Firm Foundation

On Monday, June 23, the Foundation for Moral Law filed an amicus curiae brief, along with the National Clergy Council and Faith and Action, in a religious monument case before the U.S. Supreme Court, Pleasant Grove City, Utah v. Summum.  The Court is considering whether the “freedom of speech” clause in the First Amendment requires Pleasant Grove City, Utah, to accept and install in a public park—which already contains a Ten Commandments monument installed in 1971—a monument containing the “Seven Aphorisms” of the Summum religious group.  

Summum is a religion created in the 1970s by a former Mormon that can best be described as an amalgam of Gnostic, Freemasonry, Egyptian, and pantheist beliefs.  Summum adherents practice modern mummification of animals and humans, and believe that their “Seven Aphorisms” are a higher law than the Ten Commandments.  In fact, they claim that the first tablets from Mt. Sinai that Moses broke (Exod. 32:19) contained these “higher law” aphorisms.  Summum followers, seeing a Ten Commandments monument on display in the Pleasant Grove city park, demanded that their proposed aphorisms monument (right) should be displayed in the park, too.  Amazingly, a U.S. Court of Appeals for the 10th Circuit ordered the city to put the Summum monument up, claiming that the city had opened the park as a public forum and must therefore allow other religious monuments to be displayed.  The city is now appealing the decision to the Supreme Court.

In his column this week, Tangled web of court deception, Judge Moore addresses the predicament that Pleasant Grove is now in, thanks to the Court’s confusing line of decisions in both free speech and religious freedom cases.  The city is now caught between a rock and a blank space: either allow any monument to any obscure belief to be displayed; or else, to avoid such a free-for-all, ban any monuments or memorials from public places.  Local governments around the country are watching this case to see whether the Court will uphold the 10th Circuit’s draconian ruling.

The First Amendment’s Free Speech Clause requires that “Congress shall make no law . . . abridging the freedom of speech.” As the joint brief filed by the Foundation for Moral Law, National Clergy Council, and Faith and Action explains, this important right of free speech was made a part of the Bill of Rights to protect the people’s right to criticize public servants and keep them accountable for their public actions. The “freedom of speech” was designed to keep the people free from government tyranny, but the federal courts have expanded its meaning to be virtually free of any coherent definition or restraint.

The freedom of speech was never meant to protect such things as nude dancing, obscenity, and flag burning—nor does it require a city to install a monument of an obscure religion simply because a historic Ten Commandments monument stands on public grounds.  Judge Moore notes in his column,

Public officials should not have to deny their faith in God in order to acknowledge His laws under the religion clause of the First Amendment. Nor should they be forced by a false “freedom of speech” to give credibility to cultic religions that undermine God’s sovereignty.

The brief filed Monday calls on the Supreme Court to sweep the cobwebs away, reverse the appeals court decision, and return to the original, limited interpretation of the Free Speech Clause that the Founders intended.

It’s bad enough that the liberal California Supreme Court has imposed homosexual “marriage” on a people who voted it down eight years ago.  That same Court last month heard oral arguments that two doctors, against their Christian beliefs, should, under California law, be forced to perform artificial insemination on a lesbian who wanted to have a child with her partner. 

In his column this week, Immorality on the offense, Judge Moore addresses this disturbing trend of immoral behavior demanding not only legal protection but also legally-enforced acceptance and participation by any who might disagree on moral and religious grounds.

After the same-sex marriage decision—which goes into effect next week–was handed down certain California county clerks told their staff that no one would be forced to perform a same-sex marriage if it violates their beliefs. Mayor Gavin Newsom of San Francisco attacked this reasonable accommodation as “passing judgment” on “religious grounds” and suggested such clerks should “get a new job.”  This from the mayor who issued marriage certificates to same-sex couples back in 2004 when it was illegal under California law!

When the courts reinterpret the definition of marriage and misconstrue the law to fit their own purposes it’s called judicial activism.  But when courts take the next step and force people to actually perform services and medical procedures that violate their personal beliefs, well then there is nothing else to call it but tyranny and involuntary servitude.

When is a judge not a judge?  When he acts like a legislator and invents law from the bench, applying “law” he feels instead of the law he finds. 

Though leftists and homosexual activists are hailing them as courageous trendsetters, Judge Moore writes in his column this week (Passions, politics and prejudices on California high court) that the 4 California Supreme Court justices who 2 weeks ago overturned a 2000 California law defining marriage as between a man and a woman are little more than cowardly judicial activists.

In the preamble to their state Constitution of 1849, the people of California acknowledged that they were “grateful to Almighty God for [their] freedom.” But with the recent decision of the California Supreme Court legalizing same-sex “marriage” in that state, activist judges have destroyed the definition of marriage in California, a freedom that neither the law of God nor the law of man ever gave to that court.

In 2000, the people of California approved Proposition 22, the California Defense of Marriage Act, which clearly defined marriage as only between a man and a woman.  Over the past few years, however, the legislature created and expanded a domestic partnership scheme for same-sex couples that offered all the rights and responsibilities of married spouses—legal “marriages” by another name. 

Two weeks ago, the California Supreme Court (4-3), inventing constitutional provisions not found in their state’s constitution, held that to deny same-sex couples the right to call their unions “marriages” was unconstitutional.  Chief Justice Ronald M. George claims it was a “tough” decision, but that “there are times when doing the right thing means not playing it safe.”  Obviously impressed with his own judicial stubbornness, he continued, “”If you worry, always looking over your shoulders, then maybe it’s time to hang up your robe.” 

Judge Moore takes C.J. George and the other justices to task for ignoring the expressed will of the people as enacted through Proposition 22, and instead favoring the loud minority of (fellow) activists who favor tearing asunder the traditional definition of marriage.  U.S. Supreme Court Justice Joseph Story warned years ago about the danger of activist judges:

[T]he danger is not that the judges will be too firm in resisting public opinion, and in defense of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day. 

C.J. George prides himself on doing what he says was the “right thing” in this case.  But the “right thing” here would have been to look not over his shoulder nor at the immoral politics and passions of San Francisco, but at the the law in the California code books.

Pro-family groups are now hoping for a stay of the court’s decision until November, when the people will have a chance to vote on a marriage amendment to the state constitution (rather than merely the state statutes) and overturn the audacious activism of their own Supreme Court.  Given that California “marriages” may soon be granted to out-of-state same-sex couples who will then return to their home state seeking recognition for their California “marriage,” this is a situation for all Americans to watch closely.

The running joke which is hardly a laughing matter is that ACLU actually stands for Anti-Christian Legal Union or American Communist Liberation Organization.  The ACLU vehemently disputes the accusations behind these alternate monikers, pointing out that there are occasions when they defend the rights of Christians in the public square.  Such cases do exist: cases like Nuxoll v. Indian Prairie School District, in which a school district refused to let a Christian student wear a T-shirt with the message “Be Happy, Not Gay” the day after the so-called “Day of Silence” during which students express their disapproval of homosexual discrimination by not speaking throughout the school day.  The student sued the district claiming a violation of his right to free speech, and the ACLU filed an amicus brief in support of his right to wear the T-shirt.  While a federal district court ruled against the student, the 7th Circuit Court of Appeals recently reversed that decision and concluded that the student did have a free speech right to wear the shirt.  The ACLU even sent out a press release praising the 7th Circuit’s decision.

On the rare occasions when the ACLU is on the side of a Christian message in the public square, it is typically because they are defending the free speech precedents they helped create, which was the case in Nuxoll.  More prevalent, though, are the cases in which the ACLU fights to eliminate any semblance of Christianity in the public square, and especially in the public schools.  Take, for instance, the case of Mount Vernon, Ohio middle school teacher John Freshwater, who was ordered by his school district to take down a poster display of the Ten Commandments he had in his classroom and to remove the Bible he has had on his teacher’s desk that he did not read to students.  Freshwater removed the Ten Commandments, but refused to obey the order concerning his Bible.  Explained Freshwater, “Because the Bible is personal and private property, and a source of personal inner strength in my own life, the removal of it from my desk would be nothing short of infringement of my own deeply held religion beliefs, granted by God and guaranteed under the free exercise clause of the First Amendment of the United States Constitution.”  The people of Mount Vernon rallied around him, and many spoke in praise of his teaching at a school board meeting, but the school board decided to place Freshwater under investigation, claiming that the Bible is not their only reason for doing so. 

Now, you might think the ACLU would be friendly to a solitary teacher standing up for his religious rights, but you would be wrong.  Freshwater is a public school employee, they say, so his fundamental constitutional rights do not directly translate to the classroom setting.  “This really should have an easy resolution,” said Christine Link, executive director of American Civil Liberties Union of Ohio.  “The courts have recognized that our teachers have a special position and they can’t use their post to promote [religion].”  Link continued, “If it’s in a desk, locker or in the teacher’s lounge, it would be fine.  It is not permissible [to display his Bible] at work.”  But this grand pronouncement was not enough; she went further.  “The school system is doing exactly the right thing.  It is actually acting in a way that is protecting them from a lawsuit from the ACLU; and if not from us, from some other group.  They are acting in a way that is responsible.  They are on the right path.”

This is, sad to say, standard fare for the ACLU.  Somehow the mere presence of a Bible on a public school desk constitutes “promoting religion,” which then somehow translates to “an establishment of religion,” which then means the ACLU might sue if the offending object is not removed from public view.  Link offered what she apparently considered an intelligent way to frame the issue when she asked rhetorically, “[W]ould it be OK if the Quran was on his desk?”  Actually Ms. Link, it would be perfectly okay under the true First Amendment because whether it is the Bible, the Quran, the Book of Mormon, an ancient Hindu text, or Charles Darwin’s Origin of Species, it still would not amount to a “law respecting an establishment of religion.” 

But perhaps the ACLU would distinguish the above scenario on the basis of the fact that it involves a teacher, so let’s muddy the waters a little bit more.  If we travel up the road to Bristol, Vermont, we find Mount Abraham Union High School where Richard Steggarda teaches, among other courses, an Advanced Placement English class.  For one assignment, Steggardahad his students come up with a project which would explore a theme in one of the books the students had read during the year.  Student Galen Helms chose the play The Night Thoreau Spent in Jail, which discusses 19th century writer Henry David Thoreau’s act of civil disobedience in refusing to pay taxes to the U.S. government while it waged what he viewed as an immoral war in Mexico.  Helms said he connected to Thoreau’s idea of hypocrisy in government and came up with an idea to demonstrate it.  With some help from fellow classmate Torin Olivetti, Helms erected a 2-foot-tall statue of Jesus in an area where students congregate, a second-floor balcony over the main lobby of the public school.  Helms aimed to use the statue to point out the government’s hypocrisy with regard to the separation of church and state.  Helms, who is not a Christian, observed that students are allowed to say “under God” in the Pledge of Allegiance, and a permanent mural at the school depicts the ancient Greek god Apollos, but he figured the statue of Jesus would be considered taboo.  Helms explained, “My thesis was that the government and the administration of our school is often hypocritical in what they allow and what they do not allow.” 

It would seem that Helms and Olivetti deserve an “A” on the project because, just as predicted, school principal Paulette Bogan has ordered the students to remove the statue as a violation of school policy.  Steggarda called the ACLU to complain, believing the order to be a violation of the students’ right to free speech.  Ordinarily Steggarda would be right and the ACLU would jump at a case like this, but he overlooked the fact that Christianity is involved.  ACLU of Vermont Executive Director Allen Gilbert winced, “This is the classic example of the clash of rights within the First Amendment regarding religious expression.  On the one hand, individuals have an individual right of free religious expression. On the other hand, the government—which includes schools—can appear to be endorsing one religion or another.”  You can almost feel his angst, but never fear, because the fact that the case involves a statue of Jesus solves Gilbert’s dilemma for him: “[T]he problem here, I think, is that to many people, it would appear the school may be endorsing a religion by allowing the statue to be where it is.”  So sorry Mr. Steggarda, but the ACLU will not be coming to your creative students’ rescue on this one.  But please do give them an “A” because Helms and Olivetti happen to be absolutely correct about the hypocrisy concerning religion in government . . . they just did not know that the hypocrisy extends to groups like the ACLU. 

Lest you stillthink that the issue for the ACLU is religion in general and not Christianity in particular, hop over to the University of Michigan at Dearborn.  There you will find a bubbling controversyover footbaths the university is going to install in school bathrooms to accommodate Muslims who must wash that area prior to their required five-times-a-day-prayers toward Mecca.  The cost will be upwards of $25,000.  Mind you, UM Dearborn is hardly the first university to do this.  Per The New York Times: “Nationwide, more than a dozen universities have footbaths, many installed in new buildings.”  Given that that UM Dearborn is one of several government-funded schools to do this, one would think that the ACLU would be screaming that this accommodation for Muslim prayers by state governments violates the Establishment Clause.  Not exactly.  “Our policy is to object whenever public funds are spent on any brick and mortar component of religion,” said Kary Moss, director of the Michigan Civil Liberties Union. “What makes this different, though, is that the footbaths themselves can be used by anyone, don’t have any symbolic value and are not stylized in a religious way. They’re in a regular restroom, and could be just as useful to a janitor filling up buckets, or someone coming off the basketball court, as to Muslim students.”  Furthermore, “This issue would be simpler if the government were building inherently religious facilities. Here, the footbaths are not inherently religious facilities—they are not blessed, cannot be desecrated and are open to everyone for any purpose. They are essentially spigots in the bathroom wall. . . . Not every government expenditure to promote safety is unconstitutional because it has an incidental benefit to worshippers.”

Did you catch all of the legal caveats in that tap dance?  This is different because everyone can use the footbaths?  What is more amazing than watching the ACLU pirouette is the fact that Moss actually thinks anyone will believe that the footbaths are for anything other than Muslim prayers.  So, if John Freshwater used his Bible as a paperweight on his teacher’s desk, would it be okay with the ACLU?  How about if a public school teacher pointed out weaknesses in the theory of evolution that are not “stylized in a religious way”—would the ACLU stand by in silence?  The answer to these questions is an obvious “no,” so their problem is not with religion in general, but with a particular religion: Christianity. 

Let’s complete the ACLU’s illogical web ensaring Christianity with one final thread, a thread in Pembroke, North Carolina.  It is there at Purnell Swett High School that senior Corey Bird wants to wear eagle feathers on his graduation gown to honor his grandfather and his mother.  Principal Antonio Wilkins refused Bird’s request on the ground that school policy prohibits students from wearing any messages, signs, markings, stringers and ribbons on caps and gowns.  Bird is a Native American, a descendant of Sioux Indians, and most Native American tribes ascribe special cultural and spiritual significance to eagle feathers.  Bird’s father says it is his son’s right to wear the feathers at graduation, and the local tribal council agrees.  Over 10,000 American Indians are enrolled in the county’s school systems, and Principal Wilkins is himself a Native American, but he explained, “If you start allowing things to be worn, it would set a precedent that would allow whatever group or organization to wear whatever and it could cause disruption during the ceremony.”

This sounds like a perfectly reasonable rationale for the school’s policy and the denial of Bird’s request, but the ACLU does not seem to agree.  In fact, the ACLU of North Carolina encouraged the Bird family to contact them when they heard about the case.  Argued ACLU lawyer Katy Parker, “In this case, it looks like he has a First Amendment right to wear the feathers.  It is a free exercise of religion because part of this student’s complaint is that this is a spiritual and religious issue. . . . [I]n a school situation, in any sort of uniform policy, if someone has a problem with the policy because of sincerely held religious beliefs, you can’t apply the policy to that person.” 

So, eagle feathers on a student’s graduation gown constitute a religious right while a Bible on a teacher’s desk does not.  A 2-foot-tall Jesus statue on the balcony of a public school constitutes an unconstitutional endorsement of religion while $25,000-worth of footbaths for Muslim prayers does not.  All the while, the ACLU supports a Christian student’s protest of the “Day of Silence” because it constitutes “controversial speech” which goes to the heart of the First Amendment.  If this all makes sense to you, then maybe you belong at the ACLU. 

The only string I could think to pull in order to unravel the mystery is minority rights.  In the ACLU world, minorities are constantly being oppressed by the majority, and it is up to the lawyers of the ACLU to use the law to prevent this oppression.   In general, Christianity is the majority religion in this country, so to the ACLU it is an oppressor in most situations.  The student involved in the “Day of Silence” protest via a T-shirt represents an exception: the Christian voice about homosexuality is now the minority view in public schools, so the ACLU decided to speak in favor of the student.  Thus, the fact that it did so is not to its credit because it simply confirms that the ACLU’s overall worldview perceives Christianity as a threat to their version of freedom in this country.  Only when Christianity is relegated to minority status will the ACLU deem it safe and constitutionally proper to speak in favor of its adherents.  This view of minority rights, Christianity, and freedom is profoundly at odds with the founding precepts of this nation (perhaps more on this in later post), and when foundations crumble, the edifice collapses.  When the ACLU web ensares Christianity, it endangers much more than a faith; it threatens the very stability of the country as a whole.  As I said at the beginning of the post, it is truly no laughing matter. 

Forthcoming from the University of Missouri Kansas City Law Review is an article co-authored by Professor Craig Stern of Regent University School of Law and yours truly entitled The Coherence of Natural Inalienable Rights.  The article is available for download from the Social Science Research Network website (SSRN).  The article explores the prerequisites for a coherent theory of natural inalienable rights.  It argues that a proper a theory of inalienable rights requires, at least: (1) that a distinction must be made between a right and its object; (2) true inalienability, that is, the right absolutely cannot be separated from the person; and (3) a transcendent legal order, which is to say, it requires God (or something approximating Him).  These are cumulative points and none can be overlooked if one wishes to understand the basis upon which the Founders staked our independence and our constitutional order. 

The genesis of this article stems from a passage in Judge Robert Bork’s best-selling book, Slouching Towards Gomorrah in which he stated that the Declaration of Independence employs mere “rhetorical flourishes” when it speaks of everyone being “endowed by their Creator with certain unalienable Rights” because “[t]he ‘unalienable Rights’ of the Declaration turned out, of course, frequently to be alienable.  The Fifth Amendment to the Constitution, for example, explicitly assumes that a criminal may be punished by depriving him of life or liberty, which certainly tends to interfere with his pursuit of happiness.”  In this discussion, Judge Bork assumes that inalienable rights do not, in fact, exist because people are deprived of life, liberty, and property all the time. 

This is a common but unfortunate error that causes people to misread both American history and law.  It leads many to claim that a titanic shift in the philosophy of the Founders occurred between the penning of the Declaration and the ratification of the Constitution.  Historians and political scientists often speak of a “radical” strain of thought during the Revolution that was dethroned by “practicality” during the drafting and ratification of the Constitution.  These experts deem such an explanation to be necessary because they fail to see inalienable rights underlying the framework of the Constitution.  In part, this article seeks to show that the apparent philosophical gulf between the Declaration and the Constitution is an optical illusion when seen through the lens of a proper theory of inalienable rights. 

Perhaps the more dire consequence of misunderstanding inalienable rights is that it robs those rights of their inherent power.  If inalienable rights are not truly inalienable—if they are, in fact, just “rhetorical flourishes” which disappear in the wake of hard practicality—then the liberty, individuality, and dignity of human beings are tangibly reduced.  To take one obvious historical example, an entire race of human beings was held in slavery against their will in this country for some 150 years.  If the right to liberty is not truly inalienable to human beings, then those people possessed no moral or legal claim to freedom prior to this country’s change in policy brought about by the 13th Amendment to the U.S. Constitution.  But of course they did possess the right to be free despite being deprived of their freedom in fact.  The deprivation did not and could not erase their claim to be free from involuntary servitude.  As this history starkly illustrates, one’s understanding of inalienable rights carries carries concrete consequences. 

Some precedents from the United States Supreme Court—especially the infamous “mystery of human life” passage from Planned Parenthood v. Casey (1992)—flatly contradict this philosophical understanding of inalienable natural rights.  Professor Stern and I hope that in some small way this article will serve to correct the wayward thinking of the Court and others which has divorced a transcendent legal order from our legal rights, with truly tragic results. 

Judge Moore’s latest column focuses on the connection between Democratic Presidential candidate Barack Obama and the Reverend Jeremiah Wright, but not the oft-mentioned issue of Wright’s inflammatory statements.  Instead, Judge Moore picks up on the fact that Obama has lauded Wright for his advocacy of the “social gospel.”  As with most things he says, Obama does not detail what the “social gospel” entails, but Judge Moore looks at its history and what Obama’s support for it tells us about his political philosophy.  The examination reveals that Obama’s policy proposals line up quite closely with the tenets of the social gospel, and that is no small matter as Americans consider who to vote for as the next President. 

Demonstrating that we are still “one nation under God,” all fifty state governors and the President have issued proclamations recognizing today as the National Day of Prayer (NPD).  Access your state’s prayer proclamation at The National Day of Prayer Task Force’s website here.

This year’s theme for the NDP is “Prayer! America’s Strength and Shield” based on the verse from Psalm 28:7:

The Lord is my strength and shield; my heart trusts in Him and I am helped.

May every day find this nation as unified in recognizing our dependence upon God as we are this day.  And may the Lord hear our prayers for this great nation, one that will only be great to the extent it is founded on and blessed by Him.

Click here to see an inspiring NDP video about this important day and our national need for prayer.

Tomorrow is the National Day of Prayer, so Judge Moore dedicates his column this week, America still needs prayer, to that special occasion.  Prayer has been an integral and ubiquitous part of American civil life since even before the Declaration of Independence, but it was President Harry S Truman in 1952 that signed a joint resolution of Congress making it an official day in May.  President Ronald Reagan changed it to the first Thursday in May.  Presidents throughout our history have called for national prayer, including our current Chief Executive.

Judge Moore encourages Americans to follow this tradition of prayer, but not simply because we’ve always done it.  If prayers in legislatures, courts, and public meetings become mere rote repetition or “ceremonial deism” then we are taking the Lord’s name in vain for the sake of following tradition.  A generic reference to a generic god may soothe the listeners but avails nothing.  The real God desires us and America needs to sincerely ask Him for His assistance, wisdom, and blessing. 

On this National Day of Prayer, let us join our fellow Americans in petitioning Heaven for our nation not just with our lips but with sincere hearts, too. 

Firm Foundation and the Foundation for Moral Law will always defend and encourage the integration of Biblical principles into public discourse.  Because the Bible and God’s law should form the foundation of man’s law, we encourage politicians to look to God’s Word for guidance in forming policy and legislation.  In so doing, however, we recommend such politicians actually use real scriptures in the Bible, not make up new ones.

On April 21 House Speaker Nancy Pelosi (D-CA) promoted Earth Day by issuing a press release that, remarkably, turned to the Bible for support . . . or so she says:

“The Bible tells us in the Old Testament, ‘To minister to the needs of God’s creation is an act of worship. To ignore those needs is to dishonor the God who made us.’ On this Earth Day, and every day, let us honor the earth and our future generations with a commitment to fight climate change.” (Emphasis added.)

It’s clear that Speaker Pelosi considers climate change an important issue—or as she calls it, ”the greatest challenge facing the nation and the world“—but apparently her Biblical literacy lacks such priority.  One news source asked Pelosi’s office for two days for a scripture reference, but to no avail.  The “scripture” she quoted was actually her creation, not God’s.

Our friends at the Patriot Post note that Pelosi has quoted from her personal version of the “Bible” before:

This isn’t the first time Pelosi has peddled her eco-theology either. December 2005 and February, April and October 2007 all found her using the same “quote” supposedly from the book of Isaiah. Her principle of putting the earth above Man, for whom the world was made, is a bit backwards to begin with. Not to mention a lie. We suspect Pelosi is reading the AAGV Bible—the Albert Arnold Gore Version.

The Bible in Genesis certainly calls on man to be a steward of God’s creation and, contrary to many environmentalist policies, “fill the earth and subdue it.”  But the Pelosi quote, while it may neatly fit her environmental agenda, is nowhere to be found in the Old Testament or the New.

While the human impact and responsibility for climate change is highly debateable, we can all agree that proper application of the Bible to public policy requires, at the least, turning to Bible scriptures that actually exist.

Some Firm Foundation readers may recall a case from almost a year ago when the ACLU filed a lawsuit against the city of Slidell, Louisiana for a portrait of Jesus on display in the lobby of the city court building.  The ALCU claimed that the display, which also contained an inscription below the portrait with the words “To know peace, obey these laws,” violated the Establishment Clause of the First Amendment.  This is a preposterous argument if one adheres to the original understanding of the Establishment Clause, as Firm Foundation explained when the ACLU’s complaint first surfaced.  Unfortunately, the precedents from the U.S. Supreme Court on this subject are not nearly so clear or kind toward displays with religious elements like the Slidell Jesus portrait.  Initially, the city declined to remove or change the display in any way, but after it retained legal aid from the Alliance Defense Fund (ADF), the city decided to alter the display by erecting portraits of “notable lawgivers” around the Jesus portrait, as well as including a copy of the U.S. Constitution and an explanation of the contributions of each lawgiver.  The “lawgivers” included Moses, Charlemagne, Napoleon Bonaparte, and William Blackstone.  The ACLU still objected to the display and went forward with its suit.

Firm Foundation was quite critical of ADF’s approach at the time, insisting that under current Supreme Court precedent this attempt to hide any religious purpose behind the display would fail and the new display would be declared unconstitutional.  I was proven wrong on that score when a federal district judge in September 2007 declined to issue a preliminary injunction against the new display.  To that degree, ADF proved more adept at predicting the mood of the federal court.  However, I also opined that if ADF did manage to keep the Jesus portrait in the courthouse by virtue of the new display,

what great principle will they have vindicated?  That pictures of great lawgivers can be displayed in courthouse?  People could go to museums for that.  They come to courthouses to learn about and receive proper justice from the bench and bar.  The new display dilutes that message almost beyond recognition.  Riding the slippery slope of federal precedent only leads to landing in the muck of hopeless incongruities. 

In the end, the Slidell case now represents one more instance in which the ACLU has won a victory before the case has even begun because the other side conceded the one thing it had going in its favor: unashamed Christian principles.  It is hard to imagine a display that could better inspire judges and officers of the court to treat people fairly than a portrait of Jesus that proclaims his words.  Given the Christian history of this country and its laws, the original display made perfect sense.  Now the display is a perfect muddle. 

Late last week the same federal district court issued a ruling in which it concluded that the plaintiffs in the lawsuit should be awarded nominal damages and Slidell must pay “reasonable” attorney fees to the plaintiffs because the original display violated the Establishment Clause.  The court compared the two displays, saying that the current display of “notable lawgivers” is constitutional  because “the expanded display presently in the City Court lobby does not suggest to the reasonable observer that its message is of a religious nature.”  In contrast, the court concluded that the initial display was unconstitutional, first because it consisted of a stand-alone religious figure (Jesus) holding the New Testament Bible, and second, ”what viewers may fairly understand to be the purpose of the display further distinguishes the initial display from its Constitutional modified form.” 

Though the court’s language is not entirely clear, it appears the court concluded that the modified display highlighted the religious perception of the original display.  In other words, the bland irreligious nature of the modified display helped demonstrate how the first display clearly endorsed religion.   Thus, any chance Slidell had of winning a case over the original display was doomed when it listened to ADF and modified the display. 

ADF was reportedly disappointed in the court’s decision and may appeal, but it is a perfectly predictable result.  By modifying the display, ADF and the city implicitly admitted that they believed the first display violated the First Amendment, protestations from ADF at the time the change was made notwithstanding.  After all, why change the display if you really think it can survive a constitutional challenge?  They have no reason to complain when their own advice demonstrated what they thought about the legality of the original display.

Also strange is that the ACLU purported to be happy about the result.  It is understandable why the ACLU would be happy about a ruling ordering the city to pay its attorney fees, but the court also allowed the current display to remain in the courthouse.  The ACLU stated repeatedly after the city modified the display that it believed the display remained unconstitutional.  That is why the group continued with the suit, demanding a preliminary injunction to have the display removed.  However, when the court finally issued its opinion, the ACLU purported to claim complete victory despite the fact that the “notable lawgivers” display remains in the courthouse. 

There are only two reasons the ACLU would so positively respond to this result: (1) Public relations demands that they make even minor defeats look like victories; or (2) they are actually satisfied with the result.  The first reason is not likely given that the ACLU could appeal the court’s decision about the constitutionality of the current display.  It has not appealed, which lends more credence to the second possibility: the ACLU got exactly what it wanted from the court.  The court ruled that the original display—one which drew attention to Jesus, the Bible, and their importance to justice—was unconstitutional.  It ruled that the second display—one which places Jesus on the same level as Napoleon and Charlemagne—is constitutional.  The message sent is crystal clear: society should only accept Christianity’s influence as a historical artifact; ascribing any other importance to it is not only inaccurate, but actually unconstitutional.  In other words, the Constitution is a completely secular document governing what should be a secular people.  And the ACLU gets the last laugh . . . all the way to the bank.

If the display had been left unchanged, the worst that would have happened is a court ordering it to be taken down and affirmance of that order on appeal because the city was accused of being “too religious.”  Granted, the city would have owed more in attorney fees in such a loss, but if this was all just about mitigating damages, then the city could have avoided paying anything because the ACLU gave it a chance to remove the original display before it filed the lawsuit.  On the other hand, while we know the display would have been ordered down, we do not know and will never know how the 5th Circuit Court of Appeals would have ruled regarding the original display because the modification of the display irrevocably changed the facts.  The city might have won on appeal and avoided the headache that accompanied changing the display. 

As it is, the city changed the display, gift-wrapping another precedent for the ACLU indicating that the religious aspect of any public display must be significantly diminished, if not denounced, in order to be acceptable in the public square.  Looking at the big picture, being labeled “too religious” and paying more in fees seems like a relatively small price to pay compared to the damage such precedents inflict on a nation rapidly drifting away from its religious roots.