Friday, December 23, 2005

Courts: Separation of Church & State Does NOT Exist

Wow. The court ruling [link is the decision] that will shock many Americans. The entire ruling is worth reading (13 pages, I've only read parts so far), but the statements within are astounding, and require little commentary. The ACLU will likely appeal this decision - which was a summary judgement by the court of appeals - to the United States Supreme Court. But it will be an uphill battle for them, as this was a very thorough and well-written decision. The decision was unanimous and written by 6th Circuit Judge Richard Suhrheinrich.

From the 6th Circuit Court of Appeals:
Were we to focus on the perceptions of individuals, every religious display would be “necessarily precluded so long as some passersby would perceive a governmental endorsement thereof.” Pinette, 515 U.S. at 779 (O’Connor J., concurring). Thus, we find unavailing the ACLU’s own assertions that it finds the display offensive and that the display “diminishes [its] enjoyment of the courthouse.” (Compl. ¶ 18.) Religion does not become relevant to standing in the political community simply because a particular viewer of a governmental display feels uncomfortable. Id. at 780 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992) (“People may take offense to all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or noncomformity.”). Our concern is that of the reasonable person. And the ACLU, an organization whose mission is “to ensure that . . . the government [is kept] out of the religion business,”16 does not embody the reasonable person.

The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. See Lynch, 465 U.S. at 673; Lemon, 403 U.S. at 614; Zorach v. Clauson, 343 U.S. 306, 312 (1952); Brown v. Gilmore, 258 F.3d 265, 274 (4th Cir. 2001); Stark v. Indep. Sch. Dist., No. 640., 123 F.3d 1068, 1076 (8th Cir. 1997); see also Capitol Square, 243 F.3d at 300 (dismissing strict separatism as “a notion that simply perverts our history”). Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding Sunday closing laws); see also Lynch, 465 U.S. at 674 (“There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.”); Capitol Square, 243 F.3d at 293-99 (describing historical examples of governmental involvement with religion). After all, “[w]e are a religious people whose institutions presuppose a Supreme Being.” Zorach, 343 U.S. at 313. Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.

Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it. “[T]he Establishment Clause inquiry cannot be distilled into a fixed, per se rule.” Pinette, 515 U.S. at 778 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992). Although treating the subject matter categorically would make our review eminently simpler, we are called upon to examine Mercer County’s actions in light of context. “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden, 125 S. Ct. at 2863 (plurality opinion). Moreover, “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 680. The Constitution requires an analysis beyond the four-corners of the Ten Commandments. In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.

Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. Cf. Mercer County, 219 F. Supp. 2d at 789 (“Endorsement of religion is a normative concept; whereas acknowledgment of religion is not necessarily a value-laden concept.”). Because nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments, we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger “Foundations” display as a governmental endorsement of religion.

We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff. See Washegesic ex rel. Pensinger v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir. 1994) (Guy, J., concurring) (describing the “eggshell” plaintiff as unknown to the Establishment Clause). Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.

(via the Political Teen, who has video of an interview with an ACLU leader)

Technorati tags: , , , , , .


  1. I think it's a great decision, particularly for Jews: Read through it. It defines what would be a problem, and why this is not. But situations that would be more problematic, it's clear that the courts would find them illegal under the Establishment Clause.

  2. This whole category of constitutional law is convoluted with so many tests, and some of them ignored in some cases. This Court, like all courts, have to balance so many factors and make so many subjective judgments, that's it's just absurd.

    Nevertheless I'm excited to take con law next semester.

  3. So it's impossible to measure whether the SC will uphold it or not?

  4. Not impossible to measure, but with all the tests and the new justices on the Court, it has become far more difficult. And that's especially true since the jurisprudence is complicated.