Establishment Of Religion And The Judicial Surreal
By (03/09/05)
Judicial surrealism seemed to envelop the Supreme Court of the United States last Wednesday.
Listening to the oral argument in the two “Ten Commandment Cases,” McCreary County v American Civil Liberties Union and Van Orden v Perry, I was obliged repetitiously to remind myself that argument was, in fact, not surrealism, not fancy, but a reflection of the inevitable and stretching departure judicial activism has wrought. From the intent and plain meaning of the Founding Fathers phrase “an establishment of religion” to the present denouement is surely the 21st Century equivalent to the supposed Medieval debates as to how many angels might dance upon the head of a pin.
No reflection upon counsel - all very competent. No reflection upon the Justices - ranging from very bright to exceptionally brilliant. Rather, a reflection - maybe a culmination: who knows? - of the concurrent marches of historical error and judicial activism.
This paper is just a little empirical cum historical observation, not a mini-treatise, much less an analysis of either case or a guess as to its judgment.
Relevant history is clear. The Church of England was established. English governmental revenues - hello, taxation! - helped pay its operations. The Crown approved elevations of Clergy to the Episcopate and otherwise was much involved. Between the authority, administration and residual - sometimes activist - power of the Crown and of Parliament, the Church of England truly was a state church, a form of governmental body, “an establishment of religion . . .”
The Founding Fathers did not want that. Hence, the entire text of the Constitution regarding religion, found in the First Amendment, reads as follows:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .
The phrase “Congress shall make no law respecting an establishment of religion” commonly is referred to as the Establishment Clause.
The phrase “Congress shall make no law . . . prohibiting the free exercise [of religion]” commonly is referred to as the Free Exercise Clause.
Let’s discuss only the Establishment Clause because that’s what fundamentally was briefed and argued before the Supreme Court.
If a reader followed the approach expertly and conspicuously advocated by Justice Antonin Scalia reading that language would be easy - give words of law their plain meaning when there is one.
If need be, also look at history. In so doing, bear in mind that neither Congress nor the courts attempted to abolish state churches. Even Thomas Jefferson, not noted for a strong or traditional Christian Faith, in his Second Inaugural Address (March 4, 1805), acknowledged states’ authority to promote religion. INAUGURAL ADDRESSES OF THE PRESIDENTS OF THE UNITED STATES (Government Printing Office, Washington, D. C., 1965, at 17-18).
And, of course, nobody has attempted to establish a federal, or national, church - clearly proscribed by the Establishment Clause.
How, then, have we arrived at the surreal - where attorneys seriously argue, and judges seriously adjudicate, the 21st Century versions of the Medieval angels-dancing-on-a-pin debate? Of course, no angel, no pin. Rather, a potpourri of discussion about whether the Ten Commandments are religious, and if so, what religion? About where they might be placed, by whom, why? About who might pay for them, look at them, apply them theologically? About how many are basically secular, how many basically theological? About which version (Roman Catholic, Protestant, Jewish, so forth) is which? About the greater or lesser significance if one or more of them are interposed with a statue or bas relief of Moses, Hammurabi, Justinian or anybody else who generally is considered to have been a law-giver?
The farewell to historical reality and First Amendment plain meaning usually is considered to have debuted in 1947 in Everson v Board of Education, in turn relying upon Reynolds v United States, an 1879 case, which relied upon the Free Exercise Clause, not the Establishment Clause, and therefore, probably should not have been cited at all except in a footnote to make some pedantic scholar happy. (Reynolds dealt with a Mormon’s Free Exercise Clause challenge to a federal anti-polygamy law.)
Chief Justice, then Associate Justice, William H. Rehnquist in 1985 unsuccessfully tried to straighten out the Court majority in Wallace v Jaffree. A key fact, as the Rehnquist opinion recites, is that no First Amendment debate participant
. . . [E]xpressed the slightest indication that [he] thought the language [which was approved], or the evil to be aimed at, would require that the Government be absolutely neutral as between religion and irreligion. The evil to be aimed at, so far as those who spoke were concerned, appears to have been the establishment of a national church, and perhaps the preference of one religious sect over another; but it was definitely not concerned about whether the Government might aid all religions evenhandedly . . .
On the same day the House of Representatives first voted the present First Amendment religion language there was a side debate about a resolution asking President George Washington to issue a religious Thanksgiving Day proclamation. Those who led the debate in favor of that federal exercise of religion also voted for the Establishment Clause and, of course, President Washington issued the proclamation, specifically mentioning “prayer” and “Almighty God. . .”
Much of the Federal Judiciary over the years since 1947 has so ignored history and plain words that we now have the fantasy of the Ten Commandments cases. Although having no participation in these cases, inasmuch as I am a Supreme Court Bar member (having been admitted in 1957 upon motion of Vice President Richard M. Nixon), comment upon the particular merits of these two pending cases in light of the applicable precedents would be inappropriate - and, besides, who would care.
As a consequence of the opinions to be filed in these cases the jurisprudential state could incrementally improve or incrementally worsen. Notwithstanding all the media attention, these cases may not resolve much fundamental law. The Supreme Court is somewhat snared by the fantasy of existing jurisprudence.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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