The Supreme Court hears the case of McCreary County v. ACLU today, and there’s much more to this case than the particulars.
The case is about a display of the Ten Commandments in a county courthouse in Kentucky. Included with the display is a notice saying the commandments are part of the foundation of our system of laws and our government. The ACLU wants the display removed, and a federal judge has ordered the county to get rid of it more than once.
The county claims the Ten Commandments “are the foundation of our law.” Where better to post them than in the courthouse? But the ACLU says posting the Commandments in a courthouse violates the Establishment Clause of the First Amendment, which says, “Congress shall make no law respecting an establishment of religion.”
Siding with the county is the Rutherford Institute, which is often involved in Establishment Clause cases. It filed a brief in the McCreary case claiming that previous Supreme Court decisions “have turned the entire First Amendment on its head.” As Rutherford sees it, the real purpose of the Establishment Clause is to protect the right of each state to regulate religion, or to establish an official church, if that’s what the people want.
According to the Supreme Court, the Establishment Clause applies not just to Congress, but to state and local government as well. By the court’s reasoning, the reference to Congress in the First Amendment can be replaced with state or school board or mayor. It doesn’t matter. No instance of government can infringe the rights mentioned in the First Amendment and, so far as the Establishment Clause is concerned, no instance of government can show a preference for one religion over another, or for religion at all. So says the court.
Rutherford is not alone in its thinking, and it has allies on the court. There’s Justice Scalia who claims the clause was only meant to “protect state establishments of religion from federal interference.” There’s Chief Justice Rehnquist who claims the clause was merely intended to prohibit the federal government from establishing a national church, and there’s Justice Thomas who claims that applying the Establishment Clause to the states (or school boards or mayors) “prohibits exactly what the Establishment Clause protected.”
What sort of things, according to Rutherford and its allies, does the Establishment Clause protect? Just consider a few Supreme Court cases that were decided by replacing Congress with something else:
In 1961, the court decided Maryland couldn’t require public officials to declare a belief in God, even if Maryland’s constitution says they must.
In 1962, the court decided New York couldn’t require public school students to recite an official prayer, even if students who object are excused.
In 1963, the court decided a local school board couldn’t require students to read the Bible or recite the Lord’s Prayer, even if no one – not one student or parent or teacher – objects to the requirement.
Don’t replace Congress with something else. Then each of these decisions is reversed. Public schools can require daily recitation of the Lord’s Prayer, and they can require students to attend Bible study courses. States can establish official churches and official religions; they can require public officials to belong to the official church and to affirm their belief in its official creed. And that’s just as it should be according to Rutherford and its allies.
What else? Consider a case with some strong similarities to the McCreary case. It’s the case of Stone v. Graham, decided in 1980. In Stone, the dispute was about a Kentucky law that required a copy of the Ten Commandments to be posted in every public school classroom, along with a notice claiming they are the “fundamental legal code” of the United States. Using the ‘replace Congress with whatever’ approach, the court ruled the law unconstitutional.
How did the court ever come to the conclusion that you could replace Congress with any instance of government? It all starts with the 1925 case of Gitlow v. New York. Benjamin Gitlow was a socialist, and he was convicted of criminal anarchy under a New York law that made it a crime to print or publish anything that advocates, “organized government should be overthrown by force.”
Gitlow argued the law was unconstitutional. Why? Because the Due Process Clause of the Fourteenth Amendment says, “No state shall make or enforce any law which shall . . . deprive any person of life, liberty, or property, without due process of law.” That means New York couldn’t deprive Gitlow of his First Amendment rights to freedom of speech and the press.
The court agreed. Then, in 1940, the court ruled, “the First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws.”
In McCreary County v. ACLU, the court is likely to replace Congress with McCreary County and agree with the ACLU. If that happens, Rehnquist, Scalia, and Thomas are likely to dissent. More than that, they’re likely to offer their opinions on what the Establishment Clause really means, after all.
But . . . what if?
Despite Article VI of the Constitution, President Bush says he will nominate to the court only those who share his religious beliefs. What if two or three of the current justices are replaced with justices who share the president’s beliefs and Rutherford’s way of seeing things? Suppose it’s just a few years from now and the court says that replacing Congress with something else is a big mistake; always was.
Then the Court’s previous rulings . . . the ones that said a school district can’t require students and teachers to recite the Lord’s Prayer, that Bible study can’t be part of public education, that the Ten Commandments can’t be posted in classrooms . . . they evaporate.
If the people of Kentucky want to establish an official, state-sanctified church, they can. And if they want to turn public schools into parochial schools, they can do that as well. Laws requiring the Ten Commandments, the Lord’s Prayer, and daily Bible study in public schools are still the law in Kentucky, and there’s still a state law against working on Sunday.
(These people have their proud traditions, and they don’t want the Supreme Court deciding which of them are legal and which are not.)
OK. What about capital punishment? Suppose the people of Kentucky decide that, since all law is ultimately based on God’s law (as some of their elected officials have proclaimed), then it only makes sense to implement the full regimen of Mosaic laws, rather than just the first ten. Then adultery, homosexuality, and working on the Sabbath become capital offenses in Kentucky.
Suppose someone in Kentucky is convicted of working on the Sabbath, and sentenced to death by stoning in public (as required by Mosaic law). Would it do any good to appeal the sentence? Sure it would. According to the justices of the Supreme Court – by any reasonable person’s reckoning – such brutal punishment is cruel and unusual, and the Eighth Amendment prohibits it.
What if the sentence were death by lethal injection behind closed curtains? Would the court allow that? It sure would, if it adopts Scalia’s thinking. First off, Scalia says deciding which crimes are capital crimes is not up to the Supreme Court; that’s up to the people of Kentucky. On top of that, the Constitution should be interpreted in light of what it meant when it was ratified, not what we might like it to mean today. And when the Constitution was ratified, says Scalia, death was a fitting punishment for any felony, “And so it is clearly permitted today as far as the Constitution is concerned.”
Back when the Constitution was ratified and Kentucky was just a county of Virginia, it was a capital crime to fail to attend church regularly. In 1789, just two years after the Constitution was ratified, George Washington was charged with violating a law that required everyone to attend church. The motive for his crime? He was on his way to church.
About the Author: Mister Thorne is a mathematics editor living in San Francisco. To contact him, send e-mail to mister.thorne@comcast.net.
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