The Ten Commandments Lawsuits: Successfully Eroding the Free Exercise Clause of the First Amendment

Groups like the ACLU claim they are filing lawsuits against the appearance of religion in society in order to prevent violations of the Constitution's Establishment Clause. In reality, their lawsuits are taking away the right to the free exercise of religion guaranteed by the First Amendment.

The ACLU and Americans United for the Separation of Church and State assert that they filed lawsuits against Alabama Chief Justice Roy Moore out of concern that a monument of the Ten Commandments located in the Alabama state courthouse violated the First Amendment’s prohibition against any law respecting the establishment of religion. But the monument has nothing to do with establishing religion. In reality, their lawsuits aim to prohibit Moore from exercising his First Amendment right to the free exercise of religion, which is an equally important clause in the First Amendment.

So far, the federal courts have sided with the ACLU, ordering Justice Moore to move the monument. Justice Moore has steadfastly refused, even though a federal judge threatened him with fines of $5,000 a day. On August 22, 2003, the Alabama Judicial Inquiry Commission suspended him for refusing to comply. In order to sue Justice Moore in the first place, the ACLU found some local attorneys who were willing to be clients and claim to be victims of discrimination, alleging that their clients could not get a fair trial in Justice Moore’s courtroom because of the monument. Of course, the plain truth is that whether there is a monument reflective of our nation’s foundational history present in the building or not has nothing to do with Justice Moore’s views and rulings. If Justice Moore believes in the Ten Commandments and considers them part of the moral code of our country, he is going to believe that regardless of whether there is an obscure piece of art symbolizing them nearby.

If the ACLU and other organizations that have been historically hostile to religion disagree with Justice Moore’s views, they need to organize voters to remove him from office democratically. Using the court system to remove a monument that is symbolic only, and probably not noticed by 90 percent of the people who come through the court building each day, is not a solution, it is harassment. However, the ACLU knows it can’t win democratically and fairly, because, as they assert on their website, it is well known that the reason Justice Moore was elected was precisely because of his convictions, which include putting the Ten Commandments on the wall inside his courtroom and allowing clergy to say a prayer before trials.

What the ACLU refuses to acknowledge is that it has successfully sterilized religion from society to such a degree that a backlash has emerged. No one really believes that an obscure monument of the Ten Commandments represents government establishing one religion and prohibiting others, which is what the First Amendment forbids. The U.S. is not China or Iran, or even one of our fellow Western Democratic countries that recognize one religion as their official faith. People are beginning to realize that religion has been so stripped from our society by groups like the ACLU and the Southern Poverty Center that the other half of the First Amendment’s religious clause - the half the ACLU ignores, the Free Exercise clause - is being infringed upon by the government. Ever notice how the ACLU never quotes the First Amendment, which says in regards to religion, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…” The ACLU pretends that is protecting constitutional rights, but in reality, it would prefer it if people didn’t know what the Constitution actually said. If people actually read the Constitution, they might find that they disagreed with the ACLU, and that the ACLU’s pretense of supporting “rights” was actually a sham. After all, where in the Constitution does it support the defense of men to molest boys, one of the ACLU’s favorite legal causes?

The ACLU’s erosion of religion from society has been successful because it couches its work in Orwellian terminology. In a prior victory against Justice Moore, ACLU attorney James Tucker called the ACLU’s successful erosion of the First Amendment’s Free Exercise Clause a victory for religious rights: “This ruling is a major victory for the Constitution, the rule of law, and for religious rights and liberties in Alabama.” Gradually stripping the people of their constitutional right to the free exercise of religion is cleverly referred to as “the First Amendment separation of church and state.” While “separation of church and state” sounds good in theory – never mind that it is not even in the Constitution - and would be something to be concerned about in a country where the government told people what they can and cannot believe, it is irrelevant here in the U.S. People here are free to choose different religions, and do so zealously. If anything, our public schools and employers discourage us from mentioning or observing religion. If a “separation of church and state” is needed, it is needed to get the government out of telling us we cannot practice our religions.

Three judges from the Court of Appeals for the Eleventh Circuit claimed in a 50-page ruling against Moore that if they agreed with him, he would put up religious paintings and quotes, and that judges everywhere around the country would put up Buddha statues, Menorahs, and crosses. The absurdity of this logic is all too obvious. Does anyone really believe that judges everywhere will decorate their courthouses with religious symbols? Of course not, there may be a few judges who do, but they are by far in the minority. And thanks to our wise Founders, we have a clearly written First Amendment that prohibits government from establishing one religion; no judge would be able to instill his religion upon people who use his courthouse. By forcing judges to remove any religious symbols from their workplaces, the ACLU is effectively forcing them to promote an image that they are devoid of religion. Since judges are free to adorn their courthouses with non-religious decorations, the impression people get who visit courthouses is that the judges have many likes - because they’ll see their Monet paintings and domestic violence pamphlets - but religion isn’t one of them. The smarter people, who are aware that 96% of the population believes in God and demonstrate it by wearing crosses, sporting religious bumper stickers and wearing WWJD wristbands, will wonder if religion is being censored by the government.

The reason the ACLU has gotten away with its quest to sterilize religion from society is because of sympathetic justices who have bought into their Orwellian arguments. In 1971, Chief Justice Burger in Lemon v. Kurtzman made up the “Lemon test,” which took a “living Constitution” interpretation of the First Amendment, in order to pretend that the First Amendment was more prohibitive of religion than it really was. Ignoring the Founders’ intent when they drafted the First Amendment, as well as the plain language of the First Amendment, Burger made up three criteria that lower courts would have to consider when deciding whether religion’s appearance in society violated the First Amendment. From then on, any occurrence of religion in society that was remotely related to the government would be analyzed based on whether it had a secular purpose, whether the primary effect advanced or inhibited religion, and whether it fostered excessive entanglement with the state. Of course, since our government is so large now, and pervasive in so many areas of our lives, from tax breaks to public agencies to obscure regulations, that virtually any reference to religion, unless it is within your own home – and even then, watch out if you run a home business - can be attacked by the ACLU under this impossibly vague test and purged from society.

Currently, Supreme Court Justice Sandra Day O’Connor’s “endorsement test” is frequently used as the gauge of whether religion in society should be eliminated, since O’Connor is often the swing vote on the court between the liberals and the conservatives, resulting in her authorship of many of the court’s opinions. Like the Lemon test, this test is much more prohibitive of religion than the First Amendment itself, and can easily be satisfied to “prove” that anything remotely connected to religion is “unconstitutional.” As long as the ACLU can assert that a Ten Commandments monument “endorses religion,” as open to interpretation as that is, they can win and get it removed. The key is playing on the emotions of the judges to make them feel guilty that perhaps as much as four percent of the population is “offended” by the presence of religion. It is much easier to persuade a few judges based on an emotional argument, than get a constitutional amendment passed expanding the Establishment Clause to restrict religion in society.

So what is the solution? For too long, conservatives have neglected the legal profession, particularly the judiciary. While Justice O’Connor was making inroads as one of the first women to attend law school and become a judge, conservatives were telling women to stay at home and raise children. Now Justice O’Connor is in charge of deciding how much religious freedom our society is entitled to, not the Founders and our Constitution or even a majority in society. While studies show that is better to have a parent in the home for the children, there has to be some sort of middle ground, or the children will lose their rights outside of the home. Over the past 40 years, the legal profession has been dominated by liberals who have bought into the ACLU’s pretense of defending “constitutional rights.” Most law schools have only two faculty members who identify themselves as conservatives. Consequently, Justice Moore cannot expect much support from the federal judiciary arguing that the revisionist interpretation of the First Amendment’s Establishment Clause has encroached on the First Amendment’s Free Exercise Clause. Years of Orwellian doublespeak about “rights” by groups like the ACLU has paid off, and judges would rather risk violating the Constitution than violate the ACLU.

Findlaw has this which I find instructive:

Scholarly Commentary .--The explication of the religion clauses by the scholars has followed a restrained sense of their meaning.

Story, who thought that ''the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,'' 6 looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject.

''The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.'' 7

''Probably,'' Story also wrote, ''at the time of the adoption of the constitution and of the amendment to it, now under consideration, the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the state, so far as was not incompatible with the private rights of conscience, and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation.'' 8 The object, then, of the religion clauses in this view was not to prevent general governmental encouragement of religion, of Christianity, but to prevent religious persecution and to prevent a national establishment. 9

This interpretation has long since been abandoned by the Court, beginning, at least, with Everson v. Board of Education, 10 in which the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that ''aid one religion'' or ''prefer one religion over another,'' but as well those that ''aid all religions.'' Recently, in reliance on published scholarly research and original sources, Court dissenters have recurred to the argument that what the religion clauses, principally the Establishment Clause, prevent is ''preferential'' governmental promotion of some religions, allowing general governmental promotion of all religion in general. 11 The Court has not responded, though Justice Souter in a major concurring opinion did undertake to rebut the argument and to restate the Everson position. 12

I guess the question si: How did the Court manage to apply the 14th Amendment to get around what seems to be Story's commonsense interpretation of the First Amendment to mean the depriving of Federal authority to speak on matters of religion. The practical result has been to deprive the state of any right to speak at all on religion byt to give the high court plenary authority to institutionalize not "neutrality" but deism.

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.

Let's not neglect to cite Executive Branch :

Judicial Monopoly Over the Constitution: Jefferson's View
Lincoln on Judicial Supremacy
We the peole are also to blame for voting in the same individuals who habitually violate their oath to protect/defend the Constitution
Q. What can the ordinary individual citizen do to change the direction in which our government is moving?
A. Well the citizen is very important because, ultimately, the type of government we have is a reflection of what the people want. Now I know that will be hard for a lot of us to swallow. We who have been fighting this battle and probably your readership believing that they are totally ignored. The problem is that the enemy, the opposition, the believers in big government outnumber us and they have the greatest influence in numbers. Even numbers aren't the total issue. It's the right people, in the right places, in the positions of influence. So this means media control, who is controlling the universities, who is controlling the purse strings. We have recently seen this; a small number of dedicated, well organized, determined people who happen to believe in building this world empire, called the Neocons, are very, very effective. So the Congress reflects those views. In the broader sense we still have a lot of American people who say; Yes, I am for the Constitution,I am for limited government, except for: "I need this". The biggest infraction probably comes from big business. They talk about free markets and a lot of things, but they come up here (to Washington D.C.) and all they want are special benefits.
So the only thing left for the average person is to act out politically and that is, of course, what I did. I was very uncertain about whether I could possibly win a Congressional Seat with the views I hold. We have to participate. The number one thing we all have to do is be educated and to know what is going on. That is why the internet is such a grand opportunity for us and web sites like the Sierra Times are just fantastic. There are a growing number of people who are starting to read and understand and reflect our views. Unfortunately we are still in the minority, but there is reason to be optimistic, to keep up the fight. Texas Straight Talk: An Interview With Ron Paul - Sierra Times. ...

Q. Sir, on May 6th, on the floor of the house you asked the question: "Are the American people determined they still wish to have a Constitutional Republic." How would you answer that question, Sir?
A. A growing number of Americans want it, but a minority, and that is why we are losing this fight in Washington at the moment. That isn't as discouraging as it sounds, because if you had asked me that in 1976 when I first came to Washington, I would have said there were a lot fewer who wanted it then. We have drifted along and, although we have still enjoyed a lot of prosperity in the last twenty-five years, we have further undermined the principles of the Constitution and private property market economy. Therefore, I think we have to continue to do what we are doing to get a larger number. But if we took a vote in this country and told them what it meant to live in a Constitutional Republic and what it would mean if you had a Congress dedicated to the Constitution they would probably reject it. It reminds me of a statement by Walter Williams when he said that if you had two candidates for office, one running on the programs of Stalin and the other running on the programs of Jefferson the American people would probably vote for the candidate who represented the programs of Stalin. If you didn't put the name on it and just looked at the programs, they would say, Oh yeah, we believe in national health care and we believe in free education for everybody and we believe we should have gun control. Therefore, the majority of the people would probably reject Thomas Jefferson. So that describes the difficulty, but then again, we have to look at some of the positive things which means that we just need more people dedicated to the rule of law. Otherwise, there will be nothing left here within a short time. Texas Straight Talk: An Interview With Ron Paul - Sierra Times. ...
Only half would vote for Constitution

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.