[Chapter 9, post #7]
[Updated 10/1/2013]
[Updated 10/1/2013]
“There is an unbroken history of official acknowledgment
by all three branches of government of the role of religion in American life
from at least 1789.”
Chief
Justice Rehnquist[1]
I readily concede that religion in its many forms appears throughout our history. However, Justice Stevens notes in his dissenting opinion: “The plurality’s reliance on early religious statements and proclamations made by the Founders is . . . problematic because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution’s text.”[2] In short, the Chief Justice’s line of argument is largely irrelevant.
However, to the extent that it has an iota of relevance to Van Orden, it is also important to mention that presidents, members of Congress and justices of the Supreme Court had the opportunity to infuse religion into government but declined to do so because it is prohibited under the Establishment Clause. For example, President Jefferson declined to issue Thanksgiving Proclamations believing that to do so would violate the Establishment Clause. Chief Justice’s chain of official acknowledgments has been broken innumerable times. Certainly, the Supreme Court decisions in West Virginia v. Barnette,[3] McCollum v. Board of Education,[4] Torcaso v. Watkins,[5] Abington School District v. Schempp,[6] Stone v. Graham[7] and McCreary County v. ACLU of Kentucky[8] and the 1960 speech of Senator John F. Kennedy in which he said “I believe in an America where the separation of church and state is absolute”[9] are chain breakers.
To further Justice Steven’s point, the meaning of the Establishment Clause is not determined by which Secularists, Christian Nation evangelists or any other faction has the longer list of government acknowledgments. Rather, it is determined by which maintains fidelity to the Constitution.
Fidelity to the Constitution is not to be had from Chief Justice Rehnquist employing bait and switch arguments, including: “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.”[10] “Simply having religious content” (with nothing more) suggests something minimal or innocuous – a tree lost in a forest. Probably not a problem. Contrast this with “promoting a message consistent with a religious doctrine.” The latter is unquestionably government endorsement of religion in violation of the Establishment Clause. Think the Texas Ten Commandments monument – a sequoia in a forest of small trees.
Under our Constitution, the federal government was granted no role to play in the religious sphere.[11] The Christian Right – having lost out in its efforts in the Constitutional Convention and the First Congress to establish a Christian Nation – has not given up. Thus, 222 years after the adoption of the Establishment Clause, we still have government endorsement after endorsement of religion including the following unconstitutional acknowledgments that cry out for immediate attention:
1.
The Supreme Court open its sessions with:
"Oyez! Oyez! Oyez!
All persons having business before the Honorable, the Supreme Court of the
United States, are admonished to draw near and give their attention, for the
Court is now sitting. God save the United States and this
Honorable Court." (Emphasis added.)
2.
Each chamber of Congress opening its session with a
prayer.[12]
3.
The oath administrator adding “so help me God” to the
presidential oath.[13]
4.
“In God We Trust” as the motto of the United States.[14]
5.
“Under God” in the Pledge of Allegiance.[15]
7.
Presidents and politicians ending their speeches with
“God bless America.”[18]
8.
Federal funding of religion under the rubric of social
services and economic development.
9.
Religious monuments (e.g., Ten Commandments, Christian
crosses) on public property.
10. Government
led prayers in public schools, including graduation ceremonies and sporting
events.
11. Insertion
of Creationism or Intelligent Design into public school courses.
12. Witness
and other oaths ending “so help me God.”
13. Military
bands playing “God Bless America.”[19]
[1] Quoting Lynch v. Donnelly, 465 U.S. 668, 674 (1984).
[2] Van
Orden, (Stevens, dissenting) at 724.
[3] West
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943)
(held that the Free Speech Clause of the First Amendment protected students
from being forced to salute the American flag and say the Pledge of Allegiance
in school).
[4] McCollum v. Board of Education, 333 U.S. 203 (1948)
[5] Torcaso
v. Watkins, 367 U.S. 488 (1961) (held that Article VI of the Constitution
prohibits states and the federal government from requiring any kind of religious
test for public office).
[6] Abington
School District v. Schempp, 374 U.S. 203 (1963) (holding
school-sponsored Bible reading in public schools to be unconstitutional).
[7] Stone
v. Graham, 449 U.S. 39 (1980) (held a Kentucky statute requiring the
posting of a copy of the Ten Commandments on the wall of each public classroom
in the state violated the Establishment Clause).
[8]
McCreary
County v. ACLU of Ky., 545 U.S. 844 (2005).
[9] Address of Senator John F. Kennedy to the
Greater Houston Ministerial Association, September 12, 1960. Available at: http://www.jfklibrary.org/Asset-Viewer/ALL6YEBJMEKYGMCntnSCvg.aspx.
[10] Van
Orden, at 690.
[11] Under
the Due Process Clause of the Fourteenth Amendment, that limitation applies to
the states. Everson v. Board of Education, 330 U.S. 1 (1947).
[12] Marsh
v. Chambers, 463 U.S. 783 (1983) – the Court held in a 6-3 decision
that Nebraska’s funding for legislative chaplains was constitutional because of
the "unique history" of the United States. In my opinion, “unique history” is a sham
legal argument to circumvent the prohibitions of the First and Fourteenth
Amendments.
[13] The addition of “so help me God” to the
presidential oath violates Article II, sec. 1, cl. 8 of the Constitution which
prescribes the specific wording of the oath.
I served as co-counsel in Newdow
v. Roberts, a federal lawsuit which challenged the unconstitutional
religious practices of the 2008 presidential inaugural ceremony. The U.S. District Court held that over 250
plaintiffs standing to challenge the religious practices and the U.S. Court of
Appeals for the D.C. Circuit affirmed – both, in my view, wrongly holding that
the plaintiffs had not suffered the degree of harm required by Article III’s
“case and controversy” requirement.
[14] 36 U.S.C. § 302 establishes “In God We Trust” as the national motto.
[15] 4 U.S.C. § 4 specifies the wording of the in
the Pledge of Allegiance, including the words “Under God.”
[16] 31 U.S.C. § 5114 mandates “In God We
Trust” be printed on U.S. currency.
[17] 31 U.S.C. § 5112 mandates “In God We Trust” be stamped on U.S. coins.
[18] Here, the Constitution is not violated
because the statements are protected by the under the Free Speech Clause of the
First Amendment as private speech.
However, in my view, the statements violate the spirit of the
Constitution and stigmatize persons of different religions or of no religion as
political outsiders.
[19] I was horrified when I personally witnessed
the Marine Corps band playing God Bless America prior to the start of the 2004
U.S. Open Tennis Championship in New York.
If that is not an endorsement of religion, I don’t know what is.
