Good News from a Surprising Source: The Federal Judiciary

Wall Builders ^ | 06/04/2007 | David Barton

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By David Barton
Posted: 06/04/2007

Good News from a Surprising Source: The Federal Judiciary

by David Barton

When considering the role of judges today, most Americans emphatically agree with a declaration made two centuries ago by Founding Father Elbridge Gerry, a signer of the Declaration of Independence and a framer of the Constitution and Bill of Rights. In describing the role of federal judges at the Constitutional Convention in 1787, Gerry succinctly declared:

It was quite foreign from the nature of their office to make them judges of the policy of public measures. [1]

Luther Martin, another delegate at the Constitutional Convention, agreed, declaring:

A knowledge of mankind and of legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. [2]

Two centuries later, Americans still believe that the courts should not be lawmakers or super-legislatures; but they also believe that the courts have wrongly taken unto themselves this role, especially in the area of religious expressions. A recent poll found that seventy-seven percent of the nation felt that “the courts have overreacted in driving religion out of public life,” and fifty-nine percent believed that the judiciary was singling out Christianity for attack. [3] Such opinions are not surprising when considering that judges and public officials currently:

· Censor religious words from student graduations but allow all other words [4]

· Allow classrooms to have information on Eastern Oriental and Native American religions but not on Christianity [5]

· Permit Jewish and Islamic holiday displays but not Christian ones [6]

· Allow students to wear Islamic but not Christian garb [7]

· Require students to participate in an indoctrination to Islam in which they must pretend they are Muslims and pray to Allah [8] but prohibit those same students from saying “under God” in the Pledge of Allegiance [9]

· Require that if Christians pray public prayers, they may not use Christian words [10]

There are many other examples reflecting a similar hostility to Christianity – and this is only one of the many areas in which judicial activism is evident. Citizens have become critical of judges legislating their own personal views through judicial fiat not only in the area of religious expression but also in the areas of marriage, education, criminal justice, and many other subjects. Yet, when citizens publicly express their disapproval of judicial activism, judges respond with stern warnings that to criticize the judiciary endangers the country and threatens our form of government.

For example, following two decisions in which the U. S. Supreme Court used foreign precedents to strike down American laws, Justice Sandra Day O’Connor (picture on left) publicly condemned the verbal attacks on the judiciary in the wake of the Court’s irresponsible and unprecedented action. [11] Similarly, Chief Justice of the Massachusetts Supreme Court Margaret Marshall (center picture), who bypassed the legislature and judicially ordered the official recognition of homosexual marriages, warned that those criticizing her decision were “threatening public trust in the judicial system, a cornerstone of democracy.” [12] And in hearings before the U. S. Senate Judiciary Committee, federal judge Joan Lefkow (picture on right) called on Congress “to publicly and persistently repudiate gratuitous [verbal] attacks on the judiciary.” [13]

(Evidently, these judges have forgotten that the First Amendment protects not only Free Speech in general but also specifically protects the right of citizens to express their “grievances” to and about the government. As one national columnist insightfully observed, “Isn’t it amazing how easily free speech frightens its so-called advocates?”[14] President Harry Truman’s advice seems appropriate for such judges: “If you can’t take the heat, get out of the kitchen.”)

These and other judges warn that public criticism against their decisions “threatens the independence of the judiciary” and that the opinions of citizens must never be permitted to influence their branch. The Founders would have been appalled by such rhetoric, for as Jefferson explained:

We think, in America, that it is necessary to introduce the people into every department of government. [15] (emphasis added)

Furthermore, the Founders flatly rejected the notion that the judiciary – or any branch, for that matter – was independent from the people. As Jefferson declared:

It should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent is absolute also. . . . Independence can be trusted nowhere but with the people in mass. [16] (emphasis added)

The hyper-sensitivity of judges to what is often justly deserved criticism, combined with what many times are absurd and asinine rulings, not only elicits but also deserves the public disapproval they receive. Yet, it is only the worst judges that become public caricatures of the judiciary; the reasonable, consistent, and restrained judges (of which there are hundreds) are rarely noticed. For example, there are currently some 882 federal judges, [17] and each handles more than 400 cases per year, issuing dozens of rulings, [18] but the public probably hears about less than one percent of the total rulings each year – and even then they hear only about the most egregious decisions; the many good decisions usually go unnoticed. This newsletter will therefore examine some of the numerous decisions indicating the positive changes currently occurring within the federal judiciary.

Religious Expressions & Religious Liberties

Athletic Prayers

Over recent decades courts have regularly ruled against public religious activities involving teachers. (Some courts permit student-led, student-initiated activities, but activities involving teachers have been curtailed.) Courts hold that teachers are authority figures and for them to be involved in a religious activity constitutes possible coercion against students who might feel that if they didn’t participate that their grade would suffer. Consequently, schools regularly bar teachers from participating with students in religious expressions.

For example, New Jersey high school football coach Marcus Borden was prohibited by the school from bowing his head and “taking a knee” with his team when his players voluntarily gathered for prayer before their games. (Coach Borden was a model coach, having been awarded USA Weekend Magazine’s “National Caring Coach of the Year” and the American Football Coaches Association’s “National Power of Influence Award.”) Coach Borden objected to this exclusion from joining with his team and sought relief in court.

Federal judge Dennis Cavanaugh ruled that the school had violated Coach Borden’s First Amendment rights of free speech, academic freedom, and freedom of association. In fact, after acknowledging that the pre-game prayers were a tradition that had existed for decades, Judge Cavanaugh stated that for the coach “to not be allowed to participate in these traditions . . . just doesn't seem right.” [19]

Although Coach Borden is now free to kneel with his team in prayer, the school warns that he still cannot pray with them. (Yet, since many prayers are silent, how will the school know whether he is praying silently when the team prays? – how will they know when to enforce their ban against him?) Nevertheless, this ruling is a happy departure from previous rulings in this area.

(The case was argued on behalf of Coach Borden by the Seton Hall Lawschool Center for Social Justice. Judge Dennis Cavanaugh was placed on the federal bench in 2000 by President Bill Clinton.)

Crosses in City Seals

Over recent years, numerous federal courts have ordered the removal of Christian symbols from city seals, even if the symbols appeared for historic reasons. For example, Zion, Illinois was founded in 1901 by clergyman John Alexander Dowie, who also founded the major church in the town. In laying out the city, the north-south streets bore a Bible name while the east-west streets were numerically numbered. There is no doubt of the significant religious influence on the formation of the town, and the city seal acknowledged that religious heritage (after all, what would you expect from a town named “Zion”?!). Nevertheless, a dissident filed a lawsuit against the seal and in 1991 the federal courts ordered that the seal be changed. [20]

Edmond, Oklahoma experienced a similar effort to censor an acknowledgment of its heritage. In 1887, Edmond was a watering point on the Santa Fe railroad line that stretched across the buffalo covered prairies of the Oklahoma Territory, and Catholic priests operated an Indian mission there. Following the Oklahoma land rush of 1889, Edmond grew into a full-fledged town. The Catholic mission built a church to serve both the Indians and the settlers (the church was used by several denominations), and other churches were steadily added. In 1890, the Oklahoma territorial governor made Edmond the site of a state teachers’ college (now called the University of Central Oklahoma), and the college met in a church for its first three years. Not surprisingly, the city’s seal acknowledged the religious element in its heritage, but an unhappy dissident brought a lawsuit and in 1995, a federal judge ordered that the seal be changed. [21] (Rather than adding something new to the seal, citizens simply removed the “offensive” element and left that portion vacant.)

The city seal of Los Angeles, California, also became the target of attack. Founded in 1771 (five years before the American Revolution), Los Angeles was birthed from the work of the Spanish padres, especially Father Junipero Serra. Spanish missions still dominate the landscape, and even the translation of the city’s Spanish name affirms its religious roots: “The City of Angels.” Without the work of the Spanish priests, Los Angeles well might not exist, so the city seal acknowledged (even though the acknowledgment was extremely minor) its profound debt to religion in its founding. Nevertheless, the ACLU threatened a lawsuit, to which one city official poignantly replied: “Your failure to understand the history and to rewrite it from the so-called political correctness follows the hate of past book burners. . . . [The seal’s cross] does not mean that we are all Roman Catholic, or that everyone who resides in our county is a Christian – it only reflects our historical roots.” [22] Nevertheless, in order to avoid the lawsuit, in 2004 the city supervisors voted 3-2 to change their seal.

The city seal of Las Cruces, New Mexico is the most recent to come under attack. That community had its beginnings in 1598, well before Pocahontas was born, Jamestown was settled, or the Pilgrims arrived on the Mayflower. Like so many other southwestern states and towns, Las Cruces owes its existence to the Spanish Catholic explorers and priests. Las Cruces received its current name in 1830, after eight in a party of nine individuals were massacred by Apaches. The lone survivor (a young choir boy from a nearby mission) buried the other eight, erected a cross on each grave, and then named the area “El Pueblo del Jardín de Las Cruces” (translated “The Village of the Garden of the Crosses”). That name was eventually shortened to “Las Cruces” – “The Crosses.” Given this history, it is not surprising that the city seal contains crosses – or that the seal became the target of a lawsuit. Yet, unlike the other suits, federal judge Robert Brack ruled in favor of the seal [23] – the first such victory in years!

(Judge Brack was appointed to the federal bench in 2003 by President George W. Bush.)

Distributed by www.ChristianWorldviewNetwork.com

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Conclusion:
The significant change currently underway in the federal judiciary is actually the direct result of increased evangelical voter turnout in recent elections. Regrettably, those numbers steadily fell for almost a decade until by the 2000 election, of the 60 million estimated evangelical voters in America, only 15 million voted – and 24 million were not even registered to vote. However, in 2002, that trend reversed and there was an upturn in evangelical voter that directly produced a 7 percent national advantage for federal pro-life candidates. As a result, of the 54 Freshmen elected to the U. S. House in that election, 36 were pro-life (a 67 percent pro-life class), and of the ten Freshmen elected to the U. S. Senate that election, eight were pro-life (an 80 percent pro-life class – and the Senate is where the help is most needed). The 2004 elections continued the increase in evangelical voter turnout, with numbers rising from 15 million evangelicals voting in 2000 to 28.9 million in 2004. (Although this is nearly double the numbers of four years earlier, it is still less than half of evangelicals voting.) This second increase resulted in a 12 percent national advantage for pro-life federal candidates. Consequently, of the 40 Freshmen elected to the U. S. House in 2004, 25 were pro-life (a 63 percent pro-life class), and of the nine Freshmen elected to the U. S. Senate, seven – or 77 percent – were pro-life. The pro-life congressmen elected over those two elections quickly became instrumental in the passage of Congress’ first four major pro-life federal laws that were free standing bills (previous pro-life victories were typically riders attached to funding bills, such as the famous Hyde Amendment which prohibited federal funds from being used to perform abortions). America’s first four stand-alone pro-life laws were: (1) the Infant Born-Alive Protection Act, (2) the Unborn Victims of Violence Act, (3) the Partial-Birth Abortion Ban, and (4) the Fetal Farming Ban.

Additionally, the election of fifteen pro-life U. S. Senators into the Senate over those two elections resulted in the confirmation of two pro-life Supreme Court justices and dozens of lower federal court judges, thus producing the changes that are now becoming evident.

Regrettably, in the 2006 elections, there was a dramatic fall in evangelical voter turnout, with numbers plummeting from 28.9 million in 2004 to 20.5 million in 2006 – a drop of 8.4 million evangelical voters and a decline of 30 percent. As a result, of the 54 Freshmen elected to the U. S. House in 2006, only 17 were pro-life (a 31 percent pro-life class), and of the ten Freshmen elected to the U. S. Senate, only two were pro-life (a 20 percent pro-life class – and one of those two has declared opposition to preserving marriage as the union of one man and one woman).

Clearly, there is a direct correlation between evangelical voter turnout and electing leaders who reflect basic Judeo-Christian values. Therefore, while Christians may not always see the immediate tangible results of their vote on the evening news, nevertheless, their vote does have a significant impact. Consequently, even if Christians are frustrated over the direction of Congress (or its lack of spending restraints, or moving forward highly publicized legislation, or whatever), they must always remember that elections do have a direct impact on so many issues rarely mentioned by the media, such as pro-family legislation and the confirmation of judges. So, regardless of whatever else may be discussed in the upcoming presidential election, citizens should vote with an awareness that the Supreme Court needs just one more strict-constructionist Justice to have five solid votes on the Court, thus potentially ending the federal judicial element of the culture war.

Christians must therefore remain faithfully involved at the ballot box. As the Rev. Matthias Burnet reminded Christian citizens in his day:

Finally, ye . . . whose high prerogative it is to . . . invest with office and authority or to withhold them and in whose power it is to save or destroy your country, consider well the important trust . . . which God . . . [has] put into your hands. To God and posterity you are accountable for them. . . . Let not your children have reason to curse you for giving up those rights and prostrating those institutions which your fathers delivered to you. [84]

[penowa]

I watched something on TV recently with O’Connor whining about the serfs trying to undermine the judiciary. If I had my way, she’d be locked in an 8x8 cell with no other reading material than the Constitution.