David Limbaugh

U.S. District Judge Lawrence Karlton's decision that a California "school district's policy and practice of teacher-led recitation of the Pledge violates the Establishment Clause," provides a timely illustration of judicial activism at work.

Just to be clear, I'm not here accusing Judge Karlton himself of activism. He determined that he is required by the previous holding of the 9th Circuit Court of Appeals in the Newdow case to enjoin the district from the practice.

He ruled that while the Supreme Court reversed the 9th Circuit in Newdow, it did so on technical grounds ("standing") and its substantive holding (forbidding the teacher-led Pledge) still stands. I suspect it may later be determined that Judge Karlton is way off in his legal analysis, but if he is correct, then he was not engaging in judicial activism by following binding precedent (again, assuming it is binding) from a superior court.

This case, however, does highlight the judicial activism of the 9th Circuit Court of Appeals and the United States Supreme Court in their Establishment Clause jurisprudence.

The Supreme Court has primarily mucked up the law in this area (Establishment Clause). The 9th Circuit is even worse, but without the original activism of the Supreme Court, the 9th Circuit would have had nothing to hang its hat on in the Newdow case.

If the Court had, through the years, construed the Establishment Clause in accordance with the original understanding of the Framers, these pledge cases -- and similar cases -- would never have gotten off the ground.

The Establishment Clause was designed to prohibit the Establishment of a national religion or a national church. It was not intended to erect a "wall of separation" between church and state, nor prohibit all endorsements of religion by the federal government. And it was emphatically not intended to force government to be neutral between theism and atheism.

One may believe, as a policy matter, that a government-supported school should not favor one religion over another or one Christian denomination over others. But policy preferences are a separate issue from what the Constitution requires or forbids.

Like it or not, the Constitution, rightly interpreted, allows the federal government (and the states) to "encourage" the Christian religion. As Supreme Court Justice Joseph Story (1779-1845) wrote, "Probably, at the time of the adoption of the Constitution … the general, if not the universal, sentiment in America was, that Christianity ought to receive encouragement from the State, so far as such encouragement was not incompatible with the private rights of conscience, and the freedom of religious worship."

David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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