONFLICT BETWEEN THE SECOND CIRCUIT AND

OTHER CIRCUITS.

There would be no reason to grant the petition even

if the statements criticizing Okwedy were the City’s

acts. Reduced to its essentials, Okwedy’s complaii:t is

that the Establishment Clause precludes New York

City from criticizing statements at odds with its anti-

discrimination policy when those statements are

grounded in the speaker’s religious beliefs. Section

8-101 deplores “groups prejudiced against one another

and antagonistic to each other because of their actual

or perceived differences, including those based on .

sexual orientation ... .” It says nothing about religion,

and Okwedy concedes that government may “enshrine

tolerance as the highest virtue” (Pet. at 13). However,

Okwedy contends that government may not “further

its interest in preventing discrimination by

condemning religious beliefs and curtailing religious

expression” (Pet. at 7).

Curtailment of expression is not at issue here.

Petitioners’ Question Presented complains only about

criticism, not suppression (Pet. at i). Section 8-101

does not regulate speech, and Okwedy’s claim that

Molinari used the coercive powers of his office to

pressure PNE into taking down Okwedy’s billboards

was dismissed on consent. The most Okwedy can

claim is that a borough president and City attorneys

criticized his attitudes towards homosexuality as

bigoted and intolerant.

Okwedy has not identified any conflict between the

Second Circuit and others regarding the claimed

Establishment Clause violation. On Okwedy’s first

appeal, the Second Circuit held that there was no

Establishment Clause violation. The Court approved

the District Court’s conclusion “that Molinari’s

conduct comports with the requirements of the test set

forth in Lemon v. Kurtzman,” 403 U.S. 602 (1971).

Okwedy, 69 Fed. Appx. at 484; accord Okwedy, Pet.

App. at 5. The District Court had explained that the

City’s anti-discrimination laws were secular in purpose

and did not run afoul of the Establishment Clause

because they offended some individuals’ religious

beliefs. Okwedy v. Molinan, 150 F. Supp. 2d 508, 519-

20 {E.D.N.Y. 2001), aff'd, 69 Fed. Appx. 482, rev’d in

part on other grounds, 333 F.3d 339. And the District

Court concluded that Okwedy’s condemnation of

homosexuality was not immune from _ criticism

because it was grounded in religion. Indeed, the Court

said that special treatment of Okwedy’s ' viewpoint

would offend the Establishment Clause’s principle of

neutrality towards religion. Jd. at 520.

Okwedy’s claim of a conflict is premised on the

mistaken proposition that the Second Circuit ruled

that government speech about religion will not violate

the Establishment Clause unless it involves threats,

coercion, or intimidation (e.g., Pet. at 16, 17). The

Second Circuit’s treatment of Okwedy’s Establishment

Clause claims is discussed in the _ preceding

paragraph. The Court’s references to government

threats and intimidation were made in connection with

Okwedy’s claim—not raised here—that his Free

Speech rights were violated when Molinari wrote to

PNE, complaining about Okwedy’s. billboards. See

Okwedy, 333 F.3d at 342-43; Okwedy, Pet. App. at 4.

za

On Okwedy’s first appeal, the Court reinstated his

Free Speech claim and remanded it for the District

Court to consider whether Molinari had impermissibly

coerced PNE into removing Okwedy’s billboards.

Okwedy, 333 F.2d at 344. The claim was later

dismissed on consent (supra p. 2).

Like the other circuits quoted by Okwedy, Pet. at

17-18, the Second Circuit recognized that government

must be neutral in matters of religious doctrine and

denominational preference. Okwedy, 69 Fed. Appx. at

484-85. The decisions relied on by Okwedy do not

suggest that the Establishment Clause is violated

when government officials and employees assail a

speaker’s assertion that homosexuality is sinful. The

criticism of Okwedy’s message was far less pointed

than the condemnation of “‘the Religious Right”

contained in a formal Board of Supervisors resolution

that one court found did not violate the Establishment

Clause. Am. Family Ass’n, 277 F.3d at 1119. There,

the government not only made the reference quoted

above. it linked the advertisers’ religious message to a

particularly notorious killing of a gay man. 7d. In the

instant case, the critical statements attacked

Okwedy’s view of homosexuality, but did not assail

religion, either in general or as practiced by Okwedy

(C.A. App. at A189 (reprinted in City Legal

Memorandum, Pet. App. at 59)). The Establishment

Clause requires that government “must be neutral in

matters of religious theory, doctrine, and practice.”

Epperson v. Ark., 393 U.S. 97, 103-04 (1968). It does

not prevent the government from criticizing a religious

person’s viewpoint on a secular issue.

Debate on many public policies would be stifled if

the Constitution prohibited officials from criticizing

speakers who take positions grounded in their

Ge

religious beliefs. Given the diversity of religious tenets

and practices in our country—diversity encouraged by

long-held values and protected by the Constitution—

many government policies offend someone’s religious

principles. Just as the Establishment Clause its not

violated when government conduct “happens to

coincide or harmonize with the tenets of some or all

religions,” McGowan v. Md., 366 U.S. 420, 442 (1961),

it is not violated when government adopts and defends

a secular policy at odds with someone’s religious

principles.

CONCLUSION

The petition for a writ of certiorari should be

denied.

MICHAEL A. CARDOZO

Corporation Counsel of the

City of New York .

Attorney for Respondent

City of New York

100 Church Street

New York, New York 10007

(212) 788-1010

LEONARD J. KOERNER

Chief Assistant Corporation Counsel

Counsel of Record.

KRISTIN M. HELMERS,

ALAN G. KRAMS,

of Counsel.