Showing posts with label San Marcos. Show all posts
Showing posts with label San Marcos. Show all posts

22 December 2013

Lamar W. Hankins : Opportunist Narvaiz Takes On Doggett Again in Gerrymandered 35th

Congressional candidate Susan Narvaiz and friend. Image from Facebook.
Unsolicited advice, Dept.:
A Narvaiz strategy to defeat Doggett
Narvaiz is a political chameleon who says what she needs to say and does what she needs to do to protect herself from political accountability.
By Lamar W. Hankins / The Rag Blog / December 23, 2013

SAN MARCOS, Texas -- Three years ago, when Susan Narvaiz was near the end of her last term as Mayor of San Marcos, I asked her in a public meeting for some information about the number of jobs created through the use of publicly-funded development incentives provided by the City Council. She said she had that information at her office and would get it to me. Even after a later reminder, I’m still waiting for that information. That promise and her failure to fulfill it about sums up what I expect from her in any political office.

Narvaiz is a political chameleon who says what she needs to say and does what she needs to do to protect herself from political accountability. She is also an opportunist, which may be behind her reported return to San Marcos to run again against Rep. Lloyd Doggett for Congress in District 35. In her first run against Doggett in 2012, she garnered only 32% of the vote. One oft-followed piece of political lore, which Narvaiz may have in mind, is keep running to increase your name recognition and eventually you will be elected.

The district includes parts of the San Antonio metropolitan area, including portions of Bexar County, the tiny westernmost corner of Guadalupe County, thin strips of Comal and Hays and portions of Caldwell counties, along with portions of southeastern Austin in Travis County. The largest contiguous land mass combines southeastern Travis, northeastern Hays, and southwest Caldwell counties.

The strange shape of the district reminds me a bit of the outline of Vietnam. It was ranked by the National Journal as one of the 10 most contorted congressional districts in the nation, as a result of redistricting by a Republican-controlled Texas Legislature hoping to drive Doggett out of Congress.

The population of the district is about 62% Hispanic, almost 11% Black, and 25% White. Over one-fourth of the district’s residents are below the poverty line based on income.

If Narvaiz’s history is any indication, she will cobble together supporters from the evangelical community, the Tea Party fringe of the Republican Party (very active in parts of District 35), members of the business community, and Hispanics, even though it is her husband, Mike, who is Hispanic, not Narvaiz. Mike Narvaiz, an electrician, used his political contacts among Hispanic groups to get his wife several endorsements in her past political races.

Texas Cong. Dist. 35.
When Narvaiz filed to run for Congress against Doggett about 20 months ago, she developed few positions that could be contrasted with what Doggett had fought for during his many years in pubic life. She stuck with the glittering generalities of limited government, individual rights, personal responsibility, compassion, accountability, keeping our nation strong, and maintaining our resolve. Of course, no candidate would oppose such platitudes. I don’t know anyone who doesn’t agree with these nostrums. Only when we get to specifics do we learn what a candidate may mean.

Last year, we never heard enough specifics to know whether Narvaiz had any positions worth supporting. This time around will likely be similar, though I’m sure she will run against the Affordable Care Act and refer to it as Obamacare. I don’t know if this will help, since Obama drew over 63% of the vote in District 35 in 2012, with Doggett drawing 64% against Narvaiz. The 2012 Democratic Party nominee for governor received 60% of the vote in District 35 and few people even remember his name.

Early this past August, Narvaiz announced that she and her husband were moving to Carlsbad, New Mexico. The announcement followed her usual evangelical style, assuring voters that this decision came directly from God. I’m sure Narvaiz is serious about her faith, but she also seriously uses that faith to promote her political ambition, a practice that diminishes her and her professed religion in the eyes of many, whether religious or non-religious.

She first visited Carlsbad to be the keynote speaker at the annual Mayor’s Prayer Breakfast in October 2012, a forum similar to those she promoted to great political advantage in San Marcos during most of her tenure as mayor. For several years, Narvaiz used funds appropriated for City Council expenses to host breakfasts for local clergy, about every other month, in city facilities. Each “Breakfast with Mayor & Clergy” began with an invocation and ended with a “closing prayer.” Unless you were a religious leader on her list, you were not invited.

The events enabled the Mayor to reach out to religious leaders for her own political purposes at public expense. The breakfasts were not sponsored by the City Council and were not official City functions authorized by any action of the City Council. Yet Narvaiz used city meeting rooms, city staff, and city resources to carry on her outreach to the religious community, especially to evangelicals, during her time as Mayor.

Narvaiz continued her outreach to the religious community through her last campaign for re-election, the slogan for which was “Forward Progress, Higher Purpose.” Her campaign website explained the meaning and significance of her slogan:
I believe that each of us exists to fulfill a specific purpose in a bigger plan, God’s plan. Each of us is called to use our gifts and talents to serve others. ...And when we do, we will change the lives of those around us for the better. We will be people of character. We will be servant leaders and we will be what God has called each of us to be. There is no higher purpose.
While many of us may share these views, we should remember that Narvaiz was not running for an ecclesiastical office; she was campaigning for a secular public office. Her personal religious views should not have been bankrolled with the taxpayers’ money, as they were during her tenure as Mayor.

She spent tens of thousands of taxpayer dollars to support her religious outreach program, including an August 15, 2007, “Breakfast and tour with Mayor and Clergy” bus trip that included both breakfast and lunch. This was not an official city event, but was paid for with public funds.

On June 20, 2006, the Mayor called an “Emergency Clergy Meeting,” paid for with public funds to discuss parking and litter problems in the Rio Vista Dam area with clergy and religious leaders.

And during Narvaiz’s first term as Mayor of San Marcos, she started the practice of opening meetings with prayer -- mostly by Christian evangelical pastors. In a community as diverse as San Marcos, this action was an affront to the consciences of the religious and non-religious alike. But zealots like Narvaiz can see only their own truth. Everyone else is condemned to hell, and their feelings and beliefs are unimportant.

Narvaiz is returning to San Marcos to run against Doggett after losing her bid in October to become County Manager of Eddy County, New Mexico, where Carlsbad is located. Whether the loss of that job opportunity caused her return to San Marcos has not been made public, but the timing is curious. She may have been mistaken about God’s plan for her just four months ago. But she was at least as sure of the righteousness of our last president's decision to invade Iraq, as she was of her decision to move to Carlsbad.

On March 24, 2003, when Narvaiz was a San Marcos city council member, she voted in favor of a council resolution that was intended to show that preemptive war is patriotic. The resolution was really a thinly-veiled show of support for President George W. Bush as he violated the Nuremberg principles in more than one respect, particularly Principle VI: “Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances.”

In March 2003, so strong was the war-induced patriotism that a Gallup poll showed that 79% of Americans supported going to war in Iraq; now, a majority believe that decision was wrong. But not one of those pro-war members of the City Council, including Narvaiz, has issued a public apology for their unconscionable support of this war, about which they had no doubts at the time. Apparently no doubts have crossed their minds since. In fairness to Narvaiz, she is probably too busy moving, running for office, and seeking new employment opportunities to apologize for that mistake made over 10 years ago.

Although we know very little about Narvaiz’s positions on national issues, other than preemptive war, we have hundreds of votes by Doggett that indicate his fitness for public office. In addition, Doggett has clear positions on national issues at his website, covering the budget, higher education, federal aid to public schools, tax fairness, bank practices reform, veteran support, and consumer protection.

In the 2012 race, Narvaiz spent about $182,000 and had a debt of almost $78,000 when the race was over. Doggett spent almost $2 million in the newly-created district in over half of which he had never been a candidate for Congress. Doggett has nearly $3 million on hand for the 2014 race. There are no figures available publicly for the amount Narvaiz has available to spend for 2014.

In 2012, Doggett received support from lawyers/law firms, retired people, health professionals, building trade unions, industrial unions, the real estate sector, transportation unions, the finance sector, and hospitals/nursing homes. Narvaiz’s main financial support came from the real estate sector, construction services, retired people, building materials and equipment suppliers, the general business community, general contractors, the sea transport sector, Republican and conservative organizations, the business services sector, and the food and beverage industry. [Source: Project Vote Smart].

Norvaiz with Cong. Paul Ryan.
These political contributions for both candidates represent support from individuals, groups, and organizations that like some or most of the political decisions each candidate has made while holding public office and the positions they have taken during their campaigns. Narvaiz’s contributions are weighted toward the interests she supported while mayor. For instance, her support for a conference center and hotel was viewed favorably by the food and beverage industry, which has now rewarded her for that support.

In the race last year, 62% of Narvaiz’s contributions came from identifiable industries, most located in the Central Texas area and Houston. Only 3% of her contributions were from out of state. For Doggett, 85% of his contributions came from identifiable industries, with 5% of total contributions from out of state.

Of the more than 167,000 votes cast in the 2012 election in District 35, Doggett carried the district’s portions of four of the six counties included in the district. He was weakest in the Comal and Guadalupe county portions of the district, and strongest in the Travis and Bexar county portions.

Unless Narvaiz can figure a way to find more votes in these Travis and Bexar county areas, she has little hope of defeating Doggett. What Narvaiz could do to enhance her chances against Doggett is move toward moderation of her views in several areas. She could start by downplaying her public religiosity. A more modest personal religious stance that keeps her religious views private would show the electorate that she is not claiming that she is God’s chosen emissary to the U.S. Congress.

Her indecisiveness about which state to live in doesn’t make for a convincing narrative that will change the minds of many voters. She should explain that she was enticed to move to New Mexico because she thought she would have a better political future in that smaller state. If her Carlsbad benefactor turned out to have less to offer than she was led to believe, she could tell that story in a way that shows she was a victim of deceit.

When it comes to dealing with her nearly complete embrace of the corporate world, she could explain that the experiences of the past decade or more, in retrospect, and after much serious analysis, have led her to conclude that banks and large corporations must be kept at arm’s length from government. Otherwise, they will rob the public treasuries at every opportunity.

After some thought and from her perspective running an employment agency, she may have learned that the jobs paid for with public taxes and other financial incentives given to developers have not resulted often in the livable wages regularly promised (or at least hinted at). She may have discovered that the studies and reports done by even the business community have shown that putting developers and their corporations on the public dole is a no-win proposition for governments at all levels. If so, running as an “I’ve learned my lesson” politician who wants to repent may be the best way to win over some moderate voters.

It might help for Narvaiz to have her husband work the voters door-to-door in the District 35 portions of Travis and Bexar counties. He can put a Hispanic face on her campaign that may draw some of those voters away from Doggett.

Narvaiz may not be able to show greater concern for veterans than Doggett has, but she could enlist the assistance of a cadre of veterans, all identified by hats, signs, and buttons as “Veterans for Narvaiz.” These folks would need to be available for pictures and videos wherever Narvaiz is campaigning, so that no picture of her appears without an identifiable “Veterans for Narvaiz” campaigner by her side or right behind her. As long as these people don’t have to say anything, Narvaiz may be able to convey the appearance of concern for veterans, which may convince a few people to vote for her.

Finally, Narvaiz may be helped by studying Doggett’s voting record carefully to find areas where she can distinguish herself. For instance, Doggett voted for Obamacare. Given the poor start to that program, Narvaiz could extoll the virtues of a program like Medicare, which has reduced the health care hassles for all seniors, and suggest that she is the sort of compassionate moderate who favors making one of life’s basic necessities available somewhere other than emergency rooms.

I’m sure that there are many other ideas that would help Narvaiz’s campaign. If I think of any others, I will pass them along.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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30 September 2013

Lamar W. Hankins : A Case Study in DWI in San Marcos, Texas

Kyle Maysel's arrested is reported on San Marcos television. Image from kens5.com.
A case study:
DWI and the citizen accused
A San Marcos attorney was arrested on a DWI charge during a 'no refusal' weekend and questions have been raised about the conduct of the police and the judge involved in the case.
By Lamar W. Hankins / The Rag Blog / September 30, 2013

SAN MARCOS, Texas -- This past August 30, San Marcos attorney Kyle Maysel was arrested on a DWI charge after a minor traffic accident in which he backed into a stopped car. That day was the start of the first “no refusal” weekend to be conducted by the San Marcos Police Department (SMPD), a weekend when anyone arrested for DWI would not be allowed to refuse to take a breath test or a blood test to measure the alcohol content of their breath or blood.

It coincided with the Labor Day Holiday weekend (August 30-September 2). Several questions have been raised by reporters about the conduct of the police and the judge who was involved in the case.

Maysel, a well-known 55-year-old attorney in San Marcos and president of the Hays County Bar Association, was backing out of a parking space on Hopkins Street in downtown San Marcos around 10:30 p.m. He failed to notice a westbound car in a line of cars stopped for a red light at the corner of Hopkins and Guadalupe Street. Maysel’s vehicle struck the stopped car on its right rear. The drivers of both vehicles apparently drove one and a half blocks to an HEB parking lot after the accident.

San Marcos police officer Jason Scott arrived at the parking lot a few minutes later, along with another officer, to investigate the accident. During the officer’s investigation, he observed that Maysel was unsteady on his feet, had glassy eyes, slurred his speech, spoke slowly, had an odor of an alcoholic beverage on his breath, and leaned against a car for support.

Maysel also exhibited six “clues” related to intoxication on the Horizontal Gaze Nystagmus (HGN) test, during which Maysel had difficulty following the officer’s instructions to put his feet together, to put his hands down to his side, and to follow the procedure requested. The officer had to repeat his instructions many times over a nearly 10-minute period.

The HGN test requires an officer to watch the action of a subject’s eyes to determine whether they bounce or jerk unusually as they track the horizontal movement either of an object held by the officer or the officer’s finger. The inability of the eyes to track smoothly can be caused by excessive alcohol use, as well as many other factors.

Maysel had to be told several times to follow the officer’s finger with his eyes as he moved his finger in front of Maysel’s face from side to side. The officer reported that Maysel became argumentative about the HGN test and the officer’s observation that he was unsteady on his feet.

When first contacted by the officer, Maysel was confused about where his driver’s license was, believing he had given it to another officer before finding it in his shirt pocket. Maysel admitted to backing into the stopped car, and refused to perform any other standard field sobriety tests, which usually include the one-leg stand, and the walk-and-turn test. Initially, Maysel agreed to do the one-leg stand on a flat surface, but after moving to a flat area, Maysel refused the test.

The officer’s conversation with Maysel contained further confused statements related to how much he had to drink. At first, Maysel responded that he had a couple of drinks. Later, he said that he had three or four drinks while watching a football game. Maysel refused to take both a breath test and a blood test to determine alcohol concentration in his body after having been read a statutory warning that a refusal would result in the loss of his driver’s license for at least 180 days.

Two other police officers, Don Lee and Tony Scott, assisted with the investigation. Officer Tony Scott explained the “No Refusal Blood Draw” program to Maysel. Upon learning that District Judge Bill Henry would be asked to issue the warrant for the blood draw, Maysel told the officers that he knew Judge Henry.

Maysel was handcuffed and arrested. His car was left in the parking lot since it was parked legally and no one could be found to drive it away. Maysel was driven in a patrol car to Central Texas Medical Center (CTMC), which has an informal agreement with SMPD to do blood draws for its “no refusal” initiative.

A search warrant to authorize the blood draw was prepared and signed by officer Jason Scott after he swore to the affidavit supporting the warrant during a telephone conversation with Judge Henry, who then asked for the warrant and affidavit to be taken to him at his home for his review and signing. This was done by officer Tony Scott.

Forty-five minutes later, Officer Tony Scott arrived back at the CTMC and informed the arresting officer, Jason Scott, that Judge Henry refused to sign the warrant for the blood draw because Judge Henry “has a working relationship with Maysel and knows about his (Maysel’s) drinking problem (which) he felt... made him subject to being called as a witness should the case come to trial.”

Further, Judge Henry “stated he was with Maysel (that day) during a retirement party at the Courthouse around noon.” The report by Officer Tony Scott states further, “The Judge denied there being alcohol at the party but stated Maysel has a drinking problem he (Judge Henry) is aware of.” All of the quotes are taken from Officer Scott’s written report.

The arresting officer decided not to pursue the arrest of Maysel, drove him to his truck so that Maysel could retrieve some personal belongings, warned Maysel against driving his vehicle again that night, and gave him a ride to his home. The officer did check the parking lot later in the night to make sure Maysel’s vehicle was still parked there.

This case brings up several issues that may be confusing to the average person, as well those who have a working knowledge of police procedure:
  1. Why wasn’t there another judge who could have signed the warrant?
  2. Why is it constitutional to take a blood sample against a person’s wishes?
  3. Why would Judge Henry recuse himself from participating in the issuance of a warrant to take a sample of Maysel’s blood?
  4. Why wasn’t a DWI charge pursued after Maysel’s arrest even though no breath or blood specimen was provided?
In an interview with San Marcos Police Chief Howard Williams, he explained that the Labor Day weekend was the first time that the SMPD had tried to do a “no refusal” program and ironically the first case it attempted revealed an unanticipated glitch in the program.

The SMPD had asked Judge Henry if he would be willing to participate in the program. He is one of two district judges who live in or around San Marcos. No one had thought about what to do if, for some reason, Judge Henry believed that it would be improper to issue a warrant for a blood draw on a subject.

State law allows only certain judges or magistrates to issue blood draw warrants -- they must be attorneys. This requirement leaves out all of the Justices of the Peace who are not attorneys, which includes all now serving in Hays County. Also, municipal court judges must serve in municipal courts of record to be allowed to issue blood draw warrants, but the judge for the San Marcos Municipal Court, which is a court of record, had not previously been contacted about the program.

This left only three judges who reside in Hays County, other than Judge Henry, who were eligible to issue a blood draw warrant for Maysel. Because no plans had been made for a substitute judge to issue a blood warrant, there was inadequate time to find another judge who was eligible to issue a warrant, and the police thought that perhaps all of them would find themselves unable to issue such a warrant for the same reasons given by Judge Henry.

The constitutionality of using a warrant to draw a blood sample in a DWI case has been settled law under the U.S. Constitution since 1966, when the U.S. Supreme Court held that blood samples may be taken provided that the requisites of the Fourth Amendment are met.

In Texas 11 years ago, the Texas Court of Criminal Appeals made clear that this was the law in Texas provided that the warrant is based on sufficient probable cause; that is, the officer must explain precisely, in a written affidavit, what evidence exists that the person whose blood is sought may be intoxicated. And the magistrate issuing the warrant must be neutral and unbiased, what the law considers “detached.”

In addition to satisfying the requirements of the Fourth Amendment and its comparable provision found in the Texas Constitution for the issuance of a search warrant for blood evidence, Texas law recognizes an “implied consent” concept. That is, if a person obtains a valid Texas drivers license, the possession of which is a privilege and not a right, such a person has given “implied consent” to provide a breath or blood sample when one is requested under the proper circumstances or suffer the consequences.

In the Maysel case, that consequence will be the loss of his drivers license for at least 180 days unless an administrative law judge finds that the requisites for an arrest for DWI were not met.

The reasons for Judge Henry’s recusal from the Maysel case may be more difficult to understand. In a few situations, recusal is mandatory. The Code of Criminal Procedure provides that a judge is disqualified from hearing a criminal case if the judge is the injured party or has been the counsel for the state or the accused, or if the accused or an injured party is a close relative.

The Code of Judicial Conduct provides broader, discretionary standards, however. The Code calls for judges to maintain “high standards of judicial and personal conduct” in ways that preserve the “integrity and independence of the judiciary.” Judges are further required to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” Undoubtedly, these standards weighed on Judge Henry’s decision in the Maysel case.

On the other hand, another provision of the Code of Judicial Conduct provides that judges “shall not allow any relationship to influence judicial conduct or judgment.” Arguably, a judge should not allow a professional relationship with an attorney who regularly appears before him or her to influence the performance of that judge’s duties. But another section of the same Code provides that judges should hear and decide matters that come before them “except for those in which disqualification is required or recusal is appropriate.”

Judge Henry’s knowledge about Maysel, his concern that questions might later be raised about his own impartiality, and the mixture of judicial conduct standards make it difficult to determine whether recusal was necessary. But except for mandatory disqualification situations, recusal decisions are almost always left to the discretion of the individual judge, and there are ample reasons to support Judge Henry’s decision in this case.

The reasons a DWI charge was not pursued can be found mainly in officer Jason Scott’s report of the incident. At one point during the interchange between Scott and Maysel, his lapel microphone malfunctioned. The HGN test took an excessive amount of time. There were time delays caused by the relocation from the HEB parking lot to one that was more level across the street from HEB.

Fulfilling the procedures of the new “no refusal” program took additional time. The preparation of the warrant, the phone call with Judge Henry, and delivering the warrant to Judge Henry, after which he recused himself, took even more time. From the time Maysel left the parking lot and Officer Tony Scott arrived back at CTMC with news of the recusal action almost three hours had passed.

While this was not too long a time to secure a breath or blood test, it was apparent that neither would be taken in this case. Without a breath or blood test, the case would rest completely on the officer’s observations and the videos.

While the videos may have been sufficient, along with the testimony of three officers about Maysel’s condition and behavior, officer Jason Scott decided not to pursue the arrest further, something that is within his discretion to decide, though it is not unreasonable to let that decision be made by the district attorney, whose job it is to prosecute such cases.

I did not talk to any of the officers involved in the Maysel case, but I will note that I have represented clients formally charged with DWI in which the evidence against them was less than the evidence amassed against Maysel.

While the state has a more difficult time prosecuting such cases, they regularly do so, especially when the video evidence clearly demonstrates that the accused was impaired. In addition, there were at least two civilian witnesses to Maysel’s actions and demeanor at and immediately after the time of the accident. Their testimony, as well as the testimony of people in the bar where Maysel had been drinking, could have been sought.

After reviewing all of the reports provided by the SMPD, as well as the videos taken by the department’s in-car cameras, I was left with the impression that the officers had little confidence in their conclusions about Maysel’s intoxication. With additional training, they might feel more secure in pursuing DWI charges that lack more conclusive evidence than was available in this case.

Chief Williams has already taken steps to assure the availability of a judge who is less likely than Judge Henry to have personal or professional relations with local attorneys the next time the SMPD has a “no refusal” weekend.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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04 December 2012

Lamar W. Hankins : City Council and Religious Liberty in Central Texas

San Marcos, Texas, City Hall. Image from Wikimedia Commons.

Nearly half of Austin-area city
councils violate religious liberty
It doesn’t take clergy to remind council members of their duties, and there is little evidence that clergy provide any more moral authority than most of the rest of us.
By Lamar W. Hankins / The Rag Blog / December 4, 2012

SAN MARCOS, Texas -- An on-line review of agendas from 30 Austin-area communities reveals that almost half of area city councils use their elected positions to promote religion. Of those 30 towns and cities, 14 begin their meetings with invocations (usually prayers) according to their agendas. While nearly 47% of area municipalities promote this religious practice, the rest do not. Austin is the largest city in the area to do so.

The invocation practice I have studied the most, that of the City of San Marcos, demonstrates most of the problems with such government religious practices. San Marcos did not have such City Council prayers until then-Mayor Susan Narvaiz introduced the practice around 2006.

When Narvaiz (a recent Republican candidate for Congress defeated by Rep. Lloyd Doggett) became mayor of San Marcos in 2004, she set about to promote her evangelical religion through her elected position.

She may not have intended to attack the religious liberty of everyone who held different religious views, but that was the effect when she pushed all but one city council member to vote to begin having almost exclusively Christian prayers at the beginning of each regular meeting of the City Council. Apparently, divine guidance was not needed at special meetings and workshops.

While not everyone on the City Council at the time -- including some who voted for the practice -- approved of it, the fear of political reprisal caused most of them to go along with this disregard for the religious liberty of all San Marcos residents.

After challenges to the practice by the ACLU of Texas and Americans United for the Separation of Church and State, the City Council adopted a formal policy that, in effect, required nonsectarian prayers, but this requirement has been largely ignored by both the City Council and those included on its Invocation List -- mostly local ministers approved by the City Clerk to give invocations.

In 2009, after hearing in person from ACLU attorney Fleming Terrell at a city council meeting, the Council directed the City Attorney to promulgate an Invocations Policy that met the Council’s preferences and would satisfy the leading Supreme Court case in this area, Marsh v. Chambers, 463 U.S. 783 (1983).

Marsh was a lawsuit challenging the invocation practice of the Nebraska Legislature. In Marsh, the Supreme Court allowed limited legislative prayer based on history and custom as a narrow exception to the Constitution’s prohibition of an establishment of religion by a governmental body. Of course, San Marcos had no such history and custom.

In Marsh, the invocation prayers were directed only to legislators in the Nebraska Legislature. Offered by the Legislative Chaplain, they never included any reference to Jesus or other Christian symbols or language, so they did not “advance” Christianity.

Normally, these kinds of prayers are referred to as nonsectarian. But even nonsectarian prayers can lead a reasonable observer to conclude that the sponsor of the prayers (the San Marcos City Council in this case) favors religion over non-religion. When the prayers use the name of Jesus, or include Christian symbols and language normally identified with Christian doctrine or belief, a reasonable conclusion would be that the City Council favors Christianity over other religions.

The City Council policy, adopted on August 4, 2009 (Resolution 2009-97R), provided that the City Clerk would maintain a list of clergy who would give invocations on a rotating basis; that the clergy would represent all faith traditions that could be found in or out of the city; and that the invocations would not be used “to advance any one religion, disparage any other religion, or proselytize,” quoting some of the language from the Marsh decision. The policy also provided that any clergy who violated the policy could be removed from the rotation list.

I have periodically reviewed the implementation of this policy and have recently reviewed all 42 regular meetings between March 1, 2011, and November 20, 2012.

In 34 of the meetings, invocations were given. In eight instances, a moment of silence was observed because no clergy member was available to offer a prayer. Twenty-one of the 34 prayers referred directly to Jesus. Nine other prayers referred to Christian symbols or used language associated with Christian doctrine or belief. Nearly 90% of the prayers promoted Christianity in their content, an unmistakable violation of the holding in Marsh.

Introductions of the guest clergy is another way the invocations promote Christianity. When their names are announced, so are the names of the churches they represent. Fifteen of the organizations associated with the clergy who participated over the past 20 months are Christian groups. Announcing these Christian affiliations publicly further involves the City Council in promoting and advancing Christianity, just as announcing other religious affiliations advances those religions.

It should be noted that the council violated its own policy when those who gave prayers were not clergy associated with a particular religion. One was the chaplain for the San Marcos Fire Department; one was a student involved with the local Catholic Student Center and St. Jude’s Chapel; one was an employee of the San Marcos Baptist Academy; one was a member of a local Muslim group; one was introduced as a Bahá’í “pastor,” although Bahá’ís do not have pastors; and one person is a Native American who is the proprietor of a business -- the Cherokee Candle Shop.

The Invocation Policy resolution focuses on a brief summary of the Marsh decision. It does not concern itself with lower court decisions that have piled up since 1983 and that apply Marsh to other cases, some strikingly similar to the San Marcos situation.

For instance, in 2002, Rubin v. Burbank, 101 Cal.App 4th 1194, held that city council prayer ending “in the name of Jesus Christ” violated the Establishment Clause, even when only 20% of prayers had such references, citing Marsh as precluding prayers that advance any one religion.

In a decision eight years ago, Wynne v. Town of Great Falls, 376 F.3d 292 (4th Cir 2004), the court wrote:
The invocations at issue here, which specifically call upon Jesus Christ, are simply not constitutionally acceptable legislative prayer like that approved in Marsh. Rather, they embody the precise kind of "advance[ment]" of one particular religion that Marsh cautioned against.
In a footnote relevant to the San Marcos practices, the Wynne court found “that citizens customarily participated in the prayers by standing and bowing their heads. Indeed, citizens actively joined in the prayers by declaring ‘amen’ and sometimes ‘hallelujah’ at the conclusion.”

The practice of saying “amen” aloud at the conclusion of San Marcos prayers occurs at virtually every meeting. One pastor even invites the audience to join in his prayers by concluding with “And all God’s children said Amen,” which is always joined by a rousing chorus of “Amens” from the audience.

Frequently, those who give the invocations at San Marcos City Council meetings address the audience directly, importuning them to bow their heads or join with them in the prayer. In one instance the clergyman even interjected “hallelujah” and “glory” in his own prayer, giving it the flavor of a worship service.

It should be noted that the Wynne decision was appealed to the U.S. Supreme Court, but earlier this year that court refused to consider the case, so Wynne stands as an exemplar of the constitutional limits of city council invocation practice.

In another 2012 case, Galloway v. Town of Greece (New York), 681 F.3d 20, decided by the U.S. Court of Appeals, 2nd Circuit, the court held that town council prayers that contain Christian references two-thirds of the time, even when other faiths also give prayers, unconstitutionally affiliates the town with Christianity.

Many other facts about this case are strikingly similar to those surrounding the practices in San Marcos. The Town of Greece staff was responsible for inviting the clergy to give invocations, and the court noted the following:
A substantial majority of the prayers in the record contained uniquely Christian language. Roughly two-thirds contained references to "Jesus Christ," "Jesus," "Your Son," or the "Holy Spirit." Within this subset, almost all concluded with a statement that the prayer had been given in Jesus Christ's name. Typically, prayer-givers stated something like, "In Jesus's name we pray," or "We ask this in Christ's name." Some prayer-givers elaborated further, describing Christ as "our Savior," "God's only son," "the Lord," or part of the Holy Trinity. One prayer, for example, was given "in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever." Other prayers, including ones not expressly made in Christ's name, spoke of "the role of the Holy Spirit in our lives," and celebrated Christ's birth and resurrection.
In the last 20 months, I found almost identical examples of everything found in the above paragraph in reviewing San Marcos City Council prayers. The Galloway court went on to conclude its opinion with this relevant paragraph:
What we do hold is that a legislative prayer practice that, however well-intentioned, conveys to a reasonable objective observer under the totality of the circumstances an official affiliation with a particular religion violates the clear command of the Establishment Clause. Where the overwhelming predominance of prayers offered are associated, often in an explicitly sectarian way, with a particular creed, and where the town takes no steps to avoid the identification, but rather conveys the impression that town officials themselves identify with the sectarian prayers and that residents in attendance are expected to participate in them, a reasonable objective observer would perceive such an affiliation.
City Council prayers are politically difficult to change because of the very vocal and activist evangelical church members in our communities who like having the government promote their religion. In addition, most people resist understanding the constitutional issues involved because their religious views and attachments often lead to strong emotions and claims that not having government-sponsored sectarian prayer violates their religious rights.

But this view is false. Americans do not have a right to have the government sponsor and promote their religions.

As someone who is non-religious, however, government sponsorship and promotion of religious practices does violate my religious rights. By using the power of government to force the religious practices of a particular religion on me and others in the community who don’t follow the tenets of that religion, the City Council deprives me of my religious liberty.

While I respect everyone’s right to follow whatever religion they choose, I do not respect their right to force their religious beliefs on me at the instigation of the local government.

In effect, the City Council members imply that if they are not allowed to pray mostly Christian prayers at the beginning of each meeting, their own religious liberty will be harmed or will be at risk. Of course, such reasoning makes no sense. A person’s religious liberty is not at risk because that person can’t force others to participate in his or her religion.

City Council members have presumed that they have the right to compel their favored religious practices on others through the use of public funds, staff, buildings, and resources, but they should know better.

They fail to appreciate that no religious group should be given status as the official faith of the city, even for one meeting. The local government cannot elevate any religion to such a status without violating the Constitution.

Fortunately, there are some simple solutions to this constitutional problem. Invocations do not have to be prayers and they do not have to be given by religious leaders. Anyone can address the city council with words about its responsibilities devoid of any reference to divine guidance.

What every city council should do is keep the best interests of its citizens in mind, seek honest information in pursuit of that goal, avoid conflicts of interest, and make decisions on the basis of reason and evidence, rather than engage in subterfuge and false justifications.

It doesn’t take clergy to remind council members of their duties, and there is little evidence that clergy provide any more moral authority than most of the rest of us.

Each City Council member took an oath to uphold the Constitution. By their continued actions in using the city government to promote and sponsor sectarian prayer, each member of the council violates that supposedly sacred oath.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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17 May 2011

Lamar W. Hankins : San Marcos, Texas, and the Separation of Church and State

Thomas Jefferson and the separation of church and state. Sculpture outside the Northshire Bookstore, Manchester, Vermont. Image from Artsology.

Thomas Jefferson,
the San Marcos City Council,

and the municipal promotion of prayer
It is a feeble and flaccid religion that needs the imprimatur of government to find its relevance.
By Lamar W. Hankins / The Rag Blog / May 17, 2011

SAN MARCOS, Texas -- City councils have no jurisdiction over religion, yet throughout Texas and the rest of the country, they promote it, sometimes fervently. While city councils have no power to deal with religion, they love to use religion’s reflected glory to enhance their own status.

When government officials meddle in religion, they lose all perspective and begin to see themselves as righteous and doers of God’s will, even in every zoning change they approve, every no-parking zone they create, and every pothole they order filled.

These council members reject Thomas Jefferson’s view that it is not in the “interest of religion to invite the civil magistrate to direct its exercises, its discipline, or its doctrine." Ignoring this view, city councils are sponsoring prayer at the beginning of their meetings as though they have some ecclesiastical mandate to promote such religious exercise.

They quarrel regularly with the author of the First Amendment, James Madison, who stated, “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant violation."

When President Andrew Jackson was asked to proclaim a national day of prayer and fasting, he said he could not do so “...without transcending the limits prescribed by the Constitution for the President and without feeling that I might in some degree disturb the security which religion nowadays enjoys in this country in its complete separation from the political concerns of the General Government."

Many mayors and city council members don’t believe that they should have such limits.

Historian R. Freeman Butts reports, "Virtually every state as it came into the Union in the nineteenth century adopted the principles that the state guaranteed freedom of religious conscience and that the state would not use public funds to aid or support any churches or their schools."

But city councils in all parts of the country regularly use their offices, public property, public employees, and public resources to promote religious activity–namely, prayer.

Dozens of cities over the last few years have been challenged regarding their sponsorship of prayers, especially Christian prayers. The best advice many of these city councils have received is to adopt policies that establish only non-sectarian prayers. The City of San Marcos, Texas, in 2009, was challenged about its prayer policy by Americans United for Separation of Church and State and the ACLU of Texas. In response, the city council adopted a policy that approved only prayers that do “not advance any one religion, disparage any other religion,” or are used to proselytize.

The new policy, adopted in August 2009, was based on the leading Supreme Court decision on the subject, Marsh v. Chambers. In following the Marsh decision, in 2004, the 4th Circuit Court of Appeals held that any sectarian invocations of deities in legislative prayer demonstrate affiliating the government with a particular sect or creed and/or advancing a particular faith or belief: “Marsh does not permit legislators to... engage, as part of public business and for the citizenry as a whole, in prayers that contain explicit references to a deity in whose divinity only those of one faith believe.”

This decision effectively prohibited sectarian prayers, yet the City Council of San Marcos continues to promote mostly Christian prayers offered as invocations.

One flaw in the San Marcos scheme is that it establishes the City Council as the purveyor of a privilege to practice religion in its chambers as a part of official government business, a notion that eats at the heart of the First Amendment's prohibition against an establishment of religion.

In addition, the policy limits invocation participants to “clergy,” though this provision is ignored at the will of the council or its mayor or city clerk, who is given the responsibility to implement the prayer scheme. For example, several non-clergy associated with one religion or another have been allowed to offer invocations.

But the policy limits participation to those who represent a “faith tradition,” effectively excluding others who are not part of a faith tradition, but who are capable of giving an invocation, which is nothing more than a petition for help or support. This provision makes clear that the city council is promoting religion over non-religion.

Since the adoption of this new invocation scheme in San Marcos and through February of this year, there were 37 invocations at regular City Council meetings. All but four of those prayers were directed to the Judeo-Christian God (at least two prayers were arguably addressed to some other deity, or a generic deity), and two of those invocations -- both nonsectarian -- were offered by a member and a minister, respectively, of the San Marcos Unitarian Universalist Fellowship.

Twenty-one of the prayers specifically invoked the name of Jesus, with phrases like “In the name of Jesus Christ our Lord and Savior,” “In Jesus’ name we pray,” “in Jesus’ precious name,” “in the name of Jesus as the Christ,” and similar phrases. One of the prayers included a recitation of “The Lord’s Prayer,” recognized as the prayer uttered by Jesus, according to some Gospel accounts. Many of the prayers were fawning and jingoistic, suggesting the righteousness of City Council members, the city, and the country.

At least 33 of the invocations given since the change in the invocation policy before the San Marcos City council were sectarian prayers -- acts of religious worship to the Judeo-Christian God. They were done at a time when the chamber was full of citizens who came to participate in the governance of the city. Frequently, visitors and citizens in attendance when the prayers were introduced were directed to behave in a certain manner, e.g., stand and bow their heads, “pray with me,” “let us pray” -- clearly religious practices.

Visitors and citizens in attendance were referred to in many of the prayers, if not all of them, as in the use of the inclusive "we" in reference to speaking to God for all in attendance. A new practice introduced by Mayor Daniel Guerrero this past February is to invite an elementary school child to lead those in attendance in the Pledge of Allegiance immediately after the prayer, subjecting the young child to the practice of government-sponsored prayer, something not allowed under the Constitution in our public schools.

The public broadcast of the prayers over the internet and cable television provides the City Council a way to religiously exhort those of its citizens who watch via those media. And the invocation is difficult to avoid if one wants to do so: The agenda is not followed in the order posted; or the actual time the prayer will be given cannot be determined except through guesswork, making it difficult to know when the invocation will be called for.

The invocation is never placed at the beginning of a meeting, but posted often as the fourth, fifth or sixth item, and may be done after a workshop, an executive session, public comments, and after proclamations are issued, so city council members, officials, administrators, and staff, as well as visitors present at the meeting, cannot easily avoid participation by being absent during the prayer.

One of the clergy who regularly offers prayers before the San Marcos City Council asserted before one of his invocations that “it can’t hurt to have a prayer.” On the contrary, the freedom of religion guaranteed by the U.S. Constitution’s First Amendment necessarily carries with it the right to be free from religion imposed by the government, just as the freedom of speech does not permit the government to require me to speak, nor does the freedom of association require me to associate with those the government wants me to associate with.

When the government uses the religious practice of prayer while carrying out its civic functions, it compels all citizens who want to participate in our civic life or observe the government in action to partake of that religious exercise.

One of my favorite quotes about government sponsorship of religious practices is by the late Republican Senator Barry Goldwater of Arizona:
Can any of us refute the wisdom of Madison and the other framers? Can anyone look at the carnage in Iran, the bloodshed in Northern Ireland or the bombs bursting in Lebanon and yet question the dangers of injecting religious issues into the affairs of state?... By maintaining the separation of church and state, the United States has avoided the intolerance which has so divided the rest of the world with religious wars. Throughout our two hundred plus years, public policy debate has focused on political and economic issues, on which there can be compromise...
Most of those who cooperate with city councils to promote prayer do so with noble intentions bereft of an appreciation of how their use of government to advance religion violates the rights of those who have different religious beliefs.

For instance, I do not believe that I should have to participate in another’s religious practice in order to participate in my government, but this is exactly what the San Marcos City Council compels me to do by its sanctioning of official prayer, mostly sectarian, at its meetings.

The early American patriot, abolitionist, and Baptist minister John Leland said,
[W]henever men fly to the law or sword to protect their system of religion and force it upon others, it is evident that they have something in their system that will not bear the light and stand upon the basis of truth.
Another early American patriot and author of “Religion and the Continental Congress, 1774-1789: Contributions to Original Intent,” wrote,
The framers [of the Constitution] sought to divorce religion from government... [T]o make religion dependent upon government was to depreciate true religion; to rely upon government to throw its weight behind religion was to declare God impotent to further his purposes through voluntary means.
While I am encouraged that a long line of American patriots and U.S. presidents from George Washington to Jimmy Carter appreciated the need to keep government out of religion, that history does me no good when no member of the San Marcos City Council will rise to the defense of our forebears and disapprove of government sponsorship of religion in our civic life.

As I have suggested before, one of the greatest ironies of this government prayer promotion is that the most prominent proponents of it are the Christian evangelicals, who believe most literally in the words of the Bible. None of them have ever explained publicly how their behavior can be reconciled with the teachings of Jesus to pray in secret and not in public where they can be seen by others as pious.

It is a feeble and flaccid religion that needs the imprimatur of government to find its relevance. If all who call themselves Christian followed the admonitions of Jesus, we would not have a problem with sectarian prayers at city council meetings throughout the United States.

[Lamar W. Hankins, a former San Marcos, Texas, city attorney, is also a columnist for the San Marcos Mercury. This article © Freethought San Marcos, Lamar W. Hankins. Read more articles by Lamar W. Hankins on The Rag Blog.]

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12 February 2010

Texas State University : Escalate the Peace!

Bobby Whittenberg, Iraq Vet, at Escalate the Peace! rally, Texas State University in San Marcos, Wednesday, February 10. Photo by Alice Embree / The Rag Blog.

Escalate the Peace!
San Marcos demonstrators rally in the sleet


By Alice Embree / The Rag Blog / February 12, 2010

Neither sleet nor drizzle deterred a scheduled antiwar rally on the Texas State University (TSU) Campus in San Marcos on Wednesday, February 10. In the courtyard of the LBJ Amphitheatre, speakers used bullhorns to talk about Iraq, Afghanistan, Yemen, and Palestine under a banner that read, “Escalate the Peace!”

The rally was organized by two TSU student organizations, the Campus Antiwar Movement to End the Occupations (CAMEO) and the Progressive Bobcats Union (PBU).

Speakers included Rev. Jim Rigby from St. Andrew’s Presbyterian Church in Austin and Bobby Whittenberg, an antiwar activist who was deployed to Iraq as a Marine. Courtney Glenn, one of the rally organizers, read a poem about returning soldiers. Caitlin Eaves spoke about Yemen. Liz Welch read a passage from Howard Zinn about why we should never lose hope.

I spoke about the Vietnam-era antiwar movement and about the current GI coffeehouse, Under the Hood Café, in Killeen, Texas. These lines from Courtney Glenn’s poem stayed with me:
We are the disorder
with our mislabeled freedom,
our cannon songs,
our flags of blood.

You are the fodder
for rhetoric
and I will exchange
gratitude for
apology
Today’s antiwar movement is often compared with the Vietnam era. But, the comparison usually conjures up 1968 images. On Wednesday, I watched the sleet bounce off the coat of a speaker and remembered what it felt like in 1964 to be among 20 students demanding a negotiated peace in Vietnam.

I was proud to be there with this small and dedicated group, protesting the wars that seem to morph without end, proud that women were speakers and organizers in ways that were uncommon in 1964, proud to see the familiar faces of veterans I know from the Killeen coffeehouse.

In the words of Margaret Mead, “Never doubt that a small group of thoughtful, committed, citizens can change the world. Indeed, it is the only thing that ever has.”

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