Posted on 12/30/2004 3:03:31 PM PST by Ed Current
Millions of Americans believe that the U.S. Supreme Court has an unfriendly attitude toward religion and the role of religion in American life. They believe the Court has discriminated against the rights of religious Americans and treated them like second class citizens. The school prayer cases of the 1960's are just one of many examples that suggest the Supreme Court has been intolerant and unfair. Recently, the High Court has announced that it will decide two cases involving the display of the Ten Commandments on public property. The cases originate from Kentucky and Texas. How will the Supreme Court decide these cases? What test will the Supreme Court use to reach its conclusions? In this article I would like to discuss the likely outcome of these cases, the test the Court will use to reach its conclusions and finally I would like to suggest a better test to use to decide cases involving religion and the First Amendment. I will recommend the test proffered by the Senate Judiciary Committee in 1853 for any case involving the display of the Ten Commandments on public property.
THE FIRST TEN COMMANDMENT CASE
The U.S. Supreme Court has heard a case about the Ten Commandments before. The case was called Stone v. Graham and it was decided in 1980. The issue in the case was whether a display of the Ten Commandments in a public school was constitutional. The Kentucky public schools required that a copy of the Ten Commandments be displayed on the schoolroom walls. The cost to display the Ten Commandments was provided by private donations. The Supreme Court agreed that the students were not required to repeat the Ten Commandments or to read them. Nevertheless, the Court ruled that the display was unconstitutional. The Court said the display of the Ten Commandments violated the Establishment Clause found in the First Amendment. The words in the Establishment Clause are the most important words in any case involving the display of the Ten Commandments. The reader will recall that there are two religion clauses in the First Amendment. There is an Establishment Clause and a Free Exercise Clause. These two clauses which consist of 16 words are as follows: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof . . . . " In effect, the Court said that to display the Ten Commandments in a public school was to establish Christianity or Judaism or both as the official religion of the state of Kentucky. The Court in 1980 concluded the case with these unbelievable words: "If the posted copies of the Ten Commandments are to have any effect at all, it will be to induce the schoolchildren to read, mediate upon, perhaps to venerate and obey, the Commandments. However desirable this might be as a matter of private devotion, it is not a permissible state objective under the Establishment Clause." Note 1.
THE CURRENT TEN COMMANDMENT CASE FROM KENTUCKY
The current case from Kentucky is about the display of the Ten Commandments as well. Here however, the issue is not about a Ten Commandments display in the public schools but in two county courthouses located in McCreary and Pulaski Counties. While this difference may seem minor to most people, it is very important to the Supreme Court. The U.S. Supreme Court has zero tolerance for any display of the Ten Commandments on public school property. This is the message from the 1980 case. However, in this case, the fact that the Ten Commandments are located at the courthouse probably will not save them. If the past is any indicator, the Supreme Court will likely rule against the Ten Commandments in this case as well. In fact, you might say this case is "dead on arrival." A cynic might even argue that the Supreme Court took this case for the express purpose to rule against it. What the Court will likely find objectionable in this case is the manner by which the Ten Commandments were introduced into the courthouse. The Ten Commandments were placed there by 'religious zealots.' This fact alone is enough to cause the Supreme Court to rule against the Ten Commandments display. The Court will never acknowledge their hostility against religious Americans but that will be the message. Please join me and pray that I am wrong. Let us pray that the Court will allow the Ten Commandments to be displayed.
THE TEN COMMANDMENT CASE FROM TEXAS
The case from Texas is a little different from the Kentucky case. Here the Ten Commandments display is in a public park setting. Most important, the Ten Commandments are displayed in an area designated as a National Historic Landmark and there are other displays in the park besides the Ten Commandments. In addition, the Texas display has another point in its favor. The Ten Commandments were not placed there by 'religious zealots' but by the Fraternal Order of Eagles, a non-religious group. Thus, the combination of the following facts: the location of the Ten Commandments in a public park, the display of other monuments with the Ten Commandments and the fact that the Ten Commandments were donated by a non-religious group suggests that this case could be a winner. I think there is a 51/49% chance the Supreme Court will rule in favor of the Ten Commandments display in Texas, assuming that all nine members of the Court vote. (The Ten Commandments displayed in the McCreary and Pulaski courthouses had other things on display besides the Ten Commandments as well but they were added later only as a result of litigation.) Another big factor in favor of the Texas case is the attorney who will fight to keep the Ten Commandments display. It will be the Texas Attorney General, a secular authority. The case from Kentucky is represented by a very gifted attorney by the name of Mathew Staver who heads a religiously conservative organization called the Liberty Counsel. Unfortunately, there is a problem. While the liberal members on the Supreme Court will never admit it, in a case like this, having a religiously conservative attorney represent you hurts your case to some extent. An attorney with a secular association has a better chance. (Interestingly, the Ten Commandments display in Texas is virtually identical to the one I have seen in Elkhart, Indiana and in Lincoln Park, in Denver, Colorado. These Ten Commandment displays were donated by the Fraternal Order of Eagles as well. Sadly, the one in Elkhart has since been removed from public property.)
Question: why will the Supreme Court likely see the Kentucky and Texas cases so differently? Why does it matter to the Supreme Court if the Ten Commandments were donated by a secular group? Why does it help to have a secular attorney represent you in a case like this rather than a religious conservative? The answer to these questions can be found in the test the Supreme Court will use to decide these cases.
THE TEST THE SUPREME COURT WILL LIKELY USE: THE LEMON TEST
The test the Supreme Court will use to decide these cases will likely be the same test that was used in the 1980 Ten Commandments case. The test is known as the Lemon Test. The Lemon Test has been very destructive to religious freedom in America. The Supreme Court has used the Lemon Test to advance its philosophy of secularism in America and to strip America of her spiritual heritage. Most important, the Lemon Test promotes an attitude of intolerance toward religion. Much of the animosity some Americans feel toward religion originates from the influence of the Lemon Test. The Lemon Test effectively institutionalizes discrimination against religion and religious Americans. It allows the government to treat religious Americans like second class citizens. For example, in the first decision concerning the Pledge of Allegiance, the Ninth Circuit used the Lemon Test in part to ban the words "under God" from the public schools. The Lemon Test was written by Chief Justice Warren E. Burger in 1971. We will quote it here as it was quoted in the 1980 Ten Commandments case:
"This Court has announced a three-part test for determining whether a challenged state statute is permissible under the Establishment Clause of the United States Constitution:
First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion . . . . ; finally the statute must not foster 'an excessive government entanglement with religion'" Note 2.
In order for a Ten Commandments display to be constitutional the display must pass all three parts of the test. A failure to pass one part of the test will doom the Ten Commandments display. In 1980, the Supreme Court said the Ten Commandments display in the public schools violated the first prong of the test, the secular legislative purpose part of the test. Since the Ten Commandments display in the public schools could not pass the first part of the test, the Court said there was no need to go to parts two and three.
The Lemon Test is fatally flawed for several reasons. First, neither the First Amendment nor the Establishment Clause dictate a philosophy of secularism. Indeed, as this author has pointed out in prior articles, the modern philosophy of secularism didn't even exist in the 18th century when the First Amendment was written. In any case, the Supreme Court has successfully used the first prong of the Lemon Test, the secular legislative purpose test, to advance secularism in America. Of course, whenever the government favors a philosophy of secularism this will by definition result in discrimination against religion. The Lemon Test also explains why the Supreme Court might allow a display of the Ten Commandments if donated by a secular organization or defended by a secular lawyer. A display of the Ten Commandments might be permitted if it can be stripped of its spiritual value, if it can be secularized. Second, the Lemon Test in no way reflects what the framers of the First Amendment intended for the Establishment Clause. Indeed, if the Lemon Test had been in force during the first 175 years of American history, almost everything Americans did involving religion in public would have been unconstitutional. Clearly, all those weekly church services Thomas Jefferson attended at the U.S. Capitol while President were illegal. Finally, the third part of the test, the 'excessive government entanglement with religion' test is a joke. The Federal Government has never been more excessively entangled with religion than now. Today, the Federal Government decides when Americans can pray, where they can pray, who they can pray with and how they can pray. Since 1962, the U.S. Supreme Court has been issuing national federal guidelines for prayer in America. Rather than keeping government and religion apart, the Lemon Test and its predecessors gave the government a license to regulate religious life in America.
A BETTER TEST
In 1853, the U.S. Senate had an opportunity to define the Establishment Clause to the First Amendment. Apparently, some Americans petitioned the Congress to end the practice of having paid chaplains at taxpayer's expense in the Congress and in the military. These people felt that such an arrangement violated the Establishment Clause to the First Amendment. The Senate rejected their petition. However, in their response the Senate offered a very insightful definition of the Establishment Clause. I believe this definition is much closer to the intent the framers of the First Amendment had for the Establishment Clause than anything the Supreme Court has yet to produce. Interestingly, the Senate's test had three parts to it as well. Here is what the Senate said:
"The clause speaks of 'an establishment of religion.' What is meant by that expression? It referred, without doubt, to that establishment which existed in the mother country, and its meaning is to be ascertained by ascertaining what that establishment was. [1] It was the connection with the state of a particular religious society, by its endowment, at the public expense, in exclusion of, or in preference to, any other, [2] by giving to its members exclusive political rights, [3] and by compelling the attendance of those who rejected its communion upon its worship, or religious observances. These three particulars constituted that union of church and state of which our ancestors were so justly jealous, and against which they so wisely and carefully provided." [Numbers Added] Note 3.
The U.S. Senate captured the essence of the Establishment Clause. The purpose of the Establishment Clause was to prevent the United States from ever having an established church after the manner of Great Britain. It's that simple. It is true that preventing a national church or religion was not its sole purpose but that clearly was the main objective Congress had in mind for the clause. A Ten Commandments display on public property does not award anyone with exclusive political rights or compel a pedestrian to a religious ceremony while walking to court, nor does it exclude other religions. In 1854, the U.S. House of Representatives said that an establishment of religion required there to be " ...a creed, defining what a man must believe... and penalties for the non-conformist" It was these kind of things which occurred in England that Congress did not want for America. Neither Kentucky nor Texas required their citizens to obey the Ten Commandments nor did they impose a penalty if a citizen did not obey them. A mere display imposes no penalty and binds no one to a creed. Sadly, the U.S. Supreme Court will likely continue to divide America over religion as long as she pursues a philosophy of secularism. Let us pray that someday America will have a Supreme Court which supports the original intent of the Constitution. Note 4.
For a discussion of how monotheism and the Ten Commandments influenced American law and government read new my booklet: "The Ten Commandments For Beginners." Visit: www.mytencommandments.us for ordering information.
Notes.
Note 1. Stone v. Graham, 39 U.S. at 42 (1980).
Note 2. Stone v. Graham, 39 U.S. at 40 (1980).
Note 3. U.S. Senate Report No. 376, 32nd Congress, 2nd Session, January 19, 1853.
Note 4. U.S. House of Representatives Report No. 124, 33rd
Congress, 1st Session, Chaplains in Congress and in the Army and Navy, March 27, 1854.
David W. New is an attorney and author in the Washington, D.C. area. He graduated from the Georgetown University Law Center in 1989. In 2002, he graduated from The National Litigation Academy sponsored by the Alliance Defense Fund. In January 2003, he received an honorary Doctor of Divinity degree from the Methodist Episcopal Church USA. David is the author of several publications supporting the original intent of the Constitution.
The proposal is consistent with the goals of Free Republic:
is dedicated to reversing the trend of unconstitutional government expansion and is advocating a complete restoration of our constitutional republic. Listed below are some of the issues we feel strongly about.
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We the People have granted our federal government limited powers to oversee certain things, such as national defense, interstate commerce, the postal service, the coining of money, and the operation of a court system. Most other powers now in the hands of the federal government were illegally usurped from the states and from the people.
Somehow, over the years, our guiding principles of law, as set forth in the Constitution, have been eroded to the point that the federal government now has total control -- leaving the states impotent and the people as captive servants to the federal government. This must be reversed if we are to survive as a free Republic and a free people.
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Lamb's Chapel v. Center Moriches School District 508 US 384 (1993)
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in the judgment.
As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman, 505 U.S. 577, 586 -587 (1992), conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so. See, e.g., Weisman, supra, at 644 (SCALIA, J., joined by, inter alios, THOMAS, J., dissenting); Allegheny County v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U.S. 573, 655 -657 (1989) (KENNEDY, J., concurring in judgment in part and dissenting in part); Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U.S. 327, 346 -349 (1987) (O'CONNOR, J., concurring in judgment); Wallace v. Jaffree, 472 U.S. 38, 107 -113 (1985) (REHNQUIST, J., dissenting); id., at 90-91 (WHITE, J., dissenting); School Dist. of Grand Rapids v. Ball, 473 U.S. 373, 400 (1985) (WHITE, J., dissenting); Widmar v. Vincent, 454 U.S. 263, 282 (1981) (WHITE, J., dissenting); New York v. Cathedral Academy, 434 U.S. 125 , [508 U.S. 385, 399] 134-135 (1977) (WHITE, J., dissenting); Roemer v. Board of Pub. Works, of Md., 426 U.S. 736, 768 (1976) (WHITE, J., concurring in judgment); Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 820 (1973) (WHITE, J., dissenting).
The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. See, e.g., Lynch v. Donnelly, 465 U.S. 668, 679 (1984) (noting instances in which Court has not applied Lemon test). When we wish to strike down a practice it forbids, we invoke it, see, e.g., Aguilar v. Fenton, 473 U.S. 402 (1985) (striking down state remedial education program administered in part in parochial schools); when we wish to uphold a practice it forbids, we ignore it entirely, see Marsh v. Chambers, 463 U.S. 783 (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts," Hunt v. McNair, 413 U.S. 734, 741 (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.
For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. See, e.g., Choper, The Establishment Clause and Aid to Parochial Schools - An Update, 75 Calif.L.Rev. 5 (1987); Marshall, "We Know It When We See It": The Supreme Court and Establishment, 59 S.Cal.L.Rev. 495 (1986); McConnell, Accommodation of Religion, 1985 S.Ct. Rev. 1; Kurland, The Religion Clauses and the Burger Court, 34 Cath. U.L.Rev. 1 (1984); R. Cord, Separation of Church and State (1982); Choper, The Religion Clauses of the First Amendment: Reconciling the Conflict, 41 U.Pitt.L.Rev. 673 (1980). I will decline to apply Lemon - whether it validates [508 U.S. 385, 400] or invalidates the government action in question - and therefore cannot Join the opinion of the Court today.
I wonder what the "Precious" "Supreme" Court would do if all of the defendant's lawyers came into their "Little" "Precious" Chmaber with ladders and chipping hammers and started chipping off the depictions of the Ten Cammandments that is in there.
bump
2 Would get out the way.
3 Would chip the chippers little fingers off.
You Funny!
1.Congress "shall make no law ... prohibiting the free exercise" of religion.
2.The courts are limiting religious freedom.
3.Congress has authority over the courts, but Congress doesn't stop the court's unconstitutional edicts.
4.Therefore, Congress, by its inaction, is making laws prohibiting religious freedoms in violation of the First Amendment.
Madalyn Murray Ohara rings a bell there. I think she got herself murdered by a family member somehow.
I agree with most of this article, but it's a little more subtle than that. The 10 commandments cases will come down to what was intended by their display. Roy Moore lost his mostly because he declared that they were the foundation of our law. That would imply an establishment of Judaic religion as the official creed of America. He, just in that one specific way, was dead wrong and his peers on the Alabama judicial ethics commission who ejected him knew it well.
The 10 commandments should always be welcome as inspiration, moral guidelines, and an ethical compass. But we are a nation of laws, not men. Men have beliefs. Our laws are based on rational, logical persuasion. That's what the Enlightenment has obtained for us. And the left as well as the extreme Christian right are both enemies of that gift that has provided America with so much -- including our very religious freedom itself. And no other nation on earth enjoys the liberties we have today, liberties that are threatened by a mishandling of this culture war.
In defending ourselves against the atheist activists, we shouldn't undermine the gift of liberty that separation of religion and state has given us. That would be cutting off our nose to spite our face. Instead we should do all that we can to denounce their political campaign to undermine America's cultural unity. Multiculturalism is doomed to fail, and erasing Christianity from our public square is what this movement is. It goes much further than merely blocking expression of belief, and that is why it upsets us so much. But the response should be to move forward around it, not to retreat into reaction.
This is a keeper. Thanks!
Amen Brother!
The constitution was made to govern the government.
Not it's citizen's!
Thomas Jefferson: Liberty and Power
Several editors of newspapers had been found guilty of violating the Sedition Act of 1798 and sent to prison. When Jefferson became President, he pardoned and freed such of them as were still in prison. In correspondence with Abigail Adams in 1804, he justified his action this way:
You seem to think it devolved on the judges to decide on the validity of the Sedition Law. But nothing in the Constitution had given them a right to decide for the executive, more than to the executive to decide for them. Both magistrates are equally independent in the sphere of action assigned to them. The judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because the power was placed in their hands by the Constitution. But the executive, believing the law to be unconstitutional, were bound to remit the execution of it, because that power has been confided to them by the Constitution. That instrument meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the [sole] right to decide what laws are constitutional ... would make the judiciary a despotic branch.10
President Jackson:
"If the opinion of the Supreme Court covered the whole ground of this act, it ought not to control the coordinate authorities of this Government. The Congress, the Executive, and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others. It is as much the duty of the House of Representatives, of the Senate, and of the President to decide upon the constitutionality of any bill or resolution which may be presented to them for passage or approval as it is of the supreme judges when it may be brought before them for judicial decision. The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges, and on that point the President is independent of both. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive when acting in their legislative capacities, but to have only such influence as the force of their reasoning may deserve." The Avalon Project : President Jackson's Veto Message Regarding ...
Justice Curtis's warning is as timely today as it was 135 years ago:
"[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought tomean." Dred Scott v. Sandford, 19 How. 393, 621 (1857) (Curtis, J., dissenting).
The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges--leading a Volk who will be "tested by following," and whose very "belief in themselves" is mystically bound up in their "understanding" of a Court that "speak[s] before all others for their constitutional ideals"--with the somewhat more modest role envisioned for these lawyers by the Founders.
"The judiciary . . . has . . . 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 . . . ." The Federalist No. 78, pp. 393-394 (G. Wills ed. 1982).
Or, again, to compare this ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration ("There is a limit to the amount of error that can plausibly be imputed to prior courts," ante, at 24), with the more democratic views of a more humble man:
"[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal." A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101-10, p. 139 (1989).
Justice Clarence Thomas, writing in a 2002 case: "… while the Federal Government may ‘make no law respecting an establishment of religion,’ the States may pass laws that include or touch on religious matters so long as these laws do not impede free exercise rights or any other individual religious liberty interests." PDF format
Your's is the screed of a clueless toad.
but Congress doesn't stop the court's unconstitutional edicts.
PING
I reluctantly agree. The destruction of our second amendment rights is abject proof of it. So are the delegations of judicial authority to international bodies.
I just want to see the reforms conducted in the spirit of our nation's founding, not some revisionist and reactionary approach. Our freedoms are based on principles derived from the Enlightenment and the Reformation, and those values alone grant the greatest of religious freedom possible.
In our haste to correct the damage done by our courts and the multiculturalists, we open ourselves up to manipulation. Demagogues are afoot, and a different sort of problem is on the horizon. Vigilance is the watchword.
Do you understand the purpose of the Bill of Rights?
I take it we disagree, then.
Do you know anything about the history of the Reformation and why it was critical to the political developments of the Enlightenment? Do you recognize that our nation's founding is based on Enlightenment political theory?
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