It takes a real contrarian to resign to be dissatisfied with any decision of the Federal Courts no matter which way it goes. In a recent case in Kentucky the ACLU served as counsel for one side while the Pat Robertson/Jay Sekulow American Center For Law & Justice (ACLJ) served as counsel for the other. Now I know what side I’m supposed to be on, but I chose neither in this instance. Let me set it up for you.
A kindly old woman I’m sure, Carroll Rousey, asked permission on October 9, 2001 to hang a display entitled Foundations of American Law and Government in the Mercer County (Kentucky) Courthouse. The display was to contain the Mayflower Compact, the Declaration, the Ten Commandments, the Magna Charta, the Star Spangled Banner, the Bill of Rights, the national motto “In God We Trust,” the Preamble to the Kentucky Constitution which reads, “We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution” and an image of “Lady Justice,” the Greek Goddess Themis.
The Legislature in Kentucky had recently passed a resolution authorising the inclusion of the Ten Commandments in displays of “formative, historical documents on government property” so the Mercer County court permitted the Foundations display to be erected. If I’m not going too fast, you can expect that the ACLU objected, made a federal case out of it, demanding that the display be taken down. The ACLJ stepped up and defended the State’s right. But the right to do what is the central question.
Did the ACLJ make the claim, or did the Court rule, that the States are not bound by the First Amendment; or that the First Amendment naming particularly that “Congress shall make no law” has no bearing on what a County Court House does; or that a State must acknowledge God if it seeks to prosper? None of the above. The ACLJ claimed, and the court ruled in favour of the Foundations display for, the worst conceivable reasons of all – because the Supreme Court says governments can erect such idols.
The first thing that went wrong, in my opinion, was that the Federal Court decided to hear the case and/or that the State failed to bring a motion for dismissal for lack of jurisdiction. What does the Federal Court have to do with how a County Court intends to decorate its building? Anywhere in the entire U.S. Constitution, are the Federal Courts given jurisdiction over the interior of State Courthouses; or any jurisdiction over whether, let alone how, a State acknowledges God? The County Court, if the Federal Case had heard the case, ought to have just let itself lose the case, then kept the display up. But instead, the County dignified the federal usurper with a response – so to a degree, Kentucky got what she deserved.
The Federal Court reasoned its way through the applicability of the First Amendment on the State’s Courts by affirming the Articles of Incorporation of the Fourteenth Amendment. “The First Amendment says that ‘Congress shall make no law respecting an establishment of religion’s … Its dictates have been incorporated to the states and their subdivisions through the Fourteenth Amendment.” ACLU of Kentucky v. Mercer County, No. 03-5142 (2005) at page 4. Such is tragic foolery. To claim that the Fourteenth Amendment incorporates the Ten Amendments to the States makes the states mere subject provinces of the Federal government.1First of all, Congress shall make no law … So even if the provision was “incorporated,” how is the display of anything by a Courthouse the making of a law? The Fourteenth Amendment, if you conceded its validity, merely requires that the States refrain from depriving people of their unalienable rights without due process of law, so the ACLU ought to be forced to prove how the People of Kentucky or Mercer County have been denied their unalienable rights.
The next great offense committed was the Court’s “proper” negotiation through the Lemon Test. Don’t get me wrong, I’m not claiming it improperly followed Lemon. My claim is that to honour Lemon is to violate the Constitution and profane the Name of God. According to Lemon, government action does not run afoul of the Establishment Clause if the (1) secular purpose of the action predominates over all other purposes; (2) the action does not have the primary or principal effect of either advancing or inhibiting religion; and (3) it does not foster an excessive governmental entanglement with religion. Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) as modified by the McCreary County case (the Kentucky Ten Commandments Case from the summer of 2005). As the former Chief Justice of Alabama noted, public officials can acknowledge God only if they don’t mean it, which is rank profanity of God’s Name.2
The Court ruled that the display of the Ten Commandments in the midst of so many other human constructs and with the Grecian Goddess Themis 1.) had a primarily secular purpose in an “attempt to recognize American legal history. It is of course not unusual for a government to educate this public in this manner.” At page 9. So the first prong was satisfied – the purpose of the display was to permit the State to educate.
Next, 2.) does the display have the primary or principle effect of advancing (or inhibiting) religion? The court declares emphatically that a “religion” was not advanced and falls all over itself (and denigrates the Crown Rights of Christ Jesus) to prove it. Here is a short list of the denials:
- While several of the documents refer to the Deity, it would be unreasonable, ipso facto, to interpret those as evidencing a religious purpose. p. 9;
- The Ten Commandments are part of an otherwise secular exhibit. p. 12;
- Nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments. p. 14;
- There is nothing in the legislative history or implementation that tends to prove a religious purpose. p. 14;
- Nor does the display have the effect of endorsing religion. p. 14;
- After all, “we are a religious people whose institutions presuppose a Supreme Being” p. 13-14.
I don’t believe I’m being too particular, but most of those findings are lies. The Magna Charta, part of the “otherwise secular exhibit” explicitly refers to God and His “holy Roman Church.” What other deity in 1215 A.D. had His “holy Roman Church?” The Mayflower Compact declares that the purpose for which these Englishmen came to America was for the advancement of the Christian religion. The Ten Commandments themselves are extremely sectarian in all ten parts, not just the first four. None of the Commandments are “universal resolves” to which any member of any faith can ascribe. While all non-criminals might be able to affirm Thou shalt not kill, do all people really agree with how God interprets His Command? According to God, euthanasia and abortion are murder.
Now, what about the “first table.” Who is this God who lays down the “second table?” The Ten Commandments open with, I am Jehovah, thy God. He reveals Himself particularly, by Name, and further asserts Thou shalt have no other gods before me. His name is not “God,” but Jehovah, the Jealous God (Exodus 34:14) who demands that no other god be worshiped. And what does this Jealous God call all other Gods? Idols or Devils.3 Hardly a non-sectarian God wrote the Ten Commandments. Jehovah says “Lady Liberty,” or Themis, is a devil. In light of that finding, I suppose the display of the Ten Commandments actually did fail to selectively endorse the “sectarian” nature of the first four Commandments – and that is to their shame and likely ultimate demise. But to answer the fool according to his folly, to erect an idol of Themis is to “inhibit” Christianity, so Lemon 2.) is not satisfied and the whole display should have been thrown out.
The third prong, 3.) that the government action does not create an excessive entanglement with religion, I suppose is ground I’ll concede if by “religion” we mean God’s religion, or Christianity. The Court does, however, entangle itself with religion – that religion is the religion of the ancient Roman Empire that does not mind anyone worshiping Jesus – they’ll even put a statue of him in the throne room.4 Just don’t make Caesar bow to the Christ, or don’t claim the Crown Rights of Christ trump those of the Court.
After satisfying the Lemon Test, the Court determined that the Ten Commandments could be displayed only if they are not considered for what they are – holy writ from King Jesus. To satisfy the three prongs of Lemon, the name of God has to be denigrated and profaned. The Lord will not hold him guiltless that taketh his name in vain. Deut. 5:11.5
The final egregious offense committed by the Federal Court was the bowing before the Altar of Stare Decisis. You can even say that they Stare’d in Lemon. “The recent decisions of this Court have routinely applied Lemon, including the endorsement test … [so] we must continue to do so.” at p. 11.
One good note, the Court did essentially tell the ACLU to stop bringing in these silly cases to the court (p. 14), but the Court has no apparent concern, in fact it seems to have an interest, with the ACLJ’s continual blasphemy of Christ. With the help of the ACLJ, the Court erected a display to an Unknown God, and it will be ashamed.
1. Patrick J. Buchanan, The Death of the West, Thomas Dunne Books, St. Martin’s Press, New York, 2002, p. 183.
2. WCF 113: The sins forbidden in the third commandment are … the abuse of it in an ignorant, vain, irreverent, profane … mentioning…
3. Psalm 96:5; I Chronicles 16:26
4. R.J. Rushdoony, The “Atheism” of the Early Church. First Published in 1983 by Logos Foundation. Reprinted by Ross House Books (2000) at page 10.
5. Please see Author’s The Perjured Nation in “The Christian Statesman,” vol. 148, no. 4 at page 25.
Scott T. Whiteman a Reformed Christian, husband, and father of three. He is a practicing attorney in the State of Maryland, and served as Campaign Manager for Michael A. Peroutka as he ran for President in 2004. He is available for radio or TV interviews, or for speeches, by contacting him at (410) 760-7897 or by using our Forum
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