Posted on 08/21/2003 12:12:16 PM PDT by Pokey78
Statement of Attorney General Bill Pryor
By Bill Pryor
CNSNews.com Information Services
August 21, 2003
(Editor's Note: The following is a statement from Attorney General Bill Pryor regarding the order of the Alabama Supreme Court to require the judicial building manager to comply with the federal injunction.)
FOR IMMEDIATE RELEASE
For More Information, Contact :
Joy Patterson (334) 242-7491
Suzanne Webb (334) 242-7351
August 21, 2003
"Today the eight associate justices of the Supreme Court of Alabama unanimously entered an order to remove the Chief Justice's monument from the public area of the State Judicial Building. Specifically, the Supreme Court today ordered the Judicial Building Manager to comply with the federal injunction as soon as practicable. In the meantime, access to the State Judicial Building has been limited to persons with official court business.
I have filed a certified copy of the order with the Clerk of the U. S. District Court for the Middle District of Alabama. I am hopeful that these actions will remove any risk that State officials will be ordered to pay fines for contempt of court from taxpayer funds. In my judgment, the taxpayers of Alabama should not be penalized for the refusal of the Chief Justice to obey the orders of the federal courts. This moment in our history is already one of financial crisis for our State government and especially our court system.
Although I continue to believe that the Ten Commandments are the cornerstone of our legal heritage and can be displayed constitutionally as they are in the building of the Supreme Court of the United States, this controversy is no longer one involving a debate in the federal courts. The Supreme Court of Alabama has now spoken and ordered compliance with the federal injunction. Under our Constitution, federal and state courts must respect the orders of each other.
Today is a day to be proud of the eight associate justices of the Supreme Court of Alabama. They have been faithful to the rule of law. There has been a lot of talk about the rule of law in recent days. The rule of law means that no person, including the Chief Justice of Alabama, is above the law. The rule of law means that when courts resolve disputes, after all appeals and arguments, we all must obey the orders of those courts even when we disagree with those orders. The rule of law means that we can work to change the law but not to defy court orders.
The associate justices of Alabama today have done their duty. As Attorney General, I applaud them, I congratulate them, and I thank them."
A great statement. If only Chief Justice Moore would have said it instead, it would have been even better.
What law?
The U. S. Constitution's guarantee against an "Establishment of Religion" is not violated by the placement in the Alabama State Judicial Building's rotunda of a 2 ½ ton monument inscribed with the Ten Commandments and a variety of other quotes. To the contrary, interpretations of the Constitution by a U. S. District Court in Alabama and a three-judge panel of the Eleventh Circuit Court of Appeals do violate the Constitution. The monument was designed and commissioned by Alabama Chief Justice Roy Moore in recognition of the moral foundation of the law.
In a 1798 letter to American military officers, President John Adams declared that "The Constitution was made only for a moral and religious people. It is wholly inadequate to the governance of any other." Chief Justice Roy Moore's installation of the Ten Commandments monument in the Alabama Judicial Building recognizes this truth. Chief Justice Moore does not violate the U. S. Constitution. The two federal courts who have ruled against him do.
By U.S. Rep. John Hostettler, July 2003
U.S. Rep. John Hostettler delivered the following statement regarding his amendment to prohibit federal funds for the enforcement of a federal court ruling that ordered the Alabama Supreme Court to remove a monument depicting the Ten Commandments:
"Mr. Chairman, in Glassroth v. Moore, the 11th Circuit Court of Appeals ruled that the Alabama Supreme Court Chief Justice Roy Moore violated the establishment clause of the first amendment to the Constitution by placing a granite monument of the Ten Commandments in the rotunda of the Alabama State judicial building in Montgomery, Alabama.
"In the court's words, 'The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted.' In this statement, Mr. Chairman, the court plainly shows that it believes itself to be the chief lawmaker whose orders become law.
"But, in fact, Mr. Chairman, this is inconsistent with both the Constitution in Article I, Section 7, and, in fact, Federal statute, which says that the United States Marshal Service shall execute 'all lawful writs, process, and orders' of the U.S. district courts, U.S. Courts of Appeal and the Court of International Trade.
"In reality, Mr. Chairman, the founders of this great nation foresaw this problem and wrote about it. And when they developed our form of government, they said this, according to Alexander Hamilton in Federalist No. 78:
"'Whoever attentively considers the different departments of power must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment, and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.'
"Mr. Chairman, given the fact that the judiciary has neither force nor will, it is left to the executive and the legislative branches to exert that force and will. We have heard tonight that the executive branch wants to argue the Newdow case that was spoken of earlier and may hear that the executive branch wants to argue in favor of the display of the 10 Commandments in that case.
"We will allow, therefore, the executive branch to leave these decisions in the hands of the judiciary who, a few years ago, concluded that sodomy can be regulated by the States, but most recently said that sodomy was just short of a fundamental right that is enshrined in our United States Constitution.
"But the framers of the Constitution never intended for the fickle sentiments of as few as five people in black robes, unelected and unaccountable to the people, to have the power to make such fundamental decisions for society.
"That power was crafted and reserved for the legislature, and one of the mechanisms that was entrusted to us was the power of the purse. Mr. Chairman, time and again I am sure that our colleagues are asked about ridiculous decisions made by the Federal courts, and many of us say that there is nothing we can do.
"Mr. Chairman, today, we can do something. We do not have to put our faith in the faint possibility that some day five people in black robes will wake up and see that they have usurped the authority to legislate and will constrain themselves from straying from their constitutional boundaries.
"Mr. Chairman, it might be suggested that we do not want this legislation to disrupt the judicial process in the interim between the Circuit Court of Appeals process and the Supreme Court.
"It is not my intention to do that tonight. In fact, I welcome the highest Court's review of this decision; and I say tonight that if they get it wrong, I will exercise the power of the purse again and defund the enforcement of that inane decision. Mr. Chairman, today is a great opportunity for us to learn the powers of the legislature vis-a-vis the judiciary.
"After this vote, Mr. Chairman, and the vote to de-fund the Ninth Circuit's decision to effectively remove the phrase 'under God' from the Pledge of Allegiance, our constituents will ask us, 'Congressman, do we, your constituents, have a voice in these most fundamental decisions, and we do not need to wait on a new Supreme Court Justice who may or may not, today or tomorrow, inject common sense into the decisions of the Supreme Court?'
"Mr. Chairman, we will be able to tell them, 'Yes, you do have a fundamental say.' And it is for that reason, Mr. Chairman, that I have offered this amendment to the Commerce, Justice, State, and the Judiciary Appropriations Act.
"This legislation is where we find any funding in any executive agency that would enforce the 11th Circuit's judgment in this case. My amendment would prevent any funds within that act from being used to enforce that erroneous decision in Glassroth v. Moore. I ask my colleagues to support the amendment
The U.S. House of Representatives has voted to withhold funds from any enforcement action related to a federal appeals court's decision that the Ten Commandments monument in the Alabama judicial building is unconstitutional."
By a vote of 260-161, lawmakers last week OK'd an amendment by Rep. John N. Hostettler, R-Ind., to prohibit any money in the bill funding the Justice Department from going to enforcement of the controversial decision. House rebuffs court on 10 Commandments
The First Amendment to the Constitution of the United States secures rights against laws respecting an establishment of religion or prohibiting the free exercise thereof made by the United States Government. Ten Commandments Defense Act of 2003
The Framers of the Constitution deliberately withheld, in the main body of that document, any authority for the Federal Government to meddle with the religious affairs or with the free speech of the people. Then, as further and more specific protection for the people, they added the first amendment, which includes the `establishment clause' and the `freedom of speech clause' which are as follows: `Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof; or abridging the freedom of speech . . .'. It is of utmost importance to note that the first amendment is not a grant of authority to the Federal Government. To the contrary, it is a specific restriction upon the exercise of power by the Federal Government. Religious Freedom Restoration Act
Conservatives and libertarians who once viewed the judiciary as the final bulwark against government tyranny must now accept that no branch of government even remotely performs its constitutional role. ...It's time for the executive and legislative branches to show some backbone, appoint judges who follow the Constitution, and remove those who do not." --Ron Paul 13 August 2003, Federalist No. 03-33, Wednesday Chronicle
The following explains why judge Myron Thompson is wrong:
According to The Birmingham News,
The electorate must demand that Congress act in accordance with the testimony presented in Congress, the Court, and the Constitution
Police would not estimate the size of the crowd, which appeared to be several thousand people, possibly as many as 10,000.
After the rally hundreds of people walked several blocks to the judicial building, where they lined up to view the monument inside. Some debated with about 35 atheists holding a counterprotest across the street. Thousands Rally In Support Of Ten Commandments Monument
UPDATE: The open letter to Justice Roy Moore received 33,000 signatures(as of 19Aug03) since it was launched on Friday! We encourage every American Patriot, who believes as our Founders did that our Constitution should not be subject to the vagaries of an activist Leftjudiciary, to sign an open letter in support of Chief Justice Roy Moore's defense of religious liberty and states' rights in this landmark case. http://patriotpetitions.us/openletter
THE FIRST AMENDMENT ONLY FORBIDS A LEGAL ASCENDANCY OF ONE RELIGION OVER ANOTHER IN ITS ESTABLISHMENT CLAUSE, OR PROHIBITING A PERSON FROM PRACTICING HIS FAITH IN THE FREE EXERCISE CLAUSE. THE 14TH AMENDMENT DIDN'T CHANGE THIS. POSTING THE TEN COMMANDMENTS DOES NOT EVEN COME CLOSE TO AN "ESTABLISHMENT OF RELIGION."
In the following paper on the First Amendment, I did my best not to rely on David Barton due to his questionable scholarship and checked any quotes I cite from him with other sources to ensure he didn't make them up. Furthermore, I would say about half or even a bit more of my sources are pretty strongly pro-separationist and thus, are not in agreement with my position. I did not just read people I agree with to write this little paper. I have a bunch more notes on things like the 14th Amendment and historical evidence, but I was exhausted after doing the reading for all of this and didn't get around to including all that stuff. I scratch the surface of the 14th Amendment here....I would have liked to trace the history of incorporation some more. I might write something up on that and post it here or on another thread sometime, but I don't have the energy to do that right now.
Now, to what I wrote which I believe needs to be shared:
While the current legal interpretation of the First Amendment is that it requires a "separation of church and state," numerous historical and judicial precedents make it possible that this interpretation is much broader than the original intent of the amendment’s framers. After considering court opinions, history, and primary source documents, a good case can be built that "separation" was not in mind, and is not required even with the Fourteenth Amendment. If accurate, this has radical ramifications for the relationship between the earthly and heavenly kingdoms in American public policy, depending, of course, on whether the courts change their interpretation based on a revisiting of the evidence.
Before being able to begin examining the original intent of the First Amendment, it is important to establish different interpretation methods first. Without the foundation of an understanding of the major interpretive models, a person does not see the overall principles leading to a particular conclusion on the religion clauses. Such a foundation is invaluable in the analysis of a particular conclusion, as it not only provides insight into what that interpreter believes, but aids in helping one express disagreement or agreement with the proposition.
Judges typically adhere to one of two models in determining the meaning of Constitutional text: interpretivism and evolutionism. Interpretivism is also called strict constructionism. Interpretivism is the model in which judges limit themselves to enforcing Constitutional norms explicit or implicit in the actual text, while evolutionism permits changes in Constitutional thinking as society changes; the words themselves are not considered of paramount importance, but instead broad principles contained therein are emphasized. Evolutionists depart in varying degrees from the specific intent of the founders, while interpretivists insist on the "original intent" of the text itself.
Current U.S. Supreme Court Chief Justice, William Rehnquist, a staunch interpretivist, says evolutionist judges become: "[a] small group of fortunately situated people with a roving commission to second-guess Congress, state legislatures, and state and federal administrative officers considering what is best for the country" (qtd. in Davis 15). In this "roving commission," Rehnquist sees a judiciary that considers itself worthy of determining what is "best," not just what is Constitutional. Rehnquist believes that judges must not insert opinion into Constitutional interpretation, as that exudes an arrogant attitude that judges knows more than everyone else about what is best for the nation.
The founders’ writings lend support to Rehnquist’s view of the judiciary. Thomas Jefferson was an ardent believer in interpretivism, and he is famous for opposing Supreme Court Justice John Marshall’s Marbury v. Madison ruling that established the principle of judicial review in 1803. Even though he no doubt understood times change, Jefferson expresses a strict constructionist attitude in this June 12, 1823 letter to Supreme Court Justice William Johnson:
"On every question of interpretation, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed" (Barton 22).
Note that Jefferson wrote this letter in 1823, well after his presidency, yet still believed in strictly interpreting the Constitutional text. Also, James Madison says, "I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation…And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers" (Barton 22). A belief in interpretivism expresses itself in the very thesis of this paper, in that no evaluation of the First Amendment’s justice is provided, but only an examination of precedent to determine what the intent of the First Amendment probably was when drafted.
An obvious requirement for determining original intent is a study of the original debates on the Bill of Rights. During the debates on the Constitution, religion was a subject that did not come up much, except when the framers discussed Article IV, clause 3, which prohibits religious tests for public office. Religious freedom came up so little that it seems perhaps the delegates to the Constitutional Convention saw the prohibition on religious tests as an adequate restriction on the federal government in regards to religion. At the very least, this belief in the adequacy of the Constitution is the attitude expressed by the Federalist Papers. Alexander Hamilton says, "For why declare that things shall not be done which there is no power to do? Why, for instance, should it be said that the liberty of the press shall not be restrained, when no power is given by which restrictions may be imposed" (Federalist 84)? Edmund Randolph had this to say: "No part of the Constitution, even if strictly construed, will justify a conclusion that the general government can take away or impair the freedom of religion" (qtd. in Stokes & Pfeffer 151). This Federalist attitude was one that was pretty common. In fact, James Madison, father of the Bill of Rights, did not consider any amendments necessary, but proposed them to secure votes from anti-Federalists for the Constitution. Anti-Federalists were concerned about the rights of states under a Constitution; they feared their rights would be hurt by a strong national government. Therefore, the states ended up leading the charge for the Bill of Rights. Massachusetts, New Hampshire, North Carolina, New York, Rhode Island, and Virginia all submitted suggested amendments securing personal liberties and the only state that did not address religion was Massachusetts. In any event, eventually, James Madison proposed his Bill of Rights to pacify the Anti-Federalists (Davis 441).
The history of the First Amendment’s adoption provides important insight into its intent. James Madison introduced the First Amendment in the House of Representatives June 8, 1789, with the original text reading: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed" (Annals of Congress). By August 15, it read: "No religion shall be established by law, nor shall the equal rights of conscience be infringed." Importantly, in the debate that day, Roger Sherman is recorded in the Annals as thinking, since Congress had no power to establish religious establishments, an amendment to forbid it was unnecessary. Such was the belief of both Madison and Jefferson. In a significant announcement, Madison explained the intent of his amendment recorded in the Annals for August 15, as it is recorded that "He apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience." Nothing in this explanation supports a contention that the federal government could not ever pass an act supporting religion in general, even perhaps generally the Christian religion. Madison (who in some cases seems to broadly interpret "establish") very narrowly construes the meaning of establish in the amendment.
Of course, this amendment went through further changes. An example is the final draft of the House version in the Annals for August 20, 1789: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed." A person attempted to alter the amendment in the Senate to stop any "state" from doing such, not just Congress. However, the motion failed. The final version in the Senate (from the Annals of Congress for September 9) read as follows: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion." It should be noted that the Senate beat back attempts to alter the language to prohibit the establishment of a particular "denomination" (Annals, September 3). One major First Amendment authority believes that rejecting the wording of "denomination" shows that the narrow constructionist view of the establishment clause was rejected (Stokes & Pfeffer 98). However, in the very final Senate version quoted above, the legislators did narrowly construct the amendment. Congress is only forbidden from establishing articles of faith and manner of worship, not a broad restriction in any sense of the word. Furthermore, a consistent wording in changes to the First Amendment as offered initially is the banning of acts "establishing" a religion (an example is the House version), putting in doubt the statement of one author that any law even touching upon something of a religious nature is unconstitutional (Lowell 8).
Even if the First Amendment was intended to broadly restrict religious activity in the public sphere, the framers cared deeply about religion and did not regard it as a negative influence like some who argue for a strict separation do today. The framers included in the August 15 debate argued about whether the amendment would hurt religion or allow it to thrive, for the amendment's motivation was not to hinder religion. Such a presupposition is well summed up by Supreme Court Justice Wiley B. Rutledge much later in this statement from the landmark ruling Everson v. Board of Education (1947): "We have staked the very existence of our country on the faith that complete separation between the state and religion is best for the state and best for religion" (Dreisbach 500). In other words, they must be separate to prosper. Well, it is doubtful in this writer’s view that the founders actually intended a complete separation, but the principle of both flourishing without major interference in their respective spheres is truthful to the intention of the framers. Along these lines, the attitude of First Amendment supporters at the time of adoption was that government had no moral right to interfere with religion. Curry explains by saying, "[People] saw government attempts to organize and regulate such support [financial support of churches] as an usurpation of power" (222). In this sense, the government takes power not granted it when going so far as to financially support an established church.
Now that history has been examined, what does the judiciary say? The early Supreme Court did not take many religion cases. But, despite the court not hearing many cases early on, the cases that were heard provide vital insight into the early judicial interpretation of the First Amendment. In one of the first major cases, Vidal v. Girard’s Executors, a man put in his will that a college should be formed, but that no church teachers would be allowed to teach about the faith. The court ruled that the will’s requirement was acceptable because it allowed layman to teach, just not church leaders. It also expressed support for teaching religion in schools, saying, "Why may not the Bible, and especially the New Testament, without note or comment, be read and taught as a divine revelation in the college" (Barton 58)? Later, the Court ruled that Mormons do not have a right to practice polygamy in its 1889 case Davis v. Beason. The Davis case deals really with the free exercise clause, not the establishment clause, but is important because the court used language referring to America as a "Christian" country and its primary justification for disallowing polygamy was due to morality (64). Surely such reasoning would be considered unconstitutional in itself by many of today’s strict separationists.
Legal wrangling occurred almost from the start over the limits imposed on states by the First Amendment. Barron v. Baltimore (1833) settled the question for a long time. The Supreme Court said the Bill of Rights was clearly not intended to be applied to the states and so the Court could not make them apply (200). In Permoli v. Municipality No. 1 of the City of New Orleans (1845), the Supreme Court reaffirmed the doctrine that the First Amendment did not restrict the actions of states. The court said the following in its ruling:
"There is no repugnancy to the constitution, because no provision thereof forbids the enactment of law or ordinance, under state authority, in reference to religion. The limitation of power in the first amendment of the Constitution is upon Congress, and not the states" (FindLaw).
The debate was revived with the passage of the Fourteenth Amendment that made blacks protected citizens, as some used it to try to claim states were bound to the First Amendment. This interpretation is incorrect. First though, some things should be pointed out that make such an interpretation possible. Senator Jacob Howard, who sponsored the amendment in the Senate, was one who hoped it would force the Bill of Rights to apply to the states (Swomley 21). John Howard, House sponsor, expressed a similar intent for the amendment, yet later stated that its substantive effect was to prohibit states from curtailing inherent rights of citizenship, which were not believed to include the first eight amendments to the Constitution (Reichley 117). This is more understandable when one knows about the Slaughterhouse cases, in which the Supreme Court said state citizenship is distinct from federal citizenship and states can restrict some rights; the demand of the Bill of Rights on federal citizenship can not be placed on the states. In summary of his supporter’s views in the House, Bingham denied that the Fourteenth Amendment would take away state’s rights, though he later said that an abuse of such rights could be found in applying the establishment clause. Thus, the record is rather muddled on what Howard and Bingham intended for the amendment, so some other areas need to be considered.
For one thing, no state debates on ratifying the Fourteenth Amendment expressed a concern over whether it would extend the Bill of Rights to the states; the debates only discussed making blacks citizens with equal rights (119). Moreover, in Congressional debate on the Blaine Amendment, which would have made the First Amendment apply to the states, Reichley claims no person suggested the Fourteenth Amendment already did the job (119-20). The Blaine Amendment was ultimately rejected despite the passage of the Fourteenth, significant due to the lack of statements in the debates claiming that the 14th Amendment already covered the ground the Blaine Amendment was framed around. According to David Barton, five similar amendments were rejected by the same Congress that approved the Fourteenth Amendment (201). The courts soon took up the effect of the anti-slavery amendment.
For a long time, courts did not see anything extraordinary about the anti-slavery amendment. A defense used to try to get polygamy allowed in Davis v. Beason was that the Fourteenth Amendment prohibited states from stopping the practice of religious activity, an argument the court ultimately rejected. The Slaughterhouse cases briefly mentioned earlier are very important also, for they echo this rejection. Indeed, as Marnell puts it, "There is no evidence…anyone in a responsible judicial position thought of the Fourteenth Amendment as a means of guaranteeing in the states the protection of the religious freedom clause of the Bill of Rights" (151). But, in the 20th century, the Supreme Court began to selectively incorporate the Bill of Rights into the Fourteenth amendment’s intent. In the 1947 Everson v. Board of Education case, the Court finally ruled the establishment clause was applied to the states through the Fourteenth Amendment, setting off the current course in First Amendment interpretation (Barton 198).
One final note: The failed Blaine Amendment discussed earlier interestingly really did not die, as many states have separation clauses in their constitutions that resemble the Blaine Amendment. In some cases, these amendments are stronger than the federal government in separating religion from government. So, in these states, even with a narrow meaning for the First Amendment, the state constitution may ultimately require strict separation. In the debate about the federal Constitution, the state ones can get lost in the shuffle. One must never forget that they matter just as much as the federal Constitution. The founders did not intend for us to exalt the national government to the detriment of the states.
In the end, while some argue that the First Amendment should be interpreted as broadly as possible, the weight of the evidence—both historical and judicial—leads to a different conclusion, a conclusion that maintains church and state are not enemies, but can work together as long as one religion is not legislatively given footing above others. If loyalty to the Constitution is to have any meaning, a serious reexamination of the amendment must be undertaken by legal minds.
Sources:
Annals of Congress. Library of Congress. 28 Feb. 2003. http://memory.loc.gov/ammem/amlaw/lwac.html
Barton, David. Original Intent: the Courts, the Constitution & Religion. Aledo: Wallbuilder Press, 1996.
Curry, Thomas. The First Freedoms. Oxford: Oxford University Press, 1986.
Davis, Derek. Original Intent: Chief Justice Rehnquist and the Course of American Church-State Relations. Buffalo: Prometheus Books, 1991.
Dreisbach, Daniel L. "Sowing Useful Truths and Principles: the Danbury Baptists, Thomas Jefferson, and the ‘Wall of Separation.’" Journal of Church and State. 39.3 (1997): 455-502.
FindLaw for Legal Professionals. FindLaw. 11 Apr. 2003. http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=44&invol=589
Hamilton, Alexander, et al. The Federalist Papers. Ed. Clinton Rossiter. New York: New American Library, 1999. 481-482.
Lowell, C. Stanley. The Great Church-State Fraud. Washington: Robert B. Luce, 1973.
Marnell, William H. The First Amendment. Garden City: Doubleday, 1964.
Reichley, James A. Religion in American Public Life. Washington: Brookings Institution, 1985.
Stokes, Anson, and Leo Pfeffer. Church and State in the United States. New York: Harper and Row, 1950.
Swomley, John M. Religion, the State, and the Schools. New York: Pegasus, 1968.
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Some quotes relevant to the First Amendment:
"The Whole power over the subject of religion is left exclusively to the state governments." --Commentaries on the Constitution by early SCOTUS Chief Justice Joseph Story
"I am for freedom of religion, and against all maneuvers to bring about a legal ascendancy of one sect over another." --Thomas Jefferson to Elbridge Gerry, Jan. 26, 1799 (source: Library of Congress online)
"...No power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states or the people...Libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals." --- Thomas Jefferson Papers, Library of Congress. Kentucky Resolution (may have just been a draft, or left in the final version...can't remember)
"I consider the government of the United States as interdicted by the Constitution from intermeddling in religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in religious discipline has been delegated to the General Government. It must rest with the States, as far as it can be in any human authority (Jefferson letter to Samuel Miller, Jan. 23, 1808)."
"[T]he clause of the Constitution which, while it secured the freedom of the press, covered also the freedom of religion, had given to the clergy a very favorite hope of obtaining an establishment of a particular form of Christianity through the United States; and as every sect believes its own form the true one, ever one perhaps hoped for his own, but especially the Episcopalians and Congregationalists. The returning good sense of our country threatens abortion to their hopes and they believe that any portion of power confided to me will be exerted in opposition to their schemes." -- Thomas Jefferson to Benjamin Rush, Sept. 23, 1800
"Religion, morality, and knowledge being necessary to good government and the happiness of mankind, Schools and the means of education shall forever be encouraged." ---Northwest Ordinance
I also read a quote where Madison says establishment only means a state church. Unfortunately, I took note of that when I read the book, but didn't take down the quote, just the page number. It was a library book, so I don't have it. Anyway, this is interesting because it goes against some of his other statements (he says chaplains are an establishment of religion in the Detached Memoranda), yet it jives more accurately with what he stated in the debates on the First Amendment, as recorded in the Annals of Congress.
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Some information on religious use of government buildings:
From: http://lcweb.loc.gov/exhibits/religion/rel06-2.html
If Moore is doing something that is unconstitutional, then the usage of govt. buildings for church is as well, yet they were used for church well after the First Amendment was passed. As far as I am aware, they were only used for Christian services, not Muslim, Jewish etc.
Jefferson at Church in the Capitol
"In his diary, Manasseh Cutler (1742-1823), a Federalist Congressman from Massachusetts and Congregational minister, notes that on Sunday, January 3, 1802, John Leland preached a sermon on the text "Behold a greater than Solomon is here. Jef[ferso]n was present." Thomas Jefferson attended this church service in Congress, just two days after issuing the Danbury Baptist letter. Leland, a celebrated Baptist minister, had moved from Orange County, Virginia, and was serving a congregation in Cheshire, Massachusetts, from which he had delivered to Jefferson a gift of a "mammoth cheese," weighing 1235 pounds." Journal entry, January 3, 1802
Jefferson and Family at Church
"In this letter Manasseh Cutler informs Joseph Torrey that Thomas Jefferson "and his family have constantly attended public worship in the Hall" of the House of Representatives. Manuscript letter"
Madison Seen at House Church Service
Abijah Bigelow, a Federalist congressman from Massachusetts, describes President James Madison at a church service in the House on December 27, 1812, as well as an incident that had occurred when Jefferson was in attendance some years earlier.
The Old House of Representatives
Church services were held in what is now called Statuary Hall from 1807 to 1857. The first services in the Capitol, held when the government moved to Washington in the fall of 1800, were conducted in the "hall" of the House in the north wing of the building. In 1801 the House moved to temporary quarters in the south wing, called the "Oven," which it vacated in 1804, returning to the north wing for three years. Services were conducted in the House until after the Civil War. The Speaker's podium was used as the preacher's pulpit.
Hardly. The very establishment clause that the federal courts are invoking here (rightly or wrongly under the facts of this particular case) would prohibit such a law. So does the even more fundamental principle of the rule of law, which is what Bill Pryor was defending here.
The people on the other side of this debate want to stand on a skyscraper while blasting away its foundation. It cannot be done. Take away the rule of law and the establishment clause and what you will eventually lose is the very religious freedom that you are concerned about losing.
As our Founding Fathers pointed out in the Declraration of Independence.
2 Kings 18:9-37 --- 19:1-37
9. In King Hezekiah's fourth year, which was the seventh year of Hoshea son of Elah king of Israel, Shalmaneser king of Assyria marched against Samaria and laid siege to it.
10. At the end of three years the Assyrians took it. So Samaria was captured in Hezekiah's sixth year, which was the ninth year of Hoshea king of Israel.
11. The king of Assyria deported Israel to Assyria and settled them in Halah, in Gozan on the Habor River and in towns of the Medes.
12. This happened because they had not obeyed the LORD their God, but had violated his covenant--all that Moses the servant of the LORD commanded. They neither listened to the commands nor carried them out.
13. In the fourteenth year of King Hezekiah's reign, Sennacherib king of Assyria attacked all the fortified cities of Judah and captured them.
14. So Hezekiah king of Judah sent this message to the king of Assyria at Lachish: "I have done wrong. Withdraw from me, and I will pay whatever you demand of me." The king of Assyria exacted from Hezekiah king of Judah three hundred talents of silver and thirty talents of gold.
15. So Hezekiah gave him all the silver that was found in the temple of the LORD and in the treasuries of the royal palace.
16. At this time Hezekiah king of Judah stripped off the gold with which he had covered the doors and doorposts of the temple of the LORD, and gave it to the king of Assyria.
17. The king of Assyria sent his supreme commander, his chief officer and his field commander with a large army, from Lachish to King Hezekiah at Jerusalem. They came up to Jerusalem and stopped at the aqueduct of the Upper Pool, on the road to the Washerman's Field.
18. They called for the king; and Eliakim son of Hilkiah the palace administrator, Shebna the secretary, and Joah son of Asaph the recorder went out to them.
19. The field commander said to them, "Tell Hezekiah: "`This is what the great king, the king of Assyria, says: On what are you basing this confidence of yours?
20. You say you have strategy and military strength--but you speak only empty words. On whom are you depending, that you rebel against me?
21. Look now, you are depending on Egypt, that splintered reed of a staff, which pierces a man's hand and wounds him if he leans on it! Such is Pharaoh king of Egypt to all who depend on him.
22. And if you say to me, "We are depending on the LORD our God"--isn't he the one whose high places and altars Hezekiah removed, saying to Judah and Jerusalem, "You must worship before this altar in Jerusalem"?
23. "`Come now, make a bargain with my master, the king of Assyria: I will give you two thousand horses--if you can put riders on them!
24. How can you repulse one officer of the least of my master's officials, even though you are depending on Egypt for chariots and horsemen ?
25. Furthermore, have I come to attack and destroy this place without word from the LORD? The LORD himself told me to march against this country and destroy it.'"
26. Then Eliakim son of Hilkiah, and Shebna and Joah said to the field commander, "Please speak to your servants in Aramaic, since we understand it. Don't speak to us in Hebrew in the hearing of the people on the wall."
27. But the commander replied, "Was it only to your master and you that my master sent me to say these things, and not to the men sitting on the wall--who, like you, will have to eat their own filth and drink their own urine?"
28. Then the commander stood and called out in Hebrew: "Hear the word of the great king, the king of Assyria!
29. This is what the king says: Do not let Hezekiah deceive you. He cannot deliver you from my hand.
30. Do not let Hezekiah persuade you to trust in the LORD when he says, `The LORD will surely deliver us; this city will not be given into the hand of the king of Assyria.'
31. "Do not listen to Hezekiah. This is what the king of Assyria says: Make peace with me and come out to me. Then every one of you will eat from his own vine and fig tree and drink water from his own cistern,
32. until I come and take you to a land like your own, a land of grain and new wine, a land of bread and vineyards, a land of olive trees and honey. Choose life and not death! "Do not listen to Hezekiah, for he is misleading you when he says, `The LORD will deliver us.'
33. Has the god of any nation ever delivered his land from the hand of the king of Assyria?
34. Where are the gods of Hamath and Arpad? Where are the gods of Sepharvaim, Hena and Ivvah? Have they rescued Samaria from my hand?
35. Who of all the gods of these countries has been able to save his land from me? How then can the LORD deliver Jerusalem from my hand?"
36. But the people remained silent and said nothing in reply, because the king had commanded, "Do not answer him."
37. Then Eliakim son of Hilkiah the palace administrator, Shebna the secretary and Joah son of Asaph the recorder went to Hezekiah, with their clothes torn, and told him what the field commander had said.
1. When King Hezekiah heard this, he tore his clothes and put on sackcloth and went into the temple of the LORD.
2. He sent Eliakim the palace administrator, Shebna the secretary and the leading priests, all wearing sackcloth, to the prophet Isaiah son of Amoz.
3. They told him, "This is what Hezekiah says: This day is a day of distress and rebuke and disgrace, as when children come to the point of birth and there is no strength to deliver them.
4. It may be that the LORD your God will hear all the words of the field commander, whom his master, the king of Assyria, has sent to ridicule the living God, and that he will rebuke him for the words the LORD your God has heard. Therefore pray for the remnant that still survives."
5. When King Hezekiah's officials came to Isaiah,
6. Isaiah said to them, "Tell your master, `This is what the LORD says: Do not be afraid of what you have heard--those words with which the underlings of the king of Assyria have blasphemed me.
7. Listen! I am going to put such a spirit in him that when he hears a certain report, he will return to his own country, and there I will have him cut down with the sword.'"
8. When the field commander heard that the king of Assyria had left Lachish, he withdrew and found the king fighting against Libnah.
9. Now Sennacherib received a report that Tirhakah, the Cushite king [of Egypt], was marching out to fight against him. So he again sent messengers to Hezekiah with this word:
10. "Say to Hezekiah king of Judah: Do not let the god you depend on deceive you when he says, `Jerusalem will not be handed over to the king of Assyria.'
11. Surely you have heard what the kings of Assyria have done to all the countries, destroying them completely. And will you be delivered?
12. Did the gods of the nations that were destroyed by my forefathers deliver them: the gods of Gozan, Haran, Rezeph and the people of Eden who were in Tel Assar?
13. Where is the king of Hamath, the king of Arpad, the king of the city of Sepharvaim, or of Hena or Ivvah?"
14. Hezekiah received the letter from the messengers and read it. Then he went up to the temple of the LORD and spread it out before the LORD.
15. And Hezekiah prayed to the LORD: "O LORD, God of Israel, enthroned between the cherubim, you alone are God over all the kingdoms of the earth. You have made heaven and earth.
16. Give ear, O LORD, and hear; open your eyes, O LORD, and see; listen to the words Sennacherib has sent to insult the living God.
17. "It is true, O LORD, that the Assyrian kings have laid waste these nations and their lands.
18. They have thrown their gods into the fire and destroyed them, for they were not gods but only wood and stone, fashioned by men's hands.
19. Now, O LORD our God, deliver us from his hand, so that all kingdoms on earth may know that you alone, O LORD, are God."
20. Then Isaiah son of Amoz sent a message to Hezekiah: "This is what the LORD, the God of Israel, says: I have heard your prayer concerning Sennacherib king of Assyria.
21. This is the word that the LORD has spoken against him: "`The Virgin Daughter of Zion despises you and mocks you. The Daughter of Jerusalem tosses her head as you flee.
22. Who is it you have insulted and blasphemed? Against whom have you raised your voice and lifted your eyes in pride? Against the Holy One of Israel!
23. By your messengers you have heaped insults on the Lord. And you have said, "With my many chariots I have ascended the heights of the mountains, the utmost heights of Lebanon. I have cut down its tallest cedars, the choicest of its pines. I have reached its remotest parts, the finest of its forests.
24. I have dug wells in foreign lands and drunk the water there. With the soles of my feet I have dried up all the streams of Egypt."
25. "`Have you not heard? Long ago I ordained it. In days of old I planned it; now I have brought it to pass, that you have turned fortified cities into piles of stone.
26. Their people, drained of power, are dismayed and put to shame. They are like plants in the field, like tender green shoots, like grass sprouting on the roof, scorched before it grows up.
27. "`But I know where you stay and when you come and go and how you rage against me.
28. Because you rage against me and your insolence has reached my ears, I will put my hook in your nose and my bit in your mouth, and I will make you return by the way you came.'
29. "This will be the sign for you, O Hezekiah: "This year you will eat what grows by itself, and the second year what springs from that. But in the third year sow and reap, plant vineyards and eat their fruit.
30. Once more a remnant of the house of Judah will take root below and bear fruit above.
31. For out of Jerusalem will come a remnant, and out of Mount Zion a band of survivors. The zeal of the LORD Almighty will accomplish this.
32. "Therefore this is what the LORD says concerning the king of Assyria: "He will not enter this city or shoot an arrow here. He will not come before it with shield or build a siege ramp against it.
33. By the way that he came he will return; he will not enter this city, declares the LORD.
34. I will defend this city and save it, for my sake and for the sake of David my servant."
35. That night the angel of the LORD went out and put to death a hundred and eighty-five thousand men in the Assyrian camp. When the people got up the next morning--there were all the dead bodies!
36. So Sennacherib king of Assyria broke camp and withdrew. He returned to Nineveh and stayed there.
37. One day, while he was worshiping in the temple of his god Nisroch, his sons Adrammelech and Sharezer cut him down with the sword, and they escaped to the land of Ararat. And Esarhaddon his son succeeded him as king.
Might makes right.
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