Rightank

Recently, the Americans United for the Separation of Church and State (”AU”) released their official position regarding the nomination of Judge Alito to the Supreme Court. Not suprisingly, AU has decided to oppose Alito:

Americans United opposes the nomination of Judge Alito . . . because of the substantial risk that he would abandon the sensitive approach to church-state issues that has been the defining feature of Justice O’Connor’s Establishment Clause jurisprudence, and that he would . . . revamp[] Establishment Clause law in ways that would weaken or dismantle the constitutional wall separating church and state.

AU is worried about the downfall of the anti-originalist and court-doctored meaning of the Establishment Clause that Justice Hugo Black inserted almost sixty years ago in Everson. The “sensitive approach” that Justice O’Connor applied is code for “separationist approach”–which is AU’s overarching objection to Alito’s jurisprudence.

According to AU, Alito’s decisional history regarding the Free Exercise and Establishment Clauses is troubling because he would allow students to pray at a graduation ceremony if a majority of the students approved (ACLU of New Jersey v. Black Horse Pike Regional Board of Education) or during a class presentation (Child Evangelism Fellowship of New Jersey, Inc. v. Stafford Township School District). AU fear Alito not because he would allow for a Christianization of America (isn’t America already Christian?), but, because of his willingness to protect the rights of religious majorities in the public square. Moreover, he treats religious speech as protected by the Constititution instead of forbidden, rejecting the constitutional ostracism that pervades the liberal elite and is prominent in Justice O’Connor’s religious jurisprudence.

An originalist understanding of the Religion Clauses espoused by Alito, particularly of the Establishment Clause, would remove the muddiness of Justice O’Connor’s endorsement test and restore the religious freedom that the Founding Fathers intended to bestow upon the American people. Contrary to O’Connor and AU, the First Amendment guarantees freedom of religion not equality of religious expression. The Framers didn’t intend to elevate the hurt feelings of Atheists or those whose religious doctrine fails to attract more than 200 adherents to a constitutional plateau that precludes majoritarian religious practice in the public arena.

It is time for the constitutional myth of separation of church and state to end. Confirming Justice Alito would be a good starting point.

Evidently, the Department of Transportation is celebrating Christmas by putting up a “Holiday” tree in their four main buildings:

The 6-foot-tall, light-covered trees inside the Department of Transportation’s four D.C. buildings are called “holiday trees,” said Carolene Bloomfield, a community-activity coordinator for the agency.

“When having a Christmas party, we don’t call it that,” she said. “Although it’s tradition to call it Christmas, we call it holiday.”

Miss Bloomfield also said the agency uses “holiday tree” so everybody inside the buildings “feels good” about themselves.

“You have to make it seem as though nobody is left out,” she said. “In America, you want everybody to feel special, so you call it a holiday.”

So, by the DOT’s spokeswoman’s logic, feeling good about oneself is not possible if you are not a Christian and you see a sign that says Christmas tree. That doesn’t pass the laugh test. Also, the “nobody left out” syndrome is actually poltically incorrect-speak for discriminating against Christianity. Do you think that the DOT would similarly call a Menorah a “Holiday Candlestick?”

The War over of Christmas begins this year with a traditional Christmas gift: The selection, cutting, and delivery of a Christmas tree by Nova Scotia to the city of Boston. The gift is a tradition, that stems from the Boston’s graciousness in helping the country recover from an explosion in 1917.

The rub is that the Boston city bureaucrats decided to deride and spit on the Scotian gift by renaming the Christmas tree a “Holiday” tree. This didn’t sit well with the logger who selected and cut the tree:

Donnie Hatt says if he’d known the tree he donated to Boston would be called a holiday tree, “I’d have cut it down and put it through the chipper.”

Boston should “just put Return to Sender on it because we sent it as a Christmas tree, not a holiday tree.”

Hatt also called Boston’s decision “a bunch of bullcrap.” How politically incorrect of Mr. Hatt to brandish the politically incorrect naming of the Boston tree!

Attempting to extract “Christ” from Christmas is a bunch of bullcrap. Christmas is what it is: a celebration of the birth of Jesus Christ. Separationists’ attempt to blur by lying about its symbolism and tradition is stupid and does not fool anyone (but it infuriates many). I wonder: Would Boston rename the Christmas tree if that tree were symbolic of the Muslim faith?

The IRS has decided to take action and initiate a formal tax inquiry to remove the All Saints Church’s 501(c)(3) tax-exempt status due to the message of a sermon entitled “If Jesus Debated John Kerry and President Bush” in which the preacher denounced Bush and praised Kerry. See the IRS letter here.

The constraints on churches within political campaigns are summarized on the IRS website:

Under the Internal Revenue Code, all section 501(c)(3) organizations are absolutely prohibited from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office. Contributions to political campaign funds or public statements of position (verbal or written) made on behalf of the organization in favor of or in opposition to any candidate for public office clearly violate the prohibition against political campaign activity. Violation of this prohibition may result in denial or revocation of tax-exempt status and the imposition of certain excise tax.

Why am I upset that a pro-Kerry church might lose their tax-exempt status? Because, in 2008 and beyond, the tables can be quickly turned. A conservative preacher, who intends his remarks for his own private (not public) congregation, may face IRS scrutiny if he had a sermon entitled “George Allen Against Hillary Clinton: A Potential American Tragedy” in which he lambastes Clinton’s foibles and his message ends up on the front page of the New York Times creating the “public statement of position.”

The Washington Times editorializes:

[I]t’s not just liberals who should be worried. Everyone who values the free speech and religious freedom should be concerned. Short of prohibiting speech that foments riots or encourages terrorism, government should not be able to intrude on the pulpit. The Constitution says so.

I couldn’t agree more.

Shortly after this summer’s London bombings, The Financial Times created an interactive map showing the Muslim population levels within Europe. If you click on France, you’ll find a fascinating bit on France writen by John Thornhill:

Nobody knows for sure how many Muslims there are in France. Because of a strict insistence on the secular nature of the republic, state officials are not allowed to ask a citizen’s faith when conducting a census.

But Islam is estimated to be the second-biggest religion in France with about 5m followers, out of a total population of 60m.

. . .

In theory, French insistence on secularism makes state institutions blind to race or religion and eases integration of immigrant communities. In practice, many Muslims feel subject to unofficial discrimination. The unemployment rate in many Muslim communities is far higher than the national average, while their level of representation at the top of political, legal, business and media professions is disproportionately low.

Yazid Sabeg, a French Algerian businessman who has championed positive discrimination as a means of redressing these imbalances, has warned that without radical change France is in danger of creating a “social and political atom bomb.”

Alarmed at the influence of radical imams, who came from abroad and did not speak French, the government created the French Council of the Muslim Religion in 2002 as an intermediary between the state and Muslim communities.

Nicolas Sarkozy, who has twice served as interior minister, has even advocated state support for mainstream Muslim associations and mosques to deter the extremist fringe. However, this argument is still bitterly resisted by secularists.

Two points. First, the social and political atomic bomb has exploded in France. Second and more significant, the secularist predilections of the French elite have prevented their government from exterminating the terrorist rant of Wahabbi clerics and immams from their borders who have provided the needed bile and jihadist rhetoric that propels young, easily malleable Muslims to violence and self-destruction.

Indirectly, France’s secularist handicap is a lesson of the danger in maintaining the First Amendment falsity of a separation of church and state. Taken to an extreme, religious separationism would not only prevent the United States from providing support to (e.g., tax-exempt status) or procuring assistance from (e.g., faith-based initiatives) religious organizations but would bar any attempt by federal, state, or local governments to expel–based upon their religious expression–the terrorist spite that froths from the radical elements of Islam.

The French elite may value their secularity greatly but their immigrant Muslim population does not–which is why the Parisian suburbs are burning red accompanied the arabic battlecry “God is Great” instead of the peaceful greeting of “Bonjour, can I have another pastry?”

Did you know that the Americans United for the Separation of Church and State’s (”AU”), in addition to their misguided and historically inaccurate interpretation of the Religion Clauses, are strong opponents of the Federal Marriage Amendment. Did you also know that they support same-sex marriage?

Here’s AU’s position on Marriage & Family Life:

Opponents of church-state separation, led by the Religious Right, extol the “traditional” family of a married couple with children. While many American families fit this mold, others do not. All loving families, regardless of their composition, deserve support from government and society. The government must not deny adoption, child custody and other fundamental rights to families labeled “non-traditional” because of religious bias or narrow interpretations of holy books held by certain religious believers. The government must also recognize that while many couples choose to be married in a house of worship, marriage itself is ultimately a civil institution; access to it should not be defined or limited because of religious strictures.

A crusade is under way to add a “marriage amendment” to the U.S. Constitution. The purpose of the drive is ostensibly to bar the federal and state governments from recognizing marriages between gay couples, although the amendment also would eradicate hundreds of legal rights that gay and lesbian families currently enjoy under a number of state and local laws. Americans United believes that the campaign to place a marriage amendment in the Constitution raises important church-state and religious liberty concerns.

The crux of AU’s position is that because marriage is a civil institution, in essence a government created model of family organization, then that structure (1) can be changed to include “non-traditional” families and (2) any attempt to limit marriage to one man and one woman is the result of religious conservatives’ attempt to change marriage away from civil-centered to a religious-centered institution and that infusion of religion violates the First Amendment. In AU’s view, marriage is about love and that any loving couple deserves government support (i.e., homosexual relationships should receive the same benefits as heterosexual couples).

But, marriage is more than love. Certainly, love brings the happy couple together but love is not the basis of government support of marriage. Traditional marriage is supported by the government because of its benefit to society at-large. A tradtional heterosexual union provides the optimal rearing environment for children and creates stability in societal structure, among other benefits. Same-sex couples are incapable of providing these benefits. Moreover, these benefits are not inherently religious.

A nation’s laws reflect the morality of its citizens. That morality, whether based upon the religiousity or conscience of its citizenry, deserves respect even if its impact is to deprive a small but politically-active group (here gays and lesbians) the “right” to marry. Taken to the extreme, by questioning any law whose basis could be found within the antiquated tomes of the “Religious Right,” many of our laws (murder comes to mind) are a form of government-sponsored religion and are unconstitutional.

That’s exactly what AU would like to see happen–a disappearance of public religion. Not only from the law, but from courthouses, city halls, and schools. Supporting gay marriage is merely a convenient tool for their irreligious purposes.

For the second time, Michael Newdow has trumpeted his atheistic view of the First Amendment’s Religion Clauses and convinced a federal judge to rule that it is unconstitutional for school kids to recite the Pledge of Allegiance.

Atheist Jim Lindgren, blogging at the Volokh Conspiracy, said he feels that “[t]he words “under God” have no business being in the Pledge of Allegiance, no matter how religious the country currently is or was.” A reader made the following astute comment:

I have no problem with the idea, but can we change the phrase “under God” to “under Allah” for us Muslims?

Touché.

President Bush’s nomination of Judge John Roberts to the U.S. Supreme Court is an interesting move. In one fell swoop, he spawned a hellish response to an accomplished lawyer who has argued an unbelievable 39 times! before the U.S. Supreme Court. According to W.:

[Judge Roberts] has profound respect for the rule of law and for the liberties guaranteed to every citizen. He will strictly apply the Constitution in laws, not legislate from the bench.

But will Roberts follow his presidential pronouncement? That is the million-dollar question. Roberts has a limited paper trail and has argued on behalf of both liberal and conservative clients. Is it true that Roberts is a constitutionalist and will interpret the laws according to the statutory text and not insert his personal policy preferences as law? Is Roberts a Scalia/Thomas jurist or will he transmogrify into a Souter or another O’Connor?

Bush’s selection of Roberts is encouraging in that he choose who he deemed most qualified without regard to race, ethnicity, or gender. His selection of a white male has infuriated some on the left, including Senator Ken Salazar, Democrat from Colorado. Salazar authored a tasteless letter to President Bush in which he expressed disappointment that Bush choose a man instead of a woman. Patronizing Bush’s relationship with his daughters, Salazar concluded his pitiful tripe:

You and I both have two daughters. The profound message we should be giving to them is that their gender creates no limitations for them to live up to their God-given potential. Yet, I fear that with the loss of Justice Sandra Day O’Connor from the United States Supreme Court, we are sending the opposite message.

Salazar’s spittle is beyond the pale. The Constitution does not require a certain number of women, men, or ethnicities dressed in black robes in order to properly hear and decide a case. Salazar’s inference that Bush is telling women there are limitations to their God-given potential is sexist and ignorant. Maybe the esteemed Senator Salazar should resign his office and give it to a woman so he can feel better about himself. That’s the real reason for his comments. Salazar wants the admiration of the feminst groups who fill the ranks of the Democratic party and to feel good that he is continuing the “battle for equality.”

I do have my reservations on the Roberts pick. What are his views on the importance of traditional marriage? Does he believe the First Amendment commands a separation of church and state? I agree with Ann Coulter: selecting a Supreme Court nominee should not be a game of Russian roulette. Bush should have picked an obvious and fiery conservative, one who is unabashedly proud of his conservatism and verifably reliable.

Unfortunately, at this point the Roberts nomination leaves more questions than answers. It is early. Hopefully, the conservatives on the judiciary committee will push Roberts to divulge more of his judicial philosophy–and that philosophy will not make conservatives want to throw up.

**Update #1**

Americans United for Separation of Church and State’s outcry on Judge Roberts’s nomination makes me happy. If Roberts believes in recognizing our Nation’s religous heritage as AU claim, then Roberts will be a welcome addition to Scalia, Thomas, Rehnquist, and Kennedy–Justices who properly understand what the religion clauses mean.

In the second Ten Commandments case, Van Orden v. Perry, Chief Justice Rehnquist (along with Scalia, Thomas, Kennedy, & Breyer) held that a Ten Commandments monument on the Texas State Capitol grounds did not violate the Establishment Clause. This decision, inapposite of the Court’s result in McCreary, endorses a proper understanding of the historical religiousity that should govern Establishment Clause interpretation.

Van Orden recognizes what McCreary did not:

[T]he Ten Commandments are religious–they were so viewed at their inception and so remain . . . And the Ten Commandments have an undeniable historical meaning. . . . Simply having religious content or promoting a message with a religous doctrine does not run afoul of the Establishment Clause. See Chief Justice Rehnquist’s opinion, page 11 (emphasis mine).

Recognizing both the historical influence and religiousity of the Ten Commandments (in Rehnquist’s words “a dual significance”), Rehnquist found the Ten Commandments display a permissible religious acknowledgment.

Despite the jaggedness of three concurrences and one majority opinion, Van Orden creates a sense of promise and hopefulness that the Establishment Clause jurisprudence will again return to a more originalist and constitutional approach, rather than an ad hoc determination based upon the religious preferences of the individual Justices.

Justice Scalia, in his concurrence argued for the adoption of

An Establishment Clause jurisprudence that is in accord with the Nation’s past and present practices, and that can be consistently applied–the central relevant feature of which is that there is nothing unconstitutional in a State’s favoring a religion generally, honoring God through public prayer or acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments. See Justice Scalia’s concurrence, page 1 (emphasis mine).

Hopefully, the U.S. Supreme Court Justice who replaces O’Connor will bring with him or her an originalist understanding of the Establishment Clauses like Scalia’s. If so, Van Orden will not only safeguard Ten Commandments monuments, but bolster the historical underpinnings of our Nation that respect religion, rather than demean and sequester it from the public’s eye, burying any recognition of the historical, judicially enshrined falsehood called “separation of church and state.”

Justice O’Connor’s retirement (and possibly Rehnquist’s and Steven’s as well!) present a historic opportunity to halt the social and internationalist judicial activism that froths from the court’s current opinion-making.

My beef with Justice O’Connor judical contributions is three-fold: the unconstitutional prolongment of affirmative action policies on the college admissions process; the development of the endorsement test in Establishment Clause cases; the radicalization of social policy, particularly homosexual “rights.” Two of these judicial qualities are recent incarnations, while one (the endorsement test) was O’Connor’s position over the last two decades.

In Grutter v. Bolinger (2003), Justice O’Connor’s majority opinion upheld the University of Michigan’s undergraduate admissions policy even though that policy sustantially overvalued an applicant’s race (but only African-American, Latino, and Native-Americans–screw the Asians and the Caucasians). In that opinion, Justice O’Connor said the following:

We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.

In other words, an unconstitutional admissions policy is constitutional for 25 more years because Justice O’Connor gazed into the future and said so–not because the Constitution permitted or warranted the arbitrary extension.

In Lynch v. Donnelly (1984), Justice O’Connor introduced her endorsement test to “clarify” the Court’s Establishment Clause jurisprudence. However, all Justice O’Connor did was further muddy the legal waters of permitted religiousity in America. In her view, the government violates the Establishment Clause when to a reasonable or objective observer “the government intends to convey a message of endorsement or disapproval of religion.” Also, the purpose of the governmental practice must not “endorse or disapprove of religion.” This endorsement test, based upon her amalgamation of the Court’s Establishment jurisprudence and not on the Founder’s intent of the Establishment Clause’s purpose, is what held together the majority of five justices in the recent case of McCreary County v. ACLU where Justice O’Connor concurred that a courtroom display of the Ten Commandments was unconstitutional:

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. See Justice O’Connor’s concurrence, page 3 (citations omitted and emphasis mine).

In Lawrence v. Texas (2003), Justice O’Connor joined five other justices in finding a Texas statute criminalizing sodomy unconstitutional. In that opinion, she coughed out the following in her concurrence:

Moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause because legal classifications must not be drawn for the purpose of disadvantaging the group burdened by the law. Texas’ invocation of moral disapproval as a legitimate state interest proves nothing more than Texas’ desire to criminalize homosexual sodomy. But the Equal Protection Clause prevents a State from creating a classification of persons undertaken for its own sake. And because Texas so rarely enforces its sodomy law as applied to private, consensual acts, the law serves more as a statement of dislike and disapproval against homosexuals than as a tool to stop criminal behavior. The Texas sodomy law raise[s] the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. (quotations and citations omitted)(emphasis mine).

Justice O’Connor’s personal preference–that States’ cannot morally disapprove of any group’s behavior–is absurd. Her usurpation of the State’s policy interest to grant gay and lesbians reprieve from a criminal law is judical activism at its finest (apart from the fact that the Equal Protection Clause was ratified to rectify racist State practices–not protect any disadvantaged group with whom Justice O’Connor or any judge sympathizes).

These three examples of Justice O’Connor inserting her personal policy preferences in lieu of the constitutional text or deference to state sovereignity are reasons why conservatives should rejoice (as I do) that Justice O’Connor is leaving the Court. President Bush has promised to appoint a strict constructionist (i.e., a judge who will interpret the Constitution and other law according to its orginal intent and meaning) in her place. I believe Bush will keep his promise and appoint a lawyer of a Scalia/Thomas mold. If so, an originalist interpretation of the Establishment Clause is likely to take hold, admission practices that disguise racial quotas with the mantra of diversity less likely to receive the Court’s judicial blessing, and it is less likely that same-sex marriage will be thrust upon our Nation by the Court.