Born Yesterday
In a followup to my posting on the US District Court ruling on the Indiana Legislature's opening prayer, I've had some interesting arguments hurled my way in favor of and understanding the judge's ruling and they're good arguments. The arguments, in general, only hold water if we were all born yesterday and if case law was manufactured out of whole cloth.
With that in mind, I had one commenter note that the judge was merely ruling on existing case law and that he had written a well-thought out opinion. Perhaps that's so, but it was not the point of my posting. The judge was, and granted this is my (and even some Supreme Court Justices') opinion, basing his ruling off bad case law. He really doesn't have much choice. At the District Court Level, you don't interpret much. You just base your ruling on what those higher than you say is the correct ruling in similar cases (where there is previous case law). Granted that doesn't stop judges with a more social justice frame of mind from writing their opinions into the law, but we're dealing with what judges at that level are supposed to do, and he apparently did it.
To reinforce and restate what I've said before, though, my argument was that the existing case law, some twenty years of it or so is not only flawed, but cannot and should not be considered equal or superior to the two hundred and twenty plus years of historical precedent. In Constitutional law, in the absence of case law, or good case law, it is traditional and essential that the Supreme Court refer back to the Founding Fathers, their documented remarks and correspondence and determine from that what their original intent was. It has to start somewhere, and in the case of the present twenty-something years of court precedent on religious issues, it was born out of a period of the court that has seen serious activism and reinterpretation based on modern (and usually left-leaning) perceptions. In such a situation, the mass volume of historical precedent should easily outweigh the bad case law, and when this case gets to the Supreme Court, it is my hope that they take it into consideration (although one never knows with our Supreme Court).
Consider these two examples from the well-researched online publication, The Federalist.
Our new nation's first official Thanksgiving Proclamation, issued by the revolutionary Continental Congress on 1 November 1777, expressed gratitude for the colonials' October victory over British General Burgoyne at Saratoga. Authored by Samuel Adams, the man the other Founders turned to for reasoned statements of liberties as God's blessings, it read in part: "Forasmuch as it is the indispensable duty of all men to adore the superintending providence of Almighty God; to acknowledge with gratitude their obligation to Him for benefits received...together with penitent confession of their sins, whereby they had forfeited every favor; and their humble and earnest supplications that it may please God through the merits of Jesus Christ, mercifully to forgive and blot them out of remembrance...it is therefore recommended...to set apart Thursday the eighteenth day of December next, for solemn thanksgiving and praise, that with one heart and one voice the good people may express the grateful feeling of their hearts and consecrate themselves to the service of their Divine Benefactor...acknowledging with gratitude their obligations to Him for benefits received... To prosper the means of religion, for the promotion and enlargement of that kingdom which consisteth 'in righteousness, peace and joy in the Holy Ghost'."
On the Jefferson Memorial, is our third president's immutable admonition about the origin of liberty: "God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?"
I've also had it said to me that such issues as prayer opening a legislative session was "not a big deal" in olden days and thus is why it was never addressed until 20 years ago. This is a weak argument. We have very clear-cut examples, fretted over and feared, like the issue of slavery, with which the Founding Fathers had to wrestle and put off to a later day. To assume that they would let something as important as the interpretation of the First Amendment be put off for future generations without uttering a word of their concern is a bit lazy. Establishment of a religious institution, including coerced funding by the public of religious institutions appear to have been their greatest concern and the First Amendment was at its time meant to protect the people AND THE STATES from the tyranny of the federal government in having to support or follow a religion the states or the people did not necessarily all share. It is only because of a dubious interpretation of the 14th Amendment's Equal Protection Clause that this whole matter is even before a federal court, currently. Back to the actual argument that it was "not a big deal" in those days, though, is to say the Founding Fathers expected it might become a big deal at some point, but didn't see a need to worry about it or even write about it at the time. That is making precedent out of whole cloth and invalidates the whole point to the Constitution and its accompanying history.
Also, it perplexes me why I typically see such an issue only when Jesus is mentioned. Perhaps it is such an issue for two main reasons. One would be that just mentioning God in a prayer can allow you to front the not-so-genuine argument that you could be referring to any god and make it non-sectarian, and thus non-offensive (meeting the Supremes’ requirement). Would that include Mammon, Marduk, Zeus, Satan or Bob the God (points if you remember where that came from)? It doesn't, it's not the intent of the majority of ministers or imams or rabbis or Zen masters who offer up these prayers and it is blind hypocrisy or vain hopefulness to think it is. These holy men and women pray their prayers to a specific entity and in most cases it would be against the nature of who they are and what they believe to do otherwise. They are praying to their god, whichever that god is. We should still, as a society who Freely Exercises our religion, accept their prayer for what it is to them and to us. If they are invited to give the prayer at a session of our legislature, then whether they are our particular denomination or faith, we should and must accept them. Leftists do not have exclusivity on tolerance. If you invite a Catholic priest to give the invocation to open a legislative session and he prays to Mary, you're still going to offend Protestants. If you pray to any deity you're going to offend Atheists and Secular Humanists. If you pray to a vaguely Christian God you'll tick off the Wiccans and Satanists (at the least). So what do you do? Let's examine.
If you put restrictions on what can be said, two things happen. First, you'll still offend someone or everyone as well as inhibit and violate the Free Exercise of the individual(s) you're restricting and second you'll do exactly what the ICLU is allegedly fighting against, you'll create a LAW regarding the ESTABLISHMENT of a RELIGION! Does no one see this hypocrisy?
As to the other reason why it only seems to be Jesus making the papers, there is another line to consider. Why isn't an invocation of Allah or the Zen Masters going before the Court? Again, rank hypocrisy rules. These are minority religions and thus exempt in the social engineers' eyes, at least for now. Christianity is the majority religion and thus the one that gains the left's current ire in this regard. In this case, should a majority then be expected to restrict its Free Exercise of religion when minority religions are not expected to? You are still producing law, from the judicial bench ironically, that governs the establishment of religion, in this case, although rather than its promotion it governs its hindrance. How is that any more legal or correct? It is not.
For me, when I came to this conclusion, it was a "can't see the forest for the trees" moment. If the Supreme Court, and by consequence the lower courts, hinders the free expression of religion, even by individuals in a government forum, they are creating law regarding certain establishments. This is no stretch in reaching. It is the plain consequence of their actions. With this in mind, how did the ICLU's case have any merit?
In a followup to my posting on the US District Court ruling on the Indiana Legislature's opening prayer, I've had some interesting arguments hurled my way in favor of and understanding the judge's ruling and they're good arguments. The arguments, in general, only hold water if we were all born yesterday and if case law was manufactured out of whole cloth.
With that in mind, I had one commenter note that the judge was merely ruling on existing case law and that he had written a well-thought out opinion. Perhaps that's so, but it was not the point of my posting. The judge was, and granted this is my (and even some Supreme Court Justices') opinion, basing his ruling off bad case law. He really doesn't have much choice. At the District Court Level, you don't interpret much. You just base your ruling on what those higher than you say is the correct ruling in similar cases (where there is previous case law). Granted that doesn't stop judges with a more social justice frame of mind from writing their opinions into the law, but we're dealing with what judges at that level are supposed to do, and he apparently did it.
To reinforce and restate what I've said before, though, my argument was that the existing case law, some twenty years of it or so is not only flawed, but cannot and should not be considered equal or superior to the two hundred and twenty plus years of historical precedent. In Constitutional law, in the absence of case law, or good case law, it is traditional and essential that the Supreme Court refer back to the Founding Fathers, their documented remarks and correspondence and determine from that what their original intent was. It has to start somewhere, and in the case of the present twenty-something years of court precedent on religious issues, it was born out of a period of the court that has seen serious activism and reinterpretation based on modern (and usually left-leaning) perceptions. In such a situation, the mass volume of historical precedent should easily outweigh the bad case law, and when this case gets to the Supreme Court, it is my hope that they take it into consideration (although one never knows with our Supreme Court).
Consider these two examples from the well-researched online publication, The Federalist.
Our new nation's first official Thanksgiving Proclamation, issued by the revolutionary Continental Congress on 1 November 1777, expressed gratitude for the colonials' October victory over British General Burgoyne at Saratoga. Authored by Samuel Adams, the man the other Founders turned to for reasoned statements of liberties as God's blessings, it read in part: "Forasmuch as it is the indispensable duty of all men to adore the superintending providence of Almighty God; to acknowledge with gratitude their obligation to Him for benefits received...together with penitent confession of their sins, whereby they had forfeited every favor; and their humble and earnest supplications that it may please God through the merits of Jesus Christ, mercifully to forgive and blot them out of remembrance...it is therefore recommended...to set apart Thursday the eighteenth day of December next, for solemn thanksgiving and praise, that with one heart and one voice the good people may express the grateful feeling of their hearts and consecrate themselves to the service of their Divine Benefactor...acknowledging with gratitude their obligations to Him for benefits received... To prosper the means of religion, for the promotion and enlargement of that kingdom which consisteth 'in righteousness, peace and joy in the Holy Ghost'."
On the Jefferson Memorial, is our third president's immutable admonition about the origin of liberty: "God who gave us life gave us liberty. Can the liberties of a nation be secure when we have removed a conviction that these liberties are the gift of God?"
I've also had it said to me that such issues as prayer opening a legislative session was "not a big deal" in olden days and thus is why it was never addressed until 20 years ago. This is a weak argument. We have very clear-cut examples, fretted over and feared, like the issue of slavery, with which the Founding Fathers had to wrestle and put off to a later day. To assume that they would let something as important as the interpretation of the First Amendment be put off for future generations without uttering a word of their concern is a bit lazy. Establishment of a religious institution, including coerced funding by the public of religious institutions appear to have been their greatest concern and the First Amendment was at its time meant to protect the people AND THE STATES from the tyranny of the federal government in having to support or follow a religion the states or the people did not necessarily all share. It is only because of a dubious interpretation of the 14th Amendment's Equal Protection Clause that this whole matter is even before a federal court, currently. Back to the actual argument that it was "not a big deal" in those days, though, is to say the Founding Fathers expected it might become a big deal at some point, but didn't see a need to worry about it or even write about it at the time. That is making precedent out of whole cloth and invalidates the whole point to the Constitution and its accompanying history.
Also, it perplexes me why I typically see such an issue only when Jesus is mentioned. Perhaps it is such an issue for two main reasons. One would be that just mentioning God in a prayer can allow you to front the not-so-genuine argument that you could be referring to any god and make it non-sectarian, and thus non-offensive (meeting the Supremes’ requirement). Would that include Mammon, Marduk, Zeus, Satan or Bob the God (points if you remember where that came from)? It doesn't, it's not the intent of the majority of ministers or imams or rabbis or Zen masters who offer up these prayers and it is blind hypocrisy or vain hopefulness to think it is. These holy men and women pray their prayers to a specific entity and in most cases it would be against the nature of who they are and what they believe to do otherwise. They are praying to their god, whichever that god is. We should still, as a society who Freely Exercises our religion, accept their prayer for what it is to them and to us. If they are invited to give the prayer at a session of our legislature, then whether they are our particular denomination or faith, we should and must accept them. Leftists do not have exclusivity on tolerance. If you invite a Catholic priest to give the invocation to open a legislative session and he prays to Mary, you're still going to offend Protestants. If you pray to any deity you're going to offend Atheists and Secular Humanists. If you pray to a vaguely Christian God you'll tick off the Wiccans and Satanists (at the least). So what do you do? Let's examine.
If you put restrictions on what can be said, two things happen. First, you'll still offend someone or everyone as well as inhibit and violate the Free Exercise of the individual(s) you're restricting and second you'll do exactly what the ICLU is allegedly fighting against, you'll create a LAW regarding the ESTABLISHMENT of a RELIGION! Does no one see this hypocrisy?
As to the other reason why it only seems to be Jesus making the papers, there is another line to consider. Why isn't an invocation of Allah or the Zen Masters going before the Court? Again, rank hypocrisy rules. These are minority religions and thus exempt in the social engineers' eyes, at least for now. Christianity is the majority religion and thus the one that gains the left's current ire in this regard. In this case, should a majority then be expected to restrict its Free Exercise of religion when minority religions are not expected to? You are still producing law, from the judicial bench ironically, that governs the establishment of religion, in this case, although rather than its promotion it governs its hindrance. How is that any more legal or correct? It is not.
For me, when I came to this conclusion, it was a "can't see the forest for the trees" moment. If the Supreme Court, and by consequence the lower courts, hinders the free expression of religion, even by individuals in a government forum, they are creating law regarding certain establishments. This is no stretch in reaching. It is the plain consequence of their actions. With this in mind, how did the ICLU's case have any merit?
posted by Rob Beck | 5:49 AM
5 Comments:
"Why isn't an invocation of Allah or the Zen Masters going before the Court?"
LOL . . . which government body invokes Allah or the Zen Masters during official proceedings? If you find one, point Michael Newdow at that fugger, and I'll bring the popcorn.
"In Constitutional law, in the absence of case law, or good case law, it is traditional and essential that the Supreme Court refer back to the Founding Fathers, their documented remarks and correspondence and determine from that what their original intent was."
Wait, didn't you just argue that Jefferson's "wall of separation" line doesn't qualify?
"We have very clear-cut examples, fretted over and feared, like the issue of slavery, with which the Founding Fathers had to wrestle and put off to a later day. To assume that they would let something as important as the interpretation of the First Amendment be put off for future generations without uttering a word of their concern is a bit lazy."
Um . . . slavery was debated and a compromise was reached. It was considered a legitimate point of debate at the time, whereas the idea that neutrality toward religion means not endorsing any particular religion (as opposed to any particular denomination of Christianity) is relatively new.
How many abolitionists were burned for witchcraft?
Incidentally, I was at the ACLU's site last night to research some claims made here, and I spotted a headline about the case you're talking about. So I clicked, and according to them:
"The Indiana Civil Liberties Union had filed a lawsuit over the practice in May on behalf of a retired Methodist minister, a lobbyist for a statewide Quaker group, and two Roman Catholic residents."
Now, as far as I know, these are all considered Christian denominations.
The description there of the events that allegedly transpired suggest that this is not merely about mentioning Jesus in a prayer.
According to Brian Bosma, religious speakers they have invited have invoked Allah and the Zen Masters, and the US Court has stated that if you stand at the bully pulpit of the State House, you are speaking "government speech".
I stated Jefferson's quote was not law. I never said it couldn't be considered. Given the weight of historical evidence to the contrary of Jefferson's one quote, including his own words, I don't think it deserves the weight it is often given by those on the nay side of this argument.
A compromise was reached on slavery in the Constitutional Convention, but the substantive question of its existence and proliferation was put off to another day (Missouri Compromise, Amistad affair, Civil War...).
I'm not sure where you were going on the Abolitionists burned for witchcraft statement. I know several were shot for formenting rebellion, but that's another story.
Yes, those are all considered Christian denominations. Because they're priests or ministers, though, does that give them the weight of the entire faith of Christianity, or is it just their personal opinions? I don't consider a Methodist minister or Roman Catholic priest anymore of a Constitutional scholar than me or you, regardless of my respect for their position.
"I'm not sure where you were going on the Abolitionists burned for witchcraft statement. I know several were shot for formenting rebellion, but that's another story."
Point being that one could take the "slavery is immoral" position without being ostracized. Anybody who openly questioned (for example) the divinity of Jesus might not have been afforded the same courtesy. Now, this might be taken as evidence that the founders intended to create a Christian nation -- that they never considered that one day America might become home to Jewish, Muslim, Buddhist, and all other sorts of believers, which is certainly possible -- but my point is that the fact that nobody in those times dared to question it doesn't mean it was Constitutional.
Because they're priests or ministers, though, does that give them the weight of the entire faith of Christianity, or is it just their personal opinions?
It is de facto evidence that this is not about attacking Christianity. Reading the ACLU's account of the session, it sounds like it was turned into a Sunday School session, and at least one person (the Quaker, presumably) was actually stopped from leaving the gallery during the singing. You make a good argument about how forbidding religious expression is a sort of coercion, but isn't it more coercive to compel anybody who wants to participate in government to sit through a singalong for Jesus?
If you have a different account of what happened, I'd like to read it. It's possible that the unprofessional behavior of some legislators has triggered an excessive backlash here, but at the moment this case doesn't appear (to me at least) to be about a simple invocation.
See, I don't agree with forcing someone to sit there. If they want to leave, I say let them. I'm all about free exercise, as I stated. And as I recall, one Jewish legislator, Orentlicher I think (who I've met and discussed property rights with, btw, smart fellow even for a Democrat :P), did get up and walk out. If you don't want to participate, you shouldn't have to, but if a preacher starts singing about Jesus, I still don't see where the federal government can tell him to shut up. You've still not made that case.
I'm mostly speaking from being here in town, working amongst those halls, and having talked to particpants, as well as lawyers who had more than a passing interest in the case. Wish I had an official transcript or something to give you, as I really do like more concrete evidence, but in this case I'm afraid all I have is my first and second-hand accounts.
Post a Comment
<< Home