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VOL. 8, NO. 3Feb. 27, 2006
"Who Ultimately Rules-the Courts or the Constitution?, II."
By Virginia Armstrong, Ph.D., National Chairman

In our previous Court Watch Briefing," we launched a discussion of the problems associated with federal judges' adherence to "stare decisis," or "the rule of precedent" — the alleged controlling power of previous court decisions over current ones. "Stare decisis" has an honorable, centuries-old place in Anglo-American law. But America's Reconstructionist judges today are pitting a wrong-headed version of precedent against our splendid Constitution, and the Constitution and our culture are both losing.

The irony is that today's "precedent-first" judicial bulldogs are basing their current decisions on past decisions which had no precedent and which were anti-constitutional. This Humpty-Dumpty judicial mentality has created a set of DEADLY DANGERS to the Constitution. These threats include erosion of the "three Cs" — three characteristics which any legal system must possess if it is to survive and thrive. These characteristics include certainty, consistency, and continuity.

In our last Briefing, we examined American law's loss of certainty as typified in federal judges' abortion cases-cases moored in the anti-constitutional, non-precedential decision of Roe v. Wade (1973). Today we examine American judicial Reconstructionism's attack on the second "C" — consistency.

One of the worst examples of the DEADLY DANGER of INCONSISTENCY is the body of judicial decisions concerning religious freedom, particularly decisions pretending to interpret the Establishment Clause of the First Amendment. These decisions are hopelessly inconsistent for several reasons. Establishment Clause decisions of courts are supposedly guided by the mythical "wall of separation" doctrine which the Court read into American law in 1947 (Everson v. Board of Education). This mythical "wall" concept, in turn, led the Court to create the "three-pronged test" for determining when the "wall" had been breached (Lemon v. Kurtzman, 1971). But this test and the "wall" concept are so flawed that various Justices through the last 35 years have described them as "all but useless," "mercurial in application," "unhistorical," "non-textual.," and productive of "insoluble paradoxes" and "unprincipled, conflicting litigation." It is hard to imagine a clearer description than this of an inconsistent body of law. Indeed, the Court has substantially reworked the Lemon test and often departs from it — creating even more inconsistent law.

Textbook examples of this constitutional quagmire are the Court's decisions regarding the Ten Commandments and the Pledge of Allegiance. In the case of the Alabama Ten Commandments monument involving Chief Justice Roy Moore (Glassroth v. Moore), Federal District Judge Myron Thompson admitted that he lacked "the expertise to formulate [the court's] own definition of religion for First Amendment purposes." This is a seismic break with earlier American law in which "religion" had a definite, intelligible, accepted meaning. The Moore court opinion is even a break with Court decisions of the 1960s in which Justices contrived their own definition of "religion" (ambiguous and inconsistent, but more than that offered by Judge Thompson). Judge Thompson's bald admission is also alarming in his assumption that HE, not the Constitution, should provide the controlling definition of "religion" in these cases. The U. S. Supreme Court declined to review this case.

The Supremes did hear in 2005 cases attacking two Ten Commandment displays in Texas and Kentucky (Van Orden v. Perry; McCreary County v. ACLU of Kentucky). The Court's decisions again reeked of inconsistency as they upheld the Texas display but struck down the Kentucky display. The majority concluded that the circumstances of the two displays were so different as to render one (Texas) constitutional and the other not (Kentucky). A key to the inconsistent Court reasoning in McCreary was that the Kentucky circumstances satisfied the mind-reading Justices that state officials had an unconstitutional "intent." The fact was that the Kentucky display invalidated consisted of nine framed documents of equal size entitled "The Foundations of American Law and Government." Other documents included in this display were the lyrics of the national anthem and a picture of Lady Justice.

A theme running throughout the courts' religious freedom jurisprudence is the argument that "religious pluralism" is necessary and the only constitutional condition allowable in America today. But nothing is more productive of inconsistent law than attempting to intertwine law with "religious pluralism." This is clear in the Pledge of Allegiance case, Elk Grove Unified School District v. Newdow (2004). The Supremes refused on technical grounds to hear this case in which lower courts had outlawed the public school recitation of the Pledge. But the issue will surely come to the Court again. The "pluralism" issue was addressed eloquently by two pro-Pledge judges on the Ninth Circuit Court: Outlawing the Pledge, they correctly observed, afforded Michael Newdow "the right to impose his view on others . . . [and gave him] a right to be fastidiously intolerant and self-indulgent [i.e., non-pluralistic]." Furthermore, "the silence the majority [i.e., pro-Newdow judges] required is not neutral . . . . The absolute prohibition on any mention of God in our schools creates a bias against religion." ". . . does atheism become the default religion protected by the Establishment Clause?"

The bottom line is that neither a "wall of separation" nor "religious pluralism" is possible. "The extent to which a government can be neutral and equally tolerant of all deeply held values, including religious beliefs, has very definite limits . . . . Increasingly, government will be compelled to make choices between conflicting values, including religious values" (law professor Carl Esbeck, 1982).

Any judge today who tries to ground his/her decisions on the latest precedents of the federal courts, is attempting to build his judicial house on hopelessly shifting sands. Shall the judge follow the Lemon test or not? If so, on which prong(s) does he/she rely? If not, what is the judge's foundation? If the judge purposes to further religious pluralism, he/she elevates pluralism to a position of supremacy above other religious values, which inhibits non-pluralistic religions, which violates the "wall of separation" concept. Precedent fails, the Constitution loses, and our culture continues its headlong plunge toward disaster. Only a return to the Constitution, properly interpreted and applied, can return to American law the second of the "three Cs" necessary for constitutional health — the condition of CONSISTENCY.

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