After various suggestions were considered, "In God We Trust" was selected as the message and Congress enacted legislation on April 22, 1864 authorizing the mint to place the motto on one and two-cent coins. The motto has appeared on all U.S. coins since 1938 and on all currency since 1964." 16 On June 14, 1954, Congress added the words "Under God" to the Pledge of Allegiance, which is codified at 4 U.S.C. § 4. The House Report that accompanied the legislation observed that, “[f]rom the time of our earliest history our peoples and our institutions have reflected the traditional concept that our Nation was founded on a fundamental belief in God."18 President Eisenhower, in commenting on this addition to the Pledge, stated that by adding the words “Under God” “we are reaffirming the transcendence of religious faith in America's heritage and future; in this way we shall constantly strengthen those spiritual weapons which forever will be our country's most powerful resource in peace and war.' 19 In short, public acknowledgments of God are replete throughout our history and in no way violate the constitutional prohibition on establishments of religion because they do not dictate the duties which we owe to our Creator or the manner in which we are to carry out those duties. A display of the Ten Commandments, for instance, does not dictate a person's form of worship or articles of faith. Thus, acknowledgments of God do not coerce belief or behavior, whereas, a particular religion, such as Protestantism, Catholicism, or Judaism, requires a person to believe certain tenets and act or refrain from acting in certain ways. The monument of the Ten Commandments that I placed in the rotunda of the Alabama Judicial Building was simply one more example of our country's substantial tradition of acknowledging God. C) Straying from the Path Despite this tradition, the United States Supreme Court-and lower federal courts following its lead-pay no attention to the words of the First Amendment and instead have concocted an elaborate array of tests from which these federal courts pick and choose in determining whether a particular public reference to God is unconstitutional. The original test, known as the Lemon test because it was introduced in Lemon v. Kurtzman, is a three-prong test that is supposed to articulate the Supreme Court's definitive standard for whether a government action violates the Establishment Clause. However, the Lemon test has been criticized so often21 that members of the Court have 16 Id. 1? Id. 20 21 21 403 U.S. 602 (1971) Probably the best criticism of Lemon remains the stinging prose from the pen of Justice Scalia, in his dissent in Lamb's Chapel v. Center Moriches Union Free School Dist., 508 U.S. 384, 398, 399 (1993): "As to the Court's invocation of the Lemon test: Like some ghoul in a late-night horror 23 felt free to try their hands at coming up with their own legal tests, much the way a cook experiments with a recipe. These newer tests, such as the "Endorsement” test invented in 198422 and the "Coercion" test invented in 1992," purport to ensure that government remains "neutral" toward religion. However, far from achieving this theoretical neutrality,24 in practice these tests encourage and often demand hostility toward religion, especially the Christian religion." They do so by punishing the very religion that is interwoven into America's historical fabric: if a particular display or act can be perceived by a "reasonable observer" as "endorsing" a religion or if it can be said to "coerce" a non-believer-where "coercion" somehow means that the non-believer simply feels 25 to return to the tomb at will. . . . For my part, I agree with the long list of constitutional 24 See Lee v. Weisman, 505 U.S. 577 (1992). If post-modern thought has taught us anything, it should be that for humans it is simply impossible to achieve true neutrality because we are all affected by a myriad of influences that inform our thoughts. Only God, who has always existed and is unaffected by human whims and faults, is truly impartial. Yet this inconvenient philosophical fact does not daunt the United States Supreme Court, which has placed itself in the role of ultimate and final arbiter of all the important issues of the day. In essence, the Supreme Court has installed itself as God on earth by pretending to be the impartial arbiter of right and wrong and the source on high from which the law is handed down to the rest of us. As my personal experience demonstrates, allegiance to their "law" must be unwavering unless you are prepared to suffer severe consequences, in my case the loss of the position to which I was elected as the highest judicial officer in the State of Alabama. Obviously, from the federal courts' perspective, my position was not high enough to permit me to question their wisdom, even though I took the same oath as they do to support the Constitution of the United States "so help me God.” The inability to be completely impartial does not, of course, mean that humans are incapable of making rational decisions, it just means that we must be careful to recognize how our prejudices--which may be good or bad-influence our decisions, and that our decisions stand a much better chance of being correct if they are based on God's law and will because He is the foundation that never wavers, the only One who is truly impartial. Our inherent prejudices mean that we must take care not to set ourselves or anyone else up as somehow immune from ordinary human faults in reason, but this is exactly what we have done with the Supreme Court. As renowned Judge Richard Posner of the Seventh Circuit Court of Appeals has observed: "There is a tendency to lionize the Supreme Court justices. They are sometimes depicted as intellectual, even moral, giants (in some versions, as avatars of the Old Testament prophets), to be entirely disinterested, to 'do their own work' (as Louis Brandeis once said), and to produce a judicial product that reflects deep scholarship and mature, even agonized deliberation. In Casey v. Planned Parenthood, three of the justices sought to place the Court in tutelary relation to a submissive population whose 'very belief in themselves' as 'people who aspire' to live according to the rule of law' is 'not readily separable from their understanding of the Court."" Richard A. Posner, The People's Court, THE NEW REPUBLIC, July 19, 2004, available at http://www.tnr.com/doc.mhtml?pt=DXiDIQtR6xTqTkBS vzhYJH==. Posner rightly labels such inflated self-importance as “nauseat[ing],” but we give the Court no reason to think otherwise so long as it is not challenged by the People and reigned in by the other branches of government. 25 See, e.g., Supreme Court Hostility Toward Religion in the Public Square: Hearings before the Senate Subcomm. on the Constitution, Civil Rights, and Property Rights, 104th Cong. (2004) (statement of Vincent Phillip Muñoz) [Hereinafter Hearing]. offended by the display or act-then the federal courts declare the display or act to be unconstitutional. Obviously, because so many of this country's laws and traditions have been directly influenced by Christianity, the "reasonable observer" will see the Christian religion everywhere and non-believers may feel offended by this pervasive influence. The result is the removal of anything from the public square that shows even the slightest hint of stemming from Christianity, including all acknowledgments of God despite the fact that they do not constitute "religion." In sum, as American Enterprise Institute Fellow Vincent Phillip Muñoz has aptly put it: "The Constitution's text prohibits laws respecting an establishment of religion or prohibiting the free exercise thereof. It says nothing about government 'endorsement of religion.' Justice O'Conner effectively has replaced the text and original meaning of the First Amendment with her own words and ideas. Justice Kennedy's ‘psychological coercion' test is also far off the mark. The Founders understood religious 'coercion' to mean being fined, imprisoned, or deprived of a civil right on account of one's religion. Coercion to them did not include feeling uncomfortable when other people mention God.” "The modern Court has lost sight of the fact that the framers of the First Amendment meant to protect religious freedom, not to banish religion from the public square. The free exercise of religion is the primary end of the First Amendment; 'no-establishment' is a means toward achieving that end."26 Not only have the federal courts strayed far from the text of the Constitution that is supposed to be their guide, but their approach has resulted in making a mess of the law on the issue in question. One would think that having the federal courts as the sole arbiter of constitutional meaning and having the Supreme Court as the final arbiter of constitutional questions-as principally and historically incorrect as that is-would at least provide consistency and stability to constitutional decision-making. Sadly, again nothing could be further from the truth, particularly in cases allegedly implicating the principle of separation of church and state. In my case, the method of decision-making used by the Eleventh Circuit Court of Appeals was typical of federal courts in these cases: “Establishment Clause challenges,” the Court asserted, “are not decided by brightline rules, but on a case-by-case basis with the result turning on the specific facts.":27 This means that little certainty exists as to which displays or actions will pass constitutional muster according to the federal courts and which will fail.28 Indeed, as one federal district court expressed recently in deciding that a public display of the Bible is unconstitutional, while the Lemon test is supposed to be the standard for Establishment Clause violations, "[u]nfortunately, it is difficult to find coherent guidance from the 26 Id. 27 Glassroth v. Moore, 335 F.3d 1282, 1288 (11th Cir. 2003). 28 The Third Circuit Court of Appeals has observed that “[t]he uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities religious groups, and citizens will find themselves embroiled in legal and political disputes over the content of municipal displays." ACLU of New Jersey v. Schundler, 104 F.3d 1435, 1437 (3rd Cir. 1997). 1929 Supreme Court's later opinions applying the Lemon v. Kurtzman analysis.' "Coherent guidance," the one thing that ought to be expected from a Court that declares itself “supreme" in all things related to the Constitution, is the one thing it has failed to provide in Establishment Clause jurisprudence. 30 There is one point in these cases, however, on which the federal courts are quite clear, and the point is demonstrated by a contrast between my case and another recent case involving a Ten Commandments monument. While the Eleventh Circuit affirmed the decision that the granite monument of the Ten Commandments that I placed in the Alabama Judicial Building was unconstitutional, just last year the Fifth Circuit in Van Orden v. Perry, ruled that a granite monument of the Ten Commandments erected on the grounds of the Texas State Capitol was constitutionally permissible. The primary difference that ostensibly made the Texas monument permissible but the Alabama one impermissible was that the Texas monument was one of a number of monuments erected on the capitol grounds, while the Alabama monument was what the courts label a “standalone" Ten Commandments monument. While this may seem to be a distinction without a difference—both monuments display the Ten Commandments the distinction makes all the difference in the world to the federal courts. If a display of the Ten Commandments is surrounded by historical documents, if it is included as just one of many displays on public property, if special attention is not drawn to God's law, then the federal courts generally will extend the imprimatur of constitutionality on the given display. However, if, like the Alabama monument, the Ten Commandments are displayed more prominently or stand alone, and therefore draw attention to the God who wrote those commandments rather than relegating the Ten Commandments to a mere historical influence on our laws that carry no current relevance, the federal courts cannot countenance it and will order the removal of the display. In other words, the one clear rule in Establishment Clause cases is that if the display or action in question acknowledges God, it will be declared unconstitutional, but if the display or action relegates God to a footnote in history, then it will be tolerated.31 Thus, the one thing that should without question be constitutional because it does not constitute "religion" under the First Amendment—the acknowledgment of God-is the one thing that the federal courts and especially the Supreme Court will not allow. F Supp. 2d 29 Staley v. Harris County, (S.D. Tex. Aug. 10, 2004). That district court is far from being alone in expressing this sentiment. The Fifth Circuit Court of Appeals has referred to this area of the law as a "vast, perplexing desert." Helms v. Picard, 151 F.3d 347, 350 (5th Cir. 1998), rev'd sub nom. Mitchell v. Helms, 530 U.S. 793 (2000); the Fourth Circuit has labeled it "the often dreaded and certainly murky area of Establishment Clause jurisprudence." Koenick v. Felton, 190 F.3d 259, 263 (4th Cir. 1999); the Tenth Circuit admitted that there is "perceived to be a morass of inconsistent Establishment Clause decisions." Bauchman for Bauchman v. West High School, 132 F.3d 542, 561 (10th Cir. 1997). 30 351 F. 3d 173 (5th Cir. 2003). 31 My case unequivocally demonstrates this fact, as sometime after the monument of the Ten Commandments was removed from the rotunda of the Alabama Judicial Building, the remaining eight justices of the Alabama Supreme Court placed in the same rotunda a display containing the Ten Commandments together with several other historical documents such as Magna Charta, the Code of Justinian, the Mayflower Compact, and, ironically enough, the United States Constitution. Neither the federal district court nor the plaintiffs who sued to have the monument removed complained about the subsequent display. The only explanation for why this second display would not "offend" sensibilities is that it does not acknowledge God. This conclusion is simply absurd. The First Amendment was never intended to exclude acknowledgments of God. As the Senate Judiciary Committee observed during a time when some were questioning the constitutionality of the Congressional chaplaincy: "[The Founders] had no fear or jealousy of religion itself, nor did they wish to see us an irreligious people; they did not intend to prohibit a just expression of religious devotion by the legislators of the nation, even in their public character as legislators; they did not intend to spread over all the public authorities and the whole public action of the nation the dead and revolting spectacle of atheistical apathy."32 Unless action is taken by Congress, “atheistical apathy" or worse is exactly where we are headed courtesy of the federal judiciary. II. The Way Back: The CRA A) Restricting Jurisdiction Obviously, given the current landscape in which federal judges feel no compunction about removing God from the public square regardless of the will of the People or what the Constitution dictates, action must be taken to curb the overreaching of those judges. A convenient and constitutional solution can be found in the proposed Constitution Restoration Act of 2004 (CRA), H.R. 3799,33 which this subcommittee has convened to discuss today. Simply put, the major thrust of the CRA is to employ Congress's Article III, § 2 power to restrict the jurisdiction of the federal courts, preventing them from hearing "any matter" that concerns a federal or state official's "acknowledgment of God as the sovereign source of law, liberty, or government.' Enactment of the CRA would mean that the federal courts could no longer hear legal challenges to such things as public displays of the Ten Commandments, our national motto "In God We Trust," "One Nation Under God," invocations of prayer at public functions by public officials, and the like. 1934 Some have questioned whether Congress has the authority under Article III, § 2 to limit the jurisdiction of the federal courts on issues such as the CRA proposes. The pertinent constitutional language provides: "In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. ༣.༨ This passage plainly provides that in all cases in which the Supreme Court does not have original jurisdiction Congress is free to limit or deprive altogether the Supreme Court's 32 The Reports of the Committees of the Senate of the United States for the Second Session of the ThirtySecond Congress, 1852-53, The Senate Judiciary Committee, January 19, 1853 (Washington: Robert Armstrong, 1853). 33 The Senate counterpart is S. 2323. 34 H.R. 3799, 108th Cong. (2004). 35 "U.S. Const., Art. III, § 2, para. 2 (emphasis added). |