Tag Archives: Supreme Court

Fox News report on “Religion in America” was slanted

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I was flipping though the channels Saturday evening when I came across an hour long report by Brit Hume on the Fox News Channel. It was called “Religion in America: Church & State”. Yes, I took a shower after watching it. It was shown originally back in December when the fake “war on Christmas” was at its peak.

Following are my thoughts on the program so you don’t have to watch it.

First here is the blurb from Fox News on their website about the program:

This weekend, join host Brit Hume as FOX News tour of the religious battlefields of the United States.

We’ll show you what the Founding Fathers thought they were doing when they first guaranteed American religious freedom.

We’ll investigate how the wall of separation between church and state really gets built in modern America and how Americans are fighting back.

Tune in for a fair and balanced examination one of the most divisive and important issues in America today.

Religion in America: Church and State

Unfortunately the blurb was wrong about it being “a fair and balanced examination”. In fact, the report had a definite point of view and a majority of the talking heads were people opposed to religious liberty by keeping government neutral in religion.

The main speakers during the report were Daniel L Dreisbach (a buddy of religious conservative Rev. D. James Kennedy) who wrote a book claiming that Thomas Jefferson meant the “wall of separation between church and state” was for the Federal government only and not applicable to local and state governments.

Vincent Phillip Munoz, who teaches at Tufts University and is noted as a fellow of The Discovery Institute (the group that is trying to get Intelligent Design forced on school children).

William A Donohue – President of The Catholic League For Religious And Civil Rights

They get most of the face time and time to express complete ideas.

Who represented the “other side”:

Rob Boston of Americans United for Separation of Church and State, Marcia A Hamilton, who wrote “God vs The Gavel: Religion and the Rule of Law” and Gregg Ivers, professor at American University, who wrote “To Build a Wall: American Jews and the Separation of Church and State (Constitutionalism and Democracy)”. Boston shows up about 1/2 way through the hour long show.

All three are limited to short statements and if they said something different than the thrust of the POV of the program, one of the three religious discrimination supporters would speak right after them. That didn’t happen when Dreisbach, Munoz, or Donohue spoke. In fact, Jay Sekulow, director of Pat Robertson’s American Center for Law and Justice (ACLJ), speaks more than Boston, Hamilton, or Ivers combined and he is only on a short time late in the program.

One issue I had about the point of view of the program was the equating of government and its structures with “the public square”. The main speakers infer that requiring government to be neutral in regards to religion means that religion is removed from the public square. That connection is not only a long stretch, it is simply wrong.

The program starts off with a history lesson. Telling us that the America was founded by believers who were looking for freedom to practice their religion, that some colonies had established churches, and that James Madison made some changes and was influenced by the Virginia Declaration of Rights drafted by George Mason. Madison helped add:

all men are equally entitled to the free exercise of religion

This replaced Mason’s more diluted language of toleration. Madison was of the mind that religious belief was a natural right and that government had to be neutral. The show totally ignored Madison’s strong support for government neutrality toward religion.

Dreisbach mentioned that the first congress went to church after its first day of business and political leaders of the time offered prayers and thanksgivings, and used religious language in letters and bills. The show failed to point out that God is not mentioned in the Constitution and there is a strict rule against a religious test for office. Noting that early political leaders were religious so therefore the government must be too is an irrational leap of faith. As noted in another blog by Jonathan Rowe:

In order to fully understand Jefferson’s and Madison’s views on the proper relationship between government and religion, we must first understand that these men believed in natural right ideals — certain principles that all governments, federal, state, local and international — must, in theory, respect. But these ideals are high and lofty. And often they would be, in practice, not met. Slavery is the classic example. Slavery violated the natural rights of blacks as articulated by the Declaration; but the legality of slavery was preserved by the original Constitution. Was our founding pro-slavery or anti-slavery? It all depends on whether we were founded on our ideals or on our compromises with those ideals. If historical “practice” must inform our constitutional principles to the point where such practice is dispositive, then it’s clear we were founded on slavery — Jefferson and other founders owned slaves! And if we had a “pro-slavery” founding then, as Harry Jaffa aptly notes, it’s nigh well impossible for originalists to claim the moral highground.

Dr. Daniel Dreisbach & Coral Ridge

The next segment focused on the US Supreme Court and their rulings in church-state cases since the 1940’s. It was during this time period – until the early 1970’s – where a majority of the landmark cases were decided.

The focus was on one justice in particular – Hugo Black, who joined the court in 1937 and wrote the majority view in Everson v Board of Education (1947). Everson was the first case to specifically mention Jefferson’s “wall of separation” and use it to decide the case. Everson asked “Does a state statute giving reimbursement of the cost of transportation to and from parochial school to parents of school age children violate the Establishment Clause of the 1st Amendment as applied to by the 14th Amendment?” The court decided the reimbursement didn’t violate the constitution because, although it violated the 1st Amendment, it was permissible under the “child benefit” theory.

The show made the claim that Black ruled as he did because he was anti-catholic. During the time of the case there was still a deep divide between Protestants who were the majority and Catholics. Many church-state cases came up because Protestants wanted to contain and suppress Catholics. William Donohue, of The Catholic League, pointed out that Americans United for Separation of Church and State started out as Protestants and other Americans United for the Separation of Church and State – an anti-catholic group.

Americans United for Separation of Church and State was founded in 1947 by a broad coalition of religious, educational and civic leaders. At that time, proposals were pending in the U.S. Congress to extend government aid to private religious schools. Many Americans opposed this idea, insisting that government support for religious education would violate church-state separation. The decision was made to form a national organization to promote this point of view and defend the separation principle.

The Americans United Story

Of course in 1947 most private religious schools were Catholic and Protestants were the dominate sect in public schools – Bible readings and other religious instructions in public schools were of the Protestant view point. That was the whole reason why Catholics formed their own schools in the first place. There was a real fear – even though it was based on a false premisis – that school children would be converted to the Catholic religion if it got government funding.

Donohue also pointed out that Justice Black had been a member of the Ku Klux Klan – another group opposed to Catholics. It is true that Black was a member in the 1920’s but he resigned after only a couple of years.

The program failed to mention Black’s support of civil rights for African-Americans while on the court. He was on the majority that in Shelley v. Kramer (1948), which invalidated the judicial enforcement of racially restrictive covenants. Similarly, he was part of the unanimous Brown v. Board of Education (1954) Court that struck down racial segregation in public schools. He was burnt in effigy by segregationists back in Alabama. Black also joined the Supreme Court’s landmark decision in Miranda v. Arizona (1966), which required law enforcement officers to warn suspects of their rights prior to interrogations, and consistently voted to apply the guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments at the state level.

In fact, during his years on the court Black was considered a “strict constructionist” similar to how current Justice Scalia is viewed today. Black believed that if it wasn’t written in the Constitution or the Bill of Rights, it didn’t exist. His rulings on church-state cases came from his belief that the 1st Amendment’s “Congress shall make no law respecting an establishment of religion…” meant no law and that also meant no tax money and no other support from the government. He was also the justice that said the 14th Amendment meant that the Bill of Rights also applied to the states.

Host Brit Hume noted that Black was no legal scholar having never served as a judge before joining the court and the program mentioned that Black’s writing in Everson matched the words used by the ACLU in a friend of the court brief. That brief mentioned Jefferson’s wall language.

Not only did they smear Black as anti-catholic but we are to believe that he wasn’t too smart and was easily influenced – forgetting that it takes 5 votes to decide a case and Everson was upheld for the school board by 5 to 4.

I think what really pisses off foes of separation of church and state today is that the court’s reaction against Catholic schools getting tax funding led to the establishment of government neutrality in religion as the founder’s wanted in the first place. Call it unintented consequences.

After Everson came McCollum v. Board of Education (1948) which found religious instruction in the public schools unconstitutional (decided on an 8-1 vote). Engel v. Vitale (1962) which said prayers led by teachers was a no-no and Abington v. Schemmp (1963) that removed Bible reading and prayer from public schools and so on through the end of Black’s time on the court in 1971.

The cases didn’t just constrain Catholics but also removed Protestants from their special status as well.

The last part of the program focused on current battles like religious symbols on government property and the pledge case. It mentioned Dr. Newdow and his case against the pledge that the US Supreme Court dismissed on a technicality.

Donohue then states that Newdow was trying to censor religion and take away “our religious heritage”.

Of course Newdow wasn’t but the show didn’t offer any rebuttal to that claim. It didn’t offer rebuttal for many of the claims made by the talking heads or Hume’s comments, not even from the separation supporters like Boston.

The Founders and the courts have been in agreement that the individual has a right to practice their religion and no law can be made to prohibit that. Removing “under God” from the pledge doesn’t prevent or place an undo burden on John and Sue Public from going to church or standing on a street corner to pray. A ruling for Newdow in his new case, now in the courts, doesn’t force believers not to believe.

Views like Donohue’s are wrong because of the false assumption that removing religious texts and symbols from the government is the same as removing them from the public square.

The show profiled Redlands, CA. For 40 years they had a cross on their city seal. It was placed there to honor the distinction that Redlands has the highest number of churches per capita in the nation. In 2004(?), they got a letter from the ACLU telling them they needed to remove the cross from the seal or face a court suit. The city did but the spokesperson made it seem like such a burden. The cross is NOT a generic symbol of religion. It gives the impression that the city endorses Christianity specifically.

People in Redlands got pissed and had put the symbol removal to a vote. A vote of yes would have forced the city to put the cross back and face a lawsuit. The measure LOST 59 to 41%. Host Brit Hume noted that *supporters* of the measure told Fox News that the initiative lost due to money and not principles (sure, the spin from the losers is the correct view of the outcome…)

Then the show profiled a fight over a 10 Commandment’s monument on the lawn of city hall in Elkhart, IN. An Atheist filed a suit against the city to have it removed from city hall. Mayor David Miller, who did most of the talking, said he fought it because was it not an endorsement but an acknowledgement of our “religious heritage”. The city won the first round but lost on appeal. The case arrived at the US Supreme Court but the court declined to hear the case. The mayor gave up the case and moved the monument off city property because he said he didn’t want to give more money to the ACLU.

The Atheist in the case Michael Suetkamp had a brief moment on camera and even got to say “this is where Christians come for justice not Atheists” which was immediatly refuted by the Mayor. The program was sure to note that Suetkamp was Indiana state director for American Atheists but it failed to note that another person William A. Books also joined the suit and the case title includes his name only. see: Books, William A. V. City Elkhart. The show didn’t mention that most church-state cases are brought by people who are believers.

The final segment talked about how “Americans are fighting back” telling how the religious right and political conservatives are working together to turn back the clock before the Everson decision.

Jay Sekulow, of ACLJ, talked about arguing cases based on free speech issues to force separationists to defend censorship which he doesn’t think they will do.

Hume mentioned bringing in more people “of faith” into politics.

Majority rules in America and if people of faith are a majority in America, their voice should be heard

Bishop Harry Jackson – Pastor, Hope Christian Church

Sorry Bishop Jackson but we don’t have majority rule. We have a representative form of government that is checked and balanced by the courts. The Bill of Rights were specifically added to the Constitution to protect minorities from the tyranny of the majority. Also people of faith are heard – everyday and everywhere. 11 states passed prohibitions on Gay marriage on the same day. They have had TV programs pulled off the air and they hold the office of the President of the United States and much of Congress.

The show used the false argument from popularity often by showing polls Fox News conducted that showed people want religious discrimination in government. Here is an example of one poll:

Courts have gone too far in taking religion out of public life.

Democrats Republicans
Agree 77% 89%
Disagree 22 8

conducted November 29th and 30th 2005 margin of error +-3%

Again they use the false argument that endorsing government neutrality is the same as removing religion from public life.

Finally the show talks about the appointments of John Roberts and Samuel Alito to the US Supreme Court. Hume and those who support separation of church and state agree that now the court could start ruling in favor of religionists. He mentioned that both are Catholic so now the court has 5 Catholics on the bench. We also find out that Jay Sekulow consulted with the White House on the appointments. Imagine the howling from the right if someone from the ACLU consulted a President about a Supreme Court nomination?

As Rob Boston said about Justice Alito:

Our concerns about Judge Alito are he will adopt such a narrow definition of the separation of church and state that really as long as the government doesn’t officially establish a national church, it can pretty much do anything else it wants. I think that narrow definition runs contrary to what the founders wanted…. and we’re going to oppose that very strongly.

The program did a good job of presenting the issue of separation of church and state from the point of view of religious and political conservatives. Those of us who support religious liberty should be required to view this program to know what arguments our opponents are making.

It can also show how a biased viewpoint and selective evidence can slant what is called a news report. As noted above the report smeared Justice Black and ignored his support of civil rights. The program also mentioned the big cases that like Engel v. Vitale that were loses for those who wanted special status for religion but failed to mention cases that were ruled in their favor like Waltz v. Tax Commission (1970) – which upheld tax exemptions for religion.

The show also had a selective view of history by offering only information about the Founders that supported their view while ignoring facts that didn’t, like ignoring Madison’s history of support of government neutrality in regard to religion and not mentioning the Constitution doesn’t mention God and prohibits a religious test for office.

The blog News Hounds that offered a review of the December showing mentioned the war language used throughout the program as well as the musical cues used to express an view point.

Hypocrisy, Thy Name Is FOX

Also for an in depth look at the issue that is based on documented facts checkout the site The Constitutional Principle: Separation of Church and State

Is Supreme Court nominee Samuel Alito a friend to religious liberty?

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Samuel Alito’s confirmation hearing is going to start in January and one area he is sure to be questioned about is his legal views on the separation of church and state.

Unlike the failed nomination of Harriet Miers, Alito has a judical history to look at to see if he may be a friend of real religious liberty – one that supports the separation of church and state.

According to an AP report this weekend, Alito’s record on religious cases is all over the spectrum.

During his 15 years as an appellate judge, President Bush’s Supreme Court nominee has written decisions in favor of Muslim police officers in Newark, N.J., who wore beards; a Native American from Pennsylvania who raised sacred black bears; and a Jewish professor who said she was pushed out of her job for refusing to attend faculty events on Friday evenings and Saturdays, her Sabbath.

“Intentionally pressuring a person to choose between faith and a career … by manipulating the job requirements” is a form of illegal discrimination based on religion, Alito wrote in ruling for Gertrude W. Abramson, the professor.

He also upheld the holiday display in Jersey City, N.J., that featured a creche, a menorah, a Christmas tree and a plastic Frosty the Snowman. In doing so, he rejected the complaint filed by the American Civil Liberties Union that the display in front of City Hall promoted an official religion. Last year, Alito held that an evangelical Christian group had a free-speech right to pass out fliers on school property to invite students to attend Bible study meetings.

In dissents, Alito said he would have allowed high school seniors to elect one of their own to deliver a graduation prayer.

And he would have allowed a mother to sue a school principal for damages because her kindergartner’s drawing of Jesus had been temporarily removed from its prime place in a hallway. “Discriminatory treatment of the poster because of its religious theme would violate the 1st Amendment,” he wrote.

Alito, unlike the court’s current conservative wing, also has supported the rights of religious minorities. In the beard case and the case of the Native Americans raising Black Bears, he said the Constitution’s protection for the “free exercise” of religion required the government to bend its rules for religion if other exceptions were permitted.

Newark allowed exceptions to their beard rule for medical reasons and Pennsylvania had wild animal exemptions for zoos and circuses.

However Alito has written in support of religion in the schools as a case of free speech:

In 1996, Alito joined a dissent saying that students at a New Jersey high school had a free speech and freedom of religion right to deliver a prayer at graduation. Under a policy adopted by the Black Horse Pike Regional School District in New Jersey, seniors voted and the prayer option won, 128 to 120.

Four years ago, the Supreme Court struck down as unconstitutional a similar policy adopted by a Texas school board. In a 6-3 decision, the court said a religious message should not be broadcast at school-sponsored events. The justices also said they were troubled by the notion of holding a school election to decide a question of religion.

Then-Chief Justice William H. Rehnquist and Justices Scalia and Clarence Thomas dissented. Like Alito, they said the free speech rights of the majority should prevail.

In a lawsuit from New Jersey, a boy in school had his Thanksgiving poster removed from display at school because it thanked Jesus then put back up by the teacher but in a less prominent place, then the next year the child wanted to read from his Bible during story time and the teacher refused to let him. The mother sued but lost in the appeals court. Alito wrote a strong dissent describing how the plaintiff should have won the case.

He wrote:

“Public school authorities may not discriminate against student speech based on its religious content,” he wrote. Zachary’s “poster was given less favorable treatment than it would have received had its content been secular rather religious.”

Alito’s view would cause issues for schools across the country:

Julie Underwood, the former general counsel for the National School Boards Assn., said Alito’s view would put schools in an untenable position.

“If you allow the religious speech from the podium or in the classroom, you can be accused of promoting religion,” said Underwood, now dean of education at the University of Wisconsin in Madison. “If you don’t, you can be sued for discriminating against religion.

“This issue comes up in all kinds of contexts. Whether there can be prayer at school board meetings or at graduation. Or evolution versus intelligent design.”

Alito Put Faith in the 1st Amendment

Unlike Christian conservatives, Alito supports religious freedom for all, but his views on religion in the schools are an issue that is of great concern.

We’ll see more when his hearings start.

William Raspberry misses the point

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Columnist William Raspberry wrote a piece this week concerning the recent Supreme Court rulings involving the 10 Commandments titled “Nation needs tolerance, especially of religious ideas”.

I tried to find a link that could be used so you could read his column before reading my comments but I couldn’t find one. It was published in my local paper on July 11th but you have to pay to read it. It was not on the Washington Post website, so please view the column on this special page if you want to read the column without my comments first.

Raspberry, not known to be a religious conservative, none the less presents the common myth that removing the Decalogue from government buildings and property is the same as removing religion from the public sphere and that it is anti-religious.

He talks with Kevin Hasson of the “The Becket Fund for Religious Liberty”.

Raspberry writes:

The trouble with the Kentucky display of the Ten Commandments, said the Supreme Court, while approving a similar display in Texas, is that it was motivated by a “predominately religious purpose.”

The trouble with the court’s confusing – some say absurd – rulings, says Kevin “Seamus” Hasson of The Becket Fund for Religious Liberty, is that they proceed from an impossible premise.

“The ‘predominately religious’ test suggests that anything not predominately secular must be religious. It in fact has strong anti-religious overtones.”

Hasson has it wrong. The test he refers to is what is used anytime a question about the state involving religion comes up. What is the purpose of the action? In the Kentucky cases it was quite clear that the county officials created the display to favor the Christian perspective while in Texas the monument was among other historical monuments.

Intent is always a factor in judicial reviews and has been since the court began and not just for religious issues.

The column continues:

Hasson, whose organization is devoted to defending the free expression of all religious traditions, believes the court – and many of America’s intellectuals and civil libertarians – are missing the fact that expunging religion from public life is neither possible nor desirable.

That isn’t the goal of any efforts that I know of. Common sense tells us that expunging religion from public life is not possible. This is a straw man argument – created by Raspberry in order to knock it down.

Hasson said:

“There’s nothing in common sense – and certainly nothing in the First Amendment – that requires government hostility to publicly expressed religion, which is where the requirement that government be ‘secular’ takes you,” he says. “I think it’s better to say ‘temporal’ rather than secular. Temporal means the here and now, without reference to the hereafter. Our government was designed to be temporal, but you have only to look at the words and actions of the founders to understand that they had no interest in the sort of secularity the court now seeks to enforce.”

That is a plain lie and used a lot by the religious right to justify their arguments.

History shows us that the founders were very weary of mixing religion and government and went so far as adopting the language that became the First Amendment. The language makes clear that the government is to be neutral in religious matters. The founders expressly left out the word “God” from the constitution, specifically prohibited a religious test to hold office, and many of the founders were deists – people who believe in a personal private God who has nothing to do with how the world runs after the creation of the bible. God had nothing to do with the formation of the country. It was the work of the founders.

There is also the unasked question. Why do people like Hasson believe that the government must acknowledge their religious beliefs with official acts or public displays?

As conservative commentator Cal Thomas wrote in 2000 concerning a court case against prayer at high school football games:

The Supreme Court said nothing at all about that far more powerful and effective type of prayer. But in our culture, which highly values what the world values (filled stadiums, television appearances and other visible expressions of “success”), things done out of public view don’t count for much. In fact, the only kind of faith that actually does work is that which is first practiced. St. Francis of Assisi is credited with the statement: “Preach the gospel. Use words if necessary.”

The behavior the Court did not and cannot proscribe is the kind that will make a far greater impression than teenagers praying at high-school football games. It is the behavior that begins with the discipline of deeds, including prayer for one’s enemies, visiting those in prison, feeding the hungry, clothing the naked and caring for widows and orphans.

Conservative Christians ought to stop looking to the state for permission and validation and start looking to God for their commission and marching orders. With this kind of faith, they won’t have to petition government. Government will petition them to find out why what they’re doing works.

If and when they do, they will find they are exerting real influence. They will stop believing that public displays of their faith are changing anything, from the outcome of football games to the transformation of culture.

From: Court, Jesus agree on public prayer by Cal Thomas of the Los Angeles Times Syndicate. Jun 22, 2000

Hasson said:

But it’s not just in impossibly arcane Supreme Court decisions that “secular” plays us false, says Hasson. “It gets us in needless trouble internationally as well. The Arabic word for secular is ‘almehni’, meaning godless. So when Muslim fundamentalists hear us talk about secular government, they think we mean, quite literally, a godless government. Temporal translates into another Arabic word entirely, ‘dunyawi’, or worldly.”

Hasson misunderstands Islam. Anything not Islamic is evil according to Islam. He can play word games to justify his agenda if he wants but using “temporal” is not going to cause Osama to give up or would have prevented the London bombings.

Raspberry writes:

Hasson, who has described himself as a Catholic conservative, recalls in his book several appearances on al-Jazeera, the Arab satellite network noted for its broadcasts of al-Qaida propaganda.

“Why did they take me seriously? I had already put my money where my mouth was. I had successfully defended the right of two Newark police officers, who were Sunni Muslims, to grow their beards. I get invited to Hasidic Jewish weddings (because I have) demonstrated respect for their consciences by successfully defending their rights.

“Writ large, that is the solution to the culture war: Respect for others’ consciences, even when we’re sure they’re wrong, is contagious. Not because it’s nice. Rather, it’s contagious because it conveys an important idea:

“Whether it’s a tradition as old and venerable as Buddhism or as new and flaky as parking-barrier worship doesn’t matter. Because of how we’re made, we are each free – within broad limits – to follow what we believe to be true in the manner our consciences say we must.

Hasson is right on one point. Religious beliefs and practices are an individual matter and almost no act or law can interfere, BUT it is a different matter when the STATE (aka the government) expresses or supports a particular religious view point through official acts or displays.

That is the point that people like Raspberry and Hasson totally ignore in their zeal to cram Christianity into the government. According to the Bible it is also un-Christian as Cal Thomas wrote in his column:

Jesus has this advice on prayer: “Be careful not to do your acts of righteousness before men, to be seen by them. . . And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men. . . But when you pray, go into your room, close the door and pray to your Father, who is unseen” (Matt. 6:1 and following).

Response to George Will column

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Columnist George Will wrote about the recent 10 Commandments Supreme Court cases in Kentucky and Texas. His column appeared in my local paper on June 29th 2005 and I wrote a letter to the editor which was published July 9th.

Here is the published text of my letter:

Ten Commandments don’t belong on public buildings
Saturday, July 09, 2005

I agree with George Will that the Supreme Court’s rulings on June 27 about the Ten Commandments “rendered two more hairsplitting, migraine-inducing decisions about when religious displays on public property do and do not violate the First Amendment protection against ‘establishment’ of religion (“Court jumps through hoops it has made over the Ten Commandments,” Forum column, June 29).”

It is clear the court was trying to bend its opinion to justify old religious displays, including the Texas monument and the painting of Moses in the Supreme Court chambers, while trying to enforce government neutrality in religious matters.

The whole concept of “ceremonial deism” introduced by the court in the past 30 years is a sham to believers and nonbelievers. It asks believers to accept a state-sanitized version of their deeply held faith and asks nonbelievers to accept words and actions they would never voluntarily accept.

The court ruled that the Ten Commandments is an “instrument of religion” and is clearly a religious message. It seems that the justices don’t know what neutrality means. To most, it means not taking a side. If that is the case, then such displays don’t belong in courthouses or on capitol lawns, because to allow them, the state is taking a side.

Just because the majority of people agree with the text doesn’t mean it’s OK. That is why we have the Bill of Rights to begin with: to protect the minority from the tyranny of the majority.

The most fundamental right we have as citizens is our freedom of conscience — which religion is part of — without undue interference from the state. It would be less intrusive if the state stayed out of religion altogether.

As Justice Sandra Day O’Connor wrote in her concurring opinion in the Kentucky case: “By enforcing the clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. . . . (Government) may not prefer one religion over another or promote religion over nonbelief. . . .

“It is true that many Americans find the commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment.”

If the court had ruled that all such displays were illegal, it would not have removed the Ten Commandments from the Book of Faith for the Christians or any other sect that uses them.

Scalia’s Scary America

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Here at Secular Left, we aren’t the only ones who can see through the double speak of those on the political and religious right when it comes to real religious liberty. Unless one has had a brain removed, the hypocritical arguments by those on the right is easily seen.

Robin Blumner, columnist for the St. Petersburg (Fla.) Times, detailed the wild argument made by Supreme Court Justice Antonin Scalia in his dissent in McCreary County vs. ACLU of Kentucky (2005), that case said the display of the 10 Commandments was illegal. Scalia is a devout conservative Catholic, and unlike most Justices, has been very talkative about his opposition to separation of church and state.

In his dissent he made the claim that the Founding Fathers meant for the government to be neutral relative to differing denominations but not between the religious and nonreligious.

“With respect to public acknowledgment of religious belief,” Scalia wrote, “it is entirely clear from our nation’s historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.”

To back up his claim he points out several instances where a founding father invoked “God” during official business.

As Blumner points out:

“The Constitution, our nation’s seminal document, purposely includes no mention of a deity. Religion is mentioned only to guarantee no religious test for public office. The founders at the Constitutional Convention were creating a nation governed by men, based on the ideas of men, and they understood perfectly – having been witness to the centuries of religious conflict in Europe – the danger of government entangling itself in sectarianism.”

She also addressed the examples of Jefferson and Madison that Scalia used:

“As to Jefferson, far from injecting religion into his official role, he scrupulously avoided it. He refused to proclaim national days of fasting and thanksgiving as had Adams and Washington before him. And in his famous letter to the Danbury Baptists, Jefferson reassured the group that the Constitution had erected ‘a wall of separation between church and state.’

Madison also wrote often on the need to separate the ecclesiastical and the civil – for the benefit of both realms. In 1822, he said, “religion and government will both exist in greater purity, the less they are mixed together.” His 1785 Memorial and Remonstrance Against Religious Assessments stands as one of the greatest exhortations against the use of taxes to support religious teachings.”

Justice John Paul Stevens pointed out that the Decalogue comes in different forms depending on the faith and by the Kentucky counties choosing the King James version they picked a side which rebutted Scalia’s denominational neutrality argument. Scalia then claimed no reasonable person, viewing the display in context, would think the state was taking a side.

Blumner then zings the Justice:

“Oh, no? Then why didn’t the good people of Kentucky choose the Jewish version?”

That is why the religious conservatives love the argument about denominational neutrality. On one side of their mouth they can trumpet neutrality and from the other side of the mouth they make sure you know which denomination is favored – the one the majority believes in. Every state vs. religious conflict is argued in that matter.

Back in 2001, Wisconsin hired an ordained Wicca minister to be the new chaplain at one of its prisons. The religious conservatives had a hissy fit. One legislator threatened to pull funding from the prison chaplain program, calling Witch’s hiring “hocus-pocus”.

Wicca religion of new prison chaplain stirs up concern, outrage and hostile comments

Not to mention the hissy fit that was thrown in 1999 when it was learned the US Army allowed Wicca services at one of its bases. Paul Weyrich of the Free Congress Association charged that tolerating meetings of witches at military bases was “a direct assault on the Christian faith that generations of American soldiers have fought and died for.”

“Until the Army withdraws all official support and approval from witchcraft, no Christian should enlist or reenlist in the Army, and Christian parents should not allow their children to join the Army. An Army that sponsors satanic rituals is unworthy of representing the United States of America.”

Religious Groups Urging Boycott Of Army Over Wiccans

Conservative Christian boycott of the U.S. Army

The conservative groups listed by the Free Congress Association as supporting the boycott in 1999, withdrew their support in short time as they realized the group had gone too far. If their first love is state stroking of their religion, then love of the military is 2nd. But that is another issue.

A reasonable person will see that religious conservatives don’t favor true religious liberty. As Blumner writes to conclude her column:

Scalia has looked out upon the nations of the world where the government endorses certain religious ideas and not others – Saudi Arabia, China, Sudan – and decided that the United States should join in. Our national religion should be monotheism, and all those who don’t agree should just shut up and thank their lucky stars that they’re allowed to stay at all. What a scary, un-American place it would be, living in Scalia’s America.

Scalia’s scary America

Split ruling on 10 Commandments

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Yesterday (June 27th) the US Supreme Court handed down two decisions about government displays of the sectarian 10 Commandments. In one case, McCreary County, Ky., v. American Civil Liberties Union of Kentucky, the court ruled 5-4 that the county display was not permissible as it had a clearly sectarian bent. The two counties in question posted the Decalogue along with other historical religious texts such as Lincoln’s 1863 Day of Prayer proclamation.

The second case, Van Orden v. Perry, involved a stone monument displaying the Decalogue on the grounds of the Texas state capitol. In the case the court ruled 5-4 that the display, among other historical items, didn’t cross the line and was permissible.

While the rulings didn’t decide much – other than leaving challenges of these displays to the lower courts to rule on a case by case basis – it does highlight the divergent thought and some weird logic used to decide the cases.

First and foremost the Kentucky ruling reaffirmed state neutrality in religious matters. It can’t endorse religion nor can it harm religion.

Justice O’Conner wrote in her concurring opinion:

But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat…. [Goverment] may not prefer one religion over another or promote religion over nonbelief…. It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment.

What was also interesting was the court reaffirming that the 10 Commandments are an “instrument of religion”. Justice Souter wrote for the court:

Stone stressed the significance of integrating the Commandments into a secular scheme to forestall the broadcast of an otherwise clearly religious message, 449 U. S., at 42, and for good reason, the Commandments being a central point of reference in the religious and moral history of Jews and Christians. They proclaim the existence of a monotheistic god (no other gods), regulate details of religious obligation (no graven images, sabbath breaking, or vain oath swearing), and unmistakably rest even the universally accepted prohibitions (as against murder, theft, etc.) on the sanction of the divinity proclaimed at the text’s beginning. Displaying that text is thus different from symbolic representation, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view. The display in Stone had no such context, and the Counties’ solo exhibit here did nothing more to counter the sectarian implication than the Stone postings. The reasonable observer could only think that the Counties meant to emphasize and celebrate the Commandments’ religious message.

It is always the stated reason for posting such obvious religious documents that the government is only acknowledging the historical influence of the 10 Commandments on the US legal system. The ruling in the Texas case used that logic to allow the monument to remain since it also was among other “historical” markers on the lawn. The majority in the Texas case assumed that the 10 Commandments had some influence but the historical record shows otherwise.

Our government system and laws are based not on some sectarian Decalogue but on the traditions and history of the Roman, Greek, and British law and the philosophy of people like John Locke. The first known written law was founded first in the Code of Hammurabi, the sixth ruler of the First Dynasty of Babylon, who ruled from 1792.1750 B.C. The Magna Carta had greater influence on our Constitution and legal system than the Ten Commandments.

In fact, if there were laws based on the first three of the Ten Commandments they would most likely be ruled unconstitutional if challenged in our courts. They would bump up against the most important fundamental right in the Constitution: the absolute right to believe whatever one chooses that derives from the First Amendment’s free exercise and free speech clauses.

James Madison, leader of the Constitutional Convention and drafter of the First Amendment, explained it as follows: “The Religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate.”

Thomas Jefferson spoke out against attempts to claim that the law incorporated the Ten Commandments when he criticized judges for “lay [ing] the yoke of their own opinions on the necks of others by declaring that [the Ten Commandments] make a part of the law of the land.” John Adams also questioned the influence of the Commandments and the Sermon on the Mount on the legal system.

The only relationship that can be connected between the 10 Commandments and the US legal system, besides the prohibitions against murder and stealing, is that both are laws. Nothing more.

Justice Scalia in his dissent in the Kentucky case blathered on about how the decision was inconsistent with the Founding Fathers’ own views and “ratchets up this court’s hostility to religion.”

As noted earlier and in Justice O’Conner’s opinion, the intent of the Founding Fathers was quite clear and opposite to the thinking of Scalia. Again the historical records bear this out.

As for hostility to religion, one has to ask what is meant by that. If the Bill of Rights are there to protect the person from the abuse of government, how then can enforcing religious neutrality be hostile to religion. We wouldn’t enjoy such a diverse community of religions (including the non-religious) if Scalia is correct. The rulings don’t force Christians, Jews, or other sects that use the 10 Commandments in their faiths to give up the 10 Commandments or their faith.

The ruling on the Texas case found a common myth that even a learned jurist such as Justice Breyer expressed in his concurring opinion:

“This [Texas] display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive,”

The common myth is that because no one said anything for 40 years that it proves the monument is not divisive. That kind of weak argument is being used even today for other old religious monuments that are now being challenged. One has to point out that many things in this country have been done that turns out to be wrong and has been corrected. “Separate but equal” wasn’t challenged for 34 years but was eventually found illegal when it was challenged. Just because no one had challenged it didn’t mean it was right.

So, in conclusion, while the rulings were a split decision, it seems the court is applying the same guidelines it applied in testing the legality of Christmas Nativity scenes placed on public property. It is all about the context and intent.

It was also noted today (June 28th) that court refused to consider two Ohio cases in which displays of the Ten Commandments on public property were found unconstitutional.

In one case, a Richland County judge displayed the commandments in his courtroom. In the other, the commandments were displayed on stone monuments in front of Adams County school buildings.

The 6th U.S. Circuit Court of Appeals in Cincinnati said both were illegal.

McCreary County, Ky., v. American Civil Liberties Union of Kentucky

Van Orden v. Perry