Those Nutty Judges

On the heels of the travesty known as Kelo v. New London, Connecticut, the Supreme Court handed down it’s final rulings for this term. It decided that:
Internet file sharing companies can be sued.

Cable companies don’t have to share their lines.
The police can’t be sued in regard to restraining orders.
They have turned down the case involving two journalists—Judith Miller and Matt Cooper—in the Valerie Plame case; testify, or go to jail.

But the most contentious cases focus on the Ten Commandments. Now, I’m sure a lot of people are positively bored by these cases, where people like the ACLU file lawsuits at the drop of a hat over the Ten Commandments. But two cases—McCreary County, Kentucky v. ACLU and Van Orden v. Perry—had similar backgrounds; that being that the cases revolved around a display of the Ten Commandments.

In Van Orden v. Perry what was in question was a six-foot monument to the Ten Commandments on a 22 acre lot on the grounds of the Texas State Capitol. Included in the field are seventeen other monuments to our nation’s history. The ruled that this monument could stay as it reflected the history and tradition of our legal foundings. To the Court, the monument in Texas was neutral enough to be allowed under the Establishment Clause. Now, for those that have missed this point, those that dislike these sorts of displays love to cite Justice Hugo Black’s misinterpretation of the Establishment Clause. There is no "wall of separation between Church and State." That isn’t what the Clause is about. It simply states that government may not establish a religion, nor dictate to us—the citizens—how we’ll worship. The Texas case doesn’t bother me. I expected it to pass, granted not as narrowly as it did, but I had a feeling that this one was going to be upheld.

In McCreary County, Kentucky v. ACLU the Court ruled 5-4 that a display of the Ten Commandments in their courthouse is unconstitutional; that it directly violates the Establishment Clause. I scratch my head over this case because the display was put up, and upon complaints and court cases, was subsequently changed, twice.

As directed by the resolutions, the Counties expanded the displays of the Ten Commandments in their locations, presumably along with copies of the resolution, which instructed that it, too, be posted, id., at 9. In addition to the first display's large framed copy of the edited King James version of the Commandments, the second included eight other documents in smaller frames, each either having a religious theme or excerpted to highlight a religious element. The documents were the "endowed by their Creator" passage from the Declaration of Independence; the Preamble to the Constitution of Kentucky; the national motto, "In God We Trust"; a page from the Congressional Record of February 2, 1983, proclaiming the Year of the Bible and including a statement of the Ten Commandments; a proclamation by President Abraham Lincoln designating April 30, 1863, a National Day of Prayer and Humiliation; an excerpt from President Lincoln's "Reply to Loyal Colored People of Baltimore upon Presentation of a Bible," reading that "[t]he Bible is the best gift God has ever given to man"; a proclamation by President Reagan marking 1983 the Year of the Bible; and the Mayflower Compact. 96 F. Supp. 2d, at 684; 96 F. Supp. 2d, at 695-696. (Justice Souter)

Described above is the first revision. Yes, much of the display revolved around "religion" but for good reason. The founding documents of this nation involved a lot of religion. It—religion—was one of the guiding principles in establishing America. We have to recognize our faith at the nation’s founding, for without it there would have been no moral compass for the nation. In other words, without morals, the Constitution is nothing more than ink on a page. (Some could argue that has occurred over the years, and I’d be hard-pressed to disagree.)

Assembled with the Commandments are framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the lyrics of the Star Spangled Banner, the Mayflower Compact, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. The collection is entitled "The Foundations of American Law and Government Display" and each document comes with a statement about its historical and legal significance. The comment on the Ten Commandments reads:

"The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country. That influence is clearly seen in the Declaration of Independence, which declared that 'We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.' The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition." Id., at 180a. (Justice Souter)

Now, they changed the display again. Yes, the "religious overtones" are there, but the county courthouses aren’t "endorsing" a religion. They’re recognizing the very foundations of our laws in these displays. In fact, in the cases prior to this one, the state of Kentucky contends that the displays were erected "to demonstrate that the Ten Commandments were part of the foundation of American Law and Government" and "to educate the citizens of the county regarding some of the documents that played a significant role in the foundation of our system of law and government."

In my opinion, that’s exactly what these displays were meant to do. Yes, an argument could be made based on where they were placed, as it being "too open" to the public. We must remember that within the hallowed chambers of the Supreme Court, they, too, have a monument up for the Ten Commandments, which includes a relief of Moses receiving the Laws of God. But according to the Court, that display is "neutral" and "not open to the general public." Neutral, I can see. And it matters not as to who and who doesn’t see them.

So, aside from the ACLU’s inherent bias, which has been established over the last few years (Can we say Christmas?) I see no reason why the Court would have sided with them, and believes these monuments should be removed. Only the ACLU could find such a monument as "proselytizing" or promoting a religion. If I remove the Ten Commandments, or shrink the size of that piece of the monument, but leave up all the rest, am I equally promoting a religion? If so, can anyone tell me which religion I’m preaching?

It’s indiscernible. As equally so if only the Ten Commandments were up. The Baptist faith isn’t being pushed from such a display. Nor are Catholics, or Mormons, or Episcopalians, or even evangelicals. The Bible isn’t even being promoted, per se. What is being emphasized are the very laws—the beliefs Judeo-Christians have believed in for centuries—that God gave us (or supposedly did so, if you’re atheist or agnostic) are the foundations for our own laws. Murder is against the law. So is stealing. Anyone notice that those are two of the Ten Commandments?

But the lack of logic from Justice Souter continues.

When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government's ostensible object is to take sides.

The State government of Kentucky wasn’t "taking sides" in this issue in relation to religion. Their stated purpose was to show where the foundations of our laws came from, not to push any particular religion.

Indeed, the purpose apparent from government action can have an impact more significant than the result expressly decreed: when the government maintains Sunday closing laws, it advances religion only minimally because many working people would take the day as one of rest regardless, but if the government justified its decision with a stated desire for all Americans to honor Christ, the divisive thrust of the official action would be inescapable.

Though he does point out after this that his court—the US Supreme Court—upheld the Sunday Closing laws. And NEVER has this federal government endorsed one religion over another, or demanded that the populace will now worship (insert deity’s name here).

Despite the intuitive importance of official purpose to the realization of Establishment Clause values, the Counties ask us to abandon Lemon's purpose test, or at least to truncate any inquiry into purpose here. Their first argument is that the very consideration of purpose is deceptive: according to them, true "purpose" is unknowable, and its search merely an excuse for courts to act selectively and unpredictably in picking out evidence of subjective intent. The assertions are as seismic as they are unconvincing.

The reason why they asked that the Lemon test be disregarded is because it is, quite simply, a lemon. It has easily tipped the balance of justice and jurisprudence against religion. The Lemon test requires the Court to strike down laws appearing to promote or aid religion unless it determines that: A) the government act had a secular purpose; B) the government action’s primary effect is not to advance religion; and C) the action does not foster an "excessive entanglement" with religion. The Kentucky case meets each of these criteria. It was secular (to give honor to the foundation of the law), it wasn’t advancing any said religion, and there’s no entanglement with religion. The King James Bible is recognized by every Christian church as "acceptable", and therefore neutral.

Nor is there any indication that the inquiry is rigged in practice to finding a religious purpose dominant every time a case is filed. In the past, the test has not been fatal very often, presumably because government does not generally act unconstitutionally, with the predominant purpose of advancing religion. That said, one consequence of the corollary that Establishment Clause analysis does not look to the veiled psyche of government officers could be that in some of the cases in which establishment complaints failed, savvy officials had disguised their religious intent so cleverly that the objective observer just missed it.

Dear Lord, talk about inventing the boogey-man. So, in essence, Justice Souter is hinting that the motives behind putting up such a monument, in such a prominent place, may have other sinister motives than to simply educate the populace in a place where law is interpreted where our laws originated? Is there special attention devoted to Judeo-Christian beliefs. Yes. Why? Because that’s where the basis of our laws came from. It would be no different if we were a Muslim democracy that highlighted the laws of the Koran in a public display. We are a Christian nation, for the most part, and the State of Kentucky recognizes where that law originated.

In 1993, the Supreme Court heard a case—Lamb’s Chapel v. Center Moriches Union Free School District—where Justice Antonin Scalia interjected this sharp admonishment of the Lemon test.

"As to the Court’s invocation of the Lemon test: Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks out Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six feet under: Our decision in Lee v. Weisman (regarding commencement prayers at graduation) conspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature’s heart (the author of today’s opinion repeatedly), and a sixth has joined an opinion doing so.

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will. When we wish to strike down a practice it forbids, we invoke it, Aguilar v. Fenton (1985) (striking down state remedial education program administered in part in parochial schools); when we wish it to uphold a practice it forbids, we ignore it entirely, Marsh v. Chambers (1983) (upholding state legislative chaplains). Sometimes, we take a middle course, calling its three prongs "no more than helpful signposts" Hunt v. McNair (1973). Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.

For my part, I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced. I will decline to apply Lemon—whether it validates or invalidates the government action in question..."

Scalia, again today, showed just how sharp he is. Below, are excerpts from his separate, dissenting opinion in McCreary County v. ACLU. This opinion was joined by Chief Justice Rehnquist, Justice Thomas, and Justice Kennedy, in part.

These actions of our First President and Congress and the Marshall Court were not idiosyncratic; they reflected the beliefs of the period. Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality. The "fact that the Founding Fathers believed devotedly that there was a God and that the unalienable rights of man were rooted in Him is clearly evidenced in their writings, from the Mayflower Compact to the Constitution itself." School Dist. of Abington Township v. Schempp, 374 U. S. 203, 213 (1963). See Underkuffler-Freund, The Separation of the Religious and the Secular: A Foundational Challenge to First-Amendment Theory, 36 Wm. & Mary L. Rev. 837, 896-918 (1995). President Washington opened his Presidency with a prayer, see Inaugural Addresses of the Presidents of the United States 1, 2 (1989), and reminded his fellow citizens at the conclusion of it that "reason and experience both forbid us to expect that National morality can prevail in exclusion of religious principle." Farewell Address (1796), reprinted in 35 Writings of George Washington 229 (J. Fitzpatrick ed. 1940). President John Adams wrote to the Massachusetts Militia, "we have no government armed with power capable of contending with human passions unbridled by morality and religion. ... Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other." Letter (Oct. 11, 1798), reprinted in 9 Works of John Adams 229 (C. Adams ed. 1971).

Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words "so help me God." 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." Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto "IN GOD WE TRUST." And our Pledge of Allegiance contains the acknowledgment that we are a Nation "under God." As one of our Supreme Court opinions rightly observed, "We are a religious people whose institutions presuppose a Supreme Being." Zorach v. Clauson, 343 U. S. 306, 313 (1952), repeated with approval in Lynch v. Donnelly, 465 U. S. 668, 675 (1984); Marsh, 463 U. S., at 792; Abington Township, supra, at 213.

With all of this reality (and much more) staring it in the face, how can the Court possibly assert that " 'the First Amendment mandates governmental neutrality between ... religion and nonreligion,' " ante, at 11, and that "[m]anifesting a purpose to favor . . . adherence to religion generally," ante, at 12, is unconstitutional? Who says so? Surely not the words of the Constitution. Surely not the history and traditions that reflect our society's constant understanding of those words. Surely not even the current sense of our society, recently reflected in an Act of Congress adopted unanimously by the Senate and with only 5 nays in the House of Representatives, see 148 Cong. Rec. S6226 (2002); id., at H7186, criticizing a Court of Appeals opinion that had held "under God" in the Pledge of Allegiance unconstitutional. See Act of Nov. 13, 2002, §§1(9), 2(a), 3(a), 116 Stat. 2057, 2058, 2060-2061 (reaffirming the Pledge of Allegiance and the National Motto ("In God We Trust") and stating that the Pledge of Allegiance is "clearly consistent with the text and intent of the Constitution"). Nothing stands behind the Court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the Court's own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century. See ante, at 11, citing Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day Saints v. Amos, 483 U. S. 327, 335 (1987), in turn citing Lemon v. Kurtzman, 403 U. S. 602, 612 (1971), in turn citing Board of Ed. of Central School Dist. No. 1 v. Allen, 392 U. S. 236, 243 (1968), in turn quoting Abington Township, supra, at 222, in turn citing Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947).2 And it is, moreover, a thoroughly discredited say-so. It is discredited, to begin with, because a majority of the Justices on the current Court (including at least one Member of today's majority) have, in separate opinions, repudiated the brain-spun "Lemon test" that embodies the supposed principle of neutrality between religion and irreligion. See Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U. S. 384, 398-399 (1993) (Scalia, J., concurring in judgment) (collecting criticism of Lemon); Van Orden, ante, at 1, 6 (Thomas, J., concurring); Board of Ed. of Kiryas Joel Village School Dist. v. Grumet, 512 U. S. 687, 720 (1994) (O'Connor, J., concurring in part and concurring in judgment); County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 655-656, 672-673 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part); Wallace, 472 U. S., at 112 (Rehnquist, J., dissenting); see also Committee for Public Ed. and Religious Liberty v. Regan, 444 U. S. 646, 671 (1980) (Stevens, J., dissenting) (disparaging "the sisyphean task of trying to patch together the 'blurred, indistinct, and variable barrier' described in Lemon"). And it is discredited because the Court has not had the courage (or the foolhardiness) to apply the neutrality principle consistently.

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. That is what prevents judges from ruling now this way, now that--thumbs up or thumbs down--as their personal preferences dictate. Today's opinion forthrightly (or actually, somewhat less than forthrightly) admits that it does not rest upon consistently applied principle. In a revealing footnote, ante, at 11, n. 10, the Court acknowledges that the "Establishment Clause doctrine" it purports to be applying "lacks the comfort of categorical absolutes." What the Court means by this lovely euphemism is that sometimes the Court chooses to decide cases on the principle that government cannot favor religion, and sometimes it does not. The footnote goes on to say that "[i]n special instances we have found good reason" to dispense with the principle, but "[n]o such reasons present themselves here." Ibid. It does not identify all of those "special instances," much less identify the "good reason" for their existence.

I have cataloged elsewhere the variety of circumstances in which this Court--even after its embrace of Lemon's stated prohibition of such behavior--has approved government action "undertaken with the specific intention of improving the position of religion," Edwards v. Aguillard, 482 U. S. 578, 616 (1987) (Scalia, J., dissenting). See id., 616-618. Suffice it to say here that when the government relieves churches from the obligation to pay property taxes, when it allows students to absent themselves from public school to take religious classes, and when it exempts religious organizations from generally applicable prohibitions of religious discrimination, it surely means to bestow a benefit on religious practice--but we have approved it. See Amos, supra, at 338 (exemption from federal prohibition of religious discrimination by employers); Walz v. Tax Comm'n of City of New York, 397 U. S. 664, 673 (1970) (property tax exemption for church property); Zorach, 343 U. S., at 308, 315 (law permitting students to leave public school for the purpose of receiving religious education). Indeed, we have even approved (post-Lemon) government-led prayer to God. In Marsh v. Chambers, supra, the Court upheld the Nebraska State Legislature's practice of paying a chaplain to lead it in prayer at the opening of legislative sessions. The Court explained that "[t]o invoke Divine guidance on a public body entrusted with making the laws is not . . . an 'establishment' of religion or a step toward establishment; it is simply a tolerable acknowledgment of beliefs widely held among the people of this country." 463 U. S., at 792. (Why, one wonders, is not respect for the Ten Commandments a tolerable acknowledgment of beliefs widely held among the people of this country?)

When Justice Scalia decides to admonish his fellow jurists for their asinine ideas, and foolish tests that prove nothing other than an inherent bias, as Lemon does, he doesn’t hold back. He has proven time and again that the Lemon test is worthless, and proves nothing. That the very evocation of the test is meant to invoke fear among the populace, and commands great power in the Court when they so choose to utilize it. But, as he points out, it’s use is so infrequent that it bears no merit within its use. It is a contradiction unto itself, and the justices that continue to invoke it do so because they have nothing else to fall back on.

Scalia has stated in a number of his opinions, that if the law is black and white, and there is no gray area, then the law means what it says. The Establishment Clause is crystal clear. Government can’t interfere in religion, nor can it endorse one.

I’m still waiting on Justices Souter and Kennedy to show me the religion this monument is promoting. Does it have a stamp on it somewhere that it was donated by a certain church, or that it was made by people from a certain church? Is a religion’s name on it anywhere? The answer is no. This monument is no different than Washington’s farewell address, or the Pledge, or our money, Jefferson’s prayer prior to his second term as president, etc. There is no overlying factor by the State of Kentucky to ram any religion or belief down anyone’s throat. Even an atheist acknowledges that the laws of civilized society have been derived from the Ten Commandments, despite the fact they don’t believe in God.

But, what is sad is that this decision won’t incite the passions that Kelo did. Kelo was central to the people as it struck down our rights to own property, and receive just compensation from the government if they deem they need my property for "public use". But equally so, each of these cases that revolve around our religious beliefs. I stated last week, after the Kelo case, and Marcie backed me up, that we established this nation on two important principles. First, our right to practice our religion freely, without government intervention. The second was the ability for us to own our property, again, without said government intervention to the contrary, arbitrarily.

Cases like this directly attack our fundamental rights to practice our religion and recognize it for what it is: Our moral foundation. On 11 Oct, 1789, John Adams, in a letter to the Massachusetts militia, included what many consider his most famous quote. "Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other."
I believe Scalia sums up the foolishness and folly of the Court when it deals with the First Amendment, and the Establishment Clause within it, in this simple statement.

Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion...Nor is it the case that a solo display of the Ten Commandments advances any one faith. They are assuredly a religious symbol, but they are not so closely associated with a single religious belief that their display can reasonably be understood as preferring one religious sect over another. The Ten Commandments are recognized by Judaism, Christianity, and Islam alike as divinely given.

He is completely correct, and this is what exposes the bias inherent within the ACLU. God is not a religion. He is a being, taken on faith, but a great majority of people around the world. "I am the Lord Thy God" is not an establishment of religion. It is a sentence from a "document" from a long time ago. It does not say "Catholic God." It says "God." Would that be Elohim? Yahweh? Allah? Who? He is not named by any name that a religion would recognize other than "God." Therefore, this display wasn’t promoting any religion, and it was erected to inform court visitors where our laws come from, how they have evolved, and where we are today.

So, I join Justice Scalia, Justice Thomas, and Chief Justice Rehnquist in their dissents.

Publius II

ADDENDUM:
John Podhoretz--of National Review--adds this bit of wisdom from NRO's "The Corner."
Why didn't the Supremes just say you could display the 10 Cs on Monday, Wed, and alternate Fridays, but not on Tuesdays and Thursdays? Or that they could be viewed inside government buildings, but only on the walls of bathrooms and in janitors' closets? Has anybody ever advanced this radical opinion -- that the five justices in question may be intelligent and thoughtful people individually, but that together they form one blithering idiot?