Thou Shalt Not Pray -- Does the Constitution hate God?

Slate ^ | August 21, 2003 | Dahlia Lithwick

[Sandy]

One hesitates to spill one more drop of ink over Chief Justice Roy Moore--the demagogue judge who heads the Alabama Supreme Court and who--as of midnight last night--is in violation of a federal court order to remove a 5,000-pound monument to the Ten Commandments from the rotunda of the Alabama State Judicial Building. Moore, who's made a career of confusing his bench with a pulpit, has evinced such contempt for the rule of law, the Constitution, and the rest of this nation that he's unworthy of another word. There is, however, a constitutional problem highlighted by Moore's conduct and by the popular support he's garnered in some circles. A sentiment expressed frequently by elected officials, religious leaders, and even the occasional U.S. Supreme Court justice is that the principle of separating church and state has morphed into unbridled state hostility toward the church. The founders of this country were, for the most part, deeply religious men. Would they, like Moore, object to the ways in which religion has been chased out of the public square?

The Constitution itself codifies two conflicting impulses. The First Amendment guarantees simultaneously that "Congress shall make no law respecting an establishment of religion" and that Congress won't "prohibit ... the free exercise thereof." Which one is it? How can Congress avoid promoting religion, while also encouraging its free exercise? One answer is that the "Establishment Clause" was not intended by the framers to erect an unbreachable "wall between church and state." Thomas Jefferson himself, who coined that phrase, had no compunction about holding church services in the chambers of the Supreme Court. One possible view is that the Establishment Clause was intended only to ensure that there was no official adoption of a state religion.

The Supreme Court has taken another tack. In a long line of cases beginning in 1946, with Everson v. Board of Education, the court set up the standard to be used in deciding Establishment Clause cases: "No tax in any amount, large or small, can be levied to support any religious activities or institutions." A doctrine was born. Wasting your time with the nuances of the so-called Lemon Test, the modern "refinement" of establishment-law cases set forth in Lemon v. Kurtzman, would be almost as pointless as wasting your time on Justice Moore. Suffice to say that in recent decades, the Supreme Court has asked whether the religious aid has some "secular legislative purpose," "neither advances nor inhibits religion," and does not foster "an excessive government entanglement with religion." Whatever. The test is disastrous, allowing, as Justice Scalia has observed, the court to reach the result it wants every time. Justices O'Connor, Kennedy, and Thomas have each made up new Establishment Clause tests in recent years, signaling that Lemon may be law, but it's stupid law.

Using these new tests, the court has eroded the wall between church and state to some extent. Religious claimants now have the same rights as the nonreligious in terms of school facilities, resources, and access. Last year's vouchers decision lowered the wall further. But outside the public school context, the test is essentially whether the state appears to be endorsing a particular religion (or religion in general over atheism). If the answer is yes, the display or prayer is impermissible. Recall that these cases concern public spaces, public schools, and public moneys. No one (except perhaps the neighbors) can stop Justice Moore from putting a 200,000-pound Decalogue in his driveway.

There are two ways to get around the prohibition against state-endorsed public displays of religious symbols or acts: One is to claim that the religious object or act is so "secularized" that it no longer has any religious meaning. The case that launched this doctrine was Marsh v. Chambers--involving taxpayer funding for chaplains in state legislatures. In Marsh, the court found that history acts as a spiritual Bermuda Triangle, with time acting as "a vehicle for altering the religiousness of certain practices and symbols." This has been the basis of the court's acceptance of the word "God" in state invocations and--at least as they've suggested in dicta--on coins or the Pledge of Allegiance. The argument is that the religious element of the word "God" is purely historical and thus devoid of religious meaning. This of course leads to stunning judicial disrespect for religious icons--hardly the result religious Americans can desire. In one case the court reduced a crèche to the religious equivalent of a Happy Meal: "engendering a friendly community spirit of good will in keeping with the season."

There is another way to get around the Establishment Clause and this seems to be Justice Moore's tack: Ignore it. Moore and his followers are not arguing that the Ten Commandments are a secular symbol. Yes, he pays lip service to the commandments as the "foundation of Western Law" (although at last count only two are legally binding on the states). But what Moore and other Decalogists seek to do is inspire religious zeal, restore religious practice, and stop the godless young hooligans and abortion seekers in their tracks. In short, he wants to proselytize, and he's been open about that project from the start.

There is an irony here. The free speech provision of the First Amendment accords the greatest respect to the loudest, rudest speaker. The Establishment Clause accords the least respect to the loudest, most zealous preacher.

So, what do we do about the fact that the current First Amendment jurisprudence is not neutral toward religion but instead seems to persecute the true believer? To quote a more respected jurist than Moore, Chief Justice William Rehnquist wrote, in a dissent in a case prohibiting prayer before school football games: "[The majority opinion] ... bristles with hostility to all things religious in public life." Is it possible for the state to celebrate a plurality of religions without establishing one or several as more legitimate?

No. Because we live in a zero-sum constitutional world. In order to be "neutral" toward all religions, including atheism, the courts have had to erect equal barriers to all. In order to privilege no religion (or even non-religion) the courts have elected to privilege none. This includes the vague "Judeo-Christian" theism that most Americans would probably like to see more of in the public square.

Is there an alternative? Justice Clarence Thomas holds that the state should be "neutral" toward religion and allow people to make free choices. But wouldn't such a "free market" lead inexorably to Moore's world--in which the majority decides which religion the state should endorse? And isn't that why the people first boarded freezing, leaky boats over here from England? That's why the sensibilities of Buddhists and Zoroastrians count--at least in this case--more than the wants and desires of the majority of religious people who may simply wish to practice their faith in public spaces.

That seems unfair to religious citizens who seek some sort of "balance" in the law--equality for religious and atheist alike; equality for majority and minority religions. But what does "equality" mean when you're talking about religion and particularly state-sponsored religion? Doesn't it mean that some religions will necessarily be more equal than others? The framers seemed to think that was an appalling prospect for religious freedom.

One of the hard lessons of the religion cases is that if the public square is going to welcome everyone, it cannot necessarily welcome all of their gods. Perhaps the most American sentiment of all is the faith that somehow, He will be there anyhow.

[RAY]

BS!

[fightu4it]

"It cannot be emphasized too strongly or to often that this great nation was founded, not by religionists, but by christians; not on religions, but on the gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here."

Patrick Henry

[IronJack]

Moore ... has evinced such contempt for the rule of law, the Constitution, and the rest of this nation that he's unworthy of another word.

Moore has? Funny, I thought that indictment could have been more accurately leveled at the ACLU and the America-haters. I highly doubt that "the rest of this nation" would approve of the thousand subtle subterfuges the godless crowd uses to advance their unholy agenda. And I further doubt that the Constitution would endorse the removal of this monument. However, I DO have to concede that the "law" has been so corrupted as to serve its infernal masters. But absent a moral principle guiding it, law is not much of a tool.

[jwalsh07]

Right, the author concludes that the religious sppech is allowed but only in the basement or attic.

Free exercise my rear end.

[comnet]

Bill Federer’s American Minute:
August 21, 2003
Born in Scotland, he was one of only six founding fathers to sign both the Declaration of Independence and the Constitution. President George Washington appointed him a Justice on the Supreme Court. One of the most active members at the Constitutional Convention, he spoke 168 times. His name was James Wilson and he died this day, August 21, 1798. The first law professor of the University of Pennsylvania, James Wilson wrote: "It should always be remembered, that this law, natural or revealed, flows from the same divine source; it is the law of God.... Human law must rest its authority, ultimately, upon the authority of that law, which is divine."

[x]

She may be right that the two clauses are in conflict, but this is a pretty weak article. The Framers wanted only to insure that there would be no established church at the national level. States did have established churches, well into the 19th Century in Massachusetts's case. Given that most states had school prayer down to 1962, she clear can't base her case on the Framers or on any original intention to remove religion entirely from the public square.

[Sandy]

this is a pretty weak article

I just like her style. She rips Moore and rips the Court precendents. And she made me laugh. That's why I posted it.

[xzins]

If any free speech is allowed in the public square, then all free speech must be allowed in the public square....to include religious free speech.

[vpintheak]

There is no conflict. Leftists and God haters try to pick apart the Constitution to suit their puposes.

On every question of construction [of the Constitution] let us 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 intended against it,conform to the probable one in which it was passed. -- Letter To Justice William Johnson, Monticello, June 12, 1823
Thomas Jefferson

[lilylangtree]

Our country was founded by people who believed that Jesus Christ is the son of God just like the 1st of 10 commandments handed down by God--Thou shalt have no other Gods before me. Over time, the legal profession has been tearing the fabric of Christianity, driving our country to paganism, all because each individual is guaranteed the right to life, liberty and the pursuit of happiness. That isn't God's law but man-made law.

[LiteKeeper]

that Congress won't "prohibit ... the free exercise thereof." Which one is it? How can Congress avoid promoting religion, while also encouraging its free exercise?

There is a logical fallacy here. She interprets won't "prohibit...the free exercise thereof" as meaning encouraging its free exercise. It is not saying that at all. It is saying that Congress is not allowed to do anything against religion and the exercise of it.

[powderhorn]

She may be right that the two clauses are in conflict, but this is a pretty weak article. The Framers wanted only to insure that there would be no established church at the national level.

The two clauses are not in conflict. Taken together, they establish a principle of non-interference with religious matters. The Constitution guarantees freedom of religion and freedom from religion. Taken together, they guarantee that Americans have the right to choose their religious affiliation.

A gift to none is ultimately a gift to all.

[goldstategop]

Exactly. Liberal judges and lawyers have twisted the Establishment Clause to mean freedom from religion. The Founders had in mind to guarantee freedom of religion. The two are very different doctrines and the application of the former has turned access to the public square into a zero sum game in which one side must win and the other side must lose. Naturally the losing side, usually religious believers, are none too happy about being reconciled to being told to shut up and the not too surprising (and inevitable) result is that the culture war simply resumes in full force on another front.

[ppaul]

Moore is not your typical judge. After graduating from West Point he served for five years in Vietnam before entering law school at the University of Alabama. Prior to his first judicial appointment in 1992, he studied full-contact karate, won his first kick boxing match, and completed a five-month trek across the Australian outback.

Though he has traveled widely, Moore has never strayed from his roots in Etowah County, Alabama. Growing up in what he called a “poor Christian home” and admiring a father who “lived what he believed,” Moore learned to honor God, cherish family, and love his country. Following law school, he served as deputy district attorney in Etowah County and later established his own private practice. In 1992, he was appointed Circuit Judge of the 16th Judicial Circuit, where he gained notoriety for displaying a plaque of the Ten Commandments. Then in 2000, Moore was elected to serve as Chief Justice of the Alabama Supreme Court. A devout Christian and father of four children, Moore is not surprised by the controversy that has surrounded his public service. “When you do what you believe, you are going to run into problems,” he says.

Recently, PBS commentator Bill Moyers commented on Christian conservatives like Moore. “[F]or the first time in the memory of anyone alive,” he writes in a commentary posted on PBS’ website, “the entire federal government—the Congress, the Executive, the Judiciary—is united behind a right-wing agenda for which George W. Bush believes he now has a mandate.” The root cause of Moyers’ concern appears to be Christians who take their role in politics seriously: “And if you like God in government,” he added, “get ready for the Rapture. These folks don’t even mind you referring to the GOP as the party of God. Why else would the new House Majority Leader [Tom DeLay] say that the Almighty is using him to promote ‘a Biblical worldview’ in American politics?”

What Moyers and others liberals are so bothered about is not Christianity, but true Christianity, biblical Christianity, activist Christianity. Moore’s opponents—three Alabama attorneys represented by the American Civil Liberties Union, the Southern Poverty Law Center, and Americans United for Separation of Church and State—see references to God on a monument as a threat to the establishment of the official state religion, atheism. Morris Dees, the co-founder of the Southern Poverty Law Center, even went so far as to call Moore “a religious nut.” After all, Moore is a man who, wearing his judge’s robes, can often be found citing one of his trademark poems: “Choosing godless judges, we’ve thrown reason out the door/Too soft to put a killer in a well-deserved tomb, but brave enough to kill that child before it leaves the womb/ . . . you think that God’s not angry that this land is a moral slum?”

One of Moore’s attorneys, Herbert Titus, the former dean of the law school at Regent University, said Moore’s judicial philosophy is really quite simple. Moore believes that there is a “moral foundation of law with the acknowledgment that God is the source of that foundation.”

Moore could not be more right. The sad truth is that most Americans, brainwashed by the government school system, don’t even know that the Founding Fathers who wrote the Constitution had no concept of the so-called “separation of church and state” that is so prevalent in today’s court system. As William Rehnquist, Chief Justice of the United States Supreme Court, has stated, “The separation of church and state is a metaphor based on bad history and worse law. It has made a positive chaos out of judgments, and it should be frankly and explicitly abandoned.”

When the First Amendment was being debated, the phrase “separation of church and state” was never used by the 90 men who framed it. “The First Amendment restricts only Congress,” says Dr. D. James Kennedy of Coral Ridge Ministries and founder of the Center for Reclaiming America. “It was created to restrain the federal government.” Many Founding Fathers, including Patrick Henry and George Washington, refused to sign the Constitution unless it had a set of protections for the people against a potentially all-powerful federal government.

“Once we let the government believe it is the source of our liberties, we are never safe,” says Dr. Kennedy. The Declaration of Independence states the purpose of government very clearly—to secure God-given “unalienable rights.” That is the primary justification Thomas Jefferson gave for having government. Thus, apart from a recognition of God-given rights, there is no legitimate foundation for government. Indeed, government cannot be secular, because government’s purpose is to secure rights—and blessings—that come from God. And if government cannot be secular, why should we expect our elected officials to be secular?
Dr. Kennedy’s description of the true Christian statesman bears repeating here.

· First and foremost, a Christian statesman is one who repents of his sins, believes the gospel, trusts in the atoning sacrifice of Jesus Christ, and invites God by His Spirit to dwell in his heart.

· Secondly, a true Christian statesman seeks to live a life guided by God’s Word and desires to make his days count for the kingdom of God.

· Finally, a true Christian statesman is one whose public and private conduct is guided by a bedrock set of principles that will not be compromised for personal or political gain. Such a person rises above partisan politics and makes the overall welfare of a nation his first priority.

In short, says Dr. Kennedy, a Christian statesman is someone whose commitment to Christ and love of country compel him to stand for truth and righteousness in government. Such a person recognizes that individuals (as well as nations) will ultimately give an account to God and are dependent on Him for prosperity and success.
Need a good picture of a Christian statesman? Then take a look at Roy Moore.

And to Justice Moore I say, “Keep on fighting the good fight.” You are not alone. As another fearless defender of the Constitution once said: “In all my perplexities and distresses, the Bible has never failed to give me light and strength” (Robert E. Lee).

by David Alan Black

http://www.southerncaucus.org/213.htm

[powderhorn]

Exactly. Liberal judges and lawyers have twisted the Establishment Clause to mean freedom from religion. The Founders had in mind to guarantee freedom of religion.

I think they also had very much in mind freedom from religion. At the time the Constitution was signed, one didn't have to look very far back in history to find catholics and protestants in a death struggle. Without freedom from religion the mad mullahs (of whatever faith) would seek to control the nation.

[Sandy]

"It cannot be emphasized too strongly or to often that this great nation was founded, not by religionists, but by christians; not on religions, but on the gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here." Patrick Henry

For the record, Patrick Henry lost that fight. Here, as recapped by James Madison:

The most notable attempt was that in Virga to establish a Genl assessment for the support of all Xn sects. This was proposed in the year by P. H. and supported by all his eloquence, aided by the remaining prejudices of the Sect which before the Revolution had been established by law. The progress of the measure was arrested by urging that the respect due to the people required in so extraordinary a case an appeal to their deliberate will. The bill was accordingly printed & published with that view. At the instance of Col: George Nicholas, Col: George Mason & others, the memorial & remonstrance agst it was drawn up, (which see) and printed Copies of it circulated thro' the State, to be signed by the people at large. It met with the approbation of the Baptists, the Presbyterians, the Quakers, and the few Roman Catholics, universally; of the Methodists in part; and even of not a few of the Sect formerly established by law. When the Legislature assembled, the number of Copies & signatures prescribed displayed such an overwhelming opposition of the people, that the proposed plan of a genl assessmt was crushed under it; and advantage taken of the crisis to carry thro' the Legisl: the Bill above referred to, establishing religious liberty.

SOURCE

[fightu4it]

"It cannot be emphasized too strongly or to often that this great nation was founded, not by religionists, but by christians; not on religions, but on the gospel of Jesus Christ. For this very reason peoples of other faiths have been afforded asylum, prosperity, and freedom of worship here."

Patrick Henry

The quote above stands on it's own truth. Henry's arguement for an assesment in no way diminishes the truth of the quote. Had I been around in that time period I most likely would have been against continuing the church's power to tax too.

[Apogee]

And isn't that why the people first boarded freezing, leaky boats over here from England? That's why the sensibilities of Buddhists and Zoroastrians count--

Many of the people who came here on "freezing, leaky boats" did so because they faced death. I would submit that they would not think an unwanted public memorial to be anything like coercion, but perhaps that being forced to remove it might be.
When did censoring the speech of the majority become the acceptable alternative to censoring the minority? I am not certain I have read that the founders of this country believed that to be an appropriate solution.
In a place where there are competing and contradictory truth claims, it is certain that people will be offended from time to time. That is their right, I suppose.

[mrsmith]

"There is another way to get around the Establishment Clause Lemon test and this seems to be Justice Moore's tack: Ignore it. "

The Holy Mystical Trinity of the Lemon test. Ugh.

If Judge Moore's acts have led to as many people being informed about the monstrous Lemon test as I think they have, he will have done the country a valuable service.