Thoughts in a Haystack: Separation From Sense

Monday, December 26, 2005

Separation From Sense

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The Family Policy Network has been publicizing a claim that the United States Court of Appeals for the 6th Circuit has overturned the constitutional principle of Separation of Church and State. In the article "Federal Court Rejects ‘Separation of Church and State’", the FPN claims:

In an astounding return to judicial interpretation of the actual text of the United States Constitution, a unanimous panel of the 6th Circuit U.S. Court of Appeals has issued an historic decision declaring that "the First Amendment does not demand a wall of separation between church and state." In upholding a Kentucky county’s right to display the Ten Commandments, the panel called the American Civil Liberties Union’s repeated claims to the contrary "extra-constitutional" and "tiresome."

The defense attorney in the case and conservative leaders in two states affected by the decision are hailing it as historic. American Family Association of Michigan president Gary Glenn said, "Patriotic Americans should observe a day of prayer and thanksgiving for this stunning and historic reversal of half a century of misinformation and judicial distortion of the document that protects our religious freedoms."

The article goes on:

One conservative leader is already calling for his state’s legislature to use the ruling as the basis for a new state law. Family Policy Network of Tennessee director Ron Shank said, "The 6th Circuit’s decision isn’t just an opinion, it’s federal law in Tennessee. Now that the 6th Circuit has declared the ‘wall’ doesn’t exist, we plan to call for legislation placing the Ten Commandments in courthouses throughout the state."

So, what is going on? Has the theocracy arrived?

In fact, the article is nothing more than a blatant quote mine engineered by religious conservatives to fool their more gullible followers, who will, no doubt, have more than a little trouble getting the hook out of their mouths. It is of the caliber of the claim that the Supreme Court has ruled that secular humanism is a religion.

Here is the quoted bit from the Court of Appeals decision in ACLU of Kentucky v. Mercer County:

The ACLU makes repeated reference to the "separation of church and state." This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. Our nation's history is replete with governmental acknowledgment and in some cases, accommodation of religion.

But immediately after that the Court cites to several cases as authority for this proposition. First of all is Lynch v. Donnelly from 1984, in which Justice O'Connor first proposed the "endorsement test" that conservatives have widely criticized. Worse yet, the next authority for the proposition that there is no "wall of separation", is Lemon v. Kurtzman, from 1971, source of Justice Scalia's bête noire, the "Lemon test". Here is what Justice Burger said in the much-hated-by-religious-conservatives Lemon case:

Our prior holdings do not call for total separation between church and state; total separation is not possible in an absolute sense. Some relationship between government and religious organizations is inevitable. Fire inspections, building and zoning regulations, and state requirements under compulsory school-attendance laws are examples of necessary and permissible contacts. Indeed, under the statutory exemption before us in Walz [a case where the Court upheld state tax exemptions for real property owned by religious organizations and used for religious worship], the State had a continuing burden to ascertain that the exempt property was in fact being used for religious worship. Judicial caveats against entanglement must recognize that the line of separation, far from being a "wall," is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship. (Emphasis added)

Other cases cited are from 1952, 1997 and 2001.

In short, there is nothing new here.

Judge Suhrheinrich, who wrote the opinion, held that the ACLU was asking the Court to "presume endorsement from the mere display of the Ten Commandments". The Judge also noted that, after the ACLU’s motion for an injunction was denied in the court below, the lower court gave the ACLU "120 days to conduct discovery on the issue of religious purpose" which the ACLU failed to take advantage of.* Thus, Judge Suhrheinrich was, at most, expressing annoyance that the ACLU had made no attempt to establish that the defendants actually had a religious purpose but, instead, relied on a metaphor coined by Thomas Jefferson that, although it had been cited by the Supreme Court in various circumstances, had taken on an exaggerated meaning in the minds of some, not least of all those same conservatives who have overreacted to this decision.

It was this metaphor of a wall that the Court found "tiresome" but it was never used by the courts as anything more than circumstantial evidence for the understanding of those close in time to and intimate with the writing of the Constitution concerning what was meant by the clause. Judges are quite capable of telling the difference between metaphors and rules of law and principles of Constitutional interpretation.

The case does present some interesting wrinkles, in that its central issue is whether almost identical displays should be treated differently based solely on the purpose of the government in erecting or approving them and the different histories by which they came to be on government property. But there is nothing particularly revolutionary about the ruling itself. A holding that the display of the Ten Commandments, along with other historical documents that "influenced the development of our law and government", does not violate the Establishment clause is hardly out of line with previous rulings about holiday displays of crèches and menorahs and the like. And there is no hint in the decision of any attempt to make any change in the current Establishment clause jurisprudence. Instead, the decision makes clear that it is the application of established precedence to the unique facts presented.

That's all folks. There's nothing here to get excited about. Just some less-than-honest political hucksters plying their trade.

Move along . . . move along . . .

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* I have no idea whether the ACLU's position and strategy in the case was fairly characterized by the Court.
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Labels: Quote Mining