Congressional hearings for a nominated Supreme Court justice have become a sham. I remember watching John Roberts wriggle like an eel, desperate to avoid giving anybody the impression that he might decide the law with a conservative bias. But we all knew he would, and he has. Elena Kagan isn’t exempt: she once argued that potential justices should be fairly open at their Senate vetting, but she changed her mind when she was in the hot seat.
For some years the conservative majority of the Court has systematically enforced a reactionary agenda on our country. What’s almost as disingenuous as the Senate hearings is watching the conservative justices try to sneak Christianity into our government, all the while pretending that the rationale is, after all, purely secular.
Yesterday, Linda Greenhouse, the Supreme Court watchdog for the New York Times, reported on the case of McCreary County v. American Civil Liberties Union of Kentucky. The case involves two Kentucky counties where courthouses displayed the Ten Commandments. Five years ago the Supreme Court upheld a lower court finding that these displays violated the Constitution’s establishment clause. But the vote was only 5-4, and now it’s very likely the vote would go the other way. And the McCreary case is back again. Greenhouse discusses the issues, and the very real possibility that the Court, by allowing the displays, would chip away at the wall between church and state in America.
Fig. 1. The McCreary County display. As Greenhouse reports, “Faced with a lawsuit, they retooled the display to make the Commandments part of a bigger collection of documents, most of which happened to be religiously oriented, including the national motto, “In God We Trust,” and a statement by Abraham Lincoln that “the Bible is the best gift God has ever given to man.”
Too see how the majority might rule this time, have a look at how, in his 2005 dissent, Antonin Scalia argued that the government is indeed entitled to favor religion over nonreligion:
Nor have the views of our people on this matter significantly changed. Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures, state and national, continue to open their sessions with prayer led by official chaplains. The sessions of this Court continue to open with the prayer “God save the United States and this Honorable Court.” Invocation of the Almighty by our public figures, at all levels of government, remains commonplace. Our coinage bears the motto “IN GOD WE TRUST.” And our Pledge of Allegiance contains the acknowledgment that we are a Nation “under God.” As one of our Supreme Court opinions rightly observed, “We are a religious people whose institutions presuppose a Supreme Being.” Zorach v. Clauson, 343 U.S. 306, 313 (1952), repeated with approval in Lynch v. Donnelly, 465 U.S. 668, 675 (1984); Marsh, 463 U.S., at 792; Abington Township, supra, at 213. With all of this reality (and much more) staring it in the face, how can the Court possibly assert that “ ‘the First Amendment mandates governmental neutrality between … religion and nonreligion,’ ” ante, at 11, and that “[m]anifesting a purpose to favor . . . adherence to religion generally,” ante, at 12, is unconstitutional? Who says so? . . .
Historical practices thus demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, “a tolerable acknowledgment of beliefs widely held among the people of this country.” Id., at 792. The three most popular religions in the United States, Christianity, Judaism, and Islam–which combined account for 97.7% of all believers–are monotheistic. See U.S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States: 2004—2005, p. 55 (124th ed. 2004) (Table No. 67). All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. See 13 Encyclopedia of Religion 9074 (2d ed. 2005); The Qur’an 104 (M. Haleem trans. 2004). Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.
I really do believe that religion is on the wane in America, and that this process is helped along by public pronouncements of atheism and criticisms of religion. But religion won’t go gentle into this good fight. Cases like McCreary are part of religious America’s pushback against what they see as a fatal erosion of values.
It still amazes me that believers and believers-in-belief alike have this notion that a document prohibiting THEFT AND MURDER in 1000 BC or so (and probably even later) was somehow a revolutionary leap forward in moral codification. No it was not. People had already figured that one out.
If you strip out the parts that other civilizations had been practicing for millennia, what’s left of the Ten Commandments is a handful of weird injunctions whose only modern relevance is that it took NYS until the 21st century to allow liquor stores to be open on Sundays.
Your liquor stores are open Sundays?! Cool.
The biblical commandment against “boiling a kid in its mother’s milk” is still relevant to this very day!
I have managed to avoid this apparently irresistible temptation for all of my life. Well, most of it anyway…
So, basically he’s saying that the first amendment doesn’t require neutrality on religious issues, because the government has a long history of not being neutral on religion? Isn’t this a little like saying “your right to hold property is not protected by the constitution, because there is a long history of theft in this nation”?
Uhm, no. There are plenty of religions without a single creator. If the state acknowledges the existence of a single Creator, the state is excluding all those other religions. The same goes for the state recognizing the 10 Commandments as “divine prescriptions for a virtuous life”. Any religion that does not believe the 10 Commandments are divine is thus excluded by the state.
Also, the commandment that one may not worship any other gods before Yahweh is in direct conflict with the freedom of religion. This alone should disqualify the 10 Commandments for getting a special at court houses. But I suppose Scalia and others don’t actually believe people have freedom of religion to begin with.
Yeah, his argument that its not oppressive because the vast majority shares this belief — kindof misses the point of protecting against minority oppression, eh?
“Really, the Civil Rights Act was a big waste of time, considering the majority of Americans are white.”
Scalia should learn that a mistake long made is still a mistake.
Worse still, rewrite what he said, and the tortured logic doesn’t really get any worse.
You can go as low as you want, so long as there is another layer of sub-sects underneath, and you can assign enough people to the current layer you’re redefining as “not a religion”.
Well said. The exerpt you quote brings to mind another observation that I had missed the first time through: Notice the (not-so?) subtle implication in this phrase:
“…the acknowledgment of Jesus Christ as Lord…”
It seems pretty clear that this is intended as either a statement of fact or as some kind normative statement. That he leaves out the qualifier that this “acknowledgment” is by no means universal is telling. Whether this is a “tolerable acknowledgement” is irrelevant, no matter how widely held.
Regarding the Lincoln quote the court added to their diplay – I am just finishing reading Adam Gopnik’s Angels & Ages, about Darwin & Lincoln. Gopnik says that “Lincoln’s religion is closer to Marx’s than to the sunny self-congratulation of his claimed successors now”. He refers to a divine Providence not an interceding god. Gopnik also says that Lincoln was a big fan of Claudius’s soliloquy from Hamlet “O, my offence is rank!”, so perhaps they should have that one up there as well…
it’s not waning fast enough
Presidents continue to conclude the Presidential oath with the words “so help me God.” Our legislatures…
This is why I oppose such niggling practices which might be viewed as harmless in themselves. Every step is viewed as justification for the next. As Scalia so bountifully exemplifies, in this case the slippery slop argument is not a fallacy.
Indeed! They’re pitons to God.
Clevah!
Such a pathetically weak pantheon these Christians have. If only their gods weren’t so impotent, they wouldn’t need the power of the state to coerce people into worshipping them.
Surely a nation as noble and powerful as ours deserves better gods — ones that can take care of themselves without depending on Welfare, at the very least.
Cheers,
b&
“A broad and diverse range of the population — from Christians to Muslims…”
Wow, what a diverse range. Reminds me of the “colorful bunch” of astronauts on the space shuttle in The Simpsons: “There’s a mathematician, a different kind of mathematician, and a statistician.”
Or the Blues Brothers line about the entertainment choices in a bar: “We play both kinds of music, country and western.”
And still, a display of ten commamdments would be endorsing one and rejecting the other.
Heck, it would divide catholics and protestants. They have two different sets of ten commandments.
Right! Plus, if I remember correctly, the Old Testament itself has two versions of the Ten Commandments. I thought about looking it up to check, but I’m getting tired of reading multiple and often contradictory accounts of the same stories, which are purportedly the inerrant word of a god who either can’t keep his (or her) story straight or is a pathological liar.
It reminds me of an old colleague who lived in an upscale suburb where diversity was when her neighbors included a black lawyer, a hispanic lawyer, and an asian lawyer.
He seems to be aware that Catholics Jews and Protestants all have different versions of the Ten C’s, so that honoring any particular one discriminates against the others.
Interesting wording:
“The three most popular religions in the United States, Christianity, Judaism, and Islam–which combined account for 97.7% of all believers–are monotheistic.”
It makes it sound like only 2.3% of people are non monotheists. Which is not true! The ARIS Report 2008 states that 15% of people described their religion as “none” and another 5% as “don’t know/refused.” Which means 15% and even up to 20% or 1/5 people in the USA are non religious, i.e. non monotheists.
Therefore, for the state to support Abrahamic religions is discriminating against 15-20% of the US population.
(Not that it would be right to discriminate against a smaller minority of 2.3% either).
Freedom of religion is in the constitution for a reason! Separation of church and state is essential to ensure the rights of all, not just the majority whether it is 80% or 97.7%.
Most of the religious groups that initially immigrated to the Americas came to avoid religious persecution in Europe, where they were the minority. Now that the religious out number the irreligious, and the religious as a group find they are now in the majority (on certain issues anyway), how quick they are to discriminate! How quickly the past is forgotten!
Careful with the stats! All that Scalia is claiming is that 97.7% of believers are monotheistic, not that 97.7% of Americans are believers, which, of course, is untrue. 2.3% of believers may well believe in a plurality of gods.
But Scalia is surely wrong just to consider the stats on believers, without remarking on the number of non-believers. And just because the majority of believers are monotheists who accept the Ten Commandments as given by their god (whether Jewish, Christian or Muslim) does not mean that favouring the Ten Commandments does not favour a particular religion, since the whole point of his argument is really claiming that these three big monotheisms acknowledge a common tradition, and, in some sense, the same god. So, contrary to his argument, and by his own showing, the decision would favour a particular religious tradition, which, by his reasoning, the First Amendment forbids.
In addition to this, Scalia’s argument is weak because, in favouring religion, he would have the government show particular favour to forms of belief not shared by all citizens, which is surely the point of the First Amendment in the first place, to prevent the government from favouring citizens’ religious and other ‘worldview’ beliefs. Scalia’s idea that the point of the First Amendment is to prevent favouring one religion over another, without even considering other forms of worldview beliefs, should surely be a non-starter.
However, I am no expert in the American constitution. You might look with pity on those of us to your north, where there is no ‘no establishment of religion’ clause, and where the Conservative government is doing its best to turn Canada into a theocracy.
Perhaps i should clarify. Yes I did notice that the it was “97.7% of believers”. My complaint was more the cherry picking of stats which allows you to imply something that isn’t entirely truthful. Almost lying by omission.. Like saying pork rinds are 100% sugar free and implying they are a heath food. I find it dishonest and it irks me no end.
Furthermore, it implies that every single person of that 97.7% would agree with him.
Never mind the statistics; the statement itself is laughably worng.
I think we all, regardless of the particulars of our positions on the truth claims of the various religions, can agree that the ancient Greek, Roman, Egyptian, Norse, etc., religions are all polytheistic. And that so is modern Hinduism.
So, if Hinduism is polytheistic even though all those myriad gods (and everything else, for that matter) are merely different incarnations of Brahman, how can Christianity not be polytheistic, even if Jesus and the Holy Spirit are incarnations of The Father?
But never mind the Trinitarian debate. Hades, Pluto, and Set are all gods, right? So how is Satan / Lucifer not a god?
And if Hera and Juno were goddesses, how is Mary not a goddess, whether or not you pray to / through / with her?
Olympus was filled with all sorts of minor gods, and Heaven has the Heavenly Host of angels and seraphim and cherubim and what-not. Clearly, all are gods — as are, of course, all the daemons and devils of Hell. Minor gods, but gods nonetheless.
The ancient Roman and traditional Japanese (and many other) religions include ancestor worship, and the dearly departed are unambiguously considered gods. How one can avoid coming to the same conclusion for both saints and the personal ghosts / angels of relatives is beyond me.
And on and on and on it goes. If Oedipus and Midas are gods, then so are Lot and Solomon. If Prometheus and Pandora, then Adam and Eve. If Cerberus and the Kraken, then the Beast of Revelations and Jonah’s Whale.
I can’t think of a single self-identifying religious person of any one of the major faiths whom one can accurately describe as a monotheist. Deists and Pantheists qualify, but, once you add even the “Jewish” label, you inevitably get Moses and Abraham and Israel and the rest of the patriarchs — and the Serpent, the burning bush, Satan, and and and and and. Dismiss all that as the faery tales they so obviously are and you’re left with nothing of the religion, just bagels and lox…so why describe your religious (as opposed to cultural) beliefs as “Jewish”?
Cheers,
b&
Ben, you make many good points about trinitarianism and Satan, but a lot of the rest of your comment seems too broad in its examples. Mary is clearly presented as human, a special human, granted, but human nonetheless. Oedipus, Midas, Prometheus and Pandora were never presented as gods in their original mythologies, and Cerberus and the Kraken are more properly “monsters” than gods.
You seem to be edging toward the position that if a belief system postulates more than one supernatural being, it is polytheistic. I think that is far too wide a definition, as not all supernatural beings are gods.
But that’s just my point. We can’t trust the proponents of the mythologies to properly label their deities as such. None of them, pretty much by definition, are capable of being sufficiently objective.
I think I can make an iron-clad case that a god is a supernatural being with power over natural forces and / or some facet of humanity. Pandora, the first woman, unleashed evil on humanity and remains the guardian of hope; how could she not be a goddess? And how could Eve, also the first woman and also responsible for unleashing evil on humanity, not also be a goddess?
That the Greeks didn’t label Pandora a goddess and the Christians didn’t label Eve a goddess is as irrelevant as the fact that Romans did consider their ancestors to be gods but Christians don’t consider their guardian angels to be gods.
Cheers,
b&
I suppose you can redefine the term “god” however you want, but I think most people would argue that ghosts, selkies, unicorns, leprechauns etc. are not gods.
I’m not trying to redefine all supernatural beasties as gods. Ghosts in general would not be gods, but a ghost (aka “guardian angel”) to whom one prays for advice, protection, comfort, and the like certainly is a (minor) god. Unicorns mostly are not gods, but the IPU sure is. And a leprechaun becomes a god when one makes sacrifices to it in exchange for protection or fortune.
And, if we’re going to get picky…are you seriously going to continue to contend that Prometheus, a Titan, he who heroically brought fire to humanity and suffered mightily for it, and who was worshiped by craftsmen really wasn’t a god? If so, then what does qualify as a god in your dictionary?
Cheers,
b&
It doesn’t matter: Arguments that the Christian god is the only “true” definition of a god, that unicorns or leprechauns are gods, or that unicorns or leprechauns are not gods are all equally supported by all available evidence and are thus equally valid.
I agree, but mostly it comes down to definition. How does one define “god” or “God” for that matter.
It also stems a lot from how the religion has evolved. If we think of the conversion of the common people from roman polytheism to Catholicism: a lot of traditions were simply renamed and Christianized. Christmas and Easter were originally pagan celebrations and Mary and various patron saints replaced Juno and other gods with various affinities.
It comes down to replacing one superstition with another.
If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.
I can’t think of any monotheistic religion. Every religion I know of that postulates one true God also postulates a Satan, obviously a very ancient god who is at least as powerful (and more influential in affairs on this earth) as the god who supposedly is running things. Then there is the really cool idea of the trinity, which gets around the problem by declaring three gods in one. As explained in “The Life of Brian”, “That’s the ineffable part.”
I can go with the “worship = god” definition for various reasons (say, that worship implies getting direct or indirect rewards by some “godly” mechanism).
Then Satan and his devil angel army are gods in some beliefs, if I’m not mistaken. Or, if satanism is a mirror of christian “god” beliefs, Scalia forgot some “monotheistic” groups AFAIU.
He only said that 97% of all believers are monotheistic, not that 97% of people were.
Which pretty much says that non-believers don’t count in Scalia’s mind.
It is pretty pathetic that a person with Scalia’s limited reasoning skills and immoral personality has been placed in such a position of authority.
Nice. First he sets things up by marginalizing and dismissing non believers and believers in other than one of the abrahamic desert dogmas. And just as with any good apologetics, fallacies and misrepresentations abound.
See? It is all so reasonable. After you have shown that other types of believers, and non believers, are not worthy of consideration it becomes trivially obvious that we can change the meaning of government endorsement.
Also, what’s with the “government endorsement of a particular religious viewpoint.“? The government is not supposed to endorse any religious viewpoints.
The second of the quotes in your (well said) comment contains evidence of Scalia’s wholesale disregard for all religions other than the Abrahamic “Triad,” not to mention those who exercise their right not to practice religion:
Wow! Such a broad and diverse range – all the way from Christians to Muslims!
So he uses unconstitutional practices to shore up his defense of other unconstitutional practices? Just because theocratic issues have been forced on the country by pathetic politicians does not make them correct. Maybe someday we’ll toss aside such religious BS.
Yes, wouldn’t following the Constitution to the letter be an American Value?
Religion on the WANE in the U.S.? Come to Houston one weekend and I’ll take you to see Joel Osteen — his little church now has a congregation of 30,000 people, and is just one of thousands in the area. Maybe religion is on the wane in the northern cities, but in the countryside (and in the “red states” all over), it appears we’re in the midst of another “Great Awakening” — the wrong kind.
You’re right, I don’t think religion has started waning yet. In fact, the core fundamentalists are holding onto those beliefs more strongly than ever. I do agree with Jerry, however, that the increasing visibility of atheism has started exposing cracks in the armor, even if it is a stretch to say that religion is on the wane.
Eh, that’s still more concentration than expansion. Polls continue to show a slow, but continuous decline in formal superstition.
But then there are those other polls that Jerry cites that show that neither public acceptance of evolution nor public belief that the world was created less than 10,000 years ago has changed much in decades.
I hate reading stories like this because it always makes me think of Roy Moore in Alabama…and then I throw up a little in my mouth.
A great analysis of Scalia’s dissent in McCreary is Michael Newdow’s article, “Question to Justice Scalia: Does the Establishment Clause Permit the Disregard of Devout Catholics?”
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1594374
Newdow focuses on Scalia’s line from the opinion that “the Establishment Clause permits this disregard of polytheists and believers in unconcerned
deities, just as it permits the disregard of devout atheists.”
But:
– *who cares if God exists*?
–
if all religions concerns *a philosophical deistic god*, why would some religions be “unconcerned”?
–
[from about.com
if the ten commandments is displayed in a courthouse, how come *they don’t reflect US law*?
Oops, wrong place: please disregard.
The thing that really pisses me off about the 10 commandments is that they do nothing to protect human rights, like forbidding slavery. As the path to a virtuous life, there are many things missing from them.
Exactly. For example, it tells children to honor their parents, but it never tells parents not to molest their children.
I think you should focus on the Fourteenth Amendment rather than the First, considering that the First Amendment did not prohibit the states from establishing churches, and indeed some states retained state religions into the early nineteenth century.
It seems odd. What purpose would the first amendment serve if it didn’t apply to all sub-levels of government? You’d have no rights at all because all could be trumped by state or local governments. It’s an absolutely absurd line of reasoning.
No, it is not absurd. The First Amendment did not, by its terms apply to state action, only to action of Congress. After turning down the argument several times, the Supreme Court finally engrafted the First Amendment onto state action until 1923 in Gitlow v. People of the State of New York, 268 U.S. 652 (1923).
I hope to god you are right!
Has it not occurred to the people who intalled these plaques that in doing so they were sticking two fingers up at those who are not Christian ?
It might have occurred to them. They might not see anything wrong with that, though.
Yeah, that could be the case.
What I do find odd is that the US which has strict rules about the establishment of religion has problems with this, whereas somewhere like the UK, of which parts have (or until recently had) do not. A judge in the UK who wanted the ten commandments in his courtroom would very soon get told to act in a proper manner.
It’s just so embarrassing to have this enshrined as some kind of national foundational text. Imagine reading it that way if you were unfamiliar with it. “So you think it’s essential to your national character that you prohibit the fabrication of idols?”
It really is embarrassing. It is just so silly, like a Monty Python sketch.
That Judges, who our cultural mores lead us to expect to be the most learned, honorable, equitable, sober and distinguished people in our society, could hold something which is so barbaric and childish in such high esteem is a real disappointment. To say the least.
Ronald Reagan continues to haunt us via proxy.
I recently had reason to read what John Adams, Thomas Jefferson, Thomas Paine, James Madison, and others wrote about freedom of religion. (My reading included the obvious Constitution of the United States, Constitution of Virginia, and the Constitution of New York, for a few examples. Sources of much of their thought on the subject came from John Locke, Voltaire, Hume, Adam Smith, and other members of the “Enlightenment”.
They were all keenly aware that nearly every country in Europe had a “state” religion that was abusive and coercive. There were ecclesiastical laws that were often brutally enforced by whatever church could wield enough power. People were required to give a certain amount of their income to the “established” churches, no matter what they believed. Churches ran schools in which they not only educated their students, they indoctrinated them in their religious beliefs. Believers in various sects fought bitter wars over what one was supposed to believe.
The founding fathers thought that, by not endorsing any church at all, there would be hundreds of sects and each sect would be small enough that it would be unlikely to take on the others for power and influence over government. They did not imagine that one species of religion, Reformation Protestantism, could become dominate enough to begin eroding the freedoms guaranteed by their Constitution.
There were many long and heated arguments over this at the Constitutional conventions, not only of the U.S. but of several states. Jefferson wrote a lengthy piece on the subject that became part of the Constitution of Virginia, and James Madison did the same for the Constitution of New York.
In America, largely as a result of the terrors of the French revolution, we had what was called the “Great Revival” (late 18th Century) in which old-line Protestants of numerous stripes, primarily in the South, declared that the French revolution happened because God had been left out of government. They immediately tried to redress this by insinuating religious doctrine into government documents and laws at every opportunity. That they were successful is shown by the success of the religious right even today, who can influence law about marriage rights, abortion, stem-cell research, teaching of science, “In God We Trust” on our money (did not become official until 1956, it supposedly proved we were not communists), the pledge of allegiance itself, (In 1892, a socialist named Francis Bellamy created the Pledge of Allegiance for *Youth’s* *Companion*, a national family magazine for youth published in Boston. In 1888 the magazine started a fund-raising program in which they sold american flags to schools, along with the pledge of allegiance. Very few schools even had a flag until then.[http://www.lectlaw.com/files/cur10.htm,] and especially onerous is the insertion of “under God’ (by Eisenhower in 1954, with the explanation that it was a quote from Lincoln’s Gettysburg Address — where the phrase “under God” does not actually occur in any manuscript copy.” to name a few instances.
Not only are we very fortunate that we are not governed under the laws of Islam (for an extreme example) — we are very fortunate that our founding fathers fought so hard to try to keep religion completely out of governance.
They could not have expected that their hard won nation, built on rational philosophy, with no supernatural references except to some great force they usually called simply “Providence”, could have succumbed so much to organized religion and what they called “superstition”.
Excellent post. I have only one quibble:
Biblical laws are every bit at shockingly, savagely, brutally primitive as Sharia — and, arguably, even more so. The only reason you think otherwise is because Jews and Christians have spent the past few millennia creating an unwritten tradition that the Bible is irrelevant.
Indeed, the very Ten Commandments of the subject of Jerry’s original post not only presuppose the righteousness of chattel slavery but also establish women as property equivalent to livestock. Elsewhere you’ll find legal requirements that rape victims marry their assailants and brutal execution mandated for trivialities so banal it’s unfathomable how it could occur to anybody to object to them.
And, let’s not forget, that Jesus is explicitly quoted — in the Sermon on the Mount, no less — as insisting that “every jot and tittle” of Mosaic law shall forever be vigorously upheld by him and all his followers.
Modern Sharia states are liberal paradises compared to what the Bible dictates.
Cheers,
b&
We don’t have a quibble. I referred to Islamic law as an extreme example that is still being fully enforced in some places. I could cite several other extreme examples, not all of them descended from Moses.
I publish other articles (and others on a variety of related topics) on Arguendo http://bit.ly/c8zTxo
Surely not, that would make them trained in cognitive dissonance. (^_^’)
But:
– *who cares if God exists*?
–
if all religions concerns *a philosophical deistic god*, why would some religions be “unconcerned”?
–
[from about.com
if the ten commandments is displayed in a courthouse, how come they don’t reflect US law?
Actually, 7 and 1/4 of the ten commandments are not law. Murder and theft are illegal, of course, but that “false witness” prohibition is slippery. If you take the phrase broadly, slander, perjury and lying to commit fraud are illegal, but generic lying is not. So you could say that 3 out of 4 categories of the “false witness” prohibition, are, by category, illegal. By number, the fourth category is probably larger, so it depends on how you look at it.
Yeah, I’ve seen other analyses before, YMMV. But they all end up in that interesting neighborhood.
Forgive, please, the length of this passage from my article “The Law in the Clouds.” Maybe someone will find it illuminative. The article argues for changes in the Supreme Court nominating (and a new retention) process.
June 27, 2005: A Date That Will Live in Entropy
During the middle of the twentieth century, the Supreme Court, through political appointments, obtained a liberal bias. From Douglas’ “Our task is to translate. . . “, to White’s “. . . the courts necessarily have carved out what they deemed the most desirable national policy governing various aspects of church-state relationships” , Brennan’s, “. . . inherent adaptability . . . [of the Constitution]” , the Court sought to fashion its own Constitution. As we have seen, it used various tests to avoid application of the words of the original document.
However, late in the century, the philosophical composition of the Court began to change, with a predictable movement in its bias. The watershed day for this change occurred when the Court released two opinions on the Establishment Clause on the same day—McCreary and Van Orden.
Long before McCreary, the Court had ruled that that the posting of the Ten Commandments in Kentucky schools violated the Establishment Clause. Years later, the executives of two counties in Kentucky posted the same documents on the walls of their courthouses—for which they were promptly sued. After litigation began, instead of removing the Commandments, the counties added additional documents. They added the Declaration of Independence (containing the highlighted phrase, “. . . endowed by their creator. . .”), religious proclamations from President Lincoln and President Reagan, the United States national motto (“In God We Trust”), and other manifestations of religion within government. Losing the case on the trial level, the counties appealed. During the pendency of the appeal, the counties, in apparent defiance, if not mockery, of the U.S. Supreme Court, added the Magna Carta, The Star Spangled Banner, and other historical documents.
The Supreme Court held the posting of the Ten Commandments unconstitutional. Justice Souter, writing for the plurality (Justice O’Conner concurred but filed her own opinion) used the first prong of the Lemon test as the basis for his opinion. Relying in large part upon the history of the litigation, he found the purpose of the law religious in nature. He suggests that, since “. . . an elegant interpretive rule . . . is not [to] be had . . .” we should use “neutrality,” as mentioned in Everson.
The dissent in McCreary now dimly recognized that the collage of decisions on the Establishment Clause had not advanced the cause of jurisprudence, nor been beneficial for the country. Establishment Clause jurisprudence lay in a state of chaos. Chief Justice Rehnquist wrote, “As bad as the Lemon test is, it is worse for the fact that, since its inception, its seemingly simple mandates have been manipulated to fit whatever result the Court aimed to achieve.” Rehnquist failed to grasp that the Lemon test was not the real problem. The practice of using precedent instead of the Constitution itself to decide cases had created the morass. Any test of the application of the Clause which is external to the Clause itself, will inevitably create the same ever-increasing diversity of results.
Justice Breyer cast the swing vote in McCreary and Van Orden. Although he did not favor us with an opinion in McCreary, he did so in Van Orden. In Van Orden the public display of Ten Commandments on government grounds was a part of a larger display of other historical artifacts. Thus Breyer decided that the display provided in a different context—one of the historical context of the state’s morality. He apparently bought the plurality argument that the defendants in McCreary violated the purpose test of Lemon, but that the Texas purpose was different. In a clear ideological divide, four of the Justices thought both of the displays violative of the Establishment Clause and four thought neither reached that mark. The vote of Breyer, with its gossamer distinction of “context” was the only thing that separated the cases. But it is the dissent written by Justice Stevens in Van Orden that most accurately describes the difference in approach and so clearly defines the fundamental error in the interpretive method he would apply.
Stevens decries the demise of “. . . Jefferson’s metaphorical ‘wall of separation between church and state.’” (As we have previously noted, such a wall was never erected by the Constitution, but erected and fortified only by the Court’s own misguided precedent.)
After a somewhat convoluted and unconvincing argument that the version of the Ten Commandments used by Texas might favor one religion over another, Stevens shows his true intent. First, he criticizes the plurality for its “. . . reliance on early religious statements and proclamations made by the Founders . . . because those views were not espoused at the Constitutional Convention in 1787 nor enshrined in the Constitution’s text.” It is difficult to take such an argument seriously, indeed not to laugh out loud at its absurdity, when it comes from one who, even within the same opinion, freely resorts to the same type of argument by historicity and finally resorts to arguing that the plurality’s history is simply incorrect. Stevens would be the last person on earth one would expect to honor the words “. . . enshrined in the Constitution’s text.”
At last Stevens turns to his result-oriented method of interpreting the Constitution. “It is our duty . . . to interpret the First Amendment’s command . . . not by merely asking what those words meant to observers at the time of the founding, but instead by deriving from the Clause’s text and history the broad principles that remain valid today.” The use of the word “remain” in the quoted sentence is disingenuous, at least. How could one possibly divide the the meaning of the words at the time they were written from the principles they announce? How could the original meaning of the words have vanished and the principles remain? The sentence can only be understood as an endorsement of the “Living Constitution” approach: the Court must reinterpret (i.e., “translate”) the Constitution to adapt to the changing times.
Our Constitution under the “Living Constitution” theory is, admit the proponents of this interpretative theory, “flexible”. The use of precedent enables the theory to survive, for if the justices were restricted to the meaning of the words of the document, they would not have been able to craft almost any of the Establishment Clause cases. In McCreary and Van Orden, all opinions cite almost every prior case dealing with the Clause, cherry-picking language from various parts of the cases to justify their conclusions. Analogy allows such flexibility. The result of using such methods has been decisions that lack good sense, or, in some cases, any sense at all.
Off topic–is there a way to subscribe to comments here (via email notification, not RSS feed) without first posting one?
Geez, I don’t know. Just post a comment to that effect–that you’re doing it to subscribe. I have no problem with that.
According to Scalia
1: Because there are already references to god in government…
2. Because most americans believe in a deity…
3. Because most of those believers are monotheistic jews, christians, and mislims…
4. Because jews, christians and muslims believe moses was given the 10 commandments by god…
5. … That is ok to institutionalize tyranny of the majority and first ammendment violations.
Or am i not following his long winded rationalization properly?
Hear, hear. I’m stealing that.