Tearing Down A False Wall

by Fr. Roger J. Landry - January 6, 2006

Five days before the celebration of the birth of Jesus, most Americans got a Christmas present and the American Civil Liberties Union a long overdue lump of coal.

These deserts came in the form of a decision by the Cincinnati-based 6th U.S. Circuit Court of Appeals, which upheld a lower court's decision allowing a Mercer County Kentucky courthouse to include the Ten Commandments in a courthouse display. County executives in 2001 had incorporated the Ten Commandments in a framed exposition of the foundations of Kentucky law, alongside the Mayflower Compact, the Declaration of Independence, the Magna Carta, the Star Spangled Banner, the national motto "In God we Trust," the preamble to the Kentucky Constitution, the Bill of Rights and a picture of Lady Justice. The ACLU sued saying that the inclusion of the Ten Commandments was an unconstitutional violation of the principle of "the separation of church and state" enshrined in the establishment clause of the First Amendment.

On December 20th, the three-judge panel of the 6th Circuit not only decided against the ACLU, but in very candid language exposed the falsity of the entire line of argumentation by which the ACLU and its allies have been trying to strip-mine American public institutions and society of all references to God.

Judge Richard Suhrheinrich, writing for the 3-0 majority, said that the ACLU's argument "makes three fundamental flaws." In describing what those errors are, he gives every American a useful constitutional primer on how to respond to the ACLU's secularist aggression:

"First, the ACLU makes repeated reference to 'the separation of church and state.' This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. Our Nation's history is replete with governmental acknowledgment and, in some cases, accommodation of religion. State recognition of religion that falls short of endorsement is constitutionally permissible."

"Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it."

"Third, the ACLU erroneously — though perhaps intentionally — equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow."

Judge Suhrheinrich first says that the "separation of church and state" is not a constitutional principle. The first Amendment states, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Its purpose was to prohibit our national legislature from establishing a national church. It was not meant to ostracize religion from the public square. Otherwise, those who wrote the Bill of Rights, and the courts that interpreted the Constitution for ninety percent of our nation's history, would never have allowed things like prayer in legislatures.

Secondly, he says that just because the Ten Commandments have a religious origin, this doesn't mean that every mention and use of them has a religious purpose. In additional to their obvious historical influence on the formation of western law, they clearly can have a secular purpose. Just imagine the secular impact if those who passed by the Court display resolved for whatever reason to keep them: there would be a dramatic decrease in murders (fifth commandment), divorces (sixth), robberies (seventh), and broken contracts (eighth). Family courts would have nearly empty dockets (fourth and sixth). The major cause of many crimes — envy (ninth and tenth) — would be addressed. And if people decided to keep the obviously religious first three commandments, then they would be professing belief in a God who cares about how we love our neighbor in deeds.

Lastly, Judge Suhrheinrich says that the mere recognition of religion isn't tantamount to forcing others to follow it. The constitution does not protect the"hypersensitivity" of "egg-shell plaintiffs" who deem any mention of God in the public square as a brutal violation of their constitutional rights: "If the reasonable observer perceived all government references to the Deity as endorsements," he notes, "then many of our Nation's cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hypersensitive plaintiff."

"People may take offense to all manner of religious as well as nonreligious messages," he continues, "but offense alone does not in every case show a violation . Our concern is that of the reasonable person. And the ACLU, an organization whose mission [according to its own website] is "to ensure that ··· the government [is kept] out of the religion business," does not embody the reasonable person."

In other words, the ACLU is unreasonable and the ordinary citizen has a better grasp on the meaning of the Constitution than ACLU lawyers do. Thankfully, at least three such ordinary citizens are federal appeals court judges in Cincinnati. And hopefully Judge Samuel Alito will prove himself to be one in his hearings next week.

Father Roger J. Landry is pastor of St. Anthony of Padua in New Bedford, MA and Executive Editor of The Anchor, the weekly newspaper of the Diocese of Fall River.