I was having a bit of fun with those Facebook arguments from the atheists before the break and I have not forgotten to continue with them. Just been busy. These guys put just about the entire progressive playbook out there at once without any factual data to back it up. One of these was the Lemon Test. “Public displays of Christianity are un-constitutional because they do not pass the Lemon test.”
The Lemon test was derived by the courts (meaning made up with no Constitutional basis), not the democratic process. The court case was Lemon vs. Kurtzman in 1971. The case dealt with state laws and religion. This test states that public religious activity is constitutional only if 1) it has a secular purpose 2) neither inhibits nor advances religion 3) creates no excessive entanglement between government and religion.
Maybe the reason it has taken me longer to address this argument than others is that it is quite a monster. The Court used 142 precedents, 37 of those pre-1947 and 105 post-147. The year 1947 being important because in that year the Court re-wrote the First Amendment in the Everson case. Other things go racing through my head as well such as the absurdness of the second rule in the Lemon test. If you prevent someone from making a public religious display then you are inhibiting religion, if you do allow it you are advancing religion…so to be constitutional it cannot be religious at all…a catch 22 to get religion out of government. Of course it is almost predominately Christianity that is attacked in this way. There are a lot of ways to skin this one, but then the obvious crept in. Why are the courts looking at precedents instead of the Constitution? Or better yet for this argument, why are progressives quoting a court case from 1971 instead of the Constitution? The answer is obvious as well…they did not like what they found. So I think the best way to attack the Lemon test argument is to show the invalidity of the decision itself. Make a positive case for why it is wrong. Or better yet, why it should not have even been heard.
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof”
This is the relevant part of the First Amendment for this case. The crux of the issue is this…was the founder’s intent to prevent public religious expression and was it meant to be enforced at the federal level. The true answer can be found by analyzing what the people who wrote the amendment said, not what a court in 1971 came up with. I cannot list everything everyone said on the subject because this is just a blog post, not an extensive research paper, but I can give a few items that give strong evidence as to the intent of the amendment. Take these two proposals for the First Amendment:
“All men have an equal, natural and unalienable right to the free exercise of religion, according to the dictates of conscience; and that no particular sect or society of Christians ought to be favored or established by law in preference to others.” – Proposal for First Amendment by George Mason
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established.” – Proposal for First Amendment by James Madison
Those two proposals clarify some things. First, when speaking of religion, the real issue was rivalry between different Christian denominations, not really different religions as we use the word today. The interpretation today has been taken out of historical context of how the word was used. Second, the concern was preventing a national religion, not keeping religion out of government. These ideas are reinforced by other statements of the founders.
In David Barton’s book Original Intent, he gives some insight taken from The Annals of Congress from June 8, 1789 to September 25, 1789. Some of these were the fact that Peter Sylvester (NY) feared the first amendment might be thought to have a tendency to abolish religion altogether. (sadly we are seeing this) Elbridge Gerry (Mass) thought it should read no religious doctrine shall be established by law and as stated above, Madison thought the word national should be in the wording. He thought this would more accurately describe the true purpose of preventing a state sponsored church such as the Church of England and also clarify that is was a federal restriction, not a restriction on the individual states. Another nail in the coffin (so to speak) is that numerous states put similar establishment clauses in their State Constitutions…such as North Carolina whose Constitution stated,
“There shall be no establishment of any one religious church or denomination in this State in preference to any other”.
If the intent of the First Amendment covered the States as well, there would be no reason for the states to include similar provisions in their Constitutions. (The wording was also a little clearer). New Hampshire, New Jersey, and Connecticut had similar provisions.
Thomas Jefferson, who progressives falsely claim supported their version of separation of Church and State, squashed that idea when he said the following:
“I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that not law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the states the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise or to assume authority in any religious discipline has been delegated to the General Government. It must then rest with the States.”
Although he was not involved in writing the Amendment, he still held the same views as those who did. In this statement he clarifies that the purpose was to keep government out of religious exercise and doctrine, not to keep religion out of government. Not only that, but he says the federal government has no authority over the States on this issue. In other words, the United States Supreme Court should not have even heard the case in the first place.
Justice Joseph Story adds further clarification on the amendment
“The real object of the Amendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects.” – Justice Joseph Story
“We are not to attribute this prohibition of a national religious establishment to an indifference to religion in general, and especially to Christianity (which none could hold in more reverence, than the framers of the Constitution)…Probably, at the time of the adoption of the Constitution, and to the Amendment to it now under consideration, the general, if not the universal, sentiment in America was that Christianity ought to receive encouragement from the State…An attempt to level all religions and to make it a matter of state policy to hold all in utter indifference would have created universal disapprobation if not universal indignation.” – Justice Joseph Story
So maybe the real question is this…who has the meaning of the amendment correct…those who wrote it and first interpreted it, or judges 200 years later? It becomes a hard point to argue.
But not impossible. Then comes the proper way to interpret the Constitution. Conservatives argue that the Constitution was meant to be strictly interpreted; that we should take the original intent of the founders and apply that. Progressives believe that the Constitution is a living document; that judges should interpret it according to what they believe it means. That judges have the authority to legislate by molding what the Constitution means through their interpretations. This goes against the very basis of rule of law. From the beginning, law was meant to be interpreted based upon the intent of those who wrote it. The Founders certainly believed this:
“On every question of construction, carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed” –Thomas Jefferson
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful, exercise of its powers…What a metamorphosis would be produced in the code of law if all its ancient phraseology were to be taken in its modern sense.” – James Madison
“The first and governing maxim in the interpretation of a statute is to discover the meaning of those who made it.” – Justice James Wilson
“The first and fundamental rule in the interpretation of all instruments is to construe them according to the sense of the terms and intentions of the parties.” – Justice Joseph Story
So what. Times have changed. Historicism is alive and well…those old aristocrats’ ideas do not apply to us today. Outside of the fallacy of those statements, the genius of the founders was that they knew this. They knew that some things could change over time and that the Constitution might need to be modified at some point to fit the will of the people. That is why they gave us a way to change it and still maintain the rule of law. It is called the Amendment process. This is the ultimate argument against progressives’ view of the Constitution. If the founders wanted the courts to change the constitution, they would not have given the people a way to do it. The problem is this; progressives learned early on that it was much easier to use the courts than to use the democratic process. So while their view may be the narrow minded goal to get religion out of government, the reality of what they are doing is much grander. They are eroding the rule of law. The very foundation of our country.
