The last time a First Amendment question arose in a federal court, Staten Island was still part of New York City, New York was part of the United States, and the United States was governed by a Constitution that forbids the making of any law that violates its First Amendment.
How, then, you may ask, can the borough of Staten Island get away with shutting up the Rev. Kristopher Okwedy and his Keyword Ministries? It seems a reasonable question.
The facts are not in dispute. The Constitution forbids the making of any law "respecting an establishment of religion or prohibiting the free exercise thereof." Seven years ago, Okwedy rented two billboards on Staten Island from PNE Media. On them he expressed this message:
"Word on the Street — four 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 a 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 forbidden for it is an enormous sin." (Living Bible)
(For the record: The Scottish scholar was a two-"t" Moffatt, and the other cited translation was the three-"e" Berkeley version, but no matter.)
In March 2000, Guy V. Molinari, as borough president of Staten Island, gazed upon the billboards and found them displeasing. They were "unnecessarily confrontational and offensive." They conveyed "an atmosphere of intolerance which is not welcome in our borough." Molinari did not exactly demand that the billboards be papered over, but he sought the billboard owners, and on March 10 the offending quotations suddenly disappeared.
In his appeal to the Supreme Court, Pastor Okwedy charges that the billboard owner "released his name to the media, resulting in a frenzy of calls, interviews and hate mail." Someone sent Okwedy a suspicious package; borough police at first refused to investigate, but finally opened the package. It contained explicit homosexual magazines. The city of New York dispatched two detectives from its Bias Crimes Unit to interview the pastor. He wasn't home, but they interviewed his wife for evidence of a possible hate crime.
"The detectives made offensive comments about the Rev. Okwedy's national origin (Nigeria) and asked why he had rented the billboards." They appeared to have no interest in the threatening letters he had received.
Okwedy finally went into U.S. District Court with a challenge to New York City's Human Rights Law. District Judge Nina Gershon ruled against him at every point. Last August a panel of the U.S. Court of Appeals for the 2nd Circuit unanimously affirmed. In an unsigned summary order, the court ruled that the law does not purport to prohibit, or suppress, or regulate speech; it merely authorizes action "against prejudice, intolerance, bigotry, discrimination and bias-related violence or harassment."
In the panel's view, Borough President Molinari's purpose was not to suppress religious expression. He was not seeking to threaten or intimidate. He was merely expressing the government's opinion: "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." Nothing forbids government from criticizing speech it deems to be intolerant.
The city's position strikes me as all very true, but when government employs its huge power not merely to express its own view, but to stifle a different view absolutely, something is seriously wrong. This is a case the high court ought to hear. [REPETITION FROM EARLY GRAF?]
Changing the subject abruptly: A number of readers responded strongly to a column I wrote on Jan. 3 discussing a case from Kennewick, Wash. The case arose in 2003 when a zealous police officer, Richard Dopke, spied a man riding a small motorcycle. The man was not wearing a helmet! Sgt. Dopke gave chase. The suspect eluded him. Backup officers arrived, among them a trained dog handler with his faithful canine Deke. Somehow Deke slipped his leash and seriously bit innocent neighbor Ken Rogers. He sued. The city pleaded qualified immunity. The city lost in the ninth Circuit and lost again two weeks ago when the Supreme Court refused to hear its appeal.
Unless an out-of-court settlement can be reached, Rogers' suit will go to trial in April. The moral to the story is that police dogs ought not to bite a hand that feeds a lawyer.
(Letters to Mr. Kilpatrick should be sent by e-mail to kilpatjj@aol.com.)
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