Freedom From Government Sponsored Religion Is America's First Liberty

President Trump issued a lengthy Proclamation recognizing Dec. 29, 2020 as the 850th Anniversary of the Martyrdom of Saint Thomas Becket. The Proclamation reads in part: "Before the Magna Carta was drafted, before the right to free exercise of religion was enshrined as America’s first freedom in our glorious Constitution . . ." 

Actually, the "free exercise of religion" is the SECOND right listed in the First Amendment. The "FIRST right" is the freedom from "an establishment of religion" -- that is, freedom from government sponsored religion. Or, as Presidents Thomas Jefferson and James Madison expressed the principle, a separation of church and state. 

Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty 

 

Photo: President James Madison. On June 8, 1789, (then) Virginia Representative Madison proposed a bill of rights in the First Congress. As modified, they would become the Bill of Rights in 1791.

 

Senate Republican Hypocrisy on Religious Test for Public Office

I listened to the opening statements of Senators in the confirmation hearing of Judge Amy Barrett for a seat on the U.S. Supreme Court and the judge's opening remarks.

Democratic Senators exclusively focused their remarks on the Affordable Care Act (ACA) and Judge Barrett's opposition to it. Notably, they avoided commenting on her faith based speeches, writings and judicial opinions that are constitutionally problematic.

Democratic Senators also avoided the shameful hypocrisy of those who invoke the No Religious Test Clause of Article VI of Constitution.

Clause 3 of Article VI states in part: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." In reality, it's as if there are "No Atheists" plaques at the entrances of Congress, the White House and the Supreme Court. Religious affiliation allows one to get in line, without it you need not apply.

As an Atheist, I strongly support the No Religious Test Clause (when coordinated with the Establishment Clause). Unfortunately, religious tests are often the standard, not the exception. For example, Christian privilege has eviscerated the clause with politicians ending their speeches with "God bless America and God bless the United States of America."

It is important to note that the clause does not exist in isolation. The clause must be balanced with the Establishment Clause of the First Amendment. The Establishment Clause prohibits government from preferring one religion over another, or religion over nonbelief

Judge Barrett's nomination raises a conflict between the two clauses. Do her religious views disqualify her from a seat on the Court? "Views," religious or not, do not disqualify a nominee from an appointment to the Court.  However, using religious views to decide one way or another would. Of particular concern is Judge Barret's view of Roe v. Wade and whether her Catholic faith would be the impetus for her voting to overturn Roe.

President Trump has said a number of times that he has a litmus test for nominating a justice to the Supreme Court. Specifically, Trump has said that he would not nominate a person who supports either Roe v. Wade or the Affordable Care Act. Because opposition to Roe (abortion) and the ACA (birth control) is based on religious tenets of the Catholic Church and certain other religions, Trump's nomination of Judge Barrett, in my opinion, violates the No Religious Test Clause because Trump used a religious test to choose her.

With respect to those Senators who oppose Judge Barrett's nomination on the basis of her speeches, writings and judicial opinions because they sincerely believe that a Justice Barret will use her position on the Court to advance her Catholic faith in violation of the Establishment Clause -- those objections are appropriate and not a violation of the No Religious Test Clause because Barrett's nomination itself is a violation of the clause. 

Indeed, failure to reject Barrett's nomination would mean that the Senators lack fidelity to the Constitution to protect and defended the Constitution against people like Judge Barrett (and the late Justice Scalia) whose Catholicism, when implemented thru her rulings, would undermine the Establishment Clause and our religious freedom.

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, October 12, 2020

Open Letter to Senator Tim Kaine

Dear Senator Kaine,

As a constituent of yours and an adherent to Presidents Thomas Jefferson's and James Madison's constitutional principle of separation of church and state, your senatorial campaign ad alleging that WE are "one nation under God" is most disturbing.

The United States of America has NEVER been a nation under God. Permit me to remind you that you took an oath to uphold and defend the Constitution. The Constitution is clear: "We the People of the United States ... do ordain and establish this Constitution for the United States of America." The United States is a secular nation.

As confirmation, the Constitution makes no mention of a god or gods and gave religion no role to play in our government.

I call upon you to live up to your oath and submit a bill to repeal the 1954 act that added "under God" to the Pledge of Allegiance.

Sincerely,

Robert V. Ritter
Falls Church, VA

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.

The Quest for Separation of Church and State

I admit that Secularists, including me, seek to cleanse the public square of government sponsored religion.  While we individually, and even as part of a group, have the rights of free exercise of religion and free speech in public squares, we do NOT have a right under the First Amendment to use the instruments of government to aid, promote or endorse religion.  The Constitution not only doesn’t grant government any religious powers, the First Amendment specifically prohibits any governmental act “respecting an establishment of religion.”  In short, government is prohibited from preferring one religion over another, religion over nonbelief or nonbelief over religion. The only realistic way of achieving this mandate is for government to stay out of the religious sphere.

A week ago (Nov. 6), Americans United for Separation of Church and State argued the case Town of Greece v. Galloway before the Supreme Court. Americans United is seeking to require the Town of Greece to limit prayers before its town council to be “nondenominational.” Similarly, in 2005 the ACLU sued Cobb County, Georgia to require the prayers before its meetings to be nonsectarian.  The ACLU lost its case (Pelphrey v. Cobb County (11th Cir. 2008)). It would take a miracle for Americans United's to win because, quite frankly, the Court is stacked with Dominionists who favor some forms of government sponsored religion.  There is also a practical side -- courts don’t to be religion police.

But here's my problem with the case. As an attorney who practiced church-state law and as an Atheist, it is shocking that Americans United and the ACLU – both groups while purporting to support the principle of church and state are actually are or have taking litigation positions that infuse religion into government, albeit of a watered down variety.

Why don’t Americans United and the ACLU sue to prohibit governmental entities from opening any of their meetings with a prayer?

I can think of two reasons why the organizations do not. First, they are afraid that an adverse decision will embolden legislatures, boards and councils to become even more sectarian. And second, they are afraid of alienating a significant number of their members.  

Government sponsored prayer is their only hypocrisy. Neither Americans United nor the ACLU will stand up and fight these church-state violations:

• Eliminate congressional chaplains.
• Administer the presidential oath without “So help me God.”
• End the Supreme Court’s practice of opening its sessions with “God save the United States and this honorable Court.”
• Remove “under God” from the Pledge of allegiance.
• Repeal “In God We Trust” as our national motto. 

I call upon our branches of government to cease and desist from engaging in the above unconstitutional establishments of religion so that all Americans – both the religious and nonreligious – can enjoy the rights and privileges of being an American.

I also hope that Americans United and the ACLU will take notice that until the above infringements are remedied, religious freedom will be incomplete.  Congress, the President and the Supreme Court serve as role models for the rest of the nation and if they can violate the Constitution, other governmental entities will feel that they can too.

[Note: I have been a member of the ACLU for over 40 years and a member of Americans United for many years. Tho I support the overall mission and programs of both groups, I feel that it is important to speak out about what I view to be their major weakness – their failure to advocate for complete separation religion and government.  I also served as co-counsel with Michael Newdow in Newdow v. Roberts which challenged the religious practices of the 2009 presidential inaugural ceremony.]