Wednesday, March 3, 2010

Supreme Court Won't Hear Bible Marker Case

I was relieved when I read the headline this week in the Oklahoman, our state’s largest newspaper. The U.S. Supreme Court has once again upheld the Constitution by announcing it will not review an August decision by the 10th Circuit Court of Appeals. The Ten Commandments monument must be removed from the Haskell County Courthouse lawn. The 10th Circuit Court in Denver had earlier ruled the 8-foot-tall stone monument’s placement on the courthouse lawn in 2004 is unconstitutional because it amounts to a government’s endorsement of religion.

The Supreme Court wisely affirmed a right decision of two lower courts. It did what it is charged to do; it upheld the guarantee of our Constitution that there must always be a formal distance between government and religion. The First Amendment is a command to the government to keep its hands off religion; neither aiding it nor hindering it. Jefferson and Madison knew what they were doing when they insisted on a separation clause in our government’s founding document. If the history of the world has done nothing else, it has clearly taught us that nearly as long as humans have been participating in religion, governments have either assumed the power to regulate, suppress, or foster it; or the authorities of religion have assumed the power to regulate their governments. Kings have sought to place curbs on the church’s influence in the hope of gaining more power for themselves. And popes have insisted that kings should be regarded as simply servants of the church. This back and forth struggle between church and state has been the bane of human progress for centuries.

Many folk like to think the Protestant Reformation reconciled the church-state issues of the Middle Ages. But make no mistake about this—Martin Luther did not believe in religious liberty. He may have sought the freedom to interpret the Bible differently than taught by the Catholic Church. But he also assumed that his own interpretation was the only correct one and persecuted those who disagreed. In England, Henry VIII may have disestablished Catholicism in England by setting up the Anglican Church, or Church of England; but everyone knows he did it not to promote religious freedom, but to allow him to divorce his wife and marry another in search of a male heir to England.

John Calvin may be best known for founding the puritan movement that first brought Protestantism to the American colonies; but he also forced the town council to swear an oath pledging to uphold his form of Christianity. He banned the celebration of Christmas and Easter, raided homes, banned books, and interrogated private citizens in order to stamp out his form of heresy.

We often think the Pilgrims and Puritans came to America for religious freedom. But we quickly forget that their form of religious freedom was meant only for themselves. They had absolutely no interest in promoting freedom of religion for anyone else. Once in the new world, they immediately set up harsh theocracies where every aspect of religious life was regulated and a state-imposed orthodoxy was strictly enforced.

Finally, a preacher named Roger Williams, who had been run out of Massachusetts almost immediately after he had arrived in Boston, came up with a sensible idea. He insisted that the state should have no business in enforcing orthodoxy of any kind. An individual’s understanding of religion and truth must come from within. He believed in total freedom of conscience. It was Williams who actually coined the phrase concerning the “wall of separation between church and state.” His treatise was in response to having been found guilty by a general court made up of Puritan leaders for “disseminating new and dangerous opinions”, and banishing him from the colony.

The point of this historical rambling is to show that religious liberty had existed nowhere in Europe, or even in Colonial America outside of Rhode Island prior to the establishment of our own Constitution. Citizens were regularly taxed to support religion. Laws required men to believe certain tenets of Christianity before they could hold public office. Blasphemy was a capital offense. It was this form of harshness and repression of civil rights that led Madison and Jefferson to advocate the saner principle of keeping religion and government from each other.

Today, the Religious Right, unable to find any support for their views in the historical record, simply invent a new “history” whenever they wish by selectively culling material from the writings, speeches, and the actions of the framers of our Constitution. As Scottish Rite Masons, we are well aware of this kind of tactic. Anti-Masons, made up mostly of the Religious Right, do the same thing when quoting Albert Pike.

But it’s a ploy easily uncovered by astute men.

Just because our constitutional delegates, all religious men, often made speeches outlining the importance of religion to good government in their discussions as framers of the constitution, this did not mean they were promoting a union of the two. Yes, they were devoutly religious men. Comments concerning their personal religious sentiments did exist, but these tell us only that they believed religion was necessary to the function of good government. That did not preclude them in any way from being advocates of church-state separation. Jefferson was firmly convinced that allowing religious leaders to entangle themselves with government would prove an obstacle to human progress and liberty. For our framers, the fundamental concern was in prohibiting “the clergy from getting themselves established by law and engrafted into the machinery of government as being the formidable engine against the civil and religious rights of man.” (Jefferson).

As Scottish Rite Masons, if we are champions of anything, we are champions of religious freedom. We must agree with Jefferson that the best interest of human liberty and progress is served whenever a court decides against a church or any other religious entity or cause from having any legal authority or privilege whatsoever that might interfere with one person’s freedom of conscience in interpreting for himself the essential mandates of God. In a free country, this must always be the first rule of law.

This brings me back to the Haskell County courthouse lawn. The courts have wisely developed a three prong test for determining if the separation doctrine guaranteed us by the First Amendment is being infringed upon. In the case of the Ten Commandments, the three tests seem rather easy to decipher. Is it a religious monument? Is its effect primarily religious? Does placing it on government owned property constitute an entanglement of government in religious matters?

The answer to all three is obviously in the affirmative. Even if no one showed up when the monument was placed, two of the three tests were violated. When the public officials took formal action permitting the monument, the third test was met. Then, to add legal insult to injury, when the monument was dedicated, there were ministers present who spoke in behalf of its message. The message was religious, and the celebration created a religious effect. The fact the county commissioners allowed the monument to be erected on public grounds entangled them in the web of disregard for the public’s constitutional protection.

The bottom line is that the separation of church and state will not survive if not defended. It will not survive if people come to believe that the principle is not in the best interests of our nation, or that it is hostile to religion.

For those who understand the true history behind church-state separation and how the principle defends religious liberty, it is a ‘no-brainer’. We need only to look back over our shoulder to feel the persecution of the past. It is the awareness of such a history that made church-state separation an integral part of the Scottish Rite creed for two hundred years.

It could be our gift to the world if we brought it back into our Masonic consciousness, and became public spokesmen for its cause. When the public is educated, the separation clause can be defended and preserved in America’s courtrooms, schools, statehouses, and in Congress. But to not continue to do so, and even worse, by allowing the Religious Right to prevail in duping our public officials with their revisionist history, could prove disastrous for our country.

Nothing less than the future of religious freedom is at stake.


Brother Jason said...

My worthy brother,

I enjoyed your article immensely, yet disagree with a few points. I choose not to make a point by point case for conservation of space. I will use our current currency to make my points.

I must ask, how do you feel about the the motto of "In God we Trust" being displayed o our currency.

According to the three prong test, this fails. "Is it a religious monument?" It absolutely is, one definiton of monument states that it is "a written tribute to a person" and "any enduring evidence or notable example of something." In God we Trust fits both definitions, it is a monument to the fountain of all religions. "Is its effect primarily religious?" Absolutely, it reminds us of our dependence as a nation on the providence (spoken of so much by the founding fathers)of deity. Does placing it on government owned property constitute an entanglement of government in religious matters? Currency, the representation of wealth, is owned by the state, (hence why banks send it back to the federal reserve when it needs to be replaced). Placing this monument on government property entangles the government in relgion by declaring that the American people put their trust in God. Hence, the motto fails the test.

The argument can be made that the Ten Commandments are primarily Judeo-Christian Faith based and therefore segregate members of other faiths that do not belong to this faith family, whereas the motto "In God we Trust" does not segregate. "In God we Trust" does segregates members of faiths who believe in a Supreme Being(s) yet do not look at him/them as God. Followers of Islam never use the word God, refering to Him however as Allah, Jews refer to Him as our Lord God, even refusing to use His name of Jehovah. Therefore, currency even fails that test.

We as a people look passed this fact though because the term God has become inclusive of all names for all Supreme Beings (at least in Western Cultures)and therefore does not segregate.

The Seperation Clause does not mean that the Government is aloof from religion, its intent was that the Government does not support any religion. I have no problem that the Ten Commandments were displayed on government property-as long as monuments to all faiths were allowed on the porperty as well. Reason dictates that this is not possible and therefore the Ten Commandments should be removed due to the fact that it shows precedence to some faith groups over others.

"For those who understand the true history behind church-state separation and how the principle defends religious liberty, it is a ‘no-brainer’." Separation does defend religious liberty for all, yet the "neutral" stance of the government has proven that faith is inferior to everything else. We can't teach creationism in school (even as a theory) because of separation, yet evolution (which only reaches deism on its best day) can only be taught and touted as truth. This is only one example.

I agree that the separation clause is the only thing that protects the religious liberties of all and that we all need to take a good look at its purpose and intent.

Please don't assume that I am a member of the religious right, I believe that this group boders on the fanaticism that they so eagerly decry in other faiths. I just feel that the separation clause means something a little different that how it was illustrated in your post.

Sincerely and Fraternally,

Robert G. Davis said...

Hi Jason:

I do not think we are in disagreement. "In God We Trust" was not placed on U.S. coins until 1864, so we will never know how the founders would have counseled us on this, but your sentiment seems reasonable. The omission of God in the Constitution was not intended as a slight. Madison insisted that the Constitution create "not even a shadow of right in the general government to intermeddle with religion." Obviously, it would have been better if such a phrase had not been placed on coinage, but what is done is done. And I agree the word "God" comes as close to a universal as is possible.

I also agree that the Ten Commandments could be on public property, but only if placed there along with all other articles of faith, including the articles of the Wiccan religion. Since it is unlikely a county commission, or any other authority, will go to the expense and trouble of doing this, then the Ten Commandments standing alone is a violation of the Constitution.


Anonymous said...

The portion of the Bible frequently referred to as the “Ten Commandments” is names “Aseret HaDvarim (Ten Utterances)” in the Biblical text itself. This passage is interpreted as a set of ten Commandments by the Roman Catholic Church, a different set of ten Commandments by Protestant denominations, and a different set of ten Utterances by Judaism. The passage actually contains fourteen Commandments if one bothers to count and notices the subtleties in the Hebrew text. Because of these different opinions of the ten all from religions who acknowledge them as the Word of God, no actual list of them can be written which does not denounce the religions of millions of Americans whose sacred texts include this passage.

In ancient Israel, God granted political authority to the Tribe of Judah, and religious authority to the Tribe of Levi, thus separating the house of worship and the government. It seems to me that those of us who believe the Bible should believe all of it including the parts that say that we cannot impose our religious beliefs on other people. I would not want the government to impose someone else's religion upon me on mine upon someone else.

Anonymous said...

Boy, it doesn't take a Robert Bork to point out that this is about an inch deep.

Uh, there is no "Separation Clause." Until the 14th Amendment, "Congress shall make no law ... " literally meant that thecongress, and only congress, shall make no law restricting the free expression of religion. That's why, for example, the official state religion of Connecticut was Congregationalism until 1818 and you had to be a Protestant to run for the state legislature until 1877.

I thought it was established constitutional history that the founders supported the state's rights to do whatever they wanted -- that whatever "wall of separation" they sought was only at the Federal level.

But then, I'm not a professional Mason, so maybe I don't know what I'm talking about.

The people of Haskell should have the right to do what they want. Unelected philosopher judges in Denver really shouldn't get a say. It's likley they wouldn't have either, in Jefferson's America.

Robert G. Davis said...

The issue in Haskell County was not about prohibiting the ten commandments from being publicly posted. It was about attempting to place a religious monument on property owned by the taxpayers. The problem with placing articles of faith on public property is that, once permitted, one must then be obliged to place all articles of faith from all religious systems on the same property. While this is the only balanced and legal response to such matters, it would upset far more people than the current ruling did. In fact, the monument in question has now been relocated on American Legion property and everyone is happy.

As for your claim that church-state separation is a federal matter, I think you will find that, historically, most church-state disputes have been state handled issues. In the American judicial system, these have generally been handled by the state courts. It is when these cases have been settled based on political opinion rather than on constitutional law, that the federal courts have rightfully stepped in.

Anonymous said...

To better understand this topic, we have to first step back and agree that originally the US Constitution was a covenant among the various states and the federal government. The United States of America was a government of the states, by the states, and for the states. The States elected the President of the United States (Electoral College). There were two legislatures: the House and the Senate. The people elected the Representatives in the House every 2 years; the States appointed Senators every six years. The Executive Branch and the Senate, representing the States, had to appoint and approve US Supreme Court Justices; and since international treaties supersede the US Constitution the States had to ratify any treaties by vote of the Senate.

As was stated in the posts, originally various States had their own State Religions and they did not want their religions replaced by a federal or national religion -- for example, the federal government could not force secular humanism on the States and abolish their respective Christian religions.

After the Civil War, and the 14th Amendment, our Republic has evolved into a Democracy and a government of the people, by the people, and for the people. It took quite awhile to do this and the country is still evolving.

In any event, today, what is or is not constitutional is simply whatever 5 out of 9 US Supreme Court Justices opine it is. The US Supreme Court is no longer a Court of Law interpreting the US Constitution as written, and urging it Amendment when protections sought are not granted in that document; the US Supreme Court today is also a Court of Equity making decisions that feel good and seem to be fair under various facts and circumstances -- which is why the US Supreme Court changes its mind on "constitutional" issues even though the words in the document have not changed, and why it resorts to foreign law to justify its decisions.

Consequently, even though "separation of Church and State" is not in the US Constitution and the 1st Amendment specifically prohibits the federal government and federal courts from making any law respecting the establishment of religion or impeding the free exercise of religion, the US Supreme Court has opined that the Constitution is a "living document" that can be ignored except in form, and Thomas Jefferson's statement in a letter to a friend regarding Virginia's state religion is now "constitutional" law and there must be separation of church and state as determined by the federal courts regardless of what a majority of the people want or any particular state.

The idea in America today is that government must try to please everyone and since this is folly it is easier to just oppress the majority religion in any given area. And Americans like sheep to the slaughter go along with this.

This is America today. Keep in mind, however, that the liberalism of the federal government is a two edged sword. For example, if 5 out of 9 US Supreme Court Justices someday are fundamentalist Muslims then under our present judicial system this Court could rule that it is constitutional to allow Muslim religious symbols and not any other. Crazy as it sounds, stare decisis is no longer honored, and our Supreme Court can do anything it pleases as long as a majority agree. So anything is possible in America today -- power is what matters.

Okay, whatever. :-)

MP said...

Boy, Anonymous on 4 May, you seem to have read a heck of a lot that wasn't written into what the founding fathers DID say about religious liberty:

Jefferson himself said that the people's money should not support any religious edifice, at a state level:

"Be it enacted by the General Assembly, that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but that all men shall be free to profess, and by argument to maintain, their opinion in matters of religion, and that the same shall in no wise diminish, enlarge, or affect their civil capacities."
from the Virginia Statute for Religious Freedom, written by Jefferson.

Madison, in response to the event which got Jefferson's bill enacted as Virginia law (the attempt to levy a tax to support religious teachers) said the following:

"Because it is proper to take alarm at the first experiment on our liberties. We hold this prudent jealousy to be the first duty of Citizens, and one of the noblest characteristics of the late Revolution. The free men of America did not wait till usurped power had strengthened itself by exercise, and entagled the question in precedents. They saw all the consequences in the principle, and they avoided the consequences by denying the principle. We revere this lesson too much soon to forget it. Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?"

How you can argue that either of these men meant that ONLY the Federal government was to be prevented from interfering in religion?

"that whatever "wall of separation" they sought was only at the Federal level"

I call shenanigans - meaning I think you are playing very fast and loose with unrelated concepts - state's rights and freedom of religion.

Madison DEFINITELY intended that the separation should exist at the state level, not just the federal one.
Consider well Madison speaking of "total separation of the church from the state." in an 1819 letter to Robert Walsh, or "Ye States of America, which retain in your Constitutions or Codes, any aberration from the sacred principle of religious liberty, by giving to Caesar what belongs to God, or joining together what God has put asunder, hasten to revise & purify your systems, and make the example of your Country as pure & compleat, in what relates to the freedom of the mind and its allegiance to its maker, as in what belongs to the legitimate objects of political & civil institutions.

Strongly guarded as is the separation between Religion & Govt in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history.
" in his "Monopolies Perpetuities Corporations
Ecclesiastical Endowments".

Robert G. Davis said...


Yes, it is true the clause "separation of church and state" is not in the Constitution; but it doesn't have to be. It was Jefferson, while President, who declared that the American people, through the First Amendment, had erected "a wall of separation between church and state." Madison also confirmed this principle in an 1819 letter, attesting that both "the priesthood and the devotion of the people at large have been manifestly increased by the total separation of the church and state." He later wrote that "strongly guarded is the separation between religion and government in the Constitution of the United States.

The Constitution is a document that, among other things, outlines the principles upon which a society governs itself, and is governed. The separation ideal is a principle that is widely held by the American people. The principles of the Constitution are every bit as significant as its words. The right to a fair trial is another such principle. It does not say in the Constitution that anyone has a right to a fair trial; but such is accepted to be a constitutional principle.

I think this is how you are confusing the issue regarding the Constitution and the separation of church and state.

As for the Supreme Court being nine men and women whose job it is to interpret the principles of the Constitution--thank God for that! For any democracy to remain free, there has to be a judicial body that functions independently of the will of the people. As people, our task is to have the wisdom in choosing the folk whose personality is the best to carry out the taks of judging. Justice consists in judging all persons uprightly and impartially, without any personal considerations. Justice was never meant to be a popularity contest.

I suspect the role of judgship is a role legislators and congressmen would never be particularly good at. :)


ross k. said...

I love the point about the Reformation. So many people by default see the Reformation as a movement toward libertine secular humanism, when Martin Luther was a quite medieval zealot who wanted believers to be less libertine and more zealous, not the other way around.

I leave the larger point of the article to you who have so ably and interestingly commented on it already. You're teaching me. What a vigorous, interesting and thought provoking article and blog. Thank you all.