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the courts have ruled (us)…now let them enforce it

 

 

            Separation of people and faith       Freedom of speech

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The Separation of People and Faith

Among the cases from the past year analyzed here, this is the largest section.  Do you not think that there is active hostility from the courts toward faith, people of faith, and expression of faith? What is that First Amendment really for, anyway?

 

One Nation, under nothing

 

In several cases, named Newdow I and Newdow II, and Elk Grove United School District v. Newdow, the federal court decided that including the words “under God” in the pledge of allegiance, as recited in public schools, is unconstitutional.  It is interesting for two reasons, first that the courts really have no idea what reasoning to apply when finding the word “God” abhorrent.  Any reasoning will do:

 

“We are free to apply any or all of the three tests, and to invalidate any measure that fails any one of them. Because we conclude that the school district policy impermissibly coerces a religious act and accordingly hold the policy unconstitutional, we need not consider whether the policy fails the endorsement test or the Lemon test as well.”

 

Why do the courts have a wide range of options for invalidating religious expression?  Can’t the courts just pick one so we know how to defend ourselves?  Second, the Court declares that words that suggest a belief in no god are also unconstitutional:

 

“A profession that we are a nation under God is identical, for Establishment Clause purposes, to a profession that we are a nation under Jesus, a nation under Vishnu, a nation under Zeus, or a nation under no god, because none of these professions can be neutral with respect to religion.”

 

Understand what that means.  Even professing no belief at all is not “neutral” with respect to religion.  The men and women in the black robes, in all of their wisdom and learning, have done us the favor of imparting the revelation that believing in no god is the same thing as believing in some god, and that none of that is permissible in school.  What real societal or governmental interest are they serving with this opinion?

 

The Supreme Court recently overturned these rulings, on what the news calls a technicality.  In fact, the Court reversed the Pledge ban on a very unique interpretation of the rule of standing, saying that the man who brought the lawsuit, Reverend Newdow (yes, he is a reverend of what he calls the First Amendmist Church) could not do so because he does not have full custody of his child.  That decision is troubling.  While CourtZero is pleased that the Pledge is allowed once more in the 9th Circuit, we do not like how we got there, and fully expect the issue to come right back, either in the 9th Circuit or in another, since the Supreme Court declined to tell us if they believe the words under God to be constitutional.

 

 

Can I study auto repair if there is a fish on the bumper?

 

In the case of Locke v. Davey, decided by the U.S. Supreme Court in February of 2004, the court decided that a college student, an adult, coerced by no one, was not permitted to use the scholarship he had earned to study theology.  He could study anything else, (use your imagination), but not theology.  His motivations for his studies do not matter, only that learning about belief systems is horrible and dangerous.  The young man fulfilled the requirements, working hard, graduating in the top 15% of his class, and getting at least a 1200 on his SAT.  His family was near or below the median income for families in Washington.  He had a dual-major, in theology and business management and administration.  The Supreme Court of the United States decides:  theology bad, business bad too if mixed with theology.  Note that the college the young man attended was eligible under state rules to receive scholarship money.  Some quotes:

 

“Washington State established its Promise Scholarship Program to assist academically gifted students with postsecondary education expenses. In accordance with the State Constitution, students may not use such a scholarship to pursue a devotional theology degree. Respondent Davey was awarded a Promise Scholarship and chose to attend Northwest College, a private, church-affiliated institution that is eligible under the program. When he enrolled, Davey chose a double major in pastoral ministries and business management/administration.”

 

“This case involves the "play in the joints" between the Establishment and Free Exercise Clauses.  That is, it concerns state action that is permitted by [the 1st amendment] but not required by the [1st amendment].

 

Huh?  Lemon test, establishment test, coercion test, “play in the joints” test?  I guess that means that if it is the individual against the state, the state wins, period.

 

“Here, the State's disfavor of religion (if it can be called that) is of a far milder kind than in [another case], where the ordinance criminalized the ritualistic animal sacrifices of the Santeria religion.”

 

The U.S. Supreme Court just told us that disallowing the study of theology is trivial next to the far worse discrimination of prohibiting animal slaughter.  The Court also just told us that a government can “disfavor” religion, as long as it wants to disfavor other religions more.  Look, folks, the people in robes are simply not as smart as they claim to be.  Even if you love the notion of “separation of church and state”, you have to recognize that the Supremes are choosing sides between religions here.

 

“Washington's program [does not] require students to choose between their religious beliefs and receiving a government benefit”

 

Then why are you deciding that this student must choose between his religious belief and receiving a government benefit?

 

“The State's interest in not funding the pursuit of devotional degrees is substantial, and the exclusion of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here.”

 

Don’t forget that the state’s interest in regulating animal slaughter is not “substantial” compared to keeping students from studying theology on the scholarships they’ve earned.  Also, does it not seem cavalier to any of you that having to give up the means to pay for a college education, which you have earned, because you happen to want to study religion, is deemed by the court to be “a minor burden”?

“Davey had planned for many years to attend a Bible college and to prepare [himself] through that college training for a lifetime of ministry, specifically as a church pastor."

 

Your point, Supreme Court?  The point they make is that the student’s intentions to learn to minister to others is damning.  Of course, he may have gotten turned off and turned from the ministry and taken up other causes, but even the possibility that he might become a pastor is worthy of the United States Supreme Court citing the fact as part of its reasoning.  Does that frighten you at all?

 

“Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders”

 

This quote is included because it is hilarious.  What are we to take from this?  That popular uprisings can be cited as authority for Supreme Court decisions?  That there is no difference in thinking between the robed ones and fleeting historical mobs?  What was that independence of the judiciary thing your were talking about?  Tell us again whom you are protecting us from, please.

 

 

Just because I flash this ugly picture of you doesn’t mean I think you’re ugly

 

The Catholics really are having a bad year in the courts.  One wonders what an outcast a catholic boy scout must be.  From the case of O’Connor v. Washburn University, decided February 26, 2004, we learn that the government may display a statue in public that Catholics find to be a statement of hostility toward Catholics.

 

Here is the background.  The Washburn University in Kansas has a campus beautification project, in which they use public money on public land to display art, to make the campus beautiful.  A statue called “Holier Than Thou” was placed in a central place on campus in September of 2003.  The statue is a bust of a Catholic church official.  The artist engraved the words “The Cardinal” on the statute.  I’ve seen a photograph of the statue, and it is just plain ugly.  The case is not about the quality of art, of course, and I am no expert in such things, but it is an ugly piece.  The face is distorted and, yes, the hat (miter) does look like a phallus, and not in a good way.  The sculptor included a statement, which is displayed with the statue, that says:

 

“I was brought up Catholic.  I remember being 7 and going into the dark confessional booth for the first time.  I knelt down, and my face was only inches from the thin screen that separated me and the one who had the power to condemn me for my evil ways.  I was scared to death, for on the other side of that screen was the persona you see before you.” 

 

Before we go further, I need to make some things clear.  First, your editor is not Catholic.  Second, I think the court in this case made exactly the right decision in allowing the statue.  Bear with me, please.  For those who believe in the First Amendment, the test is this:  (1) does this statue create a state religion; (2) does this statue restrict the free exercise of religion?  The statue, though ugly and offensive, does neither of those things, therefore its display is not prohibited by the Constitution.  The problem, however, is that the court did not apply THAT test at all (no court does), and that this case is, well, unfair compared to other cases involving, for instance, the Ten Commandments, prayer by students, the Pledge of Allegiance, and Christmas Nativity scenes.

 

The Court said:

 

“[The] requirement of government neutrality toward religion does not mandate a ‘complete absence of religious expression in public institutions….[The Establishment Clause] prohibits hostility toward any [religion].”

 

Cool!  Can we display the Ten Commandments again?  No?  Can we put out a Nativity Scene at Christmas?  No?  Can Santa ride on the fire engine again next year?  No?....

 

“Plaintiffs claim that mocking the religious beliefs of Catholics…can never be a legitimate government purpose”  However “[the] University’s Campus Beautification Committee organized the outdoor sculpture exhibition to advance its primary goal of enhancing the beauty of the campus…We find that [the statue] functions to aesthetically enhance Washburn’s campus…”

 

I am so glad that the courts decide First Amendment cases based on whether or not a display is aesthetically pleasing.  We should all be glad to be told by the robed ones what art is pretty and uplifting.  Here’s the kicker:

 

“[T]he court cannot conclude that ‘Holier Than Thou’’s presence on Washburn’s campus would cause a reasonable observer to believe that [the government] endorsed hostility toward the Catholic religion.”

 

That’s the primary basis on which the court decided that the statue is not prohibited.  It makes sense, but stands out for the fact that the reasoning is never used to allow displays that are favorable to religious Americans.  The court simply declares that most people wouldn’t see the statue, as ugly and clearly anti-Catholic as it is, as anti-Catholic.  Why, oh why can’t the courts decide that the words “under God” in the Pledge of Allegiance are not threatening because any reasonable observer would know that the schools were not really trying to force any particular religion on students.  Why, oh why can’t the courts decide that football players joining to say a prayer before a game would not be seen by a reasonable observer to be anything other than young fellows getting psyched for the game?

 

Once again, I believe that this court made the right decision, but for the wrong reasons.  It is a shame that the reasoning that allows the Catholics on Washburn’s campus to continue to feel ostracized can not be applied to other things as well.  The reason that it is not is simple.  The courts are hostile to traditional beliefs and to Christians in particular.

 

 

If you’re old enough to die for your country, you’re old enough to vote.  But you’re not old enough to handle a prayer at dinner.  Or, can your squad leader pray for you during a firefight in Iraq?

 

In the case of Mellen and Knick v. the Superintendent of the Virginia Military Academy (VMI), two cadets, Neil Mellen and Paul Knick along with the ACLU (and with, inexplicably, the Jewish Anti-Defamation League), sued VMI.  In April of 2004, the United States Supreme Court decided that it would not hear the case, meaning that the 4th Circuit Court of Appeals decision, banning prayer at VMI, would stand.  VMI was established in 1839.  Cadets Mellen and Knick, who have since graduated, were subjected to the following horror:  freshman at VMI have to attend the beginning of the evening meal.  Upperclassmen do not.  If a cadet finds himself in the mess hall at the start of dinner, he will hear a prayer before the meal.  The court explains:

 

“Depending on the day, the prayer begins with ‘Almighty God’, “O God’, ‘Father God’, or ‘Sovereign God.’….Each day’s prayer is dedicated to giving thanks or asking God’s blessing…A prayer may thank God for [VMI], ask for God’s blessing on the Corps, or give thanks for the love and support of family and friends…[Each prayer] ends with…’Now O God, we receive this food and share this meal together with thanksgiving.  Amen.”

 

Standing at attention, bending to the whim of upperclassmen, undergoing military training, etc., didn’t bother the plaintiffs enough to seek out the ACLU.  Thanking God (not a specific god, mind you, but a generic one) for the meal was too much for them.  I have to note that it is not easy to get into VMI.  A potential cadet has to show himself physically and mentally able to deal with the traditions of the school and to accept the possibility that he will join the military and perhaps die.  In short, he has to bust his tail to get admitted to VMI; he has to be above average in the area of dealing with stress and conflict.  This is very, very different than deciding whether or not a 3rd-grader in public school ought to hear a prayer.

 

In this case the court first ignored the fact that the cadets had graduated and no longer needed the court to address their concerns.  In fact, this court specifically noted that under these circumstances they would normally send the case back to trial court with orders to dismiss it.  But we’re talking about prayer here, and the court decides to go to extraordinary lengths to combat the evil of prayer.

 

“Where a case has become moot on appeal, the established practice is to reverse or vacate the judgment below and remand with directions to dismiss.”

 

The court in this case says several times that the graduated cadets’ claims are moot (that is, there isn’t anything the court can do to help them now).  The court also says that the cadets’ claims for injunctive and declaratory relief must now be moot, but that their claims for monetary damages can survive.  At the same time, the court says that there are no ways to grant monetary damages, as the one they sued (VMI’s Superintendent) is immune from suit.  The court says all this, which means the whole thing should end right here, and then just sort of goes on….  That alone makes this a bad decision that the Supreme Court should have reviewed.

 

The court goes on to state that the prayer would have been Constitutional if it had a “unique history”, saying only that the last Constitutionally permissible prayer occurred in 1789, when the 1st Amendment was submitted at the same time that the Founders appointed and paid chaplains for the Houses of Congress.  By their logic, the Founders passed the 1st Amendment and forbade prayer by any government entity at exactly the same time that the chaplains were appointed.  Folks, you can read this opinion at 327 F.3d 355.  It doesn’t make a lick of sense.  This court decided that since the school was founded after 1789, its practices cannot, as a matter of law, have a unique history.

 

The court also decided that VMI cadets fall into the same category of 3rd graders when evaluating whether or not they are coerced into hearing a prayer, completely ignoring the fact that applicants to the military academies have to work very hard, with eyes wide open, to be able to attend them in the first place.

 

It’s a horrible decision, and the Supreme Court’s decision not to review it is a dereliction of duty, no matter what they might ultimately have decided. 

 

As an aside, when I was a cadet at West Point I never would have considered suing the institution I had worked so hard to attend.  Something about looking a gift horse in the mouth…

 

Former Cadet Mellen, having succeeded in banning prayer at an institution dedicated to nurturing military combat leaders, is now a member of the Peace Corps.  This story isn’t over, either.  If you read this decision literally, and take into account that the Supreme Court has approved of it, it is now illegal for a combat commander to say a prayer for his soldiers while under enemy fire.  Nobody judge has the right to take that away from our soldiers.

 

If you have suggestions for other cases, send e-mail to postmaster@courtzero.org