The Courts v. Religious Expression

When a Court Says No to “One Nation Under God”
U.S. Legal Brawls Abound over Church-State Separation

SAN FRANCISCO, California, JULY 6, 2002 ( The recent court decision that declared the Pledge of Allegiance unconstitutional because of its “one nation under God” clause has set off a storm of criticism.

Protests came from across the political spectrum, after a three-member panel of the 9th U.S. Circuit Court of Appeals here ruled that the pledge violates the First Amendment’s prohibition against the establishment of a state religion.
Shortly after the announcement of the court decision, the U.S. Senate voted 99-0 for a resolution expressing support for the Pledge of Allegiance and instructing the Senate legal counsel to seek to intervene in the case to defend its constitutionality, Reuters reported June 26.

The Court of Appeals stayed the ruling almost immediately, and almost all commentators expect the original decision to be overturned, if not by a full bench of the 9th Circuit, then by the U.S. Supreme Court.

The Pledge of Allegiance case is only the latest of a string of decisions in recent times on church-state issues. Last week the same circuit court ruled on the matter of a cross erected on public property owned by the city of San Diego.

By a 7-4 vote, the court rejected the strategy used by the city to sell the property to a nonprofit corporation dedicated to keeping the cross, the Los Angeles Times reported June 27. The majority said that the sale was unconstitutional because it was rigged to exclude groups that might want to tear down the cross.

The 43-foot-tall cross is the city’s memorial to war victims, and according to the Los Angeles Times, enjoys enormous public support. The American Civil Liberties Union, however, has waged a court fight, now in its 13th year, against the cross on the grounds that it violates the constitutional separation of church and state.

In 1991, U.S. District Judge Gordon Thompson Jr. ruled that it was unconstitutional for the city to maintain a cross in a publicly owned park, even as a war memorial. Then, in 2000, Thompson upheld the city’s sale of the land to the Mount Soledad Memorial Association, a group formed to build and maintain the cross for the city. Thompson’s decision was upheld last year by a three-judge panel of the 9th Circuit, but last week’s ruling overturns that decision.

Another decision handed down last week concerned whether school officials were acting within their rights when they banned Christian messages painted on tiles by families of the victims of the 1999 Columbine High School massacre. Reuters reported June 27 that the 10th U.S. Circuit Court of Appeals said: “By allowing a tile stating ‘God is Love,’ the district would be obligated to post tiles stating ‘God is Hate.’

“”The Columbine tiles contained messages such as “God is Love” and “4/20/99 Jesus Wept” referring to the date when Eric Harris and Dylan Klebold entered the school and gunned down 12 fellow students and a teacher before killing themselves. Local families and supporters made the tiles and planned to put them up in the school building.

“We believe that the (school) district’s restriction on religious symbols was reasonably related to its legitimate goal of preventing disruptive religious debate on the school’s walls,” the appellate judges wrote.

The decision overturned a lower court order issued last year which concluded the school district’s decision to bar the religious tiles violated the families’ right to free speech.

Ten Commandments in legal battles

This year also saw the battle continue over whether the Ten Commandments may be displayed on government property. The Associated Press reported Feb. 25 that the Supreme Court refused to be drawn into this debate, when it denied to hear an appeal from Indiana Governor Frank O’Bannon, who wanted to erect a 7-foot stone monument on the Statehouse grounds in Indianapolis.

O’Bannon said the Ten Commandments represent tenets of American law as much as religious teachings, and he asked the court to overturn rulings that prevented the monument from going up.

It was the second time in less than a year that the Supreme Court had sidestepped this issue. In May 2001, the court opted not to hear a case over whether a Ten Commandments monument could be displayed outside a civic building. But three of the judges took the rare step of announcing that they would have agreed to hear it.

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Clarence Thomas said they found nothing wrong with the monument’s display. The monument “simply reflects the Ten Commandments’ role in the development of our legal system,” Rehnquist wrote for the three.

“Indeed,” he added, “a carving of Moses holding the Ten Commandments, surrounded by representations of other historical legal figures, adorns the frieze on the south wall of our courtroom.””

Fierce fights over similar monuments ignited during the 1990s. Legal cases started in states such as Indiana, Nebraska, Wisconsin, Tennessee, North Carolina, Maryland and Colorado, the Washington Times noted May 22.
This March, a federal court ordered Milwaukee to remove the Ten Commandments from the city hall. And in May the city of Plattsmouth, Nebraska, appealed to the 8th U.S. Circuit Court of Appeals to overturn a federal district judge’s ruling to remove a monument with the text from a city park. About two dozen jurisdictions in all are engaged in or about to be engaged in legal battles over the Ten Commandments.

So far the judgments have been mixed. The 7th U.S. Circuit Court of Appeals ruled last year that the text must go. But two circuit courts have sided with supporters of the monuments: the 10th Circuit, which ruled in a Colorado case, and the 4th Circuit, which ruled in a North Carolina case.

Battles set to continue

A future area of contention could well be over the establishment of school voucher schemes. Although the Supreme Court has just ruled in favor of the Cleveland experiment, a New York Times article June 30 warned that in many states’ constitutions, amendments dating from the 19th century could create problems for vouchers.

The state rules which prohibit aid to religious schools are often called “Blaine amendments,” explained the Times. The first state to pass one was Massachusetts, where in 1854 the Know-Nothing Party succeeded in adding an amendment to the state Constitution that tax money “shall never be appropriated to any religious sect for the maintenance exclusively of its own schools.””

The move came at a time of anti-immigrant, anti-Catholic sentiment. As many as 37 states still have similar amendments in their constitutions.
“Blaine amendments are a dirty little secret from the anti-immigrant past,” said Kevin J. Hasson, president of the Becket Fund for Religious Liberty, a legal advocacy group that often represents religious groups. Groups like the Becket Fund plan to challenge the Blaine amendments on the grounds that most were born of bigotry. They are already challenging the Massachusetts law and are preparing cases in two Western states, Hasson said. Church-state legal wrangles may keep the courts busy for years to come.

About Charles Irvin

Fr. Charlie was ordained a priest June 3, 1967 and has served as pastor of St. Mary Student Chapel in Ann Arbor, founded Holy Spirit parish in Hamburg, MI, served as pastor of St. Francis of Assisi parish in Ann Arbor and was pastor of St. Mary parish in Manchester, MI when he entered Senior Priest status in 2001. In 1999 he was appointed Founding Editor of FAITH Magazine which has grown into Faith Catholic Publishing located in Lansing, MI. He is now very active in his “retirement.”