Fear of Clowns

"Faith may be defined briefly as an illogical belief in the occurrence of the improbable."
- H. L. Mencken
gozz@gozz.com

Tuesday, March 01, 2005

Plate of spaghetti, the Establishment and Free Exercise Clauses and Van Orden v Perry, et al 

The plate of spaghetti

you can see how I used the same plate for a salad while the spaghetti was cooking

Establishment and Free Exercise Clauses

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.

The phrase "an establishment of religion" is commonly misunderstood - it does not refer to the act of creating an official religion (although it does prohibit it). This misconception is held even by many who otherwise understand and support the separation of church and state. "An establishment" refers to "a religious establishment" such as the Methodist or Roman Catholic Church. Had the founders only intended to prevent congress from making a law establishing a religion, they would have wrote "Congress shall make no law establishing a religion", just as they in the next clause wrote "or abridging the freedom of speech." Clearly, the meaning is "No law may be made in regards to a particular religion."

Some take their misunderstanding much deeper - to the core of our form of government: constitutionally limited government. The First Amendment is what is referred to as a negative right - we have freedom from government making a law curtailing your speech or religious freedom. Judges, legislators and executives are government, and as such their actions are limited to what is lawful - "lawful" meaning "having been established by law."

This concept of limited government is completely lost on those who argue that the First Amendment guarantees the right of a judge to place religious imagery in his courtroom. It is is quite the opposite: the First Amendment prohibits congress from making a law which would allow a judge to lawfully place such imagery. And ironically, the crowd that doesn't understand that is much the same crowd bellyaching to no end of judges "making law from the bench".

Further, it's absurd in it's face to claim prohibiting the display of religious imagery on government property and preventing prayer from being led by public school teachers violates a a person's free exercise of religion. I know of no modern religion that requires worshiping granite monuments at state capitol grounds or genuflecting before bronze plaques in publicly owned parks. I do, however know of popular American religions which command,

"Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God ..." (Exodus 20)

And I know a man from Galilee who counseled,

"And when you pray, do not be like the hypocrites, for they love to pray standing in the synagogues and on the street corners to be seen by men. I tell you the truth, they have received their reward in full. But when you pray, go into your room, close the door and pray to your Father, who is unseen. Then your Father, who sees what is done in secret, will reward you. And when you pray, do not keep on babbling like pagans, for they think they will be heard because of their many words. Do not be like them, for your Father knows what you need before you ask him." (Matthew 6)

Van Orden v Perry

Tomorrow, Wednessday March 2, a First Amendment case will be argued before the Supreme Court. THOMAS VAN ORDEN v RICK PERRY is an appeal of the case in which the Fifth Circuit Court found the placement of a monument to the Ten Commandments on the grounds of the Texas State Capitol building to pass the muster of the First Amendment's Establishment Clause. (PDF of the Circuit Court's decision)

In discussion of the case, the Circuit Court described the standard by which they would judge the facts,

The guiding principle is government neutrality toward religion in the sense that a state cannot favor religion over non-religion or one religion over another. Yet neutrality is not self-defining. It does not demand that the state be blind to the pervasive presence of strongly held views about religion with myriad faiths and doctrines. Nor could it do so. Religion and government cannot be ruthlessly separated without encountering other First Amendment constraints, including its guaranty of the free exercise of religion. Such hostility toward religion is not only not required; it is proscribed.

A footnote to the last sentence references LYNCH v. DONNELLY, which is a about a Santa Claus statue on non-governmental property. Governmental neutrally towards a Father Christmas bouncing from roof to roof on the eve of a national holiday is not at all the same thing as governmental neutrality towards eternal edicts issued by the Divine Author of the Universe. Yet this is the height of the bar the court set for their decision.

The Court's ruling that the display is constitutional is contorted to the point of being sadly humorous. The decision balances on the notion that it would be apparent to a "reasonable person" that the Ten Commandments Monument is not primarily a monument to the ten commandments (or "decalogue") but a monument to the Fraternal Order of Eagles who donated it to the state,

... with [the monument's] proximity to the pioneer woman holding a child and to the figures of children at play, it would be seen as a fit location to express appreciation for the work of the Eagles with American youth.

... The plaintiff presumes both that its use by the Eagles was religious and that authorizing the installation of the monument itself endorsed that religious message.

... We are not persuaded that a reasonable viewer touring the Capitol and its grounds, informed of its history and its placement, would conclude that the State is endorsing the religious rather than the secular message of the decalogue.

The decision further goes on to claim that although the ten commandments may have an additional religious component, that component is not really religious, but secular in nature. Cognizant of their freakish logic, the Court quickly apologizes to the faithful who may differ on whether the ten commandments are primarily religious or secular,

To say this is not to diminish the reality that it is a sacred text to many, for it is also a powerful teacher of ethics, of wise counsel urging a regiment of just governance among free people.

Any sympathy I may entertain for the placement of monument is based on reasoning quite different that which is being appealed. The only argument which could be made that the monument is not a state endorsement of a particular religion would be that it's instead a tribute to the role that religion played in Texas's history. It's undeniable that most Texans have in some manner incorporated the ten commandments into the beliefs that shaped their lives, and it appears along side many other monuments on the capitol grounds; examples of these other monuments from the decision,

All these things without exception pay tribute to events or people playing a role in the shaping of Texas, except the case of the Statue of Liberty which represents an eternal ideal endorsed by government which all Texans are to value. One can also assume that the flags of Texas and the United States are also displayed on the capitol grounds, both using the same color scheme which holds the same symbolism: red for bravery, white for strength, and blue for loyalty. Again, eternal ideals endorsed by the state and to be shared among it's citizens.

We can look at the Court's description of the monument in question to see where it falls - from the Circuit Court's ruling,

It is a granite monument approximately six feet high and three and a half feet wide. In the center of the monument, a large panel displays a nonsectarian version of the text of the Commandments. Above this text, the monument contains depictions of two small tablets with ancient Hebrew script. There are also several symbols etched into the monument: just above the text, there is an American eagle grasping the American flag; higher still, there is an eye inside a pyramid closely resembling the symbol displayed on the one-dollar bill. Just below the text are two small Stars of David, as well as a symbol representing Christ: two Greek letters, Chi and Rho, superimposed on each other. Just below the text of the commandments, offset in a decorative, scroll shaped box, the monument bears the inscription: "PRESENTED TO THE PEOPLE AND YOUTH OF TEXAS BY THE FRATERNAL ORDER OF EAGLES OF TEXAS 1961."

Clearly, this monument is not a tribute people or events, it's a tribute the ten commandments, Judiasm and Christ intermingled with a few patriotic symbols. This is like the Statue of Liberty or flags: a tribute to ideals. In order to argue that the power and prestige of government is not behind the ideals represented in the monument, one would also have to argue that the placement of the Statue of Liberty and the flags do not represent ideals the state is endorsing.

And as our nation cannot make laws endorsing particular religious ideas, any law authorizing the placement of a monument representing religious ideas would be unconstitutional, therefore the placement itself is unconstitutional.

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