In other words, James Madison and George Washington never intended to bring down the heavy hand of government on, say, Neptune Township, New Jersey, which the ACLU forced last May to cover a historic auditorium’s religious symbols for a high school graduation, breaking a nearly 70-year tradition. Or on veterans groups who raise money for memorial crosses to honor comrades who paid the ultimate price for our freedom.
In April 2010, the Supreme Court upheld the right of a veterans group to maintain a 7-foot memorial cross in the Mojave National Preserve in California. The cross had been offending an ACLU member and park employee who had retired and moved to Oregon but was still annoyed.
Last year, the Supreme Court forsook an opportunity to clarify this issue when it chose on Oct. 31 not to hear an appeal of a ruling against a Utah group that raises 12-foot-crosses in roadside memorials to fallen state troopers.
The Court’s inaction surprised some observers because in the Mojave case, Salazar v. Buono, the majority opinion written by Associate Justice Anthony Kennedy seemed to welcome the state trooper issue:
“A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”
It’s a fair bet the Court skipped the Utah case because the Mt. Soledad case has better circumstances for clarifying the right to public religious expression.
Despite what most law schools teach, the key to a durable standard is not precedents but the language of the Constitution itself and the Founders’ intentions.
Even Justice William Brennan, who championed the corrosive idea of the “living Constitution,” said in a 1963 concurring opinion striking down a Pennsylvania requirement for Bible reading in schools (Abington School District v. Schempp):
“The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.”
Well, devotees of the “living Constitution” can be right at least some of the time. Brennan throwing a crumb here is a bit like the villain Lex Luthor committing a random act of kindness.
Public religious expression has long been a fixture in American life. As Ferrara notes, “The very next day after the House of Representatives of the First Congress voted to adopt the Establishment Clause, the House adopted a resolution requesting President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging the many and signal favors of Almighty God.’”
In his 1998 book “Religion and the Founding of the American Republic,” James Hutson, a Library of Congress historian, made an incontrovertible case that religion was central to the nation’s founding and functioning. He noted that church services were held in the U.S. House chambers up to the Civil War, and afterward, including on May 13, 1866, “when Congress passed the Fourteenth Amendment, which, according to some later judicial theories, forbids religious activities on public property.”
Since English colonists founded Jamestown in 1607, public expressions of faith have been common. It’s been fairly recently, since liberals fabricated an un-American distortion of the “separation of church and state,” that the ACLU has been able to drive religion – and Christianity in particular – out of the public square.
The Coercion Test may be just the ticket to restore sanity and genuine freedom of religious expression.