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The Ten Possibilities

By Deacon Keith A Fournier
Third Millennium, LLC The U.S. Supreme Court handed down its two opinions in the long awaited “Ten Commandment cases” this. In 5-4 decisions, the Court sent another uncertain and convoluted message in its ping pong game of establishment clause jurisprudence. It also positioned itself as the arbiter of what is “acceptable” in a Nation that is reeling under a growing judicial oligarchy.

The Justices (at least five of them) upheld a display of the Ten Commandments on public land (I use the phrase instead of so called “government land”) if the display is placed within the context of other displays that speak to the history of the Nation. At least this seems to be the practical result of the Texas case which involved the “constitutionality” of the placement of a six foot granite monument of the Ten Commandments on the grounds of the Texas State Capitol.

However, the Court also held that some displays of those same commandments, with the very same content, cannot adorn the walls of a courthouse, at least if they look like the ones that hung in Kentucky. Apparently those commandments will have to be removed now that the U.S. Supreme Court has issued its ruling- though maybe not for long. It appears that if the Ten Commandments are placed within the context of other codes governing human behavior, such as they are in the display hung right in the U.S. Supreme Court, they are now permissible.

In short, the Court has now positioned itself as the arbiter of when, how and where the Ten Commandments can be displayed in much the same bizarre way that it has positioned itself in the multiple displays of manger scenes throughout the country for the last few years.

As a human and civil rights lawyer of twenty five years, who practiced in the arena of religious liberty law for many of those years, I am not surprised at the absurdity of this result. We use to refer to the Courts’ approach concerning the acceptability of Christmas manger scenes as the “reindeer rule”, referring to the necessity of “secularizing” the display by reindeer and adding other religious symbols so as to fit it within the Courts incomprehensible application of the so-called “Lemon Rule” that it created out of thin air.

In 1992, while serving as the Executive Director of the American Center for Law and Justice, following the incomprehensible opinion in Lee v Weisman, I wrote a law review article entitled “In the Wake of Weisman: The Lemon Test is Still a lemon but the Psycho-coercion Test is more bitter Still”. In that article, after tracing the history of the interpretation of the Establishment clause, and the developments of the last two decades, I predicted the insanity that would follow from the efforts of the Supreme Court to apply its so called “Lemon Rule” and it’s expanding “interpretations”.

I was not alone in my criticism.

The current state of so-called “Establishment Law” Jurisprudence is nothing short of abysmal. This was noted in a dissent in the case emanating from Kentucky where Justice Antonin Scalia wrote: “What distinguishes the rule of law from the dictatorship of a shifting Supreme Court majority is the absolutely indispensable requirement that judicial opinions be grounded in consistently applied principle." He is correct.

The feigned “neutrality” that the Court maintains must always be present is a far cry from our earlier establishment clause analysis. There are no discernible principles. The whole exercise is absurd. The Chief Justice was also correct in his comment in the Texas case when he opined: "Of course, the Ten Commandments are religious - they were so viewed at their inception and so remain. The monument therefore has religious significance... Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment clause."

The Establishment Clause is best understood as an “anti-establishment” clause. It was intended to prohibit the “establishment” of religion in the sense of a Federal or State sponsored Church, which mandates adherence from unwilling citizens. The American founders fled coercive approaches to religion. Yet, they were not anti-religious.

The prohibition against this former approach to what constituted an “establishment of a religion” has degenerated, replaced by increasing barriers to religious expression and efforts to excise the substantial role that religious faith and institutions have played in American history and should play in our future. Government hostility toward religious faith, religious persons or religious institutions simply does not serve the common good.

The so called “establishment clause” of the First Amendment to the U.S. Constitution must once again be viewed as an “anti-establishment” clause. It should always be interpreted in light of the Free Exercise and free Speech clauses of that same amendment. Religious faith, religious persons and religious institutions should be encouraged and accommodated in this Nation. That is if we are serious about authentic freedom.

Religious faith and the values informed by faith serve and promote the common good. Religious freedom is a fundamental and basic human right which must be secured and protected by law in truly free Nations. Rightly understood and applied, religious freedom means a freedom for religious expression; not a removal of such expression.

On the positive side, these two incomprehensible results from the U.S. Supreme Court simply turn the Ten Commandments into the Ten Possibilities. I guarantee that there will be many, many creative efforts to re-create the display that adorns the walls of the United States Supreme Court so that the Ten Commandments can be hung in Courts all over the land. I will support and foster the efforts. Also, the approach that was used in Texas will be duplicated all over this country. These displays will multiply.

Efforts to remove the Ten Commandments are not only futile, they reveal the current imbalance in our allegedly co-equal branches of government. They point out the importance of the coming judicial appointments. They also cry out for a new generation of lawyers and judges.

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Keith FournierKeith A. Fournier served as co-counsel on several cases of constitutional import before the United States Supreme Court when he led the American Center for Law and Justice from 1991 through 1997. He is a Catholic Deacon and the founder of Common Good. He currently serves as the Senior Editor of Catholic Online and a contributing editor of Traditional Catholic Reflections and Reports.

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