Monday, January 27, 2014

Response to Cambria Queen's article: Is God in the United States?

Cambria D. Queen wrote a law article (Arizona Summit Law School) titled Is God in the United States? A PDF is available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2382189.

I emailed her the following comments in rebuttal:


I am disappointed with your historical revisionism, faux legal analysis and improper citations.

First, the term "God" is inherently religious and its use by government in the manner your article supports necessarily violates the Establishment Clause of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The failure in most instances of the Supreme Court to recognize this is reflective of the Court's infidelity to the Constitution and pandering to the majority.

Second, historical revisionism permeates your article. For example, I would note that the insertion of "under God" in the Pledge of Allegiance has nothing to do with patriotism and everything to do with religion -- specifically, it was an anti-Atheism slogan promoted by the Catholic organization Knights of Columbus. The organization was initially unsuccessful in getting inserted into the Pledge in 1952, but was ultimate successful in 1954.

Similarly, legislation to make "In God We Trust" was promoted by Christian evangelicals against Atheism. Having lost the war when the Constitution made the U.S. a secular nation, the Christian Right continue to fight battles in their effort to make the U.S. a Christian Nation.

Third, your use of Lemon v. Kurtzman is ironic. The 8th Circuit in Plattsmouth withheld rendering its decision until after a decision in Van Orden v. Perry. As you may be aware, there was no majority decision in Van Orden. Justice Breyer cast the deciding vote and his opinion primarily rested on the fact that the Fraternal Order of Eagles' donated monument had been on the Texas state capitol grounds for 40 years before being challenged. It did NOT rest on a bona fide Lemon analysis. To the contrary, Breyer switched sides in McCreary County which applied a Lemon analysis in holding that the display of the Ten Commandments in the McCreary County Courthouse violated the Establishment Clause. Thus Plattsmouth should be viewed as Van Orden II -- as well as, a misapplication of Lemon.

Fourth, footnote 28 "McCreary Cnty. v. ACLU of Ky., 545 U.S. 844, 887-89 (2005)." fails to note that pages 887-89 are from Justice Scalia's dissenting opinion. As cited, the reference implies that it is from Justice Souter's majority opinion. 

Fifth, you failed to site the majority holdings in McCreary and Stone v. Graham (1980). Those cases held that the display of the Ten Commandments on public property violated the Establishment Clause. Moreover, the Supreme Court recently declined certiorari in the Mount Soledad and Utah cross cases in which appeals courts held that the display of Christian crosses on public property violate the Establishment Clause.

And as a final point, I am disappointed that you failed to advance Thomas Jefferson's separation of church and state principle. If Jefferson were on the Supreme Court today he would surely hold "under God" in the Pledge, the U.S. motto of "In God we trust", Ten Commandment Monuments and Christian Crosses on public property, etc. violate of the First Amendment.