Monday, July 04, 2005

Pyrrhic Victory?

After defeating the Romans in a costly battle in 279 B.C., the Greek king Pyrrhus was in no mood to celebrate. “Another such victory over the Romans,” Pyrrhus reportedly said, “and we are undone.”

Last week, after invalidating several Ten Commandments displays in Kentucky (McCreary County, Kentucky v. American Civil Liberties Union of Kentucky), the Supreme Court reaffirmed in a Texas case (Van Orden v. Perry) that some displays on public property are constitutional. However, those who appreciate the nation’s rich Judeo-Christian heritage and seek to protect it from further secular encroachment shouldn’t celebrate just yet.

According to the court, Ten Commandments displays are acceptable only if they convey a secular, historical message, not a religious one. Christianity Today’s Weblog notes, “[I]t sounds like the Court is saying Ten Commandments monuments are okay if no one interprets the government's motivation as being religious, and if the monument has been around for a long time without people objecting.”

Another such victory in the Supreme Court and we may be undone. I wonder whether Moses would agree that you can divorce the commandments from religion. Isn’t the first commandment, “You shall have no other gods before me”?

Christian activists, while not happy with the Kentucky decision, apparently are willing to go along with increasingly stringent secular tests, as in the Texas case. Jan LaRue, chief counsel for Concerned Women for America, is among them. "Posting [the Ten Commandments] on public property as part of a historical display is a legitimate secular purpose,” LaRue said. “The Commandments are an important part of our laws and history.”

But in a dissent to the Kentucky ruling, conservative Justice Antonin Scalia said passing a secular test is unnecessary. Scalia noted that state governments do not violate the Constitution’s Establishment Clause (“Congress shall make no law respecting an establishment of religion”) by acknowledging God—not just our religious heritage—in the public square.

The federal government, while rightly declining to establish a national church, never has held to a strict neutrality between religion and non-religion. For example, it affirmatively supports religion through tax breaks for churches and the provision of official chaplains for legislatures and our soldiers.

“Presidents continue to conclude the presidential oath with the words ‘so help me God,’” Scalia wrote. “Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer ‘God save the United States and this Honorable Court.’”

Ten Commandments displays used to be more than historical markers, like signs pointing tourists to old Civil War battlefields. They were constructed, with official support, to encourage people to live lives of personal righteousness before the God of the universe. As John Adams once said, “Our constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”

Judicial obtuseness in the face of such history, Scalia notes, undermines both the court’s credibility and the rule of law: “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle.”

Christians, too, need to rethink their principles in supporting Ten Commandments displays. A “legitimate secular purpose” is not enough, nor will it be necessary if President Bush follows through on his pledge to name strict constructionists to the court.

In a country where crime, adultery, and greed run rampant, we need less secularism, and more people following God’s law.


Blogger kaligula said...

The 1st Amendment has both an "establishment" clause and a "free exercise" clause, both of which being equally important.

Therefore, even as an advocate of separation of church and state, such does not,from my perspective, mean the eradication of all religious expression or speech from the public square.

For example, in the public schools. Official requirement of a school prayer violates the establishment clause. However, students or teachers who freely mention God in a ceremony or a speech are protected by the free exercise clause of the 1st Amendment. Likewise for students who wish to organize religious after-school groups or who desire to wear religious paraphernalia (such as t-shirts, etc.)

The 10 Commandments are part of the religious traditions of Judiasm, Christianity, and Islam, and frankly don't constitute a narrow sectarian establishment threat in any true sense. In this, sense then, I agree with Scalia that "Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God."

In the same aspects, having "In God We Trust" on our currency, or opening legislative sessions with prayer or the supreme court invocation, as public acknowledgements of God, should not be held to some narrow secular test.

It is important to note, in this Kentucky case, in an opinion joined by Scalia, Thomas and Kennedy, Rehnquist said the Texas monument was a "far more passive use" of the Ten Commandments than its posting in a public-school classroom.

It is important emphasize this point made by Rehnquist because Souter, who brought up a previous 1980 Kentucky case, in which the court struck down a law requiring that the Ten Commandments be posted in every public school classroom, extends this precedent beyond what that case applied to.

Souter reaffirmed the more general principle that the First Amendment "mandates government neutrality between religion and religion and between religion and non-religion."

Souter's mandate is entirely too restrictive, devoid of any consideration of context, and ignores any encroachments on "the free exercise" clause that may far outweigh any perceived, technical violations of the "establishment clause."

However, Stan, although we both agree this was a bad ruling, I do very much disagree with any sentiment that this reinforces the need to revert back to a pre-Civil War view by the Supreme Court that the Bill of Rights did not largely apply to actions by the state governments.

This "Original Intent" interpretation of the Bill of Rights by the Supreme Court was certainly influenced by the institution of slavery, which was practiced by some states and not by others.

With the Post Civil war adoption of the 14th Amendment, the basis was established for the Supreme Court to eventually begin applying the entire Bill of Rights to all the states, with the establishment clause being ruled on beginning in the middle part of the last century.

However, it should be noted that both Jefferson, author of The Declaration of Independence, and Madison, Father of the Consitution, both held strict church and state separation views, and the modern interpretation is much more in line with their views than our early historical application of the Bill of Rights.

Although I am aware that both Scalia and Thomas hold views that the establishment clause does not apply to the states, and this same idea is promulagted by the likes of David Barton in religious circles, you simply can't pick and choose which clause of the 1st Amendment should revert back to "Original Intent," or for that matter which portions of the Bill of Rights should revert back to such.

Original Intent means, in large part, the Bill of Rights would no longer largely apply to actions by the state governments. And cherry-picking original intent to make it more palatable is activism just as bad as the activism from the other side.

3:26 AM  
Blogger Stan Guthrie said...

You're right that the post-Civil War amendments abolishing the institution of slavery have been used to greatly restrict the states in other matters (you mention the application of the Bill of Rights). I certainly am appalled by America's history of slavery, but I am troubled by this astonishing grab for power by the feds. (I wasn't arguing for states' rights to establish religion, however, but was simply noting that the state--whether federal or at the state level--may not establish a religion, and that Ten Commandments displays do not violate this prohibition.) I think we can keep "original intent" AND the anti-slavery amendments, as they were duly passed and hsve been grafted into the original document.

5:22 AM  
Blogger kaligula said...

Yeah, my basic point is that the Free Exercise clause is often seemingly ignored by liberal justices when applying their narrow 1st Amendment "establishment clause" tests to state cases. The 1st Amendment has 2 clauses, not just one, that addresses these issues.

However, countering bad rulings by advocating a return to "Original Intent," is just as bad. Original Intent means the Bill of Rights would no longer apply to the states, as was the original interpretation. In no small part was this early interpretation a practical result of the tolerance of slavery among the southern states.

Just as the left can't cherry-pick what aspects of the Bill of Rights they want to recognize, the Right can't cherry-pick what aspects of the Bill of Rights fall under Original Intent, if such were to become the prevailing philosopy of the Supreme Court.

Sure Original Intent would allow Red States to post the 10 Commandments at will, but Blue States could easily strip away all 2nd Amendment rights of it's citizens, for example.

The really disturbing aspect of Original Intent is that court would have to substantially weaken the 14th Amendment, and in our era of Big Brother and Federal Police Powers (FBI, DEA, etc...), and given I don't see much concern at all on the court about such federal police powers, that's a consequence i simply would rather not see come to pass.

8:31 AM  

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