IN THIS ISSUE:

Opinion Piece on Ten Commandments Ruling by Ted Mann

Air Force Academy discrimination

The following piece is an opinion piece written by JSPAN board member Theodore Mann.  We would like to get some feedback from our members, board members, and friends of JSPAN about how you feel on this issue!  Please feel free to respond to this issue using the new feature on our website.  For more information about how to respond, view the Help page on our website.  The JSPAN board will address this issue at our upcoming July board meeting. 

THE KENTUCKY AND TEXAS TEN COMMANDMENT CASES

Theodore R. Mann

"Why would we trade a system that has served us so well for one that has served others so poorly?" - Justice Sandra Day O’Connor

There were three opinions issued in the Kentucky Ten Commandment case and six in the Texas case but, for me, the opinions of Justice O'Connor in the Kentucky case and Justice Breyer in the Texas case were the most interesting and consequential.  For both justices, the violence in today’s world brought about by the mixture of government and religion impacted their opinions. 

“Reasonable minds", Justice O'Connor wrote, “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.”  And then she stated: 

Justice O'Connor concluded that the placement of large, readily visible copies of the Ten Commandments in Kentucky courthouses, and the six foot high monolith inscribed with the Ten Commandments situated among twenty-one historical markers and seventeen monuments surrounding the State Capitol in Texas, both violated the Establishment Clause.  And that would have been the Court’s decision in both cases but for the fact that Justice Breyer, who agreed with the principles she articulated and with her conclusion in the Kentucky cases, "disagree[d] with her evaluation of the evidence as it bears on the application of those principles" to the Texas case.

In my view, he was right and both cases were properly decided. 

In the Texas case Justice Breyer, while not joining in Chief Justice Rehnquist's opinion, agreed with the Chief Justice's conclusion that "Moses was a lawgiver as well as a religious leader,” that “the Ten Commandments have an undeniable historical meaning," and that the Texas monuments, "representing the several strands in the State's political and legal history," do not violate the Establishment Clause.  But Justice Breyer also focused on the case’s potential for social conflicts.  Citing Justice Arthur Goldberg's concurring opinion in the bible-reading case (Schempp v. Abington Township), Justice Breyer stated that "the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious … Such absolutism is not only inconsistent with our national traditions … but would also tend to promote the kind of social conflict the Establishment Clause seeks to avoid." 

Here, a personal note.  As a brand new lawyer in 1954, I chaired the Commission on Law and Social Action of the American Jewish Congress in Philadelphia.  The members of the Commission wanted to challenge the constitutionality of the recently adopted “under God” addition to the Pledge of Allegiance.  I disagreed because in the McCarthy Era the case would likely have been lost and because even if we had prevailed the ensuing religious divisiveness would have made it a Pyrrhic victory.  In today’s charged atmosphere too, with a major political struggle over a Supreme Court nomination looming on the horizon, a victory for one side in both cases might have been equally Pyrrhic.  In some circumstances, there is much to be said for a draw. 

In any event, after reviewing the "context of history and moral ideals" demonstrated by the  seventeen monuments of which the Ten Commandments monument (which had stood uncontested for nearly two generations) was but one, Justice Breyer concluded that a decision of unconstitutionality, ”based primarily upon the religious nature of the tablets' text would, I fear, lead the law to exhibit a hostility toward religion that has no place in our Establishment Clause traditions … and it could thereby create the very kind of religiously based divisiveness that the Establishment Cause seeks to avoid."  Quoting Justice Goldberg once more, he stated that "we must 'distinguish between real threat and mere shadow'.  Here, we have only the shadow." 

         Mr. Mann, a Philadelphia lawyer, has represented plaintiffs before the Supreme Court in major religious liberty cases.

 AIR FORCE ACADEMY ISSUE

These are worrisome times for those of us who believe that the separation of church and state is a precious gift given to all Americans by the founding fathers, assuring the protection of both religion and government, and resulting in the most religiously pluralistic nation in the democratic world. 

The attacks on the separation principle over the past year have been both broad and deep.  They include the Administration’s “faith based initiatives,” such as the million dollar federal grant to Alaska Christian College (an Evangelical Covenant Church divinity school), and the $100 million given to churches and other small religious groups for training in how to care for the down-trodden.  They include the attempts to inject creationism, now called the theory of “intelligent design”, into the public school curricula.  Most recently they include the actions of officials at the Air Force Academy who have created a Christian fundamentalist environment at that institution.

One outrageous but all too common claim about what is happening at the Air Force Academy is that a Christian-hating minority is attempting to suppress the free speech rights of the Christian majority.  That argument reflects a very serious misunderstanding of our constitution.  The same misunderstanding is reflected in President Bush’s statements about the need for religious “toleration.”  It is disheartening and shocking that such statements are made by government officials 215 years after George Washington’s letter to the Hebrew Congregation in Newport, Rhode Island in which the father of our country said that  “it is now no more that toleration is spoken of, as if it was by the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights.”

We are not just a democracy, but a constitutional democracy.  The founding fathers recognized that tyranny can come not just from a king or a dictator or a favored class, but also from a nation’s majority.  The Bill of Rights therefore made clear that there are certain individual rights so fundamental that they cannot be abridged even by majority vote.  The very first of the first ten Amendments that comprise the Bill of Rights assures to each of us the fundamental freedom to exercise our religious beliefs (“free exercise clause”), and forbids the majority from imposing its religious beliefs on others through the power it normally has to control government conduct (the “establishment clause”).  The salutary effect of these rules is that in constitutional terms, there is no majority religion in America and, therefore, each of us can feel equal as Americans.  That concept, almost unique in the world, has enabled us to mold one vibrant nation out of an extraordinarily diverse group of people. 

Those who would tear down the wall of separation by claiming “free speech” rights are, deliberately or otherwise, confusing two issues.  Individuals and groups are free to express their religious views publicly as well as privately and are free to attempt to persuade others to accept those views.  That is because freedom of speech is also one of the fundamental individual rights guaranteed in the First Amendment.  But a constitutional line is drawn between an individual’s religious speech on the one hand and, on the other hand, religious speech made with the apparent authority and approval of the government as, for example, the speech of officials at the nation’s military academies or teachers in the classrooms of our public schools.  Such speech violates the Establishment Clause and, as Supreme Court Justice Sandra Day O’Connor has stated, it is such speech that makes others feel like outsiders in our nation, undermining the promise of America which George Washington so eloquently stated.