W HEN THE U.S. SUPREME COURT RULED IN FAVOR OF ONE Ten Commandments display and against another in June, it didn’t do city councils and other local officials any favors.
The Supreme Court is supposed to clarify confusing areas of law for the rest of us, using the Constitution as its plumb line, so that legislators can confidently get on with the business of governing and lower courts can apply a consistent rule to the myriads of different cases brought before them.
The June, 2005, decisions clarified nothing.
Lawyers will be happy, because the muddled rulings will no doubt result in many more court fights and $300-an-hour (and up) legal fees, paid for by the American taxpayer. But the local official who wanted guidance on whether to approve a public display that includes our nation’s Christian heritage is likely to be even more anxious than before.
In case you missed some of the confusing headlines that appeared on the day of the opinions, let’s recap what five justices, led by Clinton appointee Stephen Breyer, inflicted on America. Breyer joined a bloc of liberal justices—David Souter, Ruth Ginsberg, John Paul Stevens, and the now-retired Sandra Day O’Connor—in deciding against Ten Commandments plaques that once hung in two Kentucky county courthouses. The majority’s opinion, written by Souter, said the plaques were unconstitutional because the public officials who installed them in 1999 said the Commandments were “good rules to live by.” That statement, along with some other evidence, led the justices to conclude that the placement of the plaques was done with a religious intent. That’s not allowed, because in other decisions the wise Court has said such displays must have a secular purpose.
Breyer switched sides in the second ruling, which allowed a granite monument on state Capitol grounds in Austin, Texas, to stay put. And that switch was the one vote that allowed the monument to stay.
The nation is used to hearing that O’Connor or Anthony Kennedy have cast the deciding vote in some 5-4 disappointment on school prayer or Internet obscenity. But it was surprising that Breyer would be the one to preserve a six-foot-high Ten Commandments monument on the lawn of the Texas State Capitol.
So why did Breyer say yes to Texas and no to Kentucky? The answer helps us to illuminate the greatest opportunity—and the greatest threat—that religious liberty in America has faced since the nation’s founding.
In his 11 years on the Supreme Court, Justice Breyer has ruled in favor of maximum personal autonomy—including the freedom to kill a viable unborn child through the barbaric procedure known as partial-birth abortion, the right to expose schoolchildren to Internet porn, the right to have a religion-free experience at a high school football game and the right to engage in sodomy without fear of criminal prosecution. Yet he voted to allow a monument that reads, I AM the LORD thy God. THOU SHALT HAVE NO OTHER GODS BEFORE ME
Breyer explained his vote by saying that the Texas monument, donated by the Fraternal Order of Eagles in 1961, had a secular rather than religious purpose. The Eagles placed hundreds of such monuments around the nation beginning in the 1950s and 1960s to discourage juvenile delinquency It also helped that the monument had stood on the East lawn of the Capitol grounds for more than 40 years without a single complaint—that is, until a homeless former lawyer decided to file suit two years ago.
If Breyer had decided that the passage of time made no difference and that the Commandments were a religious solution to a social problem, he would have had no reason to preserve the monument. And if the monument proved unconstitutional, what would prevent the court from ordering the removal of Commandments displays in the Supreme Court building, the Library of Congress, the National Archives and hundreds of other public buildings around the nation? Or striking ‘under God” from the Pledge of Allegiance?
The current answer from the Court to this pointed question—that those mentions of the Almighty have lost their religious meaning and are a form of “ceremonial deism” —is small comfort to millions of Americans who want to celebrate the role that God has played in the history of our country. It is but a small step from there to eradicating all mention of God from the public square, in order not to offend the sensibilities of ACLU-sponsored plaintiffs.
‘WE NEED TO BE IN PRAYER’
The shift of even one vote in the Texas case could have established a destructive new standard for religious displays in America, so the loss of any of the five justices’ votes is perilous in the event of a future case. Justice Stevens, leading the liberal element of the Court, has been consistent over the years in advocating almost zero tolerance for government-sponsored religious speech. With one more vote, Stevens’ view would prevail.
That’s why President Bush’s selections to the U.S. Supreme Court are so vitally important. At press time, President Bush had nominated U.S. Circuit Judge John G. Roberts to fill the void left by retiring Justice O’Connor . Preliminary research gave early indication that Roberts is likely to respect the U.S. Constitution, according to Focus on the Family Action founder and chairman, James C. Dobson, Ph.D.
President Bush is to be commended for ... selecting such an impartial, accomplished jurist to fill this crucial seat on the high court,” Dobson said, pointing out that John Roberts is “unquestionably qualified.” In addition to graduating stimma cum lattde from Harvard in only three years (and magna cttm laude from Harvard Law), John Roberts has clerked for Chief Justice William Rehnquist, one of the few justices on the high court to consistently avoid judicial activism. He also served as an associate counsel under former President Ronald Reagan and, as deputy U.S. solicitor general, argued more than three dozen cases before the Supreme Court.
“Of course, no one can discern with perfect accuracy what lies in the heart—and specifically the philosophy and beliefs—of this nominee,” Dobson added at press time. “It will not be until future decisions are handed down by the Supreme Court that the ideology of this man, if confirmed, will become evident.
... That is why we need to be in prayer that Judge Roberts’ true colors will become apparent before a final confirmation decision is reached. For right now, however, the man looks good.”
Confirmation of justices who interpret the Constitution as written will be a crucial step toward restoring our nation’s 229-year-history of religious expression as evid-enced by such things as the references to God in the Declaration of Independence
It appears that President Bush has kept his promise to values voters to appoint a Supreme Court nominee who will strictly interpret” the Constitution. Now it’s up to the U.S. Senate.
The American people have every right to expect a fair hearing, a floor debate in which all views are heard, and a timely vote so that the Supreme Court can convene un October 1 for its fall term with all justices in place,” Dobson said. •
Bruce .Hausknecht. is
the judicial .analyst .for
Focus on the Family.
Focus on The Family Citizen.
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