Ashby D. Boyle is Meridian’s judiciary reporter and a former clerk at the U.S Supreme Court
Washington, D.C. — It was “First Monday” this week and the U.S. Supreme Court was back in town to start deciding cases.
Court Orders 10 Commandments Out of Order
The Court wasted no time disrespecting the Constitution. On Monday the United States Supreme Court declined to take up a case examining whether an Ohio judge violated the separation of church and state when he displayed a poster in his courtroom that contrasted the Ten Commandments with humanist precepts.
By declining the case, the court let stand “rulings that found that the judge had indeed violated the church-state principle.” Ohio Common Pleas Court Judge James DeWeese was essentially ordered to evict God from his public courtroom. The judge, it is my contrarian opinion, had the Constitution on his side.
Department of Justice Seeks Elimination of Ministerial Exemption, Court Hears Arguments
There is also more bad constitutional news this week.
Illustrative of efforts to encroach further on our religious liberties, the “DOJ” has now called for the elimination of the “ministerial exemption.” The question before the Justices concerning the “ministerial exception” is a 40-year-old legal doctrine that protects churches and other religious institutions from government interference in their employment decisions.
This is being called the biggest religion case in decades.
Signs of the Times
These events are additional indications Secularity is warring against Constitutional protection of religion. This is to be opposed civilly by citizens of all faiths. Secularity promotes a culture of nihilism, a culture which the Supreme Court has embraced in its religion jurisprudence.
The Roots of the Problem
More basically, and to try to get at the root of the problem, both ordering the censorship of the 10 Commandments and axing the “ministerial exemption” bespeak an illicit federal disrespect of the Ohio State Constitution and the United States Constitution, and, in the case of the latter, the First Amendment’s Religion Clauses in the Bill of Rights.
To but slightly adapt Al Pacino’s line in the film, “Justice For All” in the TBS PG version: “Judge DeWeese is not out of order—the US Supreme Court is out of order.”
Law Clerks and Constitutional Interpretation
I blame partly the willingness of the Justices to be influenced by their elite Ivy League clerks (I was an elite Ivy League clerk during the 1980 October Term). The average age of a clerk seemed to me to be about six or seven years old. Of course, now I’m being ironic—but to make a point: wisdom is not a virtue of youth.
This admittedly personal view is and was my own impression, from out of the corner of my eye, of how too many Chambers –certainly not the Chambers I knew—rely on law clerks who rely on law professor whispers. The clerk often seeks to teach where the whisperer is teaching. But so much for impressions. We will get at the roots much quicker with a short history lesson.
History’s Lessons: “On Being Doomed To Repeat Our Mistakes”
Through-out history, if I may over-generalize only slightly from the monumental theological work on Secularity of John Milbank, elites tend to fear religious liberty.
A little history on the Supreme Court’s precedents can also explain a lot on why, in the news at hand, the 10 Commandments were ordered out of the public’s view.
Let’s step back and try to find imagery for the Supreme Court’s flip-flops and zig-zags in religion decisions.
The imagery that comes to mind for me is that of Rudolph Otto, who in his distinguished study of the “numinous” or the mystical –C.S. Lewis once recommended it in a BBC radio interview—a book titled, The Idea of the Holy, (Oxford U Press: 1923), seems to have captured somehow the flip-flop approach of the Court to religion when he wrote that the numinous can:
“[B]urst in sudden eruption up from the depths of the soul with spasms and convulsions, or lead to wild and demonic forms,” sinking to “an almost grissly horror and shuddering.” (At pages 5 and pp. 12 f.)
Otto’s imagery matches the legal worries about religious liberty that were never far from James Madison’s mind.
Madison was worried about the Court and the risk of judicial self-interest becoming “entangled in precedents,” the harm of which (said Shakespeare), “many errors can rush into the state.” (Shakespeare as quoted by Justice Douglas in an Ass’n of the Bar of the City of N.Y. speech in 1949.)
As to error in its precedents, it was in the U.S. Supreme Court’s case of Everson v. Bd of Ed. –the case establishing the metaphor of a Berlin Wall between Church and State as if a rule of decision – where the Court first burst into irrational “spasms and convulsions.” (330 U.S. 1, 16, 18.)
Dallin Oaks, looking at the case from the University of Chicago in 1963 as a distinguished Law Professor of international legal respect and reputation, appeared to scratch his head and observe for many students of the Court that:
“The metaphor is not an aid to thought and it can be a positive barrier to communication.”
(For citation, see Endnotes below at conclusion of article.)
Professor Oaks’ observation, it’s fair to state, has gone on to become a truism of constitutional interpretation.
Where the Justices wandered off the constitutional path was in Everson’s de facto flip-flop of a now forgotten case called Ballard. Ballard v. US, 327 U.S. 78 (1944).
It is not a completely forgotten case; the facts of both of these cases are dealt with in a prior Meridian column dated September 17, 2010, and entitled “The Distrust of Religion Threatens Constitution.” In today’s column I am more focused on the holdings of these cases than with the facts.
A Quick Aside, What is a “Holding” of a Court?
“Holding” in football and hockey occurs as a rule is broken. However, in a court’s opinion, a holding is the rule; more specifically, a court’s rule of decision to settle the case and controversy before it.
In other words, a judicial holding is that part of a Court’s opinion (only! Law clerks miss this point with their Justice at their peril!) that states what is henceforth binding as law. Everything else besides the holding is not binding as law.
Especially to help journalists, the 15th Chief Justice of the United States, Honorable Warren E. Burger. began to issue an unofficial summary as a “wrap-around” an issued opinion. The summary, which is prepared by the Court’s Reporter of Decisions, will prominently state (as an ironic example given the present subject), “Today the Court holds that God has been evicted from all public places,” something which although no Justice has ever said, I use merely to drive home my point.
Compare and Contrast: Teach Yourself Constitutional Law
Compare and Contrast these two holdings with me, won’t you?
 Ballard had stated that the First Amendment provides “preferred treatment” for all religions, but then
 Everson flip-flopped to state that “neither a state nor the Federal Government . . . can pass laws which . . . aid all religions.”
Which of  or  is consistent with the following words: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof [.]”
The Constitution Is Law
Taking the Constitution seriously requires that the Court start from the proposition that the Constitution is law.
“Words,” Judge Bork used to explain, “constrain judgment.”
On religion, the Court no longer can trace its holdings back to the constitutional words governing a case or controversy where the words of the Religion Clauses are at issue. Worse, similarly the Court has no logical path back from its religion holdings today to treating the Religion Clauses as guidelines.
In the present age, the Supreme Court may, in a random outcome, decide a case with a pro-religious result—that is the fact. But there is no language or logic from the Constitution to the Court’s religion holdings nowadays.
I am concerned as a citizen about how long pinning hopes for religious liberty on just a cultural drift from our once religious past can be counted on to protect religious rights. Ohio Common Pleas Court Judge James DeWeese being ordered on Monday to evict God from his public courtroom confirms my worry. And the President has filed a Brief calling for abolition of the ministerial exemption.
Members of the Jury, To Sum Up:
To try to get at the roots of the problem, the reason for the federal government’s manifest disrespect towards the 10 Commandments is Everson’s distrust of religious liberty as elite secularist sentiment. From this distrust it follows as the night the day that the Court, because of bad precedents, will look away from its unique constitutional duty to protect the substantive rights of all religions.
The Framers, who wrote into the Religion Clauses of the First Amendment the substantive rights of religion, predicated those rights on religious conduct, not secular conduct.
Secular rights are free speech rights. I admit it: It does appear that, in fact, the Bill of Rights states a bias in the Constitution which is pro-religion. Therefore, would a catchy slogan help? “We’re here, we’re God-fearing, get used to it.” Our Court of last resort requires our respect, and ultimately, our deference. So I defer to the Justices to consider just how illegitimate their religion rules of decisions truly are. God save that Honorable Court—and in a hurry.
The Wall Between Church and State, Editor, Dallin H. Oaks (The University of Chicago Press: Chicago and London, 1963) at p. 3 of his “Introduction.”)
©2011 Ashby Boyle