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Vail Valley Voices: Faith left to the individual

Henry Bornstein
Vail, CO, Colorado

Editor’s note: Henry Bornstein, a retired attorney who handled constitutional cases and studies the Constitution from a historical as well as legal perspective, replies in several parts to a recent Valley Voices column by Dick Gustafson addressing the separation of church and state. This is the sixth part.

As quoted in the prior part, Dick Gustafson also objects to the progressive secularists removing the 10 Commandments from school classrooms and public display. His summary fails to recognize the legal distinction between a non-religious-secular display vs. the promotion of religion in a display.

This issue has come up more than a few times. One of the more notorious cases was: MCCREARY COUNTY, KENTUCKY, ET AL., PETITIONERS v. ACLU of Kentucky, 545 U.S. 844, June 27, 2005.



The facts: Two Kentucky counties, each posted large, readily visible copies of the 10 Commandments in their courthouses, respondents, the American Civil Liberties Union et al., sued under 42 U. S. C. §1983 to enjoin the displays on the ground that they violated the 1st Amendment’s establishment clause. The counties then adopted nearly identical resolutions calling for a more extensive exhibit meant to show that the Commandments are Kentucky’s “precedent legal code.”

“The resolutions noted several grounds for taking that position, including the state legislature’s acknowledgment of Christ as the ‘Prince of Ethics.’ The displays around the Commandments were modified to include eight smaller, historical documents containing religious references as their sole common element, e.g., the Declaration of Independence’s ‘endowed by their Creator’ passage. Entering a preliminary injunction, the District Court followed the Lemon v. Kurtzman, 403 U. S. 602, test to find, inter alia, that the original display lacked any secular purpose because the Commandments are a distinctly religious document, and that the second version lacked such a purpose because the Counties narrowly tailored their selection of foundational documents to those specifically referring to Christianity.”



“After changing counsel, the counties revised the exhibits again. …The new posting, entitled ‘The Foundations of American Law and Government Display,’ consists of nine framed documents of equal size. One sets out the Commandments explicitly identified as the ‘King James Version,’ quotes them at greater length, and explains that they have profoundly influenced the formation of Western legal thought and this nation. With the Commandments are framed copies of, e.g., the ‘Star Spangled Banner’s’ lyrics and the Declaration of Independence, accompanied by statements about their historical and legal significance. … The District Court included this third display in the injunction…. The court took proclaiming the Commandments’ foundational value as a religious, rather than secular, purpose under Stone v. Graham, 449 U. S. 39. … Affirming, the Sixth Circuit Court of Appeals stressed that under Stone, displaying the Commandments bespeaks a religious object unless they are integrated with a secular message. The court saw no integration here because of a lack of a demonstrated analytical or historical connection between the Commandments and the other documents.”

The Supreme Court’s decision was 5 to 4, Scalia filed a dissenting opinion, in which Rehnquist and Thomas joined, and in which Kennedy joined as to parts II and III. This was not unexpected. It seems that these four strict constructionists — originalists only act as such when it suits their political and religious agendas. One of the few certainties in the U.S. Constitution is the absence of any religious references save the 1st Amendment and Article VI, Section 3 (no religious test for office). If they followed their alleged originalist claims, they would have voted with the majority, as did O’Connor, who wrote a concurring opinion, of which I quote a portion below:

Justice O’Connor, concurring:



“I join in the court’s opinion. The 1st Amendment expresses our nation’s fundamental commitment to religious liberty by means of two provisions — one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendants of people who had come to this land precisely so that they could practice their religion freely. Together with the other 1st Amendment guarantees — of free speech, a free press, and the rights to assemble and petition — the religion clauses were designed to safeguard the freedom of conscience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

“Reasonable minds can disagree about how to apply the religion clauses in a given case. But the goal of the clauses is clear: to carry out the founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate. … Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

“Our guiding principle has been James Madison’s — that ‘the religion … of every man must be left to the conviction and conscience of every man.’ Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 184 (G. Hunt ed. 1901) (hereinafter Memorial). To that end, we have held that the guarantees of religious freedom protect citizens from religious incursions by the states as well as by the federal government. Everson v. Board of Ed. of Ewing, 330 U. S. 1, 16 (1947); Cantwell v. Connecticut, 310 U. S. 296 (1940). Government may not coerce a person into worshiping against her will, nor prohibit her from worshiping according to it. It may not prefer one religion over another or promote religion over nonbelief. Everson, supra, at 15-16. It may not entangle itself with religion. Walz v. Tax Comm’n of City of New York, 397 U. S. 664, 674 (1970). …

“Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. … Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both. …

“We owe our 1st Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty — visionaries who held their faith ‘with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.’ Zorach, supra, at 324-325 (Jackson, J., dissenting). In my opinion, the display at issue was an establishment of religion in violation of our Constitution. For the reasons given above, I join in the court’s opinion.”

Please note Justice O’Connor’ recognition and acceptance of Madison’s and Jefferson’s separation of church and state as a necessary historical principle being applied on a continuing and current basis.


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