Pennsylvania legislators' 'Year of the Bible' declaration legal but ill-advised, judge says

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Although U.S. District Judge Christopher C. Conner of the Middle District of Pennsylvania dismissed the claims against members of the state House who proclaimed 2012 to be the "Year of the Bible," he also issued a stiff rebuke.

Judge Conner held that the legislators, led by state Rep. Rick Saccone, R-Elizabeth, were covered by legislative immunity, but admonished them for using their time and resources to pass the proclamation.

"At best, [House resolution] 535 is a benign attempt to reaffirm the underlying principles of the Reagan proclamation of 1983. At worst, it is premeditated pandering designed to provide a re-election sound bite for use by members of the General Assembly," Judge Conner wrote in Freedom From Religion Foundation v. Saccone. "The court is compelled to shine a clear, bright light on this resolution because it pushes the establishment clause envelope behind the safety glass of legislative immunity. That it passed unanimously is even more alarming."

Allegheny County's Mr. Saccone, who sponsored the resolution declaring 2012 to be the Year of the Bible, submitted it as being noncontroversial, so it was bundled with other resolutions and passed without debate.

The Freedom From Religion Foundation, a nonprofit organization that advocates for the separation of church and state, filed a suit seeking to enjoin the legislators who supported the resolution from enacting further religious resolutions and compelling them to "publicly report the unconstitutionality of H.R. 535" and recognize that Pennsylvania is subject to the Constitution's establishment clause.

Jeremy Mishkin, a lawyer who practices in First Amendment issues at Montgomery McCracken Walker & Rhoads, called the effort on the part of the foundation "creative," but noted it ultimately faced the problem that H.R. 535 isn't a law, but a ceremonial expression of the legislators' opinion.

"It's an unusual case because it deals with a proclamation instead of a law," he said. The procedure to follow to challenge a law is clear, he said, but, regardless of the strength of the plaintiff's constitutional argument, legislators can't be kept from expressing opinions.

The Freedom From Religion Foundation "attempts to distinguish the resolution at issue in this case from 'real law-making,' arguing that H.R. 535 is nothing more than 'gratuitous political grandstanding,' " Judge Conner said. But fatally, to its claim, the foundation "cannot escape Supreme Court precedent stating that 'committee reports, resolutions, and the act of voting are equally covered' " by the blanket of legislative immunity.

Judge Conner relied on decades of case law as he ruled that the legislators were covered by legislative immunity. He quoted from the U.S. Supreme Court's 1951 opinion in Tenney v. Brandhove, saying that the "privilege of legislators to be free from arrest or civil process for what they do or say in legislative proceedings has taproots in the parliamentary struggles of the 16th and 17th centuries."

The U.S. Court of Appeals for the Third Circuit extended the same immunity granted to members of Congress in the Constitution to state legislators in its 2003 opinion in Youngblood v. DeWeese, the judge said in a footnote.

When someone disagrees with a law, he or she can sue the state in an effort to stop it from being implemented, but can't sue the legislators who passed it, Mr. Mishkin said.

But here, there was no law to stop, so the Freedom From Religion Foundation tried to sue the legislators.

Judge Conner noted that most resolutions passed by the Legislature are appropriate, giving examples of designating Earth Day, commemorating the 100th anniversary of the Girl Scouts and recognizing the death of America's last surviving World War I veteran.

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Saranac Hale Spencer: sspencer@alm.com or 215-557-2449. To read more articles like this, visit www.thelegalintelligencer.com.


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