[Chapter 9, post #13]
“[W]e find no
constitutional requirement which makes it necessary for government to be
hostile to religion and to throw its weight against efforts to widen the
effective scope of religious influence.”
Chief Justice William Rehnquist
Perhaps the most incredulous of all Christian apologies
made by Chief Justice Rehnquist in his
Van
Orden plurality opinion is that removal of the Eagles-donated Ten
Commandments tombstone would evince a hostility towards (the Christian)
religion.
The quote of the Chief Justice
at the beginning is disingenuous.
It
suggests that it is constitutionally permissible for the state of Texas to
conspire with the Fraternal Order of Eagles to promote religion – Christianity
preferred – through the erection of Eagles-donated tombstones to Jesus Christ
but it would be unconstitutional for the Court to require Texas to remove the
tombstone because to do so would be an act of hostility towards religion.
The opposite is true.
It is
not “neutral” to favor religion over the
absence of religion.
Rather, the absence of religious symbols or
messages is an environment where people of religious and nonreligious beliefs can
co-exist without divisiveness.
The origin of the “hostility” claim comes from the 1952
Supreme Court decision in
Zorach v.
Clauson.
Justice Douglas, writing for the Court, said:
“[W]e find no constitutional requirement which makes it necessary for government
to be hostile to religion and to throw its weight against efforts to widen the
effective scope of religious influence.
The government must be neutral when it comes to competition between
sects.”
Justice Douglas concluded with the statement:
“We cannot read into the Bill of Rights such a philosophy of hostility to
religion.”
Zorach and
Van Orden are vastly different
cases.
Zorach is primarily a religious accommodation case where the
“activity” – religious instruction – occurs on private property.
On the other hand, the religious monument in
Van Orden is on public property and is
“government speech” advancing Judaism and Christianity.
On these simple facts, the cases merit
different treatment.
In a concurring opinion, Justice Thomas puts forth a similar
specious argument: “For the adherent, this analysis takes no account of the
message sent by removal of the sign or display, which may well appear to him to
be an act hostile to his religious faith.”
I don’t disagree with the literal truth of
Justice Thomas’s statement.
Rather, I
believe that Justice Thomas has an duty to inform the “adherents” that the
Constitution prohibits government from preferring one religion and another, and
between religion and nonreligion AND that to permit Texas to retain the Eagles-donated
Ten Commandments monument would be an impermissible preference of the Abrahamic
religions of Judaism, Christianity and Islam.
Justice Thomas also appears to be oblivious of the fact that the
presence of the Eagles-donated monument is hostile to nonbelievers and
non-Abrahamic minority religions.
Shockingly, Justice Breyer reiterates the same nonsense in his opinion
concurring in the judgment arguing that removal of the Eagles-donated tombstone
to Jesus Christ would “exhibit a hostility toward religion that has no place in
our Establishment Clause traditions.”
Again, the flaw in the argument is that removal
of the monument would be in furtherance of religious neutrality, not hositility.
No, Mr. Chief Justice and Justices Scalia, Kennedy, Thomas and Breyer, the removal
of the Eagles-donated Ten Commandments monument from the Texas State Capitol grounds
would have demonstrated faithfulness to the Constitution by enforcing the First
Amendment prohibition against governmental acts “respecting an establishment of
religion.”
Zorach v. Clauson, 343 U.S. 306 (1952) –
the Supreme Court held that a New Your City program which permitted its public
schools to release students during the school day so that they could attend
off-site religious instruction or devotional exercises did not violate the
Establishment Clause.
