Supreme Court Guts First Amendment's Establishment Clause

The six Christian nationalists on the U.S. Supreme Court predictably violated their oaths of office and held today in Carson v. Makin that Maine cannot deny funding religious schools. Denying funding of religious institutions is the cornerstone of the First Amendment's establishment clause (made applicable to the States via the 14th Amendment): "Congress shall make no law respecting an establishment of religion." Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Amy Barrett should be impeached as they have clearly exhibited "bad behavior." 

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented -- Justice Sotomayor writing: “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

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.

 

Supreme Court: Change Your Morning Prayer

America has a serious problem of Christian privilege -- which starts at the Supreme Court with its morning prayer: "God save the United States and this honorable Court."

Under God" in the Pledge, "In God We Trust" as our motto and "So help me God" in oaths are serious violations of the Establishment Clause of the First Amendment. But don't expect these to change until the Court changes its prayer FIRST. 

In my opinion, this is where the American Humanist Association, Freedom From Religion Foundation, ACLU, Americans United for Separation of Church and State, etc. ought to focus their resources. 

Secularists cannot exterminate the Christian privilege of ceremonial deism unless and until the Supreme Court implements the First Amendment principle that government may not prefer one religion over another or religion over nonbelief. McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005).

Mr. Chief Justice, how about: "Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to give their attention, for the Court is now sitting.  May this Court have the wisdom to administer equal justice under the law." 

By: Robert V. Ritter, December 11, 2020

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

Establishment Clause: What's the test -- separation or neutrality?

The Supreme Court's June 30th decision in Espinoza v.Montana Department of Revenue:exposes the weakness of the Bill of Rights, namely, its vagueness. With respect to Espinoza, it's the vagueness of the religion Clauses that allows justices to interpret them according to .their own world views.

In the First Congress -- on June 8, 1789 -- Representative James Madison (Va.) proposed a bill of rights. A House committed on which Madison served considered his proposals, made some changes and the House its version of a bill of rights. The Senate took up the House bill and made some modifications. Madison served on the House-Senate conference committee and insisted on the House's version of the First Amendment. Senate negotiaters accepted the House's version of the First Amendment in exchange for some of its wording in other amendments. The states ratified ten of Congresses twelve proposals on December 15, 1791, including the religion clauses of the First Amendment:

Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof ...

Madison promised during the ratification process of the Constitution that he would propose a bill of rights to fill a void that many felt was lacking in the Constitution.

The First Congress was very busy establishing a new form of government, leving little time for lower priority bill of rights. Tho there is little recorded of the committees discussions, one thing is clear that the Establishment Clause meant much more than prohibiting Congress from establishing a national religion. We know this because that proposal was voted down in the House committee.  Similarly, a proposal prohibiting Congress from enacing a law anything "touching religion" was likewise voted down. 

Where does that leave us as to the meaning of the Establishment Clause? Specifically, what does "an establishment of religion mean??

Textualism does not guuide us in interreting the Establiysment Clause because of its vaguendess. Secifically, "an establishment of religion" was not a phrase with establishmed meaning in 1789. What is clear, at least to me, is "an" is broad rather than narrow.

By: Robert V. Ritter, Founder, Jefferson Madison Center for Religious Liberty, July 11, 2020

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

Supreme Court Trampels on Religious Freedom

The U.S. Supreme Court trampled upon the First Amendment today, all but abolishing religious freedom in America. In American Legion v. American Humanist Association, No. 17–1717, the Court held that the Bladensburg Cross on public property does not violate the Establishment Clause. This  decision reverses a 4th Circuit decision which held that the display of the preeminent symbol of Christianity on public property does violate the First Amendment. The decision is insane and truly shows how politically Christian Nationalist the Supreme Court has become.

As a footnote, the decision echoes one of the Court's worst decisions of all-time in Van Orden v. Perry (2005), particularly Justice Breyer's "let sleeping dogs lie"concurrence in the judgment opinion.

Robert V. Ritter

 (Disclosure Statement: I served as legal coordinator of AHA from 2007 to 2010.)

.

"In God We Trust" and the Fraud of Ceremonial Deism

How is it that the federal government can establish "In God We Trust" as our national motto, print IGWT on our currency and engrave it on our coins, have a Pledge of Allegiance with "one nation under God", military bands play God Bless America, etc.

The answer is quite simple: tyranny of the majority.  While the First Amendment prohibits government sponsorship of religion (i.e. establishments of religion), presidents, congressmen and women and judges and justices lack the courage to enforce it or, worse, are part of the problem.

In the last two weeks, we have two federal court cases with astonishing different results. First, on October 6, courageous U.S. District Court Judge Barbara B. Crabb held that the "parsonage allowance" found in I.R.C. Sec. 107(2) violated the Establishment Clause. The parsonage allowance provision allows "ministers of the gospel" (broadly construed by IRS) to exempt from their income taxes allowances for their housing -- including for mansions, swimming pools and lawn care -- while disallowing the exemption for similarly situated secular persons. Excellent decision in Gaylor v. Mnuchin (W.D. Wisc. Oct. 6, 2017) based on fidelity to the Constitution.

On the other hand, U.S. District Court Judge Amy J. St. Eve obediently whimped out in Mayle v. U.S. (N.D. Ill., Sept. 29, 2017) by regurgitating the sham legal reason of "ceremonial deism" (which states that it's OK for the government to promote the majority religion (i.e., Christianity) by using short phrases such as "In God We Trust," "under God" and "So help me God").

While I find every aspect of the Judge St. Eve's opinion repugnant and contrary to the Constitution, I would like to focus on two points.

First, Judge St. Eve found that compelling Americans to conduct financial transactions with U.S. currency and coins with "In God We Trust" is not a "substantial burden" under the Religious Freedom Restoration Act (RFRA). This is absurd on its face. Because I am an Atheist, I use a black permanent marker to line thru "In God We Trust" on the currency I carry in my wallet. (Too difficult to grind IGWT of coins but I like the idea.) Well, Judge St. Eve, it is at least as much a "substantial burden" as having Christian institutions signing a form saying they don't want to provide contraceptive coverage under the ACA. Actually more so.

Second, Judge St. Eve doesn't understand the Equal Protection argument. In her view, since everyone has to carry the unconstitutional currency, they they are "equal."  That's the wrong comparison.  Rather, the issue is that Congress has shown preference to the majority's religion by mandating a statement of belief in the monotheistic "God" be placed on our coins and currency.  The inequality relates to the Congress's lack of similar endorsements of Atheism and minority religions.  An absolutely blatant violation of the Equal Protection Clause.

The Supreme Court has said in numerous cases that government must remain neutral in matters of religion -- that government may not prefer one religion over another, or religion over nonbelief.  (See, e.g., McCreary County v. ACLU of Kentucky (2005).

Until the Supreme Court rids itself of its morning prayer of "God save this honorable Court" and declares ceremonial deism a sham, Atheists and practitioners of minority religions will continue to be second class citizens in the United States

Robert V. Ritter

Town of Greece decision deprives Americans of religious freedom

The five-justice majority opinion in Town of Greece v. Galloway was horrendous from a religious freedom perspective. But the four-justice dissent wasn’t much better. Essentially Greece was a 9-0 decision reaffirming the Court’s 1983 Marsh v. Chambers decision which held that legislative bodies may open their meetings with a prayer notwithstanding the First Amendment prohibition against government establishments of religion. 

The majority doesn't give a hoot that America is a diverse society with a significant portion of the population that does not believe in a deity. And the minority merely pays lip service to diversity so long as the prayers are of a Judeo-Christian variety. With six Catholics and three Jews on the Court, the result is not surprising -- none supported the Jefferson-Madison principle of separation of church and state.

From a nonbeliever’s perspective, the majority’s opinion written by Justice Kennedy and the minority opinion written by Justice Kagan merely split hairs about how proselytizing the prayers can be.

The problem is that both sides consider the United States to be a religious nation, whereas the truth is that our Constitution established a secular nation that guaranteed Americans the free exercise of religion and nonbelief.

To buttress this viewpoint, I would note that the Constitution grants governments no powers in matters of religion. There are four provisions of the Constitutions which bare directly or indirectly on religion. Article VI prohibits a religious test for public office. The First Amendment prohibits Congress (and by incorporation the states) from acts respecting establishments of religion AND guarantees the free exercise of religion. And the Fourteenth Amendment guarantees equal protection of the laws (i.e., treat religions and nonbelief equally).

As I said at the beginning, the majority opinion by Justice Kennedy and joined by Chief Justice Roberts and Justices Scalia, Thomas and Alito, is horrendous from a religious freedom perspective. I had little-to-no faith in these Christian dominionist justices. So I was not surprised by their pro-Christian position on legislative prayer.

However I was surprised and deeply disappointed by Justice Kagan’s opinion, joined by Justices Ginsburg, Breyer and Sotomajor. I had hoped that they would throw a bone or crumb to nonbelievers – that they (or at least one or more of them) would opine that legislative prayer is inherently religious and, therefore, excessively entangles government with religion and discriminates against nonbelievers.

Marsh and now Greece should be overturned if nonbelievers are accorded full citizenship and equal dignity. Unfortunately, now in my mid-60s, I don’t expect this to occur during my lifetime. Shame, shame, shame on the Supreme Court of the United States for spoiling the dream of religious freedom.

Supreme Court has lost its legal compass

[Take 2 . . . ] 

I have been a student of the U.S. Constitution for nearly 50 years. Yesterday, the conservative Catholic majority on the Supreme Court in Town of Greece v. Galloway simply ignored the First Amendment in giving the green light for town councils starting their meetings with sectarian prayers. 

The Town of Greece decision has nothing to do with free speech and everything to do with Christian dominion. The five conservative Roman Catholics -- Chief Justice Roberts and Justices Scalia, Thomas, Kennedy and Alito -- did an end run around the Establishment Clause of the First Amendment. That clause prohibits government preferring one religion over another or religion over non religion. In other words, under the First Amendment governments must neutrality with respect to religion. 

So what does the Catholic cabal on the Court do if the Constitution gets in their way of allowing governments to promote Christianity -- simple -- ignore it. Justice Kennedy, writing for the majority, made up a sham legal argument like our country's heritage permits town councils to open their meetings with Christian prayers. Strange, it's not my Atheistic heritage or the heritage of minority religions. Rather Christian prayer is an evangelistic tactic of a tyrannical majority (or maybe just a few council members) foisting their religion on their community. In so doing, notwithstanding the majority's holding in Town of Greece, the Constitution's mandate of separation of government and religion is violated. 

And guess what -- there's no appeal of the Supreme Court's decision. The justices are not truly bound by the Constitution because they have life tenure. We can and do criticized them but this bad decision is likely to stand for decades until there is a fundamental change in the composition of the Court.

Oh, and by the way, the justices in the minority weren't much better -- for they would still permit prayers at government meetings as long as the prayers were nonsectarian. Prayer is prayer is prayer. It necessarily causes excessive governmental entanglement with religion in violation of the First Amendment. 

Town of Greece v. Galloway -- another horrendous decision by the conservative Catholic majority

The Supreme Court held 5-4 today in Town of Greece v. Galloway that sectarian prayers at government meetings do not violate the Establishment Clause. I'm sure that James Madison (Father of the Bill of Rights) and Thomas Jefferson (author of the Virginia Statute for Religious Freedom) are rolling over in their graves.

Justice Kennedy wrote in his majority opinion in Town of Greece: "Legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of ‘God save the United States and this honorable Court’ at the opening of this Court’s sessions.” Slip op. at 19.

Unbelievable. Not true. Absolutely false. No. No. No.

As co-counsel with Mike Newdow in Newdow v. Roberts (challenging the religious practices of the 2009 presidential inaugural ceremony) -- representing over 250 nonbelievers -- I can say with certitude (just as Peter Eliasberg said during oral arguments in Salazar v. Buono (2010) that you won't find a Christian cross in a Jewish cemetery) that recitation of Christian prayers is NOT part of the heritage of nonbelievers and other nonChristians.

From this (and other decisions of the Court), I conclude that the Town of Greece decision is a fraud perpetrated by the five conservative Roman Catholic justices in furtherance of Christian dominion. They ignore the Establishment Clause at our peril.

Holding High School Graduation Ceremonies in Religious Buildings Violates the Neutrality Principle

Daniel D. Schick’s Keeping Up With The Principle Of Neutrality: Why Courts Should Not Extend Elmbrook’s Mistaken Establishment Clause Analysis * (Mississippi Law Journal, Vol. 84, Forthcoming) reads like one more attempt by the Christian Right to its use of government to advance religion.  The case of Doe v. Elmbrook School District, 687 F.3d 840 (7th Cir. 2012) involves the school district’s holding a high school graduation ceremony in the sanctuary of Elmbrook Church, a non-denominational Christian church. 

The sure giveaways that the article is biased in favor of government advancement of religion is when it tells us that government is “simply” utilizing a religious building to conduct a secular event and that the Pilgrims and Puritans came to America to escape repression in England.  In the case of the former, the only simple thing about the case is that the use of churches for public school graduation ceremonies places students in a coercive religious environment with religious symbols and messages and conditions the government benefit of the graduation ceremony on attendance at a religious institution. (It also has the affect of government endorsement of religion and stigmatizes those students of differing faiths and nonbelievers.) In the latter situation, the article conveniently omits the fact that Pilgrims and Puritans in turn engaged in religious repression. 

The article also fails to mention relevant history – that between the American Revolution and the early 1830s – the states disestablished religion. This, coupled with the ratification of the Bill of Rights, laid a solid foundation for the principle of separation of church and state espoused by Thomas Jefferson and James Madison.

The courts have not gone down a slippery slope by using the Lemon, endorsement or coercion tests or the neutrality principle to interpret the Establishment Clause. Rather, these tests, when properly used, allow the courts to faithfully apply the Establishment Clause to religion cases. The indisputable fact is that the Constitution gave our governments no role to play in the religious sphere.

Schick, a May 2015 Juris Doctor candidate at the University of Mississippi School of Law, argues for government and religion working together in what he calls “a neutral and secular manner to help further society.” This is code for allowing government to advance religion by postulating a secular purpose to cover up the greater religious purpose and effect.  

Quite frankly, the Constitution gave our governments no role to play in the religious sphere. If the churches want to make their buildings available for graduation ceremonies, they must at minimum sanitize them by removing or covering up religious symbols and messages. Then, and only then, can a valid neutrality argument be made.

However, the churches aren’t willing to play fair and be similarly situated with a secular buildings. Thus the Seventh Circuit correctly found that the school district’s use Elmbrook Church’s pervasively religious environment for a public high school graduation ceremony violated the Establishment Clause.

 __________

* Available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2394914.

Judge orders Mt. Soledad cross removed; Stays decision pending appeal

Pursuant to a remand from the 9th Circuit, U.S. District Court Judge Larry Burns issued a permanent injunction enjoining the display of a 43-foot Latin cross atop Mt. Soledad in California. Judge Burns stayed his decision pending appeal. The decision/order in Trunk v. City of San Diego (S.D. Cal. December 12, 2013) is here and the ACLU's announcement here.

This case has been going on forever. Almost. Philip K. Paulson a filed a law suit in 1989. Paulson, who died in 2006, has was succeeded by Steve Trunk as the lead plaintiff. Also in 2006, Jewish War Veterans and others filed a separate law suit. The two cases have been consolidated. 

The problem with a religious symbol as the predominant part of the memorial is quite simple.  The giant Christian cross is inappropriate because it does not represent the faiths or nonbelief of many veterans who have honorably served our nation.

I vividly recall Peter Eliasberg's response to Justice Scalia's statement during oral arguments in Salazar v. Buono that the Mojave Desert Christian cross was "erected in honor of all of the war dead." Eliasberg responded: "The cross is the most common symbol of the resting place of Christians. I have been in Jewish cemeteries. There is never a cross on a tombstone of a Jew. [Laughter.] So it is the most common symbol to honor Christians." (Salazar v. Buono, No. 08-472 (October 7, 2009), transcript, at pp. 37-38.) Justice Scalia's face turned bright red in embarrassment.

Echoing Justice Scalia's insult, a plaque near the cross states: "Dedicated in 1954, as a tribute to all branches of the armed forces of U.S.A. servicemen and women." (Emphasis added.)

While the facts of Trunk (this case) differ from (1) Buono, 559 U.S. 700 (2010), (2) American Atheists v. Duncan, 616 F.3d 1145 (10th Cir., 2010) and (3) American Atheists v. City of Starke, 509 F.Supp.2d 1221 (MD FL 2007), in all four case courts found that the government's display of a Christian cross -- the preeminent symbol of the majority religion -- constituted a governmental endorsement of Christianity in violation of the First Amendment. (Note: In Buono, the 9th Circuit found the display to be an endorsement of Christianity. The issue before the Supreme Court was what affect was to be given to a land transfer to a private party.)

The bottom line is that the display of a religious symbol unique to one religion -- such as the Christian cross atop Mount Soledad -- has the purpose and effect of advancing one religion over others, and religion generally over nonbelief in violation of freedom from government sponsored religion guaranteed by the U.S. Constitution. The Constitution, which established a national government of limited powers, gave Congress and the President no powers in matters of religion.

Importantly, the removal of a cross from government property would not be an act of hostility towards religion but rather an act resulting in neutrality towards religion and nonbelief.

Housing allowance for ministers of the gospel held unconstitutional

Congratulations to Freedom From Religion Foundation for its win in FFRF v. Lew (W.D. Wisc., Nov. 22, 2013).

The U.S. District Court Judge Barbara B. Crabb held in an opinion filed today that the housing allowance exemption for "ministers of the gospel" -- IRC Sec. 107(2) -- violates the Establishment Clause under the Supreme Court's holding in Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).

26 USC § 107 - Rental value of parsonages reads in part:

In the case of a minister of the gospel, gross income does not include— 

(2) the rental allowance paid to him as part of his compensation, to the extent used by him to rent or provide a home and to the extent such allowance does not exceed the fair rental value of the home, including furnishings and appurtenances such as a garage, plus the cost of utilities.

This is a major victory for freedom from government sponsored religion, for the First Amendment of the Constitution prohibits government favoring one religion over another, or religion over nonreligion.

The benefit of the §107(2) exemption to clergy has been estimated to relieve ministers of $2.3 billion in taxes over five years. See statement of Congressman Jim Ramstad regarding the Clergy Housing Allowance Clarification Act of 2002, 148 Cong. Rec. H1299-O1 (Apr. 16, 2002).

Judge Crabb noted: "Some might view a rule against preferential treatment as exhibiting hostility toward religion, but equality should never be mistaken for hostility." I made a similar point in my October 19th blog Myth #11: Removal of the Tombstone to Jesus Christ Would Constitute Hostility Towards Religion. 

Myth #12: 40 Years Maketh a Wrong Right

[Chapter 9, post #14]

“Forty years after the monument's erection and six years after Van Orden began to encounter the monument frequently, he sued.” [1]

Chief Justice William Rehnquist

All too often, justice is slow in coming.  Justice delayed is justice denied.[2]

Justice Breyer’s concurrence in Van Orden provided the pivotal fifth vote upholding lower court rulings that the display of an Eagles-donated tombstone to Jesus Christ on the Texas State Capitol grounds did not violate the Establishment Clause.  For Justice Breyer, it was time to move after forty years on rather than to correct an injustice.[3]  He opined: 

This display has stood apparently uncontested for nearly two generations. That experience helps us understand that as a practical matter of degree this display is unlikely to prove divisive. And this matter of degree is, I believe, critical in a borderline case such as this one.[4]

The essence of Chief Justice Rehnquist’s and Justice Breyer’s argument is that the passage of time makes a claim stale – that if the alleged violation was really significant, the person offended would have brought the claim sooner.  There may be a tinge of truth to the argument, but it’s a very weak argument in this case where the monument’s display is not merely a past violation of the First Amendment, but a continuing violation as well.

Time, money and frustration are at major reasons why potential plaintiffs decline to bring or delay bringing meritorious lawsuit.  There are four other considerations which explain the time delay.

First, Separationists didn’t wait 40 years to file the first lawsuit challenging the placement of Eagles-donated Ten Commandments monuments on public property.  In 1972, a lawsuit was filed against the Salt Lake City seeking the removal its Eagles-donated monument.[5]  Numerous other challenges to Eagles-donated monuments were filed prior to the decision in Van Orden being handed down on June 27, 2005, and others have been filed since.  Lawsuits challenging Eagles-donated Ten Commandments monuments are pending in Fargo, North Dakota,[6] Connellsville, Pennsylvania[7] and New Kensington, Pennsylvania.[8]

Second, Ten Commandment monument cases are not a criminal case or other type where material evidence will be lost due to the passage of time, including the memory of witnesses.  There is no harm if it takes one year, ten years or 40 years to bring the lawsuit – for the religious nature of the monuments speaks for themselves.  Each and every day is an ongoing violation of the First Amendment.

Third, there is also a flip side to the Chief Justice and Justice Breyer’s argument.  Nonbelievers are the most hated group in America of which Van Orden was a member.[9]  While I am not aware that Thomas Van Orden felt intimidated, I can that during the course of my representing plaintiffs in Newdow v. Roberts,[10] one of the plaintiffs had had her house burned down by an arsonist who was upset with prior litigation the plaintiff was involved in.  Further, Presidents Lincoln and Kennedy were shot to death by assassins who ideologically disagreed with their policies.  Similarly, churches have been burned down, persons hanged, beaten or burned to death by persons who disagreed with the victim’s race, religion, national origin or gender identity.  There is an ugly side to America to which a lawsuit exposes a person to..[11]

And fourth, plaintiffs seek to avoid the stigmatization as a second class citizen that follows the filing a lawsuit challenging a practice of the majority religion

Justice Souter offered a most delightful rebuttal to the Chief Justice and Justice Breyer:

“I doubt that a slow walk to the courthouse, even one that took 40 years, is much evidentiary help in applying the Establishment Clause.”[12]

In this myth, I have tried to make the point that year after year of wrongdoing does not make an unconstitutional act right.  It took 58 years to correct the insidious “separate but equal” holding in Plessy v. Ferguson[13] and 133 years to grant women the right to vote.[14]  Perhaps 40 years is not such a slow walk after all!

---

[1]  Van Orden v. Perry, 545 U.S. 677, 682 (2005).

[2]  See Justice delayed is justice denied at http://en.wikipedia.org/wiki/Justice_delayed_is_justice_denied.

[3]  The Eagles-donated monument was placed on the Texas State Capitol grounds in 1961.

[4]  Ibid., at 704.

[5]  Anderson v. Salt Lake City Corp., 348 F.Supp. 1170, 1171 (D. Utah, 1972); reversed 476 F.2d 29 (10th Cir. 1973).

[6]  Red River Freethinkers v. Fargo, No. 10-3214 (8th Cir., May 25, 2012) – reversed U.S. Dist. Court’s denial of standing and remanded for further proceedings.

[7]  Freedom From Religion Foundation v. Connellsville Area School Dist. (W.D. Pa., complaint filed Sept. 27, 2012).

[8]  Freedom From Religion Foundation v. New Kensington –Arnold School  Dist. (W.D. Pa., complaint filed Sept. 14, 2012).

[9]  As I write this blog post, the federal government is shut down because of a rift between Tea Party Republicans in the U.S. House of Representatives and the rest of Congress.  So, at least for today, Congress may be the most hated group. 

[10]  Newdow v. Roberts, 603 F. 3d 1002 (2010), cert. den., 131 S. Ct. 2441 (2011) challenged the religious practices of the 2008 presidential inaugural ceremony.  

[11]  I was recently involved in a Phoenix, Arizona lawsuit that had been going on for several years.  The plaintiff had accused her teacher of using the classroom to proselytize Christianity.  Ultimately, the plaintiff was intimidated into dropping her lawsuit (which amply supported by the evidence) by the defendants’ attorney who threaten the plaintiff with substantial attorneys fees.

[12]  Ibid., at 747.

[13]  Plessy v. Ferguson, 163 U.S. 537 (1896) was overturned by Brown v. Board of Education, 347 U.S. 483 (1954).

[14] The 19^th Amendment, which prohibits the United States or any State from denying a citizen the right to vote on account of sex, was ratified on August 18, 1920.