Thursday, July 28, 2005

The Establishment Clause

The Supreme Court got one decision right last month. They got the other one wrong (at least in my opinion). Of course the court in Texas should be able to exhibit the Ten Commandments. But the court in Kentucky should also be able to display them. However, the Court came to both conclusions for the wrong reasons.

Call me a strict constitutionalist, but I believe that it does not matter what Jefferson wrote in his letter to the Danbury Baptists regarding the wall of separation between church and state. All that matters is what it says in the Constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

To me, the operative words are "shall make no law." Therefore, when Justice Moore displayed the Ten Commandments in his courthouse (in the more [in]famous case that occurred in Alabama), I had no problem with it. After all, no law was made by Congress related to the display. In my totally moot opinion, I thought it was a bad decision when Judge Thompson ordered the display removed and also when the 11th U.S. Circuit Court of Appeals upheld the decision (although I thought it was right for them to remove Moore from the bench, not because of anything having to do with religion, but simply because he defied court orders).

Who would ever have imagined that Justice Clarence Thomas would agree with me today? In his view, when the Establishment Clause of the First Amendment says, "Congress shall make no law respecting an establishment of religion," it means exactly that and nothing more than that. Congress "shall make no law," but the states may do so, if they choose to. "This case would be easy," Thomas said, if the court would simply "return to the original meaning of the [Establishment] Clause."

On the other hand, I oppose the words "under God" being part of the Pledge of Allegiance (and I don't utter them when I make the Pledge). I agree with the Federal appeals court that ruled that reciting the Pledge of Allegiance in public schools is unconstitutional. The words "under God" were not part of the Pledge for most of its history. It wasn't until 1954, when Congress made a law adding the words to the Pledge (and again in 2002 when Congress made another law ratifying it) that they became part of the pledge. The key here, in my moot opinion, is that Congress had to make a law for the religious establishment to come into effect.

The reason I repeat "my moot opinion" is because it's irrelevant what I think or what Jefferson and the other Founding Fathers thought. They intended the Constitution to be a living document capable of governing a dynamic society over the centuries. The Constitution gives the Supreme Court the power to make final decisions of constitutionality according to the context of the times in which it makes its decisions. That's why I'm so disappointed with the Supreme Court in effect "punting" when the decision came to them. I can't see how, if they chose to hear the case, a majority could have decided any way other than to find the words unconstitutional.

The same principles apply to today's decision. The court in Texas should be able to exhibit the Ten Commandments simply because Congress had no role in establishing the exhibit. Its historical nature is irrelevant -- at least in my opinion, but not the Court's. Likewise, the court in Kentucky should also be able to display them because there is no legislation formalizing the Ten Commandments as part of that court's law. However, the court disagrees with me on this matter, too.

That being said, I guess all of this writing was just a big waste of time. After all, as I said, my opinion is moot. Our Constitution gives the Supreme Court the authority to interpret it, not me. Therefore, I'll defer to the Court's decision, whether I like it or not.

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