Stated Clerk signs on to three amicus briefs

2007-03-28

Cases involve religious freedom issues

by Jerry L. Van Marter

LOUISVILLE * Presbyterian Church (U.S.A.) General Assembly Stated Clerk Clifton Kirkpatrick has recently joined as a "friend of the court" with other religious and human rights organizations in three separate amicus curiae briefs addressing religious freedom issues.

"All three briefs seek to uphold the Presbyterian Church (U.S.A.)'s bedrock conviction that all human beings are created in the image of God and, therefore, should have their human rights and religious liberty protected,"
Kirkpatrick said in a statement released March 26.

"There are serious threats to both in our world today, and these three cases are important to uphold that principle,"
he added. "I am pleased that we are able to join a wide variety of other religious groups in supporting human rights and religious liberty."

The Standing Rules of the General Assembly provide that the Stated Clerk of the General Assembly may retain legal counsel and institute or participate in legal proceedings in civil and criminal courts in support of decisions, actions, and programs of the General Assembly, including the filing of amicus curiae briefs.

Amicus curii is a Latin term for a party that is not one of the active litigants in a case, but who speaks to the court as a friend. It brings to the court's attention policy matters and issues that should be considered by the court before rendering its decision.

The General Assembly Advisory Committee on Litigation (ACL) advises the stated clerk on matters of litigation. The committee evaluates the denomination's participation in amicus briefs on the basis of particular criteria to guide them in determining whether a particular brief is of interest to the denomination.

The process that leads to the filing of an amicus brief may begin internally when a presbytery or an entity of the church raises a concern involving religious liberty or personal and social issues, or externally when another denomination or organization asks the stated clerk to consider the issues in a case. Where the brief involves state or local issues, the presbytery involved is ordinarily notified and asked to comment.

For more than two hundred years, PC(USA) General Assemblies have expressed concern for religious liberty and the relationship of church and secular government.

One of the "historic principles of Church order" states that "we consider the rights of private judgment, in all matters that respect religion, as universal and unalienable:
We do not even wish to see any religious constitution aided by the civil power, further than may be necessary for protection and security, and at the same time, be equal and common to all others" (Book of Order, G-1.0300).

At the same time, though independently of each other and in their own ways, the first General Assembly of the Presbyterian Church in 1789 and the writers of the Bill of Rights of the United States Constitution both underscored as foundational the importance of religious freedom.

The three cases: Presbyterian Church of Sudan vs. Talisman Energy Corporation On March 7, 2007, the stated clerk joined an amicus brief to 2nd Circuit Court of Appeals in Presbyterian Church of Sudan (PCS) v. Talisman Energy Corporation. The PCS sued Talisman, alleging that the corporation had knowledge that the Sudanese government was engaging in religious and ethnic genocide and yet entered into an agreement with the government for business dealings, thereby knowingly financing and participating in the ongoing atrocities committed by the government of Sudan.

The 2001 General Assembly placed Talisman on the PC(USA)'s divestment list because of its business practices in Sudan.
Soon thereafter, Talisman announced that it was ceasing all business activities with the Sudanese government.

Town of Foxfire, Colorado vs. The Archdiocese of Denver On March 15, 2007, the stated clerk joined an amicus brief to the Supreme Court of the State of Colorado in Town of Foxfire, Colorado v. The Archdiocese of Denver. The brief supports the Roman Catholic Diocese of Denver in its claim that zoning regulations should not be used to prevent church growth.

The brief is grounded in the Religious Land Use and Institutionalized Persons Act (RLUIPA) that was passed by the United States Congress in 2000. By passing RLUIPA, "Congress conclusively determined the national public policy that religious land uses are to be guarded from interference by local governments to the maximum extent permitted by the Constitution."

Rasul et al vs. Rumsfeld et al On March 16, 2007, the Stated Clerk joined an amicus brief to the U.S. Court of Appeals for the District of Columbia Circuit in Rasul et al v. Rumsfeld et al. The brief argues that when Congress passed the Religious Freedom Restoration Act (RFRA), it intended for the act to apply to all federal law, including the laws pertaining to the military and to the detention of alien combatants.

Those who signed the brief acknowledge in it their grave concerns about terrorism in this country and abroad, and that they in no way wish to encumber the government's efforts at Guantanamo Bay, Cuba, in bringing culpable parties to justice.

However, they go on to assert the value of religious freedom and the belief that the high standard the RFRA set for the federal government, including the military, should be preserved in accommodating religious practice and respecting religious difference, even at detention centers located within U.S. territory but outside of U.S.
sovereignty.

Information for this story furnished by Sharon Youngs, communications coordinator for the Office of the General Assembly, and Laurie Griffith, manager of judicial process and social witness.