Lawyer Alleges Prayers Incite Followers to Commit Violence Against Him
October 14, 2009
Mary Alice Robbins — Law.com
In a test of the free-speech limits on prayer, a lawyer who has challenged the right of a Dallas-based organization to endorse military chaplains alleges in a recently filed suit that the organization incites its followers in prayers to commit violence against him.
Michael Weinstein, a former lawyer in the Reagan Administration and former general counsel for Ross Perot, alleges in the original petition in Weinstein v. Ammerman, et al. that defendant Gordon Klingenschmitt, on behalf of The Chaplaincy of Full Gospel Churches and its founder, Elmer Harmon “Jim” Ammerman, also defendants in the suit, issued a “fatwah” against Weinstein in April.
“In other words, Klingenschmitt called upon his followers to commit violence against, or even kill, Michael Weinstein, and even his family,” Weinstein alleges in the petition, filed Sept. 23 in Dallas’ 68th District Court. Weinstein’s wife, Bonnie, joined her husband in filing the suit.
The defendants’ answer is due Oct. 19.
As alleged in the petition, retaliatory actions against the Weinsteins increased after Michael Weinstein founded the Military Religious Freedom Foundation (MRFF) in 2005 and began questioning and ultimately challenging The Chaplaincy’s right to be an official endorser, or approver, of chaplains. [See the plaintiff’s original petition.]
According to The Chaplaincy’s Web site, the U.S. Department of Defense approved the organization to endorse military chaplains in 1984 and other federal, state and local agencies recognize the organization.
The Weinsteins, who are Jewish, allege in their petition that the MRFF, a nonprofit charitable organization, is devoted to protecting and preserving constitutional religious freedom for the nation’s fighting men and women. According to the petition, the majority of the MRFF’s work deals with the problems of individual members of the armed forces and their families who have been discriminated against in the military.
Dallas attorney Randal Mathis, who represents the couple, says the Weinsteins’ suit tests whether threats made in prayer are constitutionally protected.
“Of course, we think the answer to that is ‘no,’ ” says Mathis, a shareholder in Mathis & Donheiser. “We think these things called prayers cause violence.”
Klingenschmitt, who served as a U.S. Navy chaplain from 2002 until 2007, says, “My prayers never use the words ‘death’ or ‘violence.’ Those are his [Michael Weinstein’s] embellishments of my words. My words were simply to quote Psalm 109 verbatim.” Klingenschmitt says specifically he quoted from the psalm: “Let his days be few” and “Let his posterity be cut off.”
“My prayer to God is a prayer to God — nothing more,” says Klingenschmitt. who declines further comment. Klingenschmitt refers other questions to his attorney, Austin solo Stephen Casey.
Casey says, “I’m very, very certain the courts are going to recognize the protected nature of Mr. Klingenschmitt’s speech.”
In their petition, the Weinsteins recognize that imprecatory prayers are recognized as part of Judeo-Christian tradition, Casey says. The petition describes imprecatory prayers as “prayers for the Lord to protect the weak and faithful from the strong and wicked.” Courts do not intervene in an area of private communication with God, Casey says.
The Chaplaincy issued a written statement that reads: “Rev. Dr. Jim Ammerman and CFCG, upon advice of counsel, cannot comment on specific allegations raised in the suit against him filed by Mr. Michael Weinstein. Dr. Ammerman believes the allegations are unfounded.”
John Whitehead, president and founder of The Rutherford Institute, says his Virginia-based civil liberties organization is representing The Chaplaincy and Ammerman but plans to use Texas lawyers for the case. Whitehead says Weinstein involves an important free-speech issue.
“If you can stop people quoting Bible verses, you’re going to shut down half the churches, synagogues and mosques in this country,” Whitehead says.
Whitehead also says, “When Martin Luther King spoke, violence erupted in many places. He wasn’t inciting violence. Free speech is the last bastion we have in this country. You can’t shut down speech based on speculation.”
Mathis says his goal is to take Weinstein to the U.S. Supreme Court to find out whether a person enjoys First Amendment protection if he cloaks threats in a prayer.
Mathis says the Weinsteins filed their suit in state court because he thinks they will get to trial quicker there. “I think we’ll have a quicker route to discovery,” he says.
In their petition, the Weinsteins allege that the defendants have made terroristic threats against the Weinsteins and their family in violation of Texas Penal Code §22.07. “These threats were made with the intent to and did cause Plaintiffs to be in fear of imminent physical violence,” the Weinsteins allege.
Also in the petition, the Weinsteins allege causes of action for intentional infliction of emotional distress and conspiracy. The Weinsteins are asking the court to enjoin the defendants from making “further terroristic threats” or from encouraging others to harm the Weinsteins. The petition includes an application for a temporary restraining order to prevent the defendants and others acting with them from “destroying, secreting, altering, amending or deleting documents, either in hard copy form or stored electronically, that would harm the Weinsteins’ ability to prove their case.
Doug Laycock, a religious liberty scholar the University of Michigan Law School and a former professor at the University of Texas School of Law, says he believes the Weinsteins will have difficulty proving their case.
“If the claim is they [the defendants] are praying for God to punish these people, that’s not a cause of action. They can pray for whatever they want,” Laycock says.
He cites the U.S. Supreme Court’s 1969 decision in Brandenburg v. Ohio, a case involving a Ku Klux Klan leader who was convicted under an Ohio criminal syndicalism law for a speech he made at a Klan rally. In its per curiam opinion, the high court held that the Ohio law violated Brandenburg’s right to free speech. Using a two-pronged test, the Supreme Court determined that speech is prohibited if it is directed at inciting imminent lawless action and it is likely to incite such action.
Laycock says a court is going to be skeptical that someone will act on a prayer. “I think it’s going to be hard to prove,” he says.