f The Wittenberg Door: First Amendment Abuse

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Commenting on Christendom, culture, history, and other oddities of life from an historic Protestant perspective.

Friday, February 24, 2012

First Amendment Abuse

From The Wittenberg Door archives . . .

Beginning in 1998, the Utah Highway Patrol Association begin erecting monuments to fallen patrolmen along the Utah highways. The monuments are in the shape of a cross and include the fallen officer's picture and biographical information. Although the monuments, 14 in all, are privately funded, they are on public land since that is where the officers fell. The State of Utah allowed the monuments to be erected, but did provide the caveat that it "neither approves or disapproves of the memorial marker."

A group of Texas atheists sued to have the memorials taken down. In response a federal court ruled in the atheists' favor and declared the memorials unconstitutional. From CNN . . .

A three-judge panel of the 10th Circuit U.S. Court of Appeals ruled Wednesday that the 14 large crosses would be viewed by most passing motorists as "government's endorsement of Christianity."

"We hold that these memorials have the impermissible effect of conveying to the reasonable observer the message that the state prefers or otherwise endorses a certain religion," concluded the Denver, Colorado-based court . . .

At issue was whether the crosses violated the Establishment Clause of the Constitution, by having the government endorsing the Christian symbols, even if indirectly.

(A quick side note regarding the Utah ruling. There is something that strikes me as amusing: Mormons reject the cross as a symbol. So, a state founded by Mormons for Mormons, and remains predominately Mormon to this day, is, according to the court, now embracing the cross and endorsing Christianity. Riiiiiiiiight.)

The First Amendment

Whether ruling on school prayer, or the teaching of Intelligent Design, or the displaying of the Ten Commandments, or even these memorial crosses, the courts seem intent on using the Establishment Clause (or, more properly, the Non-Establishment Clause) to justify the disallowing of certain perceived religious, particularly Christian, expressions. But was it indeed the intent of the Founding Fathers to have a public square bereft of religion? In other words, were they trying to protect the state against the church? Let’s begin by reviewing the amendment in question:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

(First Amendment - Freedom of Religion, Press, Expression)

Original Intent

America was established as a Christian nation (i.e., founded with Christian values), but with a secular government. Part of that was to reject the European model of state churches. Back in 1791, the year the First Amendment was ratified, 9 of the 13 state governments had official, tax-supported churches. Since the amendment was seen as only applying to the federal government, nobody believed that there was any conflict—nobody, that is, except for Baptists in Danbury, Connecticut.

The Connecticut state constitution endorsed Congregationalism. Although the Baptists were tolerated, they had serious concerns about discrimination; they were also concerned that the state government would start interfering with the operation of the church. So, in 1801, the Danbury Baptist Association took a bold step and wrote the newly elected President of the United States—Thomas Jefferson.

Our Sentiments are uniformly on the side of Religious Liberty – That Religion is at all times and places a Matter between God and Individuals – That no man ought to suffer in Name, person or effects on account of his religious Opinions – That the legitimate Power of civil Government extends no further than to punish the man who works ill to his neighbour: But Sir our constitution of government is not specific. Our antient charter, together with the Laws made coincident therewith, were adopted as the Basis of our government at the time of our revolution; and such had been our laws & usages, & such still are; that Religion is considered as the first object of Legislation; & therefore what religious privileges we enjoy (as a minor part of the State) we enjoy as favors granted, and not as inalienable rights: and these favors we receive at the expense of such degrading acknowledgements, as are inconsistent with the rights of freemen. It is not to be wondered at therefore; if those who seek after power & gain under the pretence of government & Religion should reproach their fellow men – should reproach their chief Magistrate, as an enemy of religion Law & good order because he will not, dares not assume the prerogative of Jehovah and make Laws to govern the Kingdom of Christ.

Jefferson agreed with the Baptists that it was inappropriate for the state to interfere with maters of conscience, faith, and worship. In his reply to the Baptists he penned the famous words:

Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between Church & State. adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.

Our Founding Fathers were careful to guard against the establishment of a state (federal) church, hence this amendment—they stipulated that congress may not establish a state church, nor infringe upon the citizens' right to worship as they please. Here's my question: How do these memorials to fallen officers establish an official, state-sponsored church of the United States? Same question for offering alternatives to macro-evolution, or allowing school prayer, or a plaque displaying the Ten Commandments. They obviously don't.


Although a cross is a religious symbol, it has been co-opted for secular purposes--to be a grave marker or a memorial. The Ten Commandments are given by God and thus have a religious origin. But they are also the grounds for our justice system and so have been likewise co-opted. Macro-evolution is a theory, despite how it is taught in our schools, with many problems. Intelligent Design answers those problems; because of its explanatory power, it should at least be acknowledged when origins are being taught.

The truth is that the courts misuse the amendment to discriminate against positions they don't like. The intention of the Founding Fathers couldn't be more clear, but these judges aren't interested in that--they'd rather use the Constitution as a wax nose to refashion the country to their liking. Why let truth get in the way?

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Blogger Doug Indeap said...

Separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of "We the people" (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

Some try to pass off the Supreme Court’s decision in Everson v. Board of Education as simply a misreading of Jefferson’s letter to the Danbury Baptists–as if that were the only basis of the Court’s decision. Instructive as that letter is, it played but a small part in the Court’s decision. Perhaps even more than Jefferson, James Madison influenced the Court’s view. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision ("no religion shall be established by law, nor shall the equal rights of conscience be infringed") and ultimately chose the more broadly phrased prohibition now found in the Amendment. In keeping with the Amendment's terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion--stopping just short of cutting a ribbon to open its new church.

6:50 AM  
Blogger The Catechizer said...

Doug, thank you for weighing-in. I must admit, though, I’m not sure where we differ. Here’s my argument: the establishment clause is meant to keep the government from establishing a state church, and from infringing upon the rights of the citizenry to worship according to their conscience. Since allowing memorials in the shape of a cross do not establish a state church, nor does it prevent anyone from worshiping as he pleases, there is no violation of the clause.

If I’m wrong, I’d appreciated it if you would clarify the reason.

11:27 AM  
Blogger Doug Indeap said...

Perhaps we both recognize the constitutional principle of separation of church and state, and our differences, if any, lie in the scope or application of that principle.

As I noted in my comment, the First Amendment's establishment clause means more than just keeping the government from establishing a state church. Certainly, Madison understood the Constitution and First Amendment to preclude the government from much more than that, including “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts.” Madison, Detached Memoranda. During his presidency, he also vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes.

In its jurisprudence, the Supreme Court has confirmed the basic constitutional principle largely in keeping with Madison's understanding, while also giving a pass to the appointment of chaplains for the houses of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory, e.g., ceremonial deism. Notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not).

With respect to the government's display of symbols, monuments, and such, the courts commonly frame the issue as whether a reasonable observer would understand the government to be promoting religion (rather than, as is sometimes argued, fostering education of history and the like).

Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx

8:17 PM  
Blogger The Catechizer said...

Thank you, Doug, for the link. Also, I appreciate your eloquence and the time you put into your response. It appears that I may have mistaken your original comment as a disagreement, which, at base, I don’t think that it is. It seems that your goal is to add more food for thought on this issue, particularly from a legal standpoint. Thanks again for weighing-in.


8:10 AM  

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