Has atheism become the default religion protected by the Establishment Clause? The Ninth Circuit asked this question in its dissent when the court refused to hear en banc the infamous Pledge of Allegiance case brought by Michael Newdow in 2003 (Newdow v. U.S. Congress). Is the Court right? Has judicial hostility towards anything religious voided our state constitutions, our monuments, and our history? That lawsuit by Michael Newdow ultimately lost before the Supreme Court in 2004 on procedural grounds, but in December 2007 he argued his second attempt before the Ninth Circuit, and by the summer 2008 the Ninth Circuit may again invalidate the Pledge of Allegiance.
From moments of silence to prayers on a football field, the U.S. Supreme Court has nullified, relegated, and completely abolished many historical vestiges of religion across the country. Atheists, taxpayer-funded ACLU lawyers, and even the homeless are attacking the very principles and foundations of American life. It was a homeless man in Austin, Texas, who was “offended” by the Ten Commandments monument at the state capitol, it was atheists that tried to bring down the cross honoring our fallen soldiers at Mount Soledad in California, and it was ACLU lawyers that took on Judge Moore and successfully had the Ten Commandments removed from his courthouse in Alabama — all at taxpayer expense.
What the court seems to be arguing is that everything has simply become “too religious” in America and the time has come to push the pendulum back. However, what is “religious” and why was it of no concern prior to the more recent court rulings? When Judge Thompson ruled Judge Moore’s Ten Commandment monument in his courthouse was unconstitutional in 2003, he used the word “religion” 149 times in his 76-page opinion, but was still careful to point out that it would be “unwise and even dangerous” to define the word (Glassroth v. Moore). Is this the problem: do judges simply not know how to define religion and therefore they simply rule to ban it because it is easier? Has history not taught judges any lessons or provided them with any direction when it comes to all things “religious” in public life?
Consider President Abraham Lincoln’s Gettysburg Address in 1863, where he expounded on the America he loved and so desperately wanted to save: “…a new nation, conceived in liberty and dedicated to the proposition that all men are created equal…that this nation under God shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.” Recognize a familiar phrase? It was Lincoln that first popularized a “nation under God,” and yet after nearly 150 years, judges are still arguing its relevancy and legality. Judicial supremacists seem to ignore not only Presidential “precedent,” but also countless examples of religion in public life: our nation’s founding document, The Declaration of Independence, which references God as our creator, our state constitutions that specifically acknowledge God, the fact that Congress always opens with a prayer, and our national motto of “In God We Trust.”
After considering all of the religious vestiges that run deep throughout American history, why the sudden opposition by the courts — if our founders were so wrong to include religion in the public sphere, why was nothing questioned until nearly 200 years later? It was not until 1962, under Engel v. Vitale, that the U.S. Supreme Court banned school prayer, at which point the pendulum did begin swinging the other direction. However, the Court did not follow any certain guidelines, and they did not follow precedence. Instead, they constantly changed the rules, making it nearly impossible for schools, businesses, and even states and municipal governments to gauge what would be banned next. Today, rather than pay hefty legal fees, entities of all types are caving to the threat of lawsuits by the ACLU and other religiously hostile organizations. The waters have muddied so much in fact that in 2005, the U.S. Supreme Court ruled a Ten Commandments monument outside was permissible, but one inside was not (Van Orden v. Perry; and McCreary County v. ACLU of Kentucky)!
Perhaps, it is not a lack of historical support for a religious America, but simply the mindset of the judicial activists. Consider Justice Potter Stewart’s dissent in 1962, when the Court first crossed into the murky waters of religious freedom in Engel v. Vitale: “The Court has misapplied a great constitutional principle. I cannot see how an ‘official religion’ is established by letting those who want to say a prayer say it. On the contrary, I think that to deny the wish of these school children to join in reciting this prayer is to deny them the opportunity of sharing in the spiritual heritage of our nation.”
Clearly, not all of our judges take our constitution for granted and they recognize the importance of religious freedom, not freedom from religion. What citizens must recognize is the constitution’s purpose to be objective or neutral towards religion and not to be irreligious. Judges must also understand this important principle and strive to harmonize religion in public life rather than trying to hide it for fear of offending someone. As every constitutional scholar will note, we do not have a right not to be offended, and as Erwin Griswold, dean of the Harvard Law School, commented, “In a country which has a great tradition of tolerance, is it not important that minorities, who have benefited so greatly from that tolerance, should be tolerant, too?”