Con­sti­tu­tion pro­scribes forced par­tic­i­pa­tion, not free ex­pres­sion of re­li­gion

The Washington Times Daily - - Opinion - By Robert Knight

As the Amer­i­can Civil Lib­er­ties Union prowls the land to muz­zle public pray­ers, rip out Ten Com­mand­ments mon­u­ments and ter­rify small towns over Na­tiv­ity scenes, help may be on the way from the U.S. Supreme Court.

Later this year, the court may de­cide to hear ar­gu­ments for and against tear­ing down the 44-foot cross at the Mount Soledad vet­er­ans me­mo­rial in San Diego.

The ACLU says the cross, first erected in 1913 and re­built twice, is an un­con­sti­tu­tional es­tab­lish­ment of re­li­gion. You can see the cross clearly at the top of a moun­tain from the San Diego Free­way, and it of­fends and trau­ma­tizes ACLU at­tor­neys ev­ery time they glimpse it. Some bravely make it through that stretch while clutch­ing their hearts, while oth­ers nar­rowly miss go­ing off the road.

So far, ACLU at­tor­neys have not claimed that this dis­tract­ing ed­i­fice is a traf­fic haz­ard. Per­haps they’re afraid some­one might make that case against a Hoot­ers bill­board.

Given the on­go­ing ha­rass­ment by athe­ist and leftist groups, what we need is a le­gal nuke to set­tle such mat­ters — in fa­vor of re­li­gious lib­erty. One would think the clear lan­guage of the First Amend­ment would be enough, but court rul­ings and ever­fresh Aclu-gen­er­ated cases sug­gest oth­er­wise.

The an­swer might be the co­er­cion test, a way to as­sess claims that does not dis­tort the first part or ig­nore the sec­ond part of the First Amend­ment’s guar­an­tee that “Congress shall make no law re­spect­ing an es­tab­lish­ment of re­li­gion, nor pro­hibit­ing the free ex­er­cise thereof.”

Drafted as part of the Amer­i­can Civil Rights Union’s am­i­cus brief in the Mount Soledad case, the test adds cru­cial per­spec­tive. ACRU Gen­eral Coun­sel Peter J. Fer­rara, the brief’s au­thor, ex­plains:

“At the time the First Amend­ment was adopted, the coun­tries of Europe all had ‘Es­tab­lish­ments of Re­li­gion,’ which meant of­fi­cial gov­ern­ment re­li­gions en­forced by laws re­quir­ing at­ten­dance at the of­fi­cial church, reg­u­lar con­tri­bu­tions to it, and other pref­er­ences in law for mem­bers of that church. These es­tab­lish­ment poli­cies all in­volved gov­ern­ment co­er­cion to force cit­i­zens to sup­port the one fa­vored church. Al­most all of the Amer­i­can colonies had such es­tab­lish­ments as well, with le­gal com­pul­sion or co­er­cion as their hall­mark.

“These prac­tices, and any­thing like them in­volv­ing co­er­cion in re­gard to re­li­gion, are what the framers meant to pro­hibit in adopt­ing the Es­tab­lish­ment Clause, for this is what an Es­tab­lish­ment of Re­li­gion meant at the time. They did not mean, how­ever, to pro­hibit any vol­un­tary, public, re­li­gious speech, or re­li­gious ex­pres­sion or sym­bol­ism, which do not in­volve any such co­er­cion.”

In other words, James Madi­son and Ge­orge Washington never in­tended to bring down the heavy hand of gov­ern­ment on, say, Nep­tune Town­ship, N.J., which the ACLU forced last May to cover a his­toric au­di­to­rium’s re­li­gious sym­bols for a high school grad­u­a­tion, break­ing a nearly 70-year tra­di­tion, or on vet­er­ans groups that raise money for me­mo­rial crosses to honor com­rades who paid the ul­ti­mate price for our free­dom.

In April 2010, the Supreme Court up­held the right of a vet­er­ans group to main­tain a 7-foot me­mo­rial cross in the Mo­jave Na­tional Pre­serve in Cal­i­for­nia. The cross had been of­fend­ing an ACLU mem­ber and park em­ployee who had re­tired and moved to Ore­gon but was still an­noyed.

Last year, the Supreme Court for­sook an op­por­tu­nity to clar­ify this is­sue when it chose on Oct. 31 not to hear an ap­peal of a rul­ing against a Utah group that raises 12-foot-crosses in road­side me­mo­ri­als to fallen state troop­ers.

The court’s in­ac­tion sur­prised some ob­servers be­cause in the Mo­jave case, Salazar v. Buono, the ma­jor­ity opin­ion, writ­ten by As­so­ci­ate Jus­tice An­thony M. Kennedy, seemed to wel­come the statetrooper is­sue:

“A cross by the side of a public high­way mark­ing, for in­stance, the place where a state trooper per­ished need not be taken as a state­ment of gov­ern­men­tal sup­port for sec­tar­ian be­liefs.”

It’s a fair bet the court skipped the Utah case be­cause the Mount Soledad case has bet­ter cir­cum­stances for clar­i­fy­ing the right to public re­li­gious ex­pres­sion.

De­spite what most law schools teach, the key to a durable stan­dard is not prece­dents but the lan­guage of the Con­sti­tu­tion it­self and the Founders’ in­ten­tions.

Even Jus­tice Wil­liam J. Bren­nan, who cham­pi­oned the cor­ro­sive idea of the “liv­ing Con­sti­tu­tion,” said in a 1963 con­cur­ring opin­ion strik­ing down a Penn­syl­va­nia re­quire­ment for Bi­ble read­ing in schools (Abing­ton School Dis­trict v. Schempp): “The line we must draw be­tween the per­mis­si­ble and the im­per­mis­si­ble is one which ac­cords with his­tory and faith­fully re­flects the un­der­stand­ing of the Found­ing Fa­thers.”

Devo­tees of the “liv­ing Con­sti­tu­tion” can be right at least some of the time. Bren­nan throw­ing a crumb here is a bit like the vil­lain Lex Luther com­mit­ting a ran­dom act of kind­ness.

Public re­li­gious ex­pres­sion has long been a fix­ture in Amer­i­can life. As Mr. Fer­rara notes, “The very next day af­ter the House of Rep­re­sen­ta­tives of the First Congress voted to adopt the Es­tab­lish­ment Clause, the House adopted a res­o­lu­tion re­quest­ing Pres­i­dent Washington to pro­claim ‘a day of public thanks­giv­ing and prayer, to be ob­served by ac­knowl­edg­ing the many and sig­nal fa­vors of Almighty God.’ ”

In his 1998 book “Re­li­gion and the Found­ing of the Amer­i­can Repub­lic,” James H. Hut­son, a Li­brary of Congress his­to­rian, made an in­con­tro­vert­ible case that re­li­gion was cen­tral to the na­tion’s found­ing and func­tion­ing. He noted that church ser­vices were held in the U.S. House cham­bers up to the Civil War and af­ter­ward, in­clud­ing on May 13, 1866, “when Congress passed the 14th Amend­ment, which, ac­cord­ing to some later ju­di­cial the­o­ries, for­bids re­li­gious ac­tiv­i­ties on public prop­erty.”

Since English colonists founded Jamestown in 1607, public ex­pres­sions of faith have been com­mon. It’s been fairly re­cently, since lib­er­als fab­ri­cated an un-amer­i­can dis­tor­tion of the “sepa­ra­tion of church and state,” that the ACLU has been able to drive re­li­gion — and Chris­tian­ity in par­tic­u­lar — out of the public square.

The co­er­cion test may be just the ticket to re­store san­ity and gen­uine free­dom of re­li­gious ex­pres­sion.


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