A Stitch in Haste

The House of Representatives really seems to like this new-found "jurisdiction-stripping" maneuver: first the Marriage Protection Act for gay marriage, and now the Pledge Protection Act for the American Loyalty Oath Pledge of Allegiance (text of the Act here).

There is a fundamental difference between the two pieces of legislation, however, that might be robust: The Pledge Protection Act implicates the First Amendment, which, it could be argued, strips Congress of its power to strip federal courts of jurisdiction.

To review:

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

Could one argue that the First Amendment supersedes Article III with respect to hearing Establishment Clause cases? Does "protecting" the Pledge constitute "establishment"? Does stripping federal courts of jurisdiction constitute "prohibiting the free exercise" of religion?

The whole concept of "What exactly does a constitutional amendment amend?" is complex and convoluted and varies on a case-by-case basis. And since both the Pledge Protection Act and the Marriage Protection Act seem certain to die in the Senate anyway, the question as it applies to jurisdiction-stripping will remain academic for the time being.

More commentary on the Pledge Protection Act versus the First Amendment at FindLaw Writ. Logos also has some legal history on jurisdiction-stripping.

Last week I had the pleasure of meeting up with a fellow blogger at a Pride Week reception. Among the many topics of conversation, I got around to asking this blogger — who is Jewish — how he felt about the "Christian nation" rhethoric in conservative circles and the hypocrisy of the "Judeo-Christian" qualifier that Bible-thumpers feel compelled to use in mixed company.

My blogger friend chuckled and remarked simply: "I'm still waiting for someone to ever introduce himself as a 'Judeo-Christian.'"

Well, Justice Scalia has taken this nonsense to the next plateau via his dissent in McCreary County v. ACLU, the "Ten Commandments in the courthouse case" --

Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as "a tolerable acknowledgment of beliefs widely held among the people of this country." The three most popular religions in the United States, Christianity, Judaism, and Islam — which combined account for 97.7% of all believers — are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population — from Christians to Muslims — that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.

So now we're not a "Christian nation" or even a "Judeo-Christian nation." Still refusing to acknowledge the reductio ad absurdum trap into which he has snared himself, Scalia now seriously posits that we are a "Judeo-Islamo-Christian nation."

All for the sake of smacking down atheists, religious non-monotheists, monotheists who wish to worship strictly in private rather than in courthouses, and anyone else who thinks that religious displays on government property are, um, wrong. (Or, to use Scalia's new term, the practicers of "irreligion.")

Professor Jack Balkin does the best job of skewering Scalia's idiocy (see also here):

Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion — first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot.

Here we have yet another example of how Scalia is anything but a "strict constructionist." A true textualist begins with the First Amendment:

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

and stops there. A true "strict constructionist" does not engage in the most insolent intellectual gymnastics to show that since the Founders were religious (they were, of course, for the most part, not fervent Christians and certainly not Jewish or Muslim or "Judeo-Christian" or "Judeo-Islamo-Christian" either).

But in a desperate, and futile, attempt to demonstrate that the Ten Commandments are "no big deal," (i.e., since almost everybody accepts them, they are not really "religious" in the First Amendment sense of the term), Scalia has no choice but to dilute the standard hyper-conservative "Christian nation" gobbledygook by incorporating Islam into his argument (since the more people there are who accept the Ten Commandments, the less of a "religious" principle they become, which is necessary for the First Amendment not to be violated).

So in order to successfully invoke "framers' intent," Scalia twists "religion" into a ludicrous "big tent" of monotheists who, historically, have spent more time fighting and killing each other than worshipping together.

In order to save his vision of "religion," it became necessary for Scalia to destroy it.

I look forward to seeing him pout on C-SPAN like he has with just about every other major decision he's lost recently.

UPDATE: Jon Rowe, who is an expert on the religious context of the Framers, has much more.

"My own feeling in the matter is due to my very firm conviction that to put such a motto on coins, or to use it in any kindred manner, not only does no good but does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege..."
--Theodore Roosevelt

I was going to do a general fisking of expelled Alabama Supreme Court Chief Judge Roy S. Moore's silly op-ed in today's Wall Street Journal ($). You may recall that Moore defied a federal injunction and his own state Supreme Court by installing and then refusing to remove a mammoth stone version of the Ten Commandments in the Alabama Supreme Court building. So disrespectful of the rule of law was he that, in the end, he had to be removed from office by his own state Supreme Court colleagues.

As one might expect, for the most part Moore simply and weakly parrots Justice Scalia's dissent in McCreary County v. ACLU, about which I have already blogged. The fatally flawed Scalia-Moore thesis is that the First Amendment's protection of freedom of religion does not mean freedom from religion, since the United States always has been and is today a Christian, er, Judeo-Christian, er, generically monotheistic nation. Which, of course, is patently untrue.

But then I read this:

Every state constitution acknowledges God and so does our national motto, "In God We Trust."

Now I can't speak to state constitutions, but let's explore the history of "In God We Trust." (My source, from which I am borrowing freely, is here.)

--The original motto at the time of the Founding was of course not "In God We Trust," but rather "E Pluribus Unum," Latin for "Out of Many, One." So any so-called "originalist," which Moore claims to be, should by definition not be excessively loyal to "In God We Trust," since it does not reflect the Framers' intent. Go figure.

--The move to put God into government came not at the Founding but during the Civil War, and it was Treasury Secretary Salmon P. Chase (as in JPMorganChase) who, pressured by various Protestant religious leaders, first authorized "In God We Trust" on coins. Would we today characterize his actions as those of an "activist" Cabinet member? And since the Civil War is, um, over, do we really need reminding that "God opposes slavery"?

--Congress, meanwhile, did not authorize "In God We Trust" until 1886, and widespread use of the motto on coins did not commence until 1909, and was still not used at all on paper currency. So much for Moore's beloved "framers intent." (And, of course, just because Congress authorizes something doesn't make it constitutional then or now.)

--Even during this period, "In God We Trust" was not the motto of the United States; it was still "E Pluribus Unum." The switch did not occur until 1956, as a reminder that "God opposes Communism." Well, the Cold War is over too, so perhaps it's time to rethink, especially in these "War on Terror," "Red State versus Blue State" times, the preferability of "E Pluribus Unum" over "In God We Trust" (that same god to which, according to Justice Scalia, Osama bin Laden also prays).

--It was also during the McCarthy era (are we proud of those times generally?) that "under God" was added to the Pledge of Allegiance, "so help me God" was added to the Inauguration Oath, and "In God We Trust" was added to paper currency.

When Moore or anyone says that these practices are reflective of "originalism" or "framers' intent" or "a long history of god in government," they, um, lie.

And don't the Ten Commandments have something to say about lying?

UPDATE #1: More on Moore, in another context, at Dispatches from the Culture Wars.

UPDATE #2: The Moore op-ed is now also available on OpinionJournal.

For those interested in wading even deeper into the muck of the history of "god in government," here is a link to a three-page summary of the Congressional Chaplaincy from the Congressional Research Service.

Some highlights (I am excerpting wholesale):

--There have been 62 Senate chaplains and 59 House chaplains. All but two have been Protestant.

--The Senate chaplain earns $140,300 a year, and the House chaplain earns $160,600 a year. Both work full time, although many previous chaplains maintained pulpits at local churches while serving Congress.

--The custom of opening legislative sessions with a prayer began in the Continental Congress, which elected Jacob Duche, Rector of Christ Episcopal Church in Philadelphia, to serve as its chaplain from 1774 to 1776. Except for a brief period ... both chambers have elected a chaplain since the First Congress in 1789.

--When Congress moved to Washington in 1800, churches were so few that the chaplains even took turns conducting Sunday services in the House chamber -- now part of Statuary Hall.

--The constitutionality of the chaplains' prayers was upheld in 1983 by the Supreme Court (Marsh v. Chambers, 463 U.S. 783) on the grounds of precedent and tradition. [ED: This case was actually about the Nebraska state legislature hiring a chaplain, not Congress. --Kip] The Court cited the practice going back to the Continental Congress in 1774 and noted that the custom "is deeply embedded in the history and tradition of this country" from colonial times and the founding of the repeblic. Further, the Court held that the use of prayer "has become part of the fabric of our society," coexisting with "the principles of disestablishment and religious freedom." Subsequently, on March 25, 2004, the U.S. District Court for the District of Columbia, citing Marsh v. Chambers, dismissed a suit that challenged the congressional practice of paid chaplains as well as the practice of opening legislative sessions with prayer.

---

Bottom line: Slippery slopes do happen. Is there any more intellectually bankrupt argument than "tradition"? Truly the last refuge of constitutional scoundrels.

It began as an intensive communing with salient points of our national history, from the Declaration of Independence onwards; with the makings of the Constitution...with the meaning of the Civil War; with the aspiration of the people...
--Pledge of Allegiance author Francis Bellamy

A federal trial judge in California has held that mandatory recitals of the Pledge of Allegiance in schools, even when offset by an "opt-out" provision available to students, violates the Establishment Clause of the First Amendment. The decision is available here (PDF - 30 pages).

I of course think the decision is correct. God is God, public schools are public schools, and the First Amendment is the First Amendment. It's really not that difficult, at least for those who bother to be intellectually honest and who have no ulterior motives.

Here are some quick facts about the Pledge and the current state of the law:

--The Pledge was written by a Baptist minister.

--A Baptist minister who, incidentally, was a Socialist. His cousin, Edward Bellamy, wrote the famous socialist utopian novel "Looking Backward."

--The words "under God" were not added to the Pledge until 1954, as a manifestation of the Cold War, which has now been replaced by a war against, ironically, monotheistic religious fanatics.

--Article VI of the Constitution clearly states that no religious test shall ever be required for public office. While schoolchildren are obviously not running for office each morning, what might that prohibition tell us about the "original intent" of the Framers about religious oaths generally?

--Anyone who claims that it is not an undue burden to expect a child to assert his First Amendment rights by a positive act of remaining silent, or seated, only to face the repercussions of taunts from fellow students and perhaps discrimination from teachers, is delusional. See Lee v. Weisman, 505 U.S. 577 (1992).

--The judge in this case did not find that "the Pledge is unconstitutional." Instead, he found that coerced recital of the Pledge is unconstitutional. This distinction is all-important. Given the Supreme Court's recent Ten Commandments jurisprudence, an assertion that the Pledge itself is unconstitutional would (unfortunately) be specious at best.

--If the Ninth Circuit Court of Appeals affirms the trial judge's decision, then there will be a split among the circuits (the Fourth Circuit has held that "opt-out" pledge recital policies are constitutional). Hence an eventual grant of certiorari by the Supreme Court is practically a given.

Stay tuned...

FUN FACT: In the parochial school I attended for Kindergarten and First Grade, we sang "My Country 'Tis of Thee" instead of reciting the Pledge. Isn't that so much easier? Not a single deity reference to be found.

Other thoughts at De Novo, Cranky B, Colby Cosh.

Suggested Reading:

Remind me again why local hack politicians are so much better than "activist" judges?

Two aldermen [in White House, Tennessee] say league and tournament games should be banned in the municipal park on Sunday mornings for religious reasons.

Alderman Darrell Leftwich wants organized games in White House Municipal Park to be restricted to the 1-4:30 p.m. period on Sundays.

"I am concerned that we are not sending the right message to the community by having tournaments and league play during worship hours," Leftwich said.
...
"God our Father intended the seventh day to be one of rest and worship," Leftwich said during a recent city board meeting.
...
Alderman Farris Bibb Jr. said the city should look into the matter further. "With all due respect to Alderman Leftwich, the seventh day of the week is Saturday," Bibb said.

Talk about "God in the public square."

Even if you argue that closing a park on Sunday mornings is a content-neutral restriction that does not "establish" a government religion, such a ban still fails rational basis review: There is no legitimate state interest in telling an atheist, or Jew, or Buddhist or any other non-Christian, that he can't use a park on Sunday mornings because it offends the Christians down the street.

Alcohol restrictions, sure. Noise restrictions, sure. Unleashed dog restrictions, sure. But "no nuttin' never" restrictions to stroke the (supposedly) Christian egos of some local hack politicians?

I believe the "What would Jesus do?" response is found at Mark 10:14.

Hat tip to Fark.

"My own feeling in the matter is due to my very firm conviction that to put such a motto on coins, or to use it in any kindred manner, not only does no good but does positive harm, and is in effect irreverence, which comes dangerously close to sacrilege..."
--Theodore Roosevelt

For those following the latest litigation by public atheist Michael Newdow, this time to compel the removal of "In God We Trust" from American money, here is a piece I originally published on June 30, 2005:

---

I was going to do a general fisking of this silly op-ed by expelled Alabama Supreme Court Chief Judge Roy S. Moore. You may recall that Moore defied a federal injunction and his own state Supreme Court by installing and then refusing to remove a mammoth stone version of the Ten Commandments in the Alabama Supreme Court building. So disrespectful of the rule of law was he that, in the end, he had to be removed from office by his own state Supreme Court colleagues.

As one might expect, for the most part Moore simply and weakly parrots Justice Scalia's dissent in McCreary County v. ACLU, about which I have already blogged. The fatally flawed Scalia-Moore thesis is that the First Amendment's protection of freedom of religion does not mean freedom from religion, since the United States always has been and is today a Christian, er, Judeo-Christian, er, generically monotheistic nation. Which, of course, is patently untrue.

But then I read this:

Every state constitution acknowledges God and so does our national motto, "In God We Trust."

Now I can't speak to state constitutions, but let's explore the history of "In God We Trust." (My source, from which I am borrowing freely, is here.)

--The original motto at the time of the Founding was of course not "In God We Trust," but rather "E Pluribus Unum," Latin for "Out of Many, One." So any so-called "originalist," which Moore claims to be, should by definition not be excessively loyal to "In God We Trust," since it does not reflect the Framers' intent. Go figure.

--The move to put God into government came not at the Founding but during the Civil War, and it was Treasury Secretary Salmon P. Chase who, pressured by various Protestant religious leaders, first authorized "In God We Trust" on coins. Would we today characterize his actions as those of an "activist" Cabinet member? And since the Civil War is, um, over, do we really need reminding that "God opposes slavery"?

--Congress, meanwhile, did not authorize "In God We Trust" until 1886, and widespread use of the motto on coins did not commence until 1909, and was still not used at all on paper currency. So much for Moore's beloved "framers intent." (And, of course, just because Congress authorizes something doesn't make it constitutional then or now.)

--Even during this period, "In God We Trust" was not the motto of the United States; it was still "E Pluribus Unum." The switch did not occur until 1956, as a reminder that "God opposes Communism." Well, the Cold War is over too, so perhaps it's time to rethink, especially in these "War on Terror," "Red State versus Blue State" times, the preferability of "E Pluribus Unum" over "In God We Trust" (that same god to which, according to Justice Scalia, Osama bin Laden also prays).

--It was also during the McCarthy era (are we proud of those times generally?) that "under God" was added to the Pledge of Allegiance, "so help me God" was added to the Inauguration Oath, and "In God We Trust" was added to paper currency.

When Moore or anyone says that these practices are reflective of "originalism" or "framers' intent" or "a long history of god in government," they, um, lie.

And don't the Ten Commandments have something to say about lying?

---

More thoughts on the Newdow litigation at Downtown Lad.

...they're compensating for some "inadequacy" --

State Rep. Steve Hurst, D-Munford, has prefiled a bill in the Alabama House that would require most Alabama car tags to include the phrase "God Bless America."
...
Hurst said he got the idea when the saw the words "God Bless America" on a specialty prisoner of war car tag. "I thought why don't we do the same thing for all the tags in the state of Alabama. That will let all the people in America know that we are a Bible Belt state," Hurst said.

Of course, one man's "Bible Belt state" is another man's "Redneck state." Go figure.

In any case, the excuse most often put forward for "official religion" (by which, of course, is always meant "official Christianity," since there is no such thing as a practicing "Judeo-Christian" or "Islamo-Judeo-Christian") -- maneuvers such as adding "under God" to the Pledge of Allegiance or "In God We Trust" on money or the hiring of Congressional chaplains -- is that such circumventions of the First Amendment are so "de minimus" as to fall far short of "establishment of religion."

But at some point, piling on layer after layer of "de minimus" expressions of "not quite religion" stops being de minimus and becomes "yes indeed religion." Stated differently, "Be offered an inch, then demand a yard" is not an intellectually honest political tactic. It's also not a particularly Christian approach either.

The other excuse for allowing God in the public square -- namely "tradition" -- is of course wholly inapplicable to a proposal such as this.

More:

State law requires that the phrase "Heart of Dixie" be on Alabama plates. "Heart of Dixie" historically appeared at the top of plates, but was moved to the bottom of the tag when former Gov. Don Siegelman had the plates redesigned and put "Stars Fell on Alabama," also a song title, at the top. Hurst said he believes the plates could be designed so that there would be room for "God Bless America" without removing "Heart of Dixie" or "Stars Fell on Alabama."

Can a law requiring "Sweet Home Alabama" to appear on license plates be far behind? In any case, one wonders how many traffic accidents will now be caused by curious out-of-staters trying to read all the gobbledygook on Alabama license plates.

(Via Fark.)

I've been trying to avoid the putrid swamp that is the Katherine Harris Senate campaign. But it's just too damn hard.

Rep. Katherine Harris (R-Fla.) said this week that God did not intend for the United States to be a "nation of secular laws" and that the separation of church and state is a "lie we have been told" to keep religious people out of politics.

"If you're not electing Christians, then in essence you are going to legislate sin," Harris told interviewers from the Florida Baptist Witness, the weekly journal of the Florida Baptist State Convention. She cited abortion and same-sex marriage as examples of that sin.

Whatever -- an (Evangelical) Christian blathering to (Evangelical) Christians about how (all) Christians are a "persecuted minority" in America (false) and how the United States is "a Christian nation" (false) and how the Framers were all Christians (false). Nothing new in any of that.

But there is also nothing new in this, Harris' post-gotcha spin:

In a recent article published in the Florida Baptist Witness, Congresswoman Katherine Harris was asked to comment on the interplay of faith and politics in the public square. In the interview, Harris was speaking to a Christian audience, addressing a common misperception that people of faith should not be actively involved in government. Addressing this Christian publication, Harris provided a statement that explains her deep grounding in Judeo-Christian values.

This gobbledygook is a particular annoyance to me (though I am not Jewish), and I have blogged about it previously. These (Evangelical) Christians, when they are (or when they think they are) strictly amongst themselves, prattle about "Christian this" and "Christian that." Then, after the gotcha, or when they know that they're no longer safely locked inside their political sanctum sanctorum, they gratuitously, obnoxiously and totally disingenuously stick on that "Judeo-" nonsense, strictly for CYA purposes (by which I do not mean "Christian Youth Association"). It's almost like a "reverse Macaca" effect: the (perceived) ideological purity of your audience determines the ideological purity (and therefore the sincerity) of your word choice.

Don't buy into it. When they say "Christian," they mean Christian, without the "Judeo" (but with the "Evangelical").

When they whine about some lawsuit over a Decalogue in a courthouse, they are not siding with Jews, they are siding against the First Amendment. And as I have said more than once, I am still waiting to meet someone who introduces himself as a "practicing Judeo-Christian." (See also here.)

Just as gays must certainly realize by now that it is prima facie evidence of self-loathing to be a Republican in the current environment, so too should Jews start acknowledging that when the social conservatives say "Christian," it is not shorthand for "Judeo-Christian."

Do you really want to risk them eventually treating you the way they treat us?

More thoughts from Below the Beltway.

Where does the following generally take place?

Participants at Faith Center's meetings generally "(a) discuss educational, cultural, and community issues from a religious perspective; (b) engage in religious speech and religious worship; and (c) engage in discussing the Bible and other religious books [as well as] teaching, praying, singing, sharing testimonies, sharing meals, and discussing social and political issues."

If you answered "in a church," then congratulations -- you are not a flaming idiot.

If you answered "in a taxpayer-funded public library," then too bad so sad, you lose and thanks for playing:

In any event it is simply beyond cavil that the instant case does not present a close question. Appellees have been completely candid in acknowledging that the purpose of the meetings they proposed to hold on public property is "Prayer, Praise and Worship Open to [the] Public, Purpose to Teach and Encourage Salvation thru Jesus Christ and Build Up Commun[ity]." To assert an inability to conclude that purpose is religious in every sense, is to engage in the kind of sophistry that gives the law a bad name.

There are plenty of cases where opponents of the separation of church and state -- including of course the Bush Administration -- try to erode what is really a rudimentary constitutional concept (see., e.g., here). But this one was so easy as to be laughable.

More:

It may be that the majority of the Supreme Court really has doubt about the ability to distinguish between religious practice and secular speech. If so, they need only leave their chambers, go out in the street and ask the first person they meet whether in the instant case the conduct is religious in character.

Ouch.

It is said that "hard cases make for bad law." Perhaps we should think instead in terms of "good law makes for easy cases."

---

The case is Faith Center Church Evangelistic Ministries v. Glover, No 05-16132 (9th Cir., September 20, 2006) (PDF - 59 pages).

(Via Decision of the Day and How Appealing.)

As I understand it — and it can be very difficult to understand — the Supreme Court's current thinking regarding religious displays on government property, and particularly displays of the Ten Commandments in courthouses, goes something like this:

As part of a comprehensive tribute to "important historical symbols and figures," the Ten Commandments are a permissible display. There is nothing intrinsically wrong with a Decalogue in a courthouse; it is not, without more, a violation of the First Amendment. Van Orden v. Perry, 545 U.S. 677 (2005).

However, if a Ten Commandments display has undue prominence, which includes the case of a large Decalogue displayed by itself, then that constitutes an endorsement of a particular religious viewpoint and therefore violates the Establishment Clause. McCreary County v. ACLU, 545 U.S. 844 (2005).

Armed with that, let's pay a visit to Dixie County, Florida:


Is a six-ton chunk of granite, alone and smack dab in the middle of the courthouse entrance, a display of "undue prominence"?

Only if you have your eyes open, an IQ over 80, and no ulterior motive.

Two additional, interrelated hasty stitches:

1. Only four of the Ten Commandments — which, incidentally, are part of Jewish and (arguably) not Christian beliefs — are in any way related to modern legal doctrines or concepts. So why are militant Christians so obsessed with getting them into the courthouse?

2. By the same token, how come you never see any militant Christians offering to erect six-ton granite monuments to the Golden Rule? Could it be because it's a bit too libertarian for militant Christians? Stated differently, why do "Christian conservatives" spend so much more time being "conservative" than being "Christian"?

(Via How Appealing.)

Standing athwart the First Amendment, yelling what?

The American Civil Liberties Union sued the city of Slidell [Louisiana] on Tuesday for displaying a painting of Jesus in a courthouse lobby, saying it violates the constitutional separation of church and state.

The ACLU sued after the Slidell City Court refused to voluntarily remove the picture and a message below it that reads: "To Know Peace, Obey These Laws." The ACLU says the portrait -- an image of Jesus presenting the New Testament -- is a religious icon of the Eastern Orthodox branch of Christianity.
...
On Saturday, [City Judge James] Lamz said the picture would stay up unless a federal judge ordered it removed.

I'll give Lamz credit for this much: at least he's being a bona fide Jesus Freak rather than engaging in the typical, and cowardly, tactic of sneaking religion into a courthouse via a Decalogue (even though only four of the Ten Commandments actually concerns secular law). I've noted previously the bizarre fact that radical Christian theocrats seem to obsess with the Decalogue rather than the Golden Rule.

The city, meanwhile, of course has no leg to stand on. The twin cases of McCreary County v. ACLU, 545 U.S. 844 (2005) and Van Orden v. Perry, 545 U.S. 677 (2005) set the goalposts through which such wink-wink theocracy maneuvers must be kicked. A single religious icon, whether purportedly "law related" or not, cannot be displayed in a courthouse (or any other public building). Such items can only be included as part of a broad-based, otherwise permissible secular display. So unless the City of Slidell wants to invest in a new, secular art collection to surround it, the Jesus painting must go. It's a slam dunk -- and a judge should know that.

Of course, Judge Lamz almost certainly does know that. He just doesn't care. God be praised!

(Cross-linked to Blog Against Theocracy.)

"[T]he Founders of our Republic knew the fearsome potential of sectarian religious belief to generate civil dissension and civil strife. And they also knew that nothing, absolutely nothing, is so inclined to foster among religious believers of various faiths a toleration — no, an affection — for one another than voluntarily joining in prayer together, to the God whom they all worship and seek."
--Lee v. Weisman, 505 U.S. 577 (1992) (Scalia, J., dissenting)

When it comes to radical Evangelicals, I'm still a bit unclear as to what isn't an "abomination" —

A Hindu clergyman made history Thursday by offering the Senate's morning prayer, but only after police officers removed three shouting protesters from the visitors' gallery.

Rajan Zed, director of interfaith relations at a Hindu temple in Reno, Nev., gave the brief prayer that opens each day's Senate session. As he stood at the chamber's podium in a bright orange and burgundy robe, two women and a man began shouting "this is an abomination" and other complaints from the gallery.
...
For several days, the Mississippi-based American Family Association has urged its members to object to the prayer because Zed would be "seeking the invocation of a non-monotheistic god."

The question of whether there should even by taxpayer-funded Congressional chaplains, or opening prayers by a round-robin rotation of assorted clerics, isn't the real issue here. The important point is that when radical Evangelicals speak of "God," they mean their God, and no one else's. When they say "religion," they mean their religion, and no one else's.

Exhibit B is of course Mitt Romney — who, you may recall, is Satan.

Which is not to say that Evangelicals aren't duplicitous about the subject when it suits them. Whenever it's convenient for them, they will of course speak of one big happy Christianity — including Mormons and Catholics and lots of other franchises (but not the U.C.C.!). Indeed, in public the theocratic sects go to great lengths to speak publicly (i.e., in mixed company) of "Judeo-Christian" values, even though there is no such thing as a practicing Judeo-Christian; the word is a self-contained oxymoron.

The pinnacle of this inanity was of course Justice Scalia's hopelessly bizarre, indeed disturbed, dissent in McCreary County v. ACLU, 545 U.S. 844 (2005), in which he jumped the shark and advocated granting special rights to "monotheists" at the expense of atheists' (and — one must conclude — Hindus', Buddhists', pagans' and Wiccans') Establishment Clause claims — as if Muslims were as a group more interested in picnicking with Jews than with annihilating them.

So, if the Christian malcontents who disrupted the Senate had chosen to sue rather than to shout, then at least one high jurist would have agreed with them and held that the First Amendment could accommodate, not only having congressional chaplains and prayers, but also limiting them to clerics of "God-seeking" monotheism — the Founders' apparent "one true religion" religious supercategory.

More thoughts at Dorf on Law, Wall of Separation.

...than one unconstitutional monument come down:

This morning, the city of Casper [Wyoming] will dedicate a new historic monument plaza made up of six large, granite monuments that include the Ten Commandments.

In 2003, the Ten Commandments were put into storage after an out-of-state group threatened to sue the city for displaying a religious monument on public property.

The five other monuments are: The Declaration of Independence, the Preamble to the U.S. Constitution, the Mayflower Compact, the Bill of Rights and the Magna Carta -- which, unlike the Ten Commandments, are all documents of secular law and governance. So the idea that a Decalogue belongs among them is an insolent farce.

It remains to be seen whether a post hoc amalgam of secular displays to "rescue" an unconstitutional religious display meets the standard of Van Orden v. Perry, 545 U.S. 677 (2005). Under this Supreme Court, it almost certainly would.

And that's an abomination.

(Via Religion Clause by way of Wall of Separation.)

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POST SCRIPT: Strictly secular?

Adding to the controversy, the Rev. Fred Phelps of the Westboro Baptist Church of Topeka, Kan., offered to place a monument anywhere on city property declaring that slain gay University of Wyoming student Matthew Shepard is in hell.

Lord, what ghouls these theocrats be!

To review: The Supreme Court held in McCreary County v. ACLU, 545 U.S. 844 (2005), that a Decalogue could remain displayed on Texas courthouse property because it was part of a comprehensive secular display.

The case was backward-looking, essentially saying that — since the monument had already been there for several decades — it was entitled a level of deference that such religious displays would not normally receive. Fair enough.

But notice how the McCreary exception has been abused by theocrats recently. First we had Casper, Wyoming, wasting taxpayer money erecting a secular display around a lone Decalogue in order to rescue it from a First Amendment challenge. Because the more obvious and less obnoxious solution — remove the Decalogue — would apparently have been an abomination.

All this theocratic sturm und drang despite the fact that such remedial actions are not necessarily sanctioned by McCreary, which concerned already existing comprehensive displays and not post hoc efforts to "rescue" what would otherwise be impermissible. Stated differently, "was then and is now permissible" is not the same as "wasn't then but is now permissible." It's simply a different fact pattern.

In any event, theocrats in Berkley, Michigan, are now pushing the envelope even further:

City voters will get a chance in November to decide whether they want the city to display a nativity scene and other holiday symbols on City Hall property for the Christmas season.
...
The petition calls for the city to display the nativity scene along with secular holiday icons so that it is in compliance with existing law, which prohibits displays of only Christian religious icons on government property.

This insolence is the reciprocal of the Casper fact pattern. Rather than build a secular display around the religious icon, voters will now be invited to compel the erection of a religious icon within a pre-existing secular display.

...voters will now be invited to compel the erection of a religious icon...

Can you imagine a more unconstitutional act? How could such a vote not be deemed "the establishment of religion"?

What's next? Mandating a church be built on city property, right between the (secular) public library and the (secular) public swimming pool?

The mind reels.

The activist theocrats, so many of whom apparently seem to suffer from the jurisprudential equivalent of obsessive-compulsive disorder, will always concoct new ways to try twist and distort case law and the First Amendment, to try to blur the line between "God's house" and the courthouse. They will never run out of abominations to try to impose on others.

(Via Religion Clause.)

This is not to deny that the Commandments have had influence on civil or secular law; a major text of a majority religion is bound to be felt. The point is simply that the original text viewed in its entirety is an unmistakably religious statement dealing with religious obligations and with morality subject to religious sanction. When the government initiates an effort to place this statement alone in public view, a religious object is unmistakable.
--McCreary County v. ACLU, 545 U.S. 844 (2005)

The sole function of the monument ... is to display the full text of one version of the Ten Commandments. The monument is not a work of art and does not refer to any event in the history of the State. It is significant because, and only because, it communicates the following message: ... This State endorses the divine code of the "Judeo-Christian" God.
--Van Orden v. Perry, 545 U.S. 677 (2005) (Stevens, J., dissenting)

A bizarre (i.e., dead wrong) Decalogue case in the Ninth Circuit:

The monument at the heart of this dispute was donated to the City of Everett [Washington] in 1959 by the local aerie (chapter) of the Fraternal Order of Eagles, a national civic organization. It sits adjacent to Old City Hall on public land under the City's control. The Old City Hall building itself now houses only the police department. The monument, which is located along a sidewalk about forty feet north of the entrance to the building, is constructed of granite and stands about six feet tall. Its main feature is an inscription of a non-sectarian version of the Ten Commandments[.]

Since this is essentially an identical Eagles-donated monument to the one upheld in Van Orden v. Perry, the Ninth Circuit chooses that Supreme Court precedent over its companion case, McCreary County v. ACLU, and upholds this Decalogue's continued presence on government property.

What I always took away from the "McCreary - Van Orden" Decalogue bifurcation was not that a Ten Commandments display on government property would be permissible if it "reflects a primarily secular purpose" (since, of course, it is beyond delusional to suggest that there can ever be a truly secular purpose to a Decalogue -- it is a purely religious symbol with a purely religious message; any suggestion to the contrary is the most insolent sophistry).

Instead, the only workable "McCreary - Van Orden test" is:

• Decalogue as "one among equals" in a series of historical or legal displays: permitted under the First Amendment


• Decalogue standing alone: Establishment Clause violation

Simple, easily applied, and at least somewhat rationally anchored.

This is why I say that the Everett case is "bizarre" -- it falls not on the Van Orden side of the line at all but obviously on the McCreary side! The fact that "it's the same FOE monument" completely omits the "collection of items" context of Van Orden, especially relative to the "stands alone" counterexample of McCreary.

"Eagles Decalogues are okay" simply was not the holding of Van Orden, and "stand-alone Decalogues are not okay" simply was the holding of McCreary. The Everett Decalogue was irrefutably a "McCreary Decalogue," not a "Van Orden Decalogue," and the Ninth Circuit was irrefutably wrong to invoke the latter case rather than the former.

That's my ruling. Any dissents?

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Meanwhile, is this case a victory for the theocrats who can't seem to tell the difference between a courthouse and a church?

The City's intent is the key here, and nothing apart from the monument's text suggests a religious motive on the City's part. We reject Card's assertion that the presence of clergy at the dedication ceremony distinguishes this situation from Van Orden. All indications in the record are that the Eagles arranged and funded the dedication. While the Mayor was present to accept the monument, as noted above, the City had many plausible secular reasons for accepting the gift, and we will not infer a non-secular purpose. We agree with the City that there is also some contemporary historic relevance to the monument -- as a testament to the Eagles' lengthy relationship with, and contributions to, the City.

So the reason stand-alone Decalogues on government property are not necessarily problematic under the First Amendment is because the Ten Commandments are no big deal? There are "many plausible secular reasons" to brandish a Decalogue in public? Decalogues can, indeed should, be viewed merely as the civic organization equivalent of a greeting card?

If I were a theocrat -- indeed if I were simply a non-theocratic Jew or Christian -- I would not be pleased to see a Decalogue disrespected in this manner.

Also:

The district court judge visited Old City Hall, and observed that there was "an air of neglect or disregard," in the display of the monument. Discussing the 1988 relocation, the court noted that "[n]ot only was it moved off of its corner perch ... but the City opted to relocate it to a spot behind one of the three War Memorial monoliths and almost surrounded by trees and shrubs that significantly impair most views of the monument."

Again: If I were a theocrat -- indeed if I were simply a non-theocratic Jew or Christian -- I would not be pleased to see a Decalogue disrespected in this manner.

Win the battle, but lose the culture war?

The case is Card v. City of Everett, No. 05-35996 (9th Cir., March 26, 2008) (PDF - 26 pages)

More thoughts from Wall of Separation.

A Stitch in Haste recommends the following report from the Congressional Research Service:

The Law of Church and State:
General Principles and Current Interpretations
From the summary:

The First Amendment of the U.S. Constitution prohibits the government from establishing a religion and guarantees citizens the right to freely exercise their religion. The U.S. Supreme Court has clarified the scope of these broad guarantees. This report provides an overview of the governing principles of the law of church and state. It explains the legal requirements for challenges under the Establishment Clause and Free Exercise Clause and the standards used to evaluate such challenges.

The six-page report includes, inter alia, a review of the standing requirement, the "excessive entanglement" test of Lemon v. Kurtzman*, prayer in public schools, Decalogue displays on public property (cf., my recent post), and the statutory provisions of the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. An excellent primer for non-lawyers.

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*403 U.S. 602 (1971)

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Previous CRS Recommendations:
Constitutional Limits on Hate Crime Legislation
Same-Sex Marriage — Legal Issues
Saudi Arabia
The National Debt
Restricting Video Game Sales to Minors
Warrantless Wiretapping
Foreign Holdings of Public Debt
China's Internet Censorship
Summary of Rumsfeld v. FAIR

Two lawsuits handed down from the mountaintop —

ITEM: A Kentucky theocrat trying to sneak a Decalogue into a county courthouse under the "comprehensive historical display" exception of McCreary County v. ACLU, 545 U.S. 844 (2005), was too clever for his own good:

Reverend Shartzer's public comments demonstrate that he had a clear religious purpose for requesting to erect the Foundations Display. The September 18, 2001, minutes of the Grayson County Fiscal Court reflect that "Reverend Chester Shartzer addressed the Court concerning his desire for the County to place the Ten Commandments in the County buildings." Reverend Shartzer indicated that "there were several Counties in the State who ha[ve] them in their Courthouses." The minutes further reveal that Reverend Shartzer "explained that some Counties ha[ve] them hanging in a group of other historical documents. He said he thought the Civil Liberties would look more favorable toward it if they were hanging in a grouping with the other historical documents."

The trial court had little choice but to acknowledge the open and notorious disingenuousness of the theocrat's wink-wink "sure it's secular" pretense, and subsequently struck down the display — which most likely would otherwise have withstood scrutiny under the McCreary - Van Orden bifurcation. An appeal is reportedly planned.

Meanwhile, the truly "Christian" approach — not trying to force your faith on others in the first place — never came up. Go figure. (ACLU of Kentucky v. Grayson County, NO. 4:01CV-202, March 27, 2008) (PDF - 23 pages). (Via Religion Clause.)

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ITEM: The Supreme Court has granted certiorari in a case concerning an unusual Decalogue fact pattern in Utah:

In this case, a religious group that operates from a pyramid outside Salt Lake City wants to place what it calls the Seven Aphorisms in a city park, contending that the words are lesser-known instructions that Moses received from God.

Pleasant Grove City, Utah, said no. But a federal appellate court has agreed with the religious group Summum — founded in 1975 by its leader, Summum "Corky" Ra — that if a city accepts the Ten Commandments, it opens itself to requests from others and may not discriminate.

From a reality-based perch, I'd love to be sympathetic to the politicians and bureaucrats of Pleasant Grove City. (That would pretty much be a first for me as far as Utah is concerned.) It simply cannot be the case that anyone and everyone who wants to erect a permanent monument in a public park must be allowed to do so (anyone want to chip in for a Nat Taggart statue?).

But it also simply cannot be the case that the aforementioned politicians and bureaucrats should have plenary authority to decide — based on whim, caprice and political expediency (both licit and illicit) — which monuments will and will not be approved. If no reasonable and equitable standard can be crafted, then the only viable standard is no monuments at all — or at least no religious monuments. Which would of course be perfectly reasonable and equitable to absolutely everyone — except the theocrats who created this mess in the first place. Go figure. (Pleasant Grove City v. Summum, No. 07-665.)

....there is an equal and opposite bad Scalia sentence:

Thomas Jefferson and the other founding fathers never intended to eliminate religion from government.

That remark made, incidentally, in his speech accepting the "Thomas Jefferson Foundation Medal in Law." Go figure.

The truth shall set you free:

I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline or exercises. ... I do not believe it is for the interest of religion to invite the civil magistrate to direct its exercises, its discipline, its doctrines, nor of the religious societies that the general government should be invested with the power of effecting any uniformity of time or matter among them.

Lots more here (PDF - 6 pages).

Another quick Scalia v. Jefferson:

Scalia: "With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists." (McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) (Scalia, J., dissenting).

Jefferson: "The legitimate powers of government extend to such acts only as are injurious to others. But it does me no injury for my neighbor to say there are twenty gods, or no God. It neither picks my pocket nor breaks my leg."

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If you need a tiebreaker, Sally Kern is always available:

Kern: "Matter of fact, studies show, that no society that has totally embraced homosexuality has lasted more than, you know, a few decades."

Jefferson: "History, I believe, furnishes no example of a priest-ridden people maintaining a free civil government. This marks the lowest grade of ignorance, of which their civil as well as religious leaders will always avail themselves for their own purposes."

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The "good Scalia sentence," recall, was here..

I recently wrote the following regarding a Decalogue lawsuit:

So the reason stand-alone Decalogues on government property are not necessarily problematic under the First Amendment is because the Ten Commandments are no big deal? There are "many plausible secular reasons" to brandish a Decalogue in public? Decalogues can, indeed should, be viewed merely as the civic organization equivalent of a greeting card?

If I were a theocrat -- indeed if I were simply a non-theocratic Jew or Christian -- I would not be pleased to see a Decalogue disrespected in this manner.

Well, what's good for the Old Testament is good for the New.

Plaintiffs [i.e., the ACLU] filed suit after Defendants displayed the icon of Jesus Christ in the foyer of the City Court of Slidell [Louisiana]. Plaintiffs contend that Defendants' display served the purpose of advancing, promoting or endorsing Christianity, in violation of the Establishment Clause of the First Amendment.
...
Defendants changed the display prior to and in anticipation of the hearing on the Motion for Preliminary Injunction. The Court noted that the modified display containing various historical lawgivers under the caption, "To Know Peace, Obey These Laws," was not in violation of the Constitution; however, the initial arrangement of solely Jesus Christ violated the Establishment Clause.

I first noted this disgraceful church-and-state violation back in July 2007.

This latest smackdown of icon-based theocracy is a straightforward application of what I have dubbed the McCreary County - Van Orden Decalogue bifurcation: Be too obnoxiously overt in your rabid theocratic mania (i.e. by having only a Decalogue or only a portrait of Jesus on public property) and you lose your First Amendment lawsuit because you've pulled a McCreary County.*

But be clever and cunning (i.e., lie) about your intentions, and dilute the Ten Commandments to "just another set of historical laws" -- or, as here, demote Jesus to "just another lawgiver" (along with, e.g., "Moses, Charlemagne and Napoleon") -- and you can joyously traipse your way to the Van Orden** side of the line. No "excessive entanglement," no "religious intent," no problem.

Of course, by evangelical Christian standards, you've blasphemed by doing so (and violated a few other Commandments along the way). But what's a little ends-means Machiavellianism among friends (or especially among enemies) when it's done in God's name?

Just as I don't see how it furthers American "Jesusland" monotheism to assert that the Ten Commandments is not above the Mayflower Compact or the Code of Hammurabi, I'm also not quite sure how it furthers evangelical Christianity to equate Jesus with Napoleon. But if it gets their Lord and Savior™ into the county courthouse, then gosh darn it that's what they're going to do. Amen.

The case is ACLU of Louisiana v. Slidell, No. 07-3574 (E.D. La., April 16, 2008) (PDF - 16 pages).

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Just to be clear, this particular litigation was merely about whether the theocrat defendants should pay the ACLU attorney fees and nominal damages. Both sides stipulated that the theocrats violated the First Amendment with the "Jesus only" display but then fixed their error (i.e., with the "fifteen lawgivers" display) before the substantive lawsuit could be heard. The court sided with the ACLU based mainly on Fifth Circuit precedent.

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*McCreary County v. ACLU, 545 U.S. 844 (2005)
**Van Orden v. Perry, 545 U.S. 677 (2005)

Fascinating case study in theocratic majoritarianism versus secular libertarianism:

In a 7-1 majority vote Monday night the Charles Town [West Virginia] City Council decided to institute a moment of silent prayer, thus abolishing the decades-long tradition of reciting the Christian-specific Lord's prayer before the beginning of each meeting.
...
Charles Town Mayor Peggy Smith, who did not vote on the issue, said she was disappointed in the council's decision but understood why it was made. "I understand why they did what they did after listening to legal advice. We cannot place the citizens in jeopardy with a lawsuit. So I do understand their vote but it doesn't make me happy about it," Smith said.
...
[Geraldine] Willingham, who cast the dissenting vote [and] described Charles Town as a "Christian town" at the council's last meeting, was not pleased by the council's decision to do away with the recitation of the Lord's prayer.

"I think it's a sad day for Charles Town where we cannot start our council meetings off with the Lord's prayer all because of one negative person. That's my comment," Willingham said after Monday's meeting.

Some hasty stitches:

--The "one negative person" was a Jew, not an atheist. Of course, to most hillbilly Christians like Willingham, there's little point in distinguishing between Jews, atheists, agnostics, whatever -- they're all equally un-American and all equally devoid of First Amendment protection (not to mention equally hellbound). Stated differently, there are still people -- elected leaders -- who actually believe, in the Twenty-First Century, that there can be such a thing as a "Christian town" in what was once known as the "land of the free."

--Based on the media account, it appears that the theocrats couldn't even be bothered to engage in the wink-wink of calling their new invocation a "moment of silence" rather than a "silent prayer." The simple, uncomplicated First Amendment notion that maybe, just maybe, a city council chamber ought not be used as a church is simply incomprehensible to these "dedicated public servants."

--Speaking of which, note that these theocrats did not stop their flagrantly unconstitutional* practice out of any moral epiphany. They stopped the practice because their lawyers told them to. That's better than nothing, I suppose, but it's hardly praiseworthy.

(Via Religion Clause.)

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Elsewhere:

Conservative Christian leaders who believe the word "evangelical" has lost its religious meaning plan to release a starkly self-critical document saying the movement has become too political and has diminished the Gospel through its approach to the culture wars.

The statement, called "An Evangelical Manifesto," condemns Christians on the right and left for using faith to express political views without regard to the truth of the Bible, according to a draft of the document obtained Friday by The Associated Press.
...
Richard Land, head of the public policy arm for the Southern Baptist Convention, said through a spokeswoman that he has not seen the document and was not asked to sign it.

James Dobson, the influential founder of Focus on the Family, a Christian group in Colorado Springs, Colorado, did not sign the document, said Gary Schneeberger, a Dobson spokesman.

This is similar to the observation that too many secular Muslims in the U.S. and Europe and not doing enough to "take back Islam" from extremists who spawn terrorism and violent intolerance in the name of a supposed "Religion of Peace."

To the extent that these non-political Evangelical leaders make noise against the radical anti-Christians in their midst -- especially Dobson (who, recall, is not a credentialed cleric in any church) -- I can only say, "praise be unto them."

(Via Wall of Separation.)

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*Marsh v. Chambers, 463 U.S. 783 (1983) (Inapplicability of First Amendment to opening a legislative session with a prayer presupposes that "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief.") Note that I of course consider Marsh wrongly decided in that all legislative prayer sessions ought to be deemed facially unconstitutional, and not just those that are both openly and notoriously sectarian and unambiguously hostile to non-Christians -- as the Lord's Prayer unarguably is.)