RELIGIOUS LIBERTY NEWSFLASH!

[Stan]

Pacific Union Conference of Seventh-day Adventists

Department of Public Affairs and Religious Liberty

June 29, 2005

RELIGIOUS LIBERTY NEWSFLASH!

SUPREME COURT RULES IN TEN COMMANDMENTS CASES

By now, you’ve seen the press coverage of the Ten Commandments decisions from the Supreme Court, upholding a monument outside the Texas State Capital, and striking down an interior courthouse display in Kentucky. Permit me to add a few observations of my own.

1. Justice O’Connor’s opinion in the Kentucky case is the clearest defense of religious freedom. She premised her rejection of both displays on the ground of protecting liberty of conscience for all Americans. I have copied her short opinion below. Even those who disagree with how she applied the principles may be able to appreciate the eloquent affirmation of these principles of religious freedom.

2. Only one of the decisions had five votes, and that was the opinion of Justice Souter rejecting the Kentucky display. In this decision, the court reaffirmed the necessity of state action having a primarily secular purpose. The Court continued to maintain that states cannot act primarily to advance religion. The principle is eminently sound, even acknowledging that reasonable minds may disagree on its application to the facts of a given case, such as this one. The state may not act to advance or promote religion, as such, but only for secular reasons. This is fundamental.

3. Chief Justice Rehnquist’s opinion in the Texas case struck me as unusually mild and reasonable. It does not appear to break any new legal ground, and was quite conciliatory. Since it did not receive five votes, the opinion does not become binding precedent. The outcome of the case does establish a precedent for similar outdoor monument displays.

4. Justice Scalia’s decision is troubling. While many Americans are sympathetic to his conclusion that both displays are constitutional, we should be alarmed at his reasoning. Scalia essentially approves the tyranny of the majority in matters of religion. He approved the public display of the Ten Commandments on the ground that 97% of the American people adhere to Christianity, Judaism or Islam, religions that accept the Ten Commandments.

5. Clearly, public opinion will not be assuaged by the “split the baby” approach that resulted. The right will continue to assault the court, and the divide will become fodder in the battle over future Supreme Court appointments.

6. People are wondering about the Alabama situation, and Justice Roy Moore’s monument that was removed from the courthouse rotunda. That case is over, and would be difficult to reopen. In the event that Justice Moore could find a way to get a court to reconsider whether the monument should be restored to its position in the courthouse, my guess is that he would lose. The facts of that case are much more similar to the Kentucky display that was struck down. That was the easy case, much easier than the two the Supreme Court actually decided! .

7. The legal and political battles over posting of the Ten Commandments are a distraction from the real issue: God wants to write the law in our hearts. Who among our Christian friends is saying this? How ironic that after attacking the law of God for generations, insisting that it need not be kept, was nailed to the cross, etc., Protestants are now urging the public display, and on stone monuments or pictures of stone! Who are the true legalists?

We have produced a poster and a brochure, both entitled: “Written in the Heart” to get this message out. Liberty magazine produced a special issue on the Ten Commandments, including an article I wrote entitled: “The Bill of Freedoms” that will become the basis for an evangelistic website, www.WrittenInTheHeart.com. You can order the poster and brochure on our website, www.churchstate.org, or by calling 805-413-7396.

Conclusion: I’m happy with the outcome. I would have been far more troubled if both displays had been approved or disapproved. The disapproval would have provoked a much more severe reaction, while the approval would have signaled a dangerous acceptance of majoritarian dominance in matters of faith.

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These religious liberty newsflashes and legislative e.lerts are published by the Pacific Union Conference of Seventh-day Adventists, Department of Public Affairs & Religious Liberty, www.churchstate.org.

For assistance with a religious liberty problem:

Alan J. Reinach, Esq., []ajreinach@verizon.net;[/] 805-413-7396

Michael Peabody, Esq. []mpeabody@puconline.org;[/] 916-446-2552

Subscribe to Liberty: a Magazine of Religious Liberty, at www.libertymagazine.org

Readers are urged to join the North American Religious Liberty Association, and do your part to uphold the banner of truth and religious liberty, at www.religiousliberty.info.

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O’Connor, J., concurring

SUPREME COURT OF THE UNITED STATES

No. 03—1693

McCREARY COUNTY, KENTUCKY, et al., PETI-

TIONERS v. AMERICAN CIVIL LIBERTIES

UNION OF KENTUCKY et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

[June 27, 2005]

Justice O’Connor, concurring.

I join in the Court’s opinion. The First Amendment expresses our Nation’s fundamental commitment to religious liberty by means of two provisions–one protecting the free exercise of religion, the other barring establishment of religion. They were written by the descendents of people who had come to this land precisely so that they could practice their religion freely. Together with the other First Amendment guarantees–of free speech, a free press, and the rights to assemble and petition–the Religion Clauses were designed to safeguard the freedom of consc! ience and belief that those immigrants had sought. They embody an idea that was once considered radical: Free people are entitled to free and diverse thoughts, which government ought neither to constrain nor to direct.

Reasonable minds can disagree about how to apply the Religion Clauses in a given case. But the goal of the Clauses is clear: to carry out the Founders’ plan of preserving religious liberty to the fullest extent possible in a pluralistic society. By enforcing the Clauses, we have kept religion a matter for the individual conscience, not for the prosecutor or bureaucrat. At a time when we see around the world the violent consequences of the assumption of religious authority by government, Americans may count themselves fortunate: Our regard for constitutional boundaries has protected us from similar travails, while allowing private religious exercise to flourish. The well-known statement that “[w]e are a religious people,” Zorach v. Clauson, 343 U.S. 306, 313 (1952), has proved true. Americans attend their places of worship more often than do citizens of other developed nations, R. Fowler, A. Hertzke, & L. Olson, Religion and Politics in America 28—29 (2d ed. 1999), and describe religion as playing an especially important role in their lives, Pew Global Attitudes Project, Among Wealthy Nations U.S. Stands Alone in its Embrace of Religion (Dec. 19, 2002). Those who would renegotiate the boundaries between church and state must therefore answer a difficult question: Why would we trade a system that has served us so well for one that has served others so poorly?

Our guiding principle has been James Madison’s–that “[t]he Religion … of every man must be left to the conviction and conscience of every man.” Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 184 (G. Hunt ed. 1901) (hereinafter Memorial). To that end, we have held that the guarantees of religious freedom protect citizens from religious incursions by the States as well as by the Federal Government. Everson v. Board of Ed. of Ewing, 330 U.S. 1, 16 (1947); Cantwell v. Connecticut, 310 U.S! . 296 (1940). Government may not coerce a person into worshiping against her will, nor prohibit her from worshiping according to it. It may not prefer one religion over another or promote religion over nonbelief. Everson, supra, at 15—16. It may not entangle itself with religion. Walz v. Tax Comm’n of City of New York, 397 U.S. 664, 674 (1970). And government may not, by “endorsing religion or a religious practice,” “mak<img src="/ubbtreads/images/graemlins/mittelgr124.gif" alt="" /> adherence to religion relevant to a person’s standing in the political community.” Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O’Connor, J., concurring in judgment)! .

When we enforce these restrictions, we do so for the same reason that guided the Framers–respect for religion’s special role in society. Our Founders conceived of a Republic receptive to voluntary religious expression, and provided for the possibility of judicial intervention when government action threatens or impedes such expression. Voluntary religious belief and expression may be as threatened when government takes the mantle of religion upon itself as when government directly interferes with private religious practices. When the government associates one set of religious beliefs with the state and identifies nonadherents as outsiders, it encroaches upon the individual’s decision about whether and how to worship. In the marketplace of ideas, the government has vast resources and special status. Government religious expression therefo! re risks crowding out private observance and distorting the natural interplay between competing beliefs. Allowing government to be a potential mouthpiece for competing religious ideas risks the sort of division that might easily spill over into suppression of rival beliefs. Tying secular and religious authority together poses risks to both.

Given the history of this particular display of the Ten Commandments, the Court correctly finds an Establishment Clause violation. See ante, at 19—25. The purpose behind the counties’ display is relevant because it conveys an unmistakable message of endorsement to the reasonable observer. See Lynch v. Donnelly, 465 U.S. 668, 690 (1984) (O’Connor, J., concurring).

It is true that many Americans find the Commandments in accord with their personal beliefs. But we do not count heads before enforcing the First Amendment. See West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 638 (1943) (“The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts”). Nor can we accept the theory that Americans who do not accept the Comma! ndments’ validity are outside the First Amendment’s protections. There is no list of approved and disapproved beliefs appended to the First Amendment–and the Amendment’s broad terms (“free exercise,” “establishment,” “religion”) do not admit of such a cramped reading. It is true that the Framers lived at a time when our national religious diversity was neither as robust nor as well recognized as it is now. They may not have foreseen the variety of religions for which this Nation would eventually provide a home. They surely could not have predicted new religions, some of them born in this country. But they did know that line-drawing between religions is an enterprise that, once begun, has no! logical stopping point. They worried that “the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects.” Memorial 186. The Religion Clauses, as a result, protect adherents of all religions, as well as those who believe in no religion at all.

***

We owe our First Amendment to a generation with a profound commitment to religion and a profound commitment to religious liberty–visionaries who held their faith “with enough confidence to believe that what should be rendered to God does not need to be decided and collected by Caesar.” Zorach, supra, at 324—325 (Jackson, J., dissenting). In my opinion, the display at issue was an establishment of religion in violation of our Constitution. For the reasons given above, I join in the Court’s opinion.

[Dr. Shane]

I see such arrogancy coming out of the Pacific Union Conference of Religious Liberty. They come off as elitests that look down on all other denominations. Reminds me of Luke 9:49-50:

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John answered and said, Master, we saw one casting out demons in thy name; and we forbade him, because he followeth not with us. But Jesus said unto him, Forbid him not: for he that is not against you is for you.

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[Jeannieb43]

Alan Reinach is doing what he's being paid to do -- analyze for our church the important court decisions affecting religious liberty.

This isn't a popularity contest. Alan is not the "people person" type that someone like our dear Stan is; but he is bright, and a good legal analyst.

[Dr. Shane]

</font><blockquote><font class="small">Quote:</font><hr />

God wants to write the law in our hearts. Who among our Christian friends is saying this? How ironic that after attacking the law of God for generations, insisting that it need not be kept, was nailed to the cross, etc., Protestants are now urging the public display, and on stone monuments or pictures of stone! Who are the true legalists?

<hr /></blockquote><font class="post">

I don't recieve Liberty Magazine although I should subscribe. I know many judges, district attorneies, probation officers and politicians do recieve it. Can you imagine their reaction to a statement like the one I quoted above?

It seems to be a clear attack on other denominations. I would think we can attract more flies with honey than vinegar.

[Rosie]

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Shane said:

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God wants to write the law in our hearts. Who among our Christian friends is saying this? How ironic that after attacking the law of God for generations, insisting that it need not be kept, was nailed to the cross, etc., Protestants are now urging the public display, and on stone monuments or pictures of stone! Who are the true legalists?

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I don't recieve Liberty Magazine although I should subscribe. I know many judges, district attorneies, probation officers and politicians do recieve it. Can you imagine their reaction to a statement like the one I quoted above?

It seems to be a clear attack on other denominations. I would think we can attract more flies with honey than vinegar.

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I agree the comment about "who are the true legalists" could have been happily omitted. But he actually asks a good question. Why do those who do not keep the law, want to keep these displays around?

Could it be they are looking for a method of forgetting God which shall pass as a method of remembering Him?

[Neil D]

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ould it be they are looking for a method of forgetting God which shall pass as a method of remembering Him?

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Sometimes I wonder if allowing the 10 Commandments to be posted, isn't God's way of getting things set up so that when the Sabbath/Sunday issue comes up, we can point to the 4th Commandment and ask the hard question- What day is the 7th Day of the Jewish week?