Thursday, March 03, 2005
Supreme Court Justices Rehnquist, Scalia, and Thomas believe the U.S. Constitution allows States to establish official Churches. Is this our future?
By Mister Thorne
The Supreme Court is scheduled to hear the case of McCreary County v. ACLU on March 2, 2005, and there is much more to this case than the just the issues in dispute.
The McCreary case is about a display of the Ten Commandments in a county courthouse in Kentucky. Included with the display is a notice saying the commandments are part of the foundation of our system of laws and our government. The ACLU wants the display removed, and a federal judge has ordered the county to get rid of it more than once.
The county claims the Ten Commandments "are the foundation of our law." What better place for them than the courthouse? But the ACLU says that posting the Ten Commandments in a courthouse violates the Establishment Clause of the First Amendment, which says, "Congress shall make no law respecting an establishment of religion."
Siding with the county is the Rutherford Institute, which is often involved in Establishment Clause cases. It filed a brief in the McCreary case claiming that previous Supreme Court decisions "have turned the entire First Amendment on its head." As the Rutherford Institute sees it, the real purpose of the Establishment Clause is to protect the right of each state to regulate religion, or to establish an official church, if that’s what the people want.
According to the Supreme Court, the Establishment Clause applies not just to Congress, but to the states and local governments as well. By the court’s reasoning, the reference to Congress in the First Amendment can be replaced with any government entity such as state or school board or mayor. It doesn’t matter. No element of government can infringe the rights mentioned in the First Amendment and, so far as the Establishment Clause is concerned, no branch of the government can show a preference for one religion over another, or for religion at all. So says the Court.
The Rutherford Institute is not alone in its thinking, and it has allies on the Court, like Justice Antonin Scalia who claims the clause was only meant to "protect state establishments of religion from federal interference." It has an ally in Chief Justice Rehnquist who claims the clause was merely intended to prohibit the federal government from establishing a national church, and it has a faithful ally in Justice Clarence Thomas who claims that applying the Establishment Clause to the states (or school boards or mayors) "prohibits exactly what the Establishment Clause protected."
What sort of things, according to the Rutherford Institute and its allies, does the Establishment Clause protect? Just consider a few Supreme Court cases that were decided by replacing Congress with something else:
In 1961, the Court decided that the State of Maryland couldn’t require public officials to declare a belief in God, even if Maryland’s constitution says they must.
In 1962, the Court decided that the State of New York couldn’t require public school students to recite an official prayer, even if students who object are excused.
In 1963, the Court decided that a local school board couldn’t require students to read the Bible or recite the Lord’s Prayer, even if no one -- not one student or parent or teacher -- objects to the requirement.
Leave Congress in place, and all these decisions get reversed, states are free to establish churches, and that’s just how it should be according to the Rutherford Institute and its allies.
What else? Consider a case that has strong similarities to the McCreary case. It’s the case of Stone v. Graham, decided in 1980, when the dispute was about a Kentucky law that required posting a copy of the Ten Commandments in every public school classroom, along with a notice claiming they are the "fundamental legal code" of the United States. Using the 'replace Congress with whatever' approach, the court ruled the law unconstitutional.
Making the Constitution Apply to the States
How did the court ever come to the conclusion that you could replace Congress with any instance of government? It all starts with the 1925 case of Gitlow v. New York. Benjamin Gitlow was a socialist, and was convicted of criminal anarchy under a New York law that made it a crime to print or publish anything that advocates, "organized government should be overthrown by force."
Gitlow argued that the law was unconstitutional. Why? Because the Due Process Clause of the Fourteenth Amendment says, "No state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law." That clause meant that New York could not deprive Gitlow of his First Amendment rights to freedom of speech and the press. The Court agreed.
In 1940, the Supreme Court further ruled that "the First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."
In the case of McCreary County v. ACLU, the Court is likely to replace Congress with McCreary County, and agree with the ACLU that the Ten Commandments display violated the Establishment Clause. And, if that happens, look for Justices Rehnquist, Scalia, and Thomas to dissent and to offer their familiar opinions on what they believe the Establishment Clause really means.
A New View of the Establishment Clause
But . . . what if?
Despite Article VI of the Constitution, President Bush says he will nominate to the court only those justices who share his religious beliefs. What if he replaces two or three of the current justices with justices who share his beliefs and the Rutherford Institute’s way of seeing things?
What if, a few years from now, the Court decides that replacing Congress was just a mistake? Then the Court’s previous rulings that said a school district can’t require students and teachers to recite the Lord’s Prayer, or that Bible study can’t be part of public education, or that the Ten Commandments can’t be posted in classrooms . . . vanish.
The end result is this: if the people of Kentucky want to establish an official, state-sanctified church, they can. And if they want to turn public schools into parochial schools, they can do that as well. Laws requiring the Ten Commandments, the Lord’s Prayer, and daily Bible study in public schools are still the law in Kentucky.
What else is allowed? What about capital punishment? Suppose the people of Kentucky decide that, since all law is ultimately based on God’s law, it only makes sense to implement the full regimen of Mosaic laws, rather than just the first Ten. That would make adultery, homosexuality, and working on the Sabbath capital offenses in Kentucky.
So someone in Kentucky could conceivably be convicted of working on the Sabbath, and sentenced to death by stoning. Would it do any good to appeal the sentence? Sure it would. According to the justices of the Supreme Court -- by any reasonable person’s reckoning -- this sort of brutal punishment is cruel and unusual, and the Eighth Amendment expressly prohibits it.
What if the criminal were sentenced to death by lethal injection? The court would allow that if it follows Scalia’s thinking. Scalia says the Constitution should be interpreted in light of what it meant when it was ratified, not what we might like it to mean today. And when the Constitution was ratified, says Scalia, death was a fitting punishment for any felony, "And so it is clearly permitted today as far as the Constitution is concerned."
According to Scalia, it’s not up to the Supreme Court to decide which crimes are capital crimes. That decision is left up to Congress and the states. The Bible says working on the Sabbath is a capital crime, and Scalia asserts that if something was constitutional when the Constitution was ratified, it should not be considered unconstitutional now.
Back when the Constitution was ratified, and Kentucky was just a county of Virginia, it was a capital crime to consistently fail to attend church. In 1789, just two short years after the Constitution was ratified and two years before the Bill of Rights was added, George Washington was charged with violating a state law that banned traveling on Sunday. The motive for his crime? He was on his way to church.
The Supreme Court is scheduled to hear the case of McCreary County v. ACLU on March 2, 2005, and there is much more to this case than the just the issues in dispute.
The McCreary case is about a display of the Ten Commandments in a county courthouse in Kentucky. Included with the display is a notice saying the commandments are part of the foundation of our system of laws and our government. The ACLU wants the display removed, and a federal judge has ordered the county to get rid of it more than once.
The county claims the Ten Commandments "are the foundation of our law." What better place for them than the courthouse? But the ACLU says that posting the Ten Commandments in a courthouse violates the Establishment Clause of the First Amendment, which says, "Congress shall make no law respecting an establishment of religion."
Siding with the county is the Rutherford Institute, which is often involved in Establishment Clause cases. It filed a brief in the McCreary case claiming that previous Supreme Court decisions "have turned the entire First Amendment on its head." As the Rutherford Institute sees it, the real purpose of the Establishment Clause is to protect the right of each state to regulate religion, or to establish an official church, if that’s what the people want.
According to the Supreme Court, the Establishment Clause applies not just to Congress, but to the states and local governments as well. By the court’s reasoning, the reference to Congress in the First Amendment can be replaced with any government entity such as state or school board or mayor. It doesn’t matter. No element of government can infringe the rights mentioned in the First Amendment and, so far as the Establishment Clause is concerned, no branch of the government can show a preference for one religion over another, or for religion at all. So says the Court.
The Rutherford Institute is not alone in its thinking, and it has allies on the Court, like Justice Antonin Scalia who claims the clause was only meant to "protect state establishments of religion from federal interference." It has an ally in Chief Justice Rehnquist who claims the clause was merely intended to prohibit the federal government from establishing a national church, and it has a faithful ally in Justice Clarence Thomas who claims that applying the Establishment Clause to the states (or school boards or mayors) "prohibits exactly what the Establishment Clause protected."
What sort of things, according to the Rutherford Institute and its allies, does the Establishment Clause protect? Just consider a few Supreme Court cases that were decided by replacing Congress with something else:
In 1961, the Court decided that the State of Maryland couldn’t require public officials to declare a belief in God, even if Maryland’s constitution says they must.
In 1962, the Court decided that the State of New York couldn’t require public school students to recite an official prayer, even if students who object are excused.
In 1963, the Court decided that a local school board couldn’t require students to read the Bible or recite the Lord’s Prayer, even if no one -- not one student or parent or teacher -- objects to the requirement.
Leave Congress in place, and all these decisions get reversed, states are free to establish churches, and that’s just how it should be according to the Rutherford Institute and its allies.
What else? Consider a case that has strong similarities to the McCreary case. It’s the case of Stone v. Graham, decided in 1980, when the dispute was about a Kentucky law that required posting a copy of the Ten Commandments in every public school classroom, along with a notice claiming they are the "fundamental legal code" of the United States. Using the 'replace Congress with whatever' approach, the court ruled the law unconstitutional.
Making the Constitution Apply to the States
How did the court ever come to the conclusion that you could replace Congress with any instance of government? It all starts with the 1925 case of Gitlow v. New York. Benjamin Gitlow was a socialist, and was convicted of criminal anarchy under a New York law that made it a crime to print or publish anything that advocates, "organized government should be overthrown by force."
Gitlow argued that the law was unconstitutional. Why? Because the Due Process Clause of the Fourteenth Amendment says, "No state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law." That clause meant that New York could not deprive Gitlow of his First Amendment rights to freedom of speech and the press. The Court agreed.
In 1940, the Supreme Court further ruled that "the First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws."
In the case of McCreary County v. ACLU, the Court is likely to replace Congress with McCreary County, and agree with the ACLU that the Ten Commandments display violated the Establishment Clause. And, if that happens, look for Justices Rehnquist, Scalia, and Thomas to dissent and to offer their familiar opinions on what they believe the Establishment Clause really means.
A New View of the Establishment Clause
But . . . what if?
Despite Article VI of the Constitution, President Bush says he will nominate to the court only those justices who share his religious beliefs. What if he replaces two or three of the current justices with justices who share his beliefs and the Rutherford Institute’s way of seeing things?
What if, a few years from now, the Court decides that replacing Congress was just a mistake? Then the Court’s previous rulings that said a school district can’t require students and teachers to recite the Lord’s Prayer, or that Bible study can’t be part of public education, or that the Ten Commandments can’t be posted in classrooms . . . vanish.
The end result is this: if the people of Kentucky want to establish an official, state-sanctified church, they can. And if they want to turn public schools into parochial schools, they can do that as well. Laws requiring the Ten Commandments, the Lord’s Prayer, and daily Bible study in public schools are still the law in Kentucky.
What else is allowed? What about capital punishment? Suppose the people of Kentucky decide that, since all law is ultimately based on God’s law, it only makes sense to implement the full regimen of Mosaic laws, rather than just the first Ten. That would make adultery, homosexuality, and working on the Sabbath capital offenses in Kentucky.
So someone in Kentucky could conceivably be convicted of working on the Sabbath, and sentenced to death by stoning. Would it do any good to appeal the sentence? Sure it would. According to the justices of the Supreme Court -- by any reasonable person’s reckoning -- this sort of brutal punishment is cruel and unusual, and the Eighth Amendment expressly prohibits it.
What if the criminal were sentenced to death by lethal injection? The court would allow that if it follows Scalia’s thinking. Scalia says the Constitution should be interpreted in light of what it meant when it was ratified, not what we might like it to mean today. And when the Constitution was ratified, says Scalia, death was a fitting punishment for any felony, "And so it is clearly permitted today as far as the Constitution is concerned."
According to Scalia, it’s not up to the Supreme Court to decide which crimes are capital crimes. That decision is left up to Congress and the states. The Bible says working on the Sabbath is a capital crime, and Scalia asserts that if something was constitutional when the Constitution was ratified, it should not be considered unconstitutional now.
Back when the Constitution was ratified, and Kentucky was just a county of Virginia, it was a capital crime to consistently fail to attend church. In 1789, just two short years after the Constitution was ratified and two years before the Bill of Rights was added, George Washington was charged with violating a state law that banned traveling on Sunday. The motive for his crime? He was on his way to church.
# posted by The Punisher @ Thursday, March 03, 2005 
