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Tuesday, August 26, 2003

Posted by Jake
The Ten Commandments Monument Opinion

I thought it might help to read the opinion issued by the Alabama Supreme Court.

The critical point in this brief is that the monument contradicted the Establishment clause:

"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof."

By their definition a government action violates the Establishment clause if it violates something called the Lemon test:

For a practice to survive an Establishment Clause challenge, it "must have a secular legislative purpose, ... its principal or primary effect must be one that neither advances nor inhibits religion, ... [and it] must not foster 'an excessive government entanglement with religion.'" Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S. Ct. 2105, 2111 (1971) (citations omitted).

There are some critics of the Lemon test. However, the judges in this case assert that this monument fails even the tests of the critics:

In County of Allegheny v. ACLU, Greater Pittsburgh Chapter, 492 U.S. 573, 109 S. Ct. 3086 (1989), Justice Kennedy, writing for himself and Justices Rehnquist and Scalia, two of Lemon's strongest critics, suggested that religious endorsement was not enough to establish an Establishment Clause violation, that there must be more, such as "proselytization" or "coercion." Id. at 660, 109 S. Ct. at 3136-37 (Kennedy, J., concurring in part and dissenting in part). As he explained, "coercion need not be a direct tax in aid of religion or a test oath. Symbolic recognition of accommodation of religious faith may violate the Clause in an extreme case. I doubt not, for example, that the Clause forbids a city to permit the permanent erection of a large Latin cross on the roof of city hall. This is not because government speech about religion is per se suspect, as the majority would have it, but because such an obtrusive year-round religious display would place the government's weight behind an obvious effort to proselytize on behalf of a particular religion."

Comments:

-- It is still unclear to me how the Establishment clause which particularly specifies Congress would apply to a Judge. In Alabama law, the Chief Justice is empowered to decorate the rotunda of the courthouse as he sees fit. In this capacity is he acting as a judge or in a capacity in addition to his judicial powers?
(Matt -- Doesn't matter what capacity he's acting in. I believe, the authority given, even if by the State Constitution, is what violates the clause... i.e. you can't get around the establishment clause by making a 'secular' law that says, "Bob runs the schools." knowing full well Bob will teach everybody Scientology. Then the law would be in violation. But if Bob just acts secularly, then the law isn't in violation. /Matt)

-- While I agree with James concern about the overextension of this decision to later decisions concerning school vouchers, it would appear at least outwardly that school vouchers would withstand scrutiny. School vouchers towards religious schools could be justified by saying that the primary purpose is secular -- education -- and that no one religion is advanced over the others. I am no constitutional lawyer but that is how it seems to me.

-- I haven't read the entire opinion, but from what I read it seems that what concerned the justices the most was two issues:

1. While American law is clearly based on a religious understanding, it was never suggested that religious law would trump secular law. (Most of the founders thought they would meet their maker, but they never thought their maker would meet them in the public sphere. Remember this was during the Enlightenment.[Matt -- They were mostly what they called "diests". /Matt]) This assertion -- the God's law overrules secular law -- is one the defendant has made repeatedly.

2. They express concern at the enshiring of a Judeo-Christian religion over all the others because they see this monument as essentially the same as placing a cross up in the courthouse.

This is a thorny legal issue (and one I am woefully unqualified to tackle). But I do think that the Justices in this case make some reasonable arguments. I am interested in seeing whether the Supreme Court will take this up.

Matt -- I rather doubt they will... an argument over separation of church and state right now would be of little benefit to anyone (save for that Judge) and might cause issues later... precisely because that debate should be happening, as James pointed out, during the inevitable voucher discussion. That's the debate that has any meaning. I tend to agree with your above statement that vouchers should be able to withstand scrutiny if they are used to meet the clearly secular goal of education. However, a real thorn to think about is that to "guarantee" the achievement of the "secular goal of eductaion" the state would have to specify standardized curricula that schools would have to teach to be eligible. That will really get some panties in a knot. But that's all for a future thread... I can't wait :-)


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