Myth #11: Removal of the Tombstone to Jesus Christ Would Constitute Hostility Towards Religion

[Chapter 9, post #13]

 “[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.”[1]

Chief Justice William Rehnquist

Perhaps the most incredulous of all Christian apologies[2] made by Chief Justice Rehnquist in his Van Orden plurality opinion is that removal of the Eagles-donated Ten Commandments tombstone would evince a hostility towards (the Christian) religion.

The quote of the Chief Justice[3] at the beginning is disingenuous.  It suggests that it is constitutionally permissible for the state of Texas to conspire with the Fraternal Order of Eagles to promote religion – Christianity preferred – through the erection of Eagles-donated tombstones to Jesus Christ but it would be unconstitutional for the Court to require Texas to remove the tombstone because to do so would be an act of hostility towards religion. 

The opposite is true.  It is not “neutral” to favor religion over the absence of religion.[4]  Rather, the absence of religious symbols or messages is an environment where people of religious and nonreligious beliefs can co-exist without divisiveness.

The origin of the “hostility” claim comes from the 1952 Supreme Court decision in Zorach v. Clauson.[5]  Justice Douglas, writing for the Court, said: “[W]e find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence.  The government must be neutral when it comes to competition between sects.”[6]  Justice Douglas concluded with the statement: “We cannot read into the Bill of Rights such a philosophy of hostility to religion.”[7]

Zorach and Van Orden are vastly different cases.  Zorach is primarily a religious accommodation case where the “activity” – religious instruction – occurs on private property.  On the other hand, the religious monument in Van Orden is on public property and is “government speech” advancing Judaism and Christianity.  On these simple facts, the cases merit different treatment.[8]

In a concurring opinion, Justice Thomas puts forth a similar specious argument: “For the adherent, this analysis takes no account of the message sent by removal of the sign or display, which may well appear to him to be an act hostile to his religious faith.”[9]  I don’t disagree with the literal truth of Justice Thomas’s statement.  Rather, I believe that Justice Thomas has an duty to inform the “adherents” that the Constitution prohibits government from preferring one religion and another, and between religion and nonreligion AND that to permit Texas to retain the Eagles-donated Ten Commandments monument would be an impermissible preference of the Abrahamic religions of Judaism, Christianity and Islam.  Justice Thomas also appears to be oblivious of the fact that the presence of the Eagles-donated monument is hostile to nonbelievers and non-Abrahamic minority religions.

Shockingly, Justice Breyer reiterates the same nonsense in his opinion concurring in the judgment arguing that removal of the Eagles-donated tombstone to Jesus Christ would “exhibit a hostility toward religion that has no place in our Establishment Clause traditions.”[10]  Again, the flaw in the argument is that removal of the monument would be in furtherance of religious neutrality, not hositility.

No, Mr. Chief Justice and Justices Scalia, Kennedy, Thomas and Breyer, the removal of the Eagles-donated Ten Commandments monument from the Texas State Capitol grounds would have demonstrated faithfulness to the Constitution by enforcing the First Amendment prohibition against governmental acts “respecting an establishment of religion.”

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[1]  Id., at 684, quoting Zorach v. Clauson, 343 U.S. 306, 313-314 (1952).

[2]  Christian apologetics is the branch of philosophy that defends Christianity through pseudo rational argument.  See Christian apologetics at http://en.wikipedia.org/wiki/Christian_apologetics and Christian Apologetics and Research Ministry at http://carm.org/.

[3]  The Chief Justice was joined in his plurality opinion by Justices Scalia, Kennedy and Thomas.

[4]  The absence of religion is not the same as to favor nonreligion.  Favoring nonreligion would be, for example, to permit groups such as American Atheists, American Humanist Association or Freedom From Religion Foundation to erect their symbols or place their messages on public property without permitting Jewish, Christian or Islamic groups the opportunity to do the same. 

[5]  Zorach v. Clauson, 343 U.S. 306 (1952) – the Supreme Court held that a New Your City program which permitted its public schools to release students during the school day so that they could attend off-site religious instruction or devotional exercises did not violate the Establishment Clause.

[6]  Id., at 314.

[7]  Id., at 315.

[8]  I believe, however, that Zorach was wrongly decided because the case was not so much about the offsite instruction as it was the release time during the normal school day.  In this context, the program’s purpose and effect was to promote religion and, therefore, violated the Establishment Clause (in my opinion).

[9]  Id. (Thomas,  J., concurring), at 697 (2005).

[10]  Id. (Breyer, concurring in the judgment), at 704.  Justice Breyer’s concurrence in Van Orden makes no sense given On the same day – Black Friday (June 25, 2005), Justice Breyer was in the majority in McCreary County v. ACLU of Ky., which held that the display of the Ten Commandments in the McCreary County Courthouse violated the Establishment Clause.