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Rulings not etched in stone: the recent Supreme Court decisions on the legality of placing the Ten Commandments in public places--one allowing their exhibition, and one disallowing them--illustrate the twisted logic of the anti-religious justices.

Moses would not have been pleased. The Supreme Court seemed to be halting between two opinions when, on June 27, the justices narrowly upheld a Texas Ten Commandments display while striking down another display in Kentucky. Each was a 5-4 decision. Chief Justice Rehnquist and Justices Scalia, Thomas, and Kennedy voted to uphold both displays, while Justices Souter, Stevens, Ginsburg, and O'Connor voted to strike down both. Justice Breyer cast the deciding vote for the Texas display and against the Kentucky display.

The cases were slightly different. The Texas monument had been placed on the state capitol grounds by the Fraternal Order of Eagles in 1961 and stood amid at least 16 other monuments and 21 other markers commemorating people, ideals, and events that compose Texan identity. The Kentucky display was installed in 1999 in a ceremony with religious overtones, and stood by itself until challenged. After the challenge, officials surrounded the Ten Commandments with framed copies of the Magna Carta, the Declaration of Independence, the Bill of Rights, the Star Spangled Banner, the National Motto, the Preamble to the Kentucky Constitution, and a picture of Lady Justice. But in the view of five Supreme Court justices, this addition was too little and too late to purge the display of the religious taint they deem unconstitutional. The Court concluded that the Ten Commandments are a religious document and that the county officials established the display for a religious purpose, so the display violates their interpretation of the Establishment Clause of the First Amendment.

The Establishment Clause says that "Congress shall make no law respecting an establishment of religion." The clear intent of the Founders in creating the Establishment Clause was this--first, to prevent a federal establishment of religion, and second, to stop the federal government from interfering in the expression of religion in states--either by citizens of the state, by local communities, or by state governments. In fact, the intent of the entire Bill of Rights was to put limits on the federal government, not on state governments--that is what state constitutions were for. However, for many years now, activist courts have used a part of the Fourteenth Amendment (no state shall "deprive any person of life, liberty, or property, without due process of law") as "justification" for applying the Establishment Clause and other parts of the Bill of Rights--as interpreted by the Supreme Court--to the states, thereby giving the federal judiciary the power to control state laws. (The Fourteenth Amendment was originally adopted to end the effects of slavery in the South.)

The Ten Commandments cases may seem like a split decision, with one Ten Commandments display approved and the other disapproved. But the Kentucky case (McCreary County v. ACLU) may carry greater weight, for the Kentucky decision was a "majority ruling," while the Texas decision (Van Orden v. Perry) was only a "plurality ruling" since Justice Breyer concurred specially but did not join the Rehnquist opinion. Plurality opinions have precedential value but are not as binding as majority opinions.

In supporting the Kentucky opinion, Justice Souter utilized the Lemon test, from a 1971 case called Lemon v. Kurtzman, which analyzes Establishment Clause cases pursuant to a three-part test: (1) Does the government activity have a secular purpose? (2) Does its primary effect neither advance nor inhibit religion? (3) Does the activity foster excessive entanglement of government with religion? (A later decision combined the last two prongs of this test.) In use, this test states that if the government activity being judged under the Establishment Clause does have a secular purpose, does not advance or inhibit religion, and does not excessively entangle government with religion, the activity is legal.

Note that, at least until now, the Lemon test asked only whether there was a secular purpose. The secular purpose did not have to be the only purpose or even the primary purpose; it only had to be a genuine or bona fide purpose. Now, however, Justice Souter has ratcheted up the secular purpose prong. Besides being "genuine," Souter wrote, the secular purpose must be "not merely secondary to a religious purpose." It sounds as though Sourer is saying the secular purpose must be the primary purpose--something the Supreme Court has never said previously. If future decisions follow Souter's reasoning, it will be far more difficult for government activities to survive First Amendment challenges--not just in Ten Commandments displays, but all kinds of Establishment Clause cases.

According to Souter, the Ten Commandments display constitutes state endorsement of the Commandments and of the religion the Commandments represent. (One might ask which religion this is, since the Ten Commandments are endorsed by all denominations of Christianity, Judaism, Islam, and many other religions.) This endorsement, Souter points out, is offensive to those who do not accept them, and even sends a "message of exclusion" to such nonbelievers that they are "outsiders." Somehow, this violates nonbelievers' First Amendment guarantee to be free from a state establishment of religion.

To put it bluntly, this is utter nonsense. Nothing in the First Amendment guarantees that you or I will never be exposed to anything that offends us. Conservative Christians, above all, should be aware of this. And nothing in the Constitution gives me the right to require the removal of anything that offends me. One dangerous byproduct of Souter's reasoning is that it may encourage "eggshell plaintiffs" who go around looking for something to be offended about.

A better suggestion for all of us is to "lighten up" a little and not get offended every time we see or hear something with which we disagree. If we are to continue to live in a free and open society, this is more than a suggestion; it's a virtual imperative.

Some say these decisions don't matter too much, because we are still free to display the Ten Commandments in our churches, synagogues, and homes. They miss the point. Yes, the Commandments do belong in our homes and churches, but they also belong in the public square. For the Ten Commandments are the moral foundation of law. They summarize the basic principles on which our legal system was based: respect for life, as found in the Commandment "Thou shalt not kill" and in our homicide statutes; respect for property, as found in the Commandment "Thou shalt not steal" and in our theft and property laws; respect for truth as found in the Commandments "Thou shalt not bear false witness" and "Thou shalt not take the Name of the Lord thy God in vain" (which prohibits perjury as well as blasphemy); respect for family, as found in the Commandments "Thou shalt not commit adultery" and "Honor thy father and thy mother" and in the central role of the family in our legal system as the basic unit of society; and respect for God, as the source of governmental authority and also as the source of human rights.

The central historical documents of our legal system have consistently recognized this, from the Book of Dooms of King Alfred the Great and the Magna Carta to (in more recent times) the Mayflower Compact and the Treaty of Paris of 1783 by which England recognized American independence. The Declaration of Independence based our right to independence on "the Laws of Nature and of Nature's God," our claim to equality on our having been "created equal," and our human rights on their endowment by the "Creator." The signers of the Declaration appealed to the "Supreme Judge of the Universe" for the rectitude of their intentions and rested upon a "firm reliance upon Divine Providence" for their protection. Under the ACLU's analysis of the Establishment Clause, the Declaration of Independence is unconstitutional! Surely this was not the intent of the Founding Fathers.

But the liberal justices on the Court have repeatedly demonstrated that they care little for the intent of the Framers. Overlooking the many statements by the Founders about the necessity of basing our political system on God's laws, Souter, in an incredibly shallow historical analysis, questions whether the Founding Fathers were orthodox Christians and suggests that George Washington may have been a deist though he acknowledges this is not conclusive. Stevens, in an only slightly less shallow analysis, suggests the opposite, that the Framers probably intended that the First Amendment protect religious freedom for Christian denominations only and not for others. However, he suggests this not to approve of the Framers' intent but instead to demonstrate that their intent must not govern our interpretation today!

Justice Scalia, whose pen is mightier and sharper than many a sword, eviscerated the liberal opinions. Scalia is known for his scathing dissents, and his Kentucky dissent is one of his best. With the consummate skill of a champion swordsman, he dashingly cuts through the fallacies of Souter's majority opinion and demonstrates that our constitutional system can survive only with a moral and religious populace, and that public acknowledgement of God and His Law is essential to our survival as a free and moral people. "Nothing," he declares, "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."

Sometimes dissenting opinions form the foundations for majority opinions later. Hopefully future Supreme Court justices will study Justice Scalia's dissenting opinion and adopt it as their own.

Justice Thomas also deserves credit for his concurrence with Rehnquisrs opinion in the Texas case. In response to those who say Ten Commandments displays are unconstitutional but phrases like "In God We Trust" or "One Nation Under God" are permissible because they are devoid of true religious content, Thomas declares that "repetition does not deprive religious words or symbols of their traditional meaning. Words like 'God' are not vulgarities for which the shock value diminishes with each successive utterance."

As Cecil B. DeMille, who filmed the classic movie The Ten Commandments, said in the prologue of the original uncut version of the movie:
 Ladies and Gentlemen, young and old ... we have an unusual
 subject: the birth of freedom. The story of Moses.
 The theme of this picture is whether men ought to be ruled
 by God's laws or whether they are to be ruled by the whims
 of a dictator like Ramses. Are men the property of the State
 or are they free souls under God? This same battle continues
 throughout the world today.


John Eidsmoe, a retired Air Force lieutenant colonel, is Senior Staff Attorney with the Alabama Supreme Court.
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Title Annotation:CONSTITUTION CORNER
Author:Eidsmoe, John
Publication:The New American
Geographic Code:1USA
Date:Aug 8, 2005
Words:1757
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