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VOL. 11, NO. 3April 30, 2009
How Judges are Winning the Culture War: "Defining and Destroying" "Religious Freedom, III"

American judges are winning the Culture War for the Humanist/Reconstructionist side, partially through the extensive use of their "define and destroy" tactic — using landmark cases to alter the meaning of fundamental constitutional phrases and cultural values to such a radical degree as to destroy the original meanings of the words. These judges may be likened to Humpty Dumpty in Lewis Carroll's famous story, Alice in Wonderland. Declared Humpty Dumpty, "When I use a word, it means just what I choose it to mean — nothing more." Alice responded, "The question is whether you can make words mean so many different things." To this replied Humpty Dumpty, "The question is which is to be master — that is all."

In contemporary America, the question is, which is to be master — the Constitution properly interpreted according to its original meaning, or Reconstructionist judges interpreting the document to mean "just what they choose it to mean — nothing more." In this series of "Briefings and Commentaries," we are examining the courts' define and destroy weapon as wielded particularly against six foundational guarantees, beginning with "personhood," which we considered in our last issue. We now focus on the Constitution's guarantee of religious liberty — specifically the guarantee against "establishment of religion."

Few areas of American jurisprudence are as hopelessly muddled as the court-created body of Establishment Clause jurisprudence. Imperialist judges have defined this Clause with meanings so radically different from the original as to virtually destroy the Clause in its original meaning. This is true for several reasons.

Establishment Clause decisions of courts are supposedly guided by the mythical "wall of separation" doctrine which the Court read into American law in 1947 (Everson v. Board of Education). This mythical "wall" concept, in turn, led the Court to create the "three-pronged test" for determining when the "wall" had been breached (Lemon v. Kurtzman, 1971). But this test and the "wall" concept are so flawed that various Justices through the last 35 years have described them as "all but useless," "mercurial in application," "unhistorical," "non-textual," and productive of "insoluble paradoxes" and "unprincipled, conflicting litigation." It is hard to imagine a clearer description than this of muddled body of law. Indeed, the Court has substantially reworked the Lemon test and often departs from it — creating even more inconsistent law.

Textbook examples of this constitutional quagmire are the Court's decisions regarding the Ten Commandments and the Pledge of Allegiance — cases in which the petitioners argued that the displays and Pledge recitation "violated the Establishment Clause." In the case of the Alabama Ten Commandments monument involving Chief Justice Roy Moore (Glassroth v. Moore), Federal District Judge Myron Thompson admitted that he lacked "the expertise to formulate [the court's] own definition of religion for First Amendment purposes," but he nonetheless concluded that Moore had "established a religion."

This was a seismic break with earlier American law in which "religion" had a definite, intelligible, accepted meaning. The Moore court opinion is even a break with Court decisions of the 1960s in which Justices contrived their own definition of "religion" (ambiguous and inconsistent, but more than that offered by Judge Thompson). Judge Thompson's bald admission is also alarming in his assertion that he, not the Constitution, should provide the controlling definition of "religion" in these cases. The U.S. Supreme Court declined to review this case, leaving lower court judges to "destroy by not clearly defining" "religion" in its original meaning.

In 2005, the U. S. Supreme Court did hear other cases attacking two Ten Commandments displays in Texas and Kentucky (Van Orden v. Perry, McCreary County v. ACLU of Kentucky). The Court's decisions again reeked of inconsistency as they upheld the Texas display but struck down the Kentucky display. The majority concluded that the circumstances of the two displays were so different as to render one constitutional (Texas) and the other not (Kentucky). A key to the senseless Court reasoning in McCreary was that the Kentucky circumstances satisfied the mind-reading Justices that state officials had an unconstitutional "intent to establish religion." The fact was that the Kentucky display consisted of nine framed documents of equal size entitled "The Foundations of American Law and Government." Other documents included in this display were the lyrics of the national anthem and a picture of Lady Justice. In these cases, the Justices created the standard that no religious display, utterance, etc. is intrinsically "religious" for purposes of Establishment Clause law. Rather, the circumstances surrounding the challenged display, utterance, etc. determine whether or not challenged action is "religious" and whether there is an unconstitutional "establishment of religion." This unarguably defines the Clause so capriciously as to destroy it.

A theme running throughout the courts' define and destroy campaign against the Establishment Clause is the argument that "religious pluralism" is necessary and is the only constitutional condition allowable in American today. But this myth is a classic example of judicial define and destroy tactics, as illustrated in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow (2004). The Supremes refused on technical grounds to hear this case in which lower courts had outlawed the public school recitation of the Pledge. But the issue will surely come to the Court again. The "pluralism" issue was addressed eloquently by two pro-Pledge justices on the Ninth Circuit Court: outlawing the Pledge, they correctly observed, afforded Michael Newdow "the right to impose his view on others . . . [and gave him] a right to be fastidiously intolerant and self-indulgent [i.e., non-pluralistic]." Furthermore, "the silence the majority [i.e., pro-Newdow judges] required is not neutral . . . . absolute prohibition on any mention of God in our schools creates a bias against religion." ". . . does atheism become the default religion protected by the Establishment Clause?," asked the pro-Pledge judges. Trying to define Establishment Clause standards as mandating religious pluralism in America destroys the Clause.

The bottom line is that neither a "wall of separation" nor "religious pluralism" is possible. "The extent to which a government can be neutral and equally tolerant of all deeply held values, including religious beliefs, has very definite limits . . . . Increasingly, government will be compelled to make choices between conflicting values, including religious values" (law professor Carl Esbeck, 1982).

What, then, was the original meaning of "establishment of religion" which is prohibited by the Constitution? First, it was a "jurisdictional provision" — one designed to limit who was the target. The national government, not the state governments, is the object of the Establishment Clause, properly interpreted. Second, the Clause limited what the national government could do. As explained in recent opinions by U. S. Supreme Court Justices Scalia and Thomas, the Clause prohibited "actual legal coercion" — using the law and its penalties to force certain religious observances, payment of taxes to support ministers, etc. None of these prohibitions even remotely resembles the displays, utterances, etc. attacked by Humanists/Reconstructionists in the court cases discussed here — and others similar to them. But the ironic result of the Reconstructionists' define and destroy weapon has been to do that which the Establishment Clause clearly prohibits — place the weight of legal coercion squarely behind anti-orthodox [i.e., Humanist/Reconstructionist] religious positions.

And so we return to Humpty Dumpty. Will we Constitutionalists continue to allow runaway judges to play Humpty Dumpty with our precious Constitution? Or will we effectively join and fight the Culture War and rescue the Establishment Clause from the abyss into which it has been cast by the define and destroy tactics of Reconstructionist judges?

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