The Groundswell to Tear Down the Wall

22 08 2006

Filed under: Church and State, First Amendment, Wall of Separation

What wall? The mythical wall of separation of church and state.

Its survival thus far is one symbol of the strength of the Christian religious-liberty legal movement that this month enters its 25th year. The movement’s roster today includes such national heavy-hitters as the ACLJ and The Rutherford Institute (Virginia), Liberty Counsel (Florida), the American Family Association Center for Law and Policy (Mississippi), the Becket Fund for Religious Liberty (Washington, D.C.), and the Alliance Defense Fund (Arizona).

Since 1982, they have with mounting success litigated for the First Amendment rights to religious speech, association, exercise, and equal access in arenas from public schools to land use to the workplace.

The first U.S. Congress probably would have approved. That body of legislators—the same men who adopted the First Amendment—in 1787 passed legislation that declared in part: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools, and the means of education, shall forever be encouraged.”

Over the next 100-plus years, public officials encouraged those virtues without
endorsing a particular religion. But in 1920, Roger Baldwin co-founded the American Civil Liberties Union, which for the next half-century worked alongside others to reshape First Amendment law to fit a new view: Government must not encourage even in the most general way any belief in God. The result was a systematic attempt at chiseling Christianity out of public life:

  • In 1925, the ACLU lost in court the Scopes “monkey” trial, but press accounts ridiculing the creationist side elevated the “science” of Creator-free evolution over the “fairy tale” of faith. In 1947, the Supreme Court ruling in Everson v. Board of Education of Ewing quoted Thomas Jefferson’s famous phrase “wall of separation between church and state,” ratifying it as the essence of the First Amendment’s establishment clause.
  • In 1948, the high court in McCollum v. Board of Education held that voluntary religious activity at public schools was unconstitutional, quoting Jefferson’s “wall” dictum again, this time as constitutional precedent.
  • 1963, the Supreme Court struck down public-school prayer.
  • In 1971, the court established the widely criticized “Lemon test” which prescribed for the state a strict secularism.

Roe v. Wade, the 1973 case that struck down state abortion bans, awakened a sleeping giant: a coalition of Protestants and Catholics whose sacred texts teach plainly, “Thou shalt not murder.” Christians rose to fight back.

One of those Christians was a former pot-smoking, left-wing underground journalist named John Whitehead. But God turned him from scoffer to believer and he realized that Christianity had become a minority viewpoint in need of legal protection. Whitehead in 1982 founded The Rutherford Institute as a public-interest law firm. The Christian Legal Society (CLS), founded in 1961, had long been active as a legal fellowship, and in 1976 it launched the Center for Law and Religious Freedom and began filing amicus (friend of the court) briefs the following year.

Recently, gavels have fallen like hammer blows on gay-marriage advocacy. In July alone, courts in New York, Nebraska, Georgia, Connecticut, Tennessee, Washington, and even Massachusetts, where gay marriage is legal, issued rulings in favor of traditional marriage or its supporters. Christian public-interest litigators were involved in every case.

Such litigators still face an uphill battle. “In terms of objective relief, I don’t know that they’ve yet influenced the constitutional landscape as much as their counterparts on the secularist left,” the American Enterprise Institute’s Levenick said. “But they are advancing arguments that are making headway in the public square and working their way upward, via students, into the legal academy.”

Religious Liberty: Key cases, key issues in the battle for free
expression:

The religious-liberty landscape looks far different than it did 25 years ago. If not for the religious-liberty movement, the United States might look “more like France, where the state is empowered to restrict public religious expression,” said political science professor Hans Hacker.

Among the current battlefronts in the church-state war:

Religion in the public square
Christian religious-liberty litigators have posted a mixed record on Ten Commandments displays on government property, including a pair of June 2005 Supreme Court decisions in which the justices upheld a Decalogue monument in Texas while striking down one in Kentucky. Current case: Physician-attorney and church-state activist Michael Newdow continues his private First Amendment war with his second lawsuit to abolish the pledge of allegiance pending before the 9th U.S. Circuit Court of Appeals. He is also planning an appeal in his suit against Congress to have the phrase “In God We Trust” stricken from U.S. currency.

Religious land use
Congress in 2000 responded, passing unanimously the Religious Land Use and Institutionalized Persons Act (RLUIPA) to address conflicts between megachurches and local governments. Since then Christian legal groups have fought successfully for the right of churches both to expand and to use their own land in accordance with their religious doctrine. Current case: Attorneys in Boulder County, Colo., are awaiting a federal ruling on whether county commissioners violated RLUIPA when they refused to approve expansion plans for Rocky Mountain Christian Church.

Abortion
Christian legal groups have worked successfully with state and federal lawmakers to draft and defend laws regulating abortion. The strategy has been an important factor in the overall national decrease in abortion. Current case: The Supreme Court agreed in June to expand its review next term of the federal partial-birth abortion ban, adding a second Bush administration appeal to the docket.

Free expression and equal access
Christian lawyers have fought the quest to kick Christianity off campus, notching wins covering everything from kindergarten drawings of Jesus to high-school pro-life T-shirts to faith groups at public universities. Current case: Arizona State University Students for Life in July filed suit against the school after officials, despite the lack of a written policy, demanded that the group purchase insurance and pay a $300 fee before being allowed to present a pro-life message on campus.

Same-sex marriage
Considered by many today’s most pressing religious-liberty issue, homosexual marriage litigation erupted in dozens of states after San Francisco Mayor Gavin Newsom authorized city licenses for same-sex marriages in 2004. With the aid of Christian legal groups, 44 states have laws that preserve the traditional definition of marriage; 18 states have passed constitutional amendments protecting marriage; 11 have ballot initiatives or legislative action pending in 2006. Current case: The constitutionality of Proposition 22, California’s one-man/one-woman marriage law, is pending before a state court of appeals.

Even in the recent case of the Mt. Soledad Cross, it is obvious that Americans want to return to the original intent of the First Amendment and we desire judges who will interpret the Constitution, not try to create law as if it were a “living document.”

Abortion, for example, is not found in the Constitution. But an activist judge decided to “create” it by conveniently installing it under the “right of privacy” catergory, which also, is not found. Most of these Christian groups will not rest until these key issues are resolved.

Other groups such as the Christian Coalition of Alabama have had success in amending the state constitution to define marriage as one man and one woman. Several other states will be seeing it on their ballots very soon.

I am grateful for steadfast organizations such as the ones liste above that do not succumb to humanist propaganda and instead carry the torch and continue to fight until we have returned this country to original intent.

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