Add two secularists to the Court if you believe in diversity

It is interesting that the White House seeks diversity in its judicial nominations. I assume that Judge Ketanji Jackson will make a fine justice. But I would point that when she takes a seat on Supreme Court after Justice Breyer's retirement, blacks will hold 22% of the seats while the U.S. black population is 12% (2020). That doesn't bother me much either. (Making up for lost time.) Rather, I am concerned 100% of the justices self-identify with a religion yet 23-26% of Americans self-identify as "nones". If America truly believes in diversity, it is time to put two non-religiously affiliated justices on the Supreme Court and end Christian privilege. While I'm at it, there are two justices on the Court who identify themselves as Jewish (22%), while Jews comprise 1.9% of the U.S. population. That is not overly concerning either, as many Jews are secular. Ah, but Justice Breyer (Jewish) blew it in 2005 when he was the deciding vote in Van Orden v. Perry which permitted a Fraternal Order of Eagles Ten Commandments monument to remain the grounds of the Texas State Capitol. I don't forgive him for that awful vote.

Justice Breyer flip-flops on time makiing a wrong right

Justice Gorsuch, writing for the majority in McGirt v. Oklahoma, said today: "Unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law. To hold otherwise would be to elevate the most brazen and longstanding injustices over the law, both rewarding wrong and failing those in the right." 

I agree with both the Court's decision in McGirt and Justice Gorsuch's statement. Fifteen years ago, Justice Breyer, who signed on to Justice Gorsuch's opinion, had a different view in Van Orden v. Perry (2005). Justice Breyer concurred in the judgement in Van Orden, joining four Christian nationalist justices in holding that a 1961 Fraternal Order of Eagles Ten Commandments monument on the grounds of the Texas State Capitol did not violate the Establishment Clause because it had been on the Capitol grounds for 44 years. 

In other words, in Van Orden, Justice Breyer opined that a wrong (i.e., a religious monument on public property) should be allowed to stay (i.e., go uncorrected) because the passage of time is an alchemy for making a wrong right (or, simply, let sleeping dogs lie). Hypocrisy at its finest -- in the Supreme Court of the United States. 

Bottom line: the Van Orden v. Perry decision is a blatant example of Christian privilege and needs to be reversed. It has resulted in 120 Eagles Ten Commandments monuments remaining on public property in violation of the First Amendment. 

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, July 9, 2020

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.

35 United States Supreme Court Majority Opinions Demonstrating Mandate For Religious Neutrality

Loosing is not fun, but loosing because a court ignored established law is especially discouraging.  Mike Newdow and I filed a lawsuit in December 2008 on behalf of over 250 plaintiffs challenging the religious practices of the 2009 presidential inaugural ceremony. One of the documents we filed in the course of the litigation was a list of Supreme Court cases in which the majority recognized the First Amendment mandate for religious neutrality. [1] Tho we lost the case, I remain convinced that the Constitution requires government to be neutral in matters of religion and that we should have won on the merits had the district and appeals courts not exhibited extreme bias.

I offer the list for your consideration:

1.     McCreary County v. ACLU, 545 U.S. 844, 860 (2005) – “The touchstone for our analysis is the principle that the ‘First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.’”

2.     Cutter v. Wilkinson, 544 U.S. 709, 720 (2005) – courts “must be satisfied that the Act’s prescriptions are and will be administered neutrally among different faiths”

3.     Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) – “[W]here a government aid program is neutral with respect to religion … the program is not readily subject to challenge under the Establishment Clause.”

4.     Good News Club v. Milford Cent. Sch., 533 U.S. 98, 114 (2001) – “[W]e have held that “a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”

5.     Mitchell v. Helms, 530 U.S. 793, 809 (2000) – “In distinguishing between indoctrination that is attributable to the State and indoctrination that is not, we have consistently turned to the principle of neutrality.”

6.     Agostini v. Felton, 521 U.S. 203, 234 (1997) – “We therefore hold that a federally funded program providing supplemental, remedial instruction to disadvantaged children on a neutral basis is not invalid under the Establishment Clause ...”

7.     Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 839 (1995) – “A central lesson of our decisions is that a significant factor in upholding governmental programs in the face of Establishment Clause attack is their neutrality towards religion.”

8.     Bd. of Educ. v. Grumet, 512 U.S. 687, 696 (1994) – “‘A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.’”

9.    Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 8 (1993) – referencing “government programs that neutrally provide benefits”

10.   Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 533 (1993) – “A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernible from the language or context.”

11.   Lamb’s Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384, 393 (1993) – “[T]he total ban on using District property for religious purposes could survive First Amendment challenge only if excluding this category of speech was reasonable and viewpoint neutral.”

12.   Bd. of Educ. of Westside Cmty. Sch. v. Mergens, 496 U.S. 226, 251 (1990) – Government act is constitutional if it “evinces neutrality toward, rather than endorsement of, religious speech.”

13.   Jimmy Swaggart Ministries v. Board of Equalization, 493 U.S. 378, 384 (1990) – noting “‘the constitutional requirement for governmental neutrality.’”

14.   Texas Monthly, Inc. v. Bullock, 489 U.S. 1, 13 (n.2) (1989) – referencing “‘the policy of neutrality’”

15.   Bowen v. Kendrick, 487 U.S. 589, 609 (1988) – recognizing the requirement that “the challenged statute appears to be neutral on its face.”

16.   Corporation of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 335 (1987) – “Lemon’s ‘purpose’ requirement aims at preventing the relevant governmental decisionmaker -- in this case, Congress -- from abandoning neutrality and acting with the intent of promoting a particular point of view in religious matters.”

17.    School Dist. v. Ball, 473 U.S. 373, 382 (1985) – “The solution to this problem adopted by the Framers and consistently recognized by this Court is jealously to guard the right of every individual to worship according to the dictates of conscience while requiring the government to maintain a course of neutrality among religions, and between religion and nonreligion.”)

18.   Wallace v. Jaffree, 472 U.S. 38, 60 (1985) – recognizing “the established principle that the government must pursue a course of complete neutrality toward religion.”  Cf. “the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all.” At 53.

19.    Mueller v. Allen, 463 U.S. 388, 398-99 (1983) – “a program ... that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.”

20.   Bob Jones Univ. v. United States, 461 U.S. 574, 604 (1983) – upholding “policy … founded on a ‘neutral, secular basis.’”

21.   Larson v. Valente, 456 U.S. 228, 246 (1982) – “This principle of denominational neutrality has been restated on many occasions.”  “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.” (At 244)

22.   Widmar v. Vincent, 454 U.S. 263, 274 (1981) – denying challenge because “the University’s policy is one of neutrality toward religion.”

23.   Thomas v. Review Bd. of Ind. Employment Sec. Div., 450 U.S. 707, 720 (1981) – a noting “the governmental obligation of neutrality in the face of religious differences.”

24.    McDaniel v. Paty, 435 U.S. 618, 629 (1978) – noting the Establishment Clause’s “command of neutrality.”

25.    Meek v. Pittenger, 421 U.S. 349, 372 (1975) – requiring “that auxiliary teachers remain religiously neutral, as the Constitution demands.”

26.   Comm. for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 792-93 (1973) – “A proper respect for both the Free Exercise and the Establishment Clauses compels the State to pursue a course of ‘neutrality’ toward religion.”

27.   Wisconsin v. Yoder, 406 U.S. 205, 220 (1972) – noting “the constitutional requirement for governmental neutrality.”

28.   Tilton v. Richardson, 403 U.S. 672, 688 (1971) – approving of “facilities that are themselves religiously neutral.”

29.    Lemon v. Kurtzman, 403 U.S. 602, 618 (1971) – recognizing the mandate for “remaining religiously neutral.”

30.   Gillette v. United States, 401 U.S. 437, 449 (1971) – “[W]hat is perhaps the central purpose of the Establishment Clause [is] the purpose of ensuring governmental neutrality in matters of religion.”

31.    Epperson v. Arkansas, 393 U.S. 97, 103-04 (1968) – “Government in our democracy, state and national, must be neutral in matters of religious theory, doctrine, and practice.  It may not be hostile to any religion or to the advocacy of noreligion; and it may not aid, foster, or promote one religion or religious theory against another or even against the militant opposite. The First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.”

32.    Sherbert v. Verner, 374 U.S. 398, 409 (1963) – noting “the governmental obligation of neutrality in the face of religious differences.”

33.    Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 215 (1963) – “examining this ‘neutral’ position in which the Establishment and Free Exercise Clauses of the First Amendment place our Government.”

34.    Engel v. Vitale, 370 U.S. 421, 443 (1962) – “The First Amendment leaves the Government in a position not of hostility to religion but of neutrality.”

35.    Everson v. Bd. of Education of Ewing Township, 330 U.S. 1, 15 (1947) – “Neither [a state nor the Federal Government] can pass laws which which aid one religion, aid all religions, or prefer one religion over another.”  Also, “[The First Amendment] requires the state to be a neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary. State power is no more to be used so as to handicap religions, than it is to favor them.” At 18.

In addition, the plurality opinion in Van Orden v. Perry, 545 U.S. 677, 684 (2005) discusses “‘the very neutrality the Establishment Clause requires.’” Justice Breyer provided the fifth vote in Van Orden and he joined the majority opinion in McCreary. Consequently, the Van Orden majority (tho not the majority opinion) recognized mandate for religions neutrality. Sadly, the Van Orden majority failed to recognize that the Eagles-donated Ten Commandments monument erected on the Texas State Capitol grounds is not neutral.

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[1]  This list of cases was originally prepared by Michael Newdow and appeared as Exhibit A in Document 4-2 filed on January 5, 2009 in Newdow v. Roberts (D. D.C., 1:08-cv-02248-RBW). Minor formatting changes have been made. All internal citations are omitted in this listing.

Supreme Scandal – The Supreme Court Blesses the Ten Commandments

[Chapter 9, post #15]
[Updated 10/21/2013]

The Blessing

Despite a constitutional prohibition against government establishment of religion, Van Orden v. Perry exemplifies the weakness of the American system – minority rights exist only at the whim of the majority. 

This chapter discussed in detail the majority’s use of 12 mythical, disingenuous or misleading arguments to justify the presence of a Judeo-Christian monument on public property.

As a lifelong student of the Constitution, I know, and you know as well, that the text of the First Amendment prohibits government from preferring one religion over another, or religion over nonreligion.  In spite of this mandate, the Supreme Court egregiously erred when it gave the state of Texas the green light to continue its preference (indeed, its endorsement) of Christianity over other religions and nonreligion.  

And so it came to pass that on June 26, 2005 – Black Monday – the Supreme Court blessed the Fraternal Order of Eagles donated tombstone to Jesus Christ on the Texas State Capitol grounds. 

This infidelity to the Constitution can only be explained by the stranglehold that Christianity has upon the majority of the Court.

Epilog

Predictably, the Supreme Court’s the Black Monday decision had an immediate impact. Federal courts held for the cities of Plattsmouth, Nebraska,[1]  Fargo, North Dakota[2] and  Everett, Washington[3] – essentially finding no constitutionally significant difference between the Eagles-donated Ten Commandments monument being litigated and the monument that was the subject of Van Orden v. Perry.

Thomas Van Orden passed away on November 11, 2010.  Others, including myself, continue to carry the torch of eternal vigilance.  It is my dream that someday the courts will truly respect the First Amendment and order the remaining Eagles-donated Ten Commandments tombstones to Jesus Christ off public property.

Separationists, far from giving up, have file lawsuits seeking removal of Eagles-donated monuments in Fargo, North Dakota,[4] and New Kensington, Pennsylvania[5] Connellsville, Pennsylvania[6] – all currently pending.

As if the Eagles-donated monuments haven’t created enough calamity, Dr. Mike Ritze, a member of the Oklahoma House of Representatives, and his family donated a Ten Commandments monument to the state of Oklahoma.  It was erected on the Oklahoma State Capitol grounds in November 2012.  The Ritze-donated monument was intentionally designed to look like the Eagles-donated Ten Commandments monument on the Texas State Capitol grounds in an attempt to fall under the coattails of Van Orden v. Perry.  Not fooled, the ACLU of Oklahoma filed a lawsuit in August 2013 seeking its removal.[7]  “The monument’s placement at the Capitol has created a more divisive and hostile state for many Oklahomans,” said Ryan Kiesel, ACLU of Oklahoma’s Executive Director. “When the government literally puts one faith on a pedestal, it sends a strong message to Oklahomans of other faiths that they are less than equal.”[8]

The Christian Right’s War of Dominion rages on.

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[1]  ACLU of Nebraska Found. v. City of Plattsmouth, 419 F.3d 772 (8th Cir., Aug. 19, 2005): “Like the Ten Commandments monument at issue in Van Orden, the Plattsmouth monument makes passive—and permissible—use of the text of the Ten Commandments to acknowledge the role of religion in our Nation's heritage.”

[2]  Twombly v. City of Fargo, 388 F. Supp. 2d 983, (D. N.D., Sept. 29, 2005).

[3]  Card v. City of Everett, 520 F.3d 1009 (9th Cir., March 26, 2008).

[4]  Red River Freethinkers v. City of Fargo, Docket No. 3:2008cv00032 (D. N.D., complaint filed April 18, 2008), (8th Cir., pending).

[5]  Freedom From Religion Foundation v. New Kensington-Arnold School District, Docket No. 2:2012cv01319  (W.D. Pa., complaint filed Sept. 14, 2012).

[6]  Freedom From Religion Foundation v. Connellsville Area School District, Docket No. 2:2012cv01406 (W.D. Pa., complaint filed Sept. 27, 2012).

[7]  Prescott v. Oklahoma Capitol Preservation Commission, Docket No. CV-2013-1768 (Ok. Cnty. D. Ct., complaint filed Aug. 19, 2013).  

[8]  ACLU of Oklahoma’s 8/20/2013 announcent of the lawsuit is available at http://acluok.org/2013/08/aclu-of-oklahoma-challenges-state-capitol-ten-commandments-monument/.