24

felt free to try their hands at coming up with their own legal tests, much the way a cook experiments with a recipe. These newer tests, such as the “Endorsement” test invented in 198422 and the "Coercion" test invented in 1992,23 purport to ensure that government remains "neutral" toward religion. However, far from achieving this theoretical neutrality, in practice these tests encourage and often demand hostility toward religion, especially the Christian religion. They do so by punishing the very religion that is interwoven into America's historical fabric: if a particular display or act can be perceived by a "reasonable observer" as "endorsing" a religion or if it can be said to "coerce" a non-believer where "coercion" somehow means that the non-believer simply feels

22

25

to return to the tomb at will... For my part, I agree with the long list of constitutional
scholars who have criticized Lemon and bemoaned the strange Establishment Clause
geometry of crooked lines and wavering shapes its intermittent use has produced."

See Lynch v. Donnelly, 465 U.S. 668 (1984).

23 See Lee v. Weisman, 505 U.S. 577 (1992).

24

If post-modern thought has taught us anything, it should be that for humans it is simply impossible to achieve true neutrality because we are all affected by a myriad of influences that inform our thoughts. Only God, who has always existed and is unaffected by human whims and faults, is truly impartial. Yet this inconvenient philosophical fact does not daunt the United States Supreme Court, which has placed itself in the role of ultimate and final arbiter of all the important issues of the day. In essence, the Supreme Court has installed itself as God on earth by pretending to be the impartial arbiter of right and wrong and the source on high from which the law is handed down to the rest of us. As my personal experience demonstrates, allegiance to their "law" must be unwavering unless you are prepared to suffer severe consequences, in my case the loss of the position to which I was elected as the highest judicial officer in the State of Alabama. Obviously, from the federal courts' perspective, my position was not high enough to permit me to question their wisdom, even though I took the same oath as they do to support the Constitution of the United States "so help me God."

The inability to be completely impartial does not, of course, mean that humans are incapable of making rational decisions, it just means that we must be careful to recognize how our prejudices—which may be good or bad-influence our decisions, and that our decisions stand a much better chance of being correct if they are based on God's law and will because He is the foundation that never wavers, the only One who is truly impartial. Our inherent prejudices mean that we must take care not to set ourselves or anyone else up as somehow immune from ordinary human faults in reason, but this is exactly what we have done with the Supreme Court. As renowned Judge Richard Posner of the Seventh Circuit Court of Appeals has observed:

"There is a tendency to lionize the Supreme Court justices. They are sometimes depicted as intellectual, even moral, giants (in some versions, as avatars of the Old Testament prophets), to be entirely disinterested, to 'do their own work' (as Louis Brandeis once said), and to produce a judicial product that reflects deep scholarship and mature, even agonized deliberation. In Casey v. Planned Parenthood, three of the justices sought to place the Court in tutelary relation to a submissive population whose *very belief in themselves' as 'people who aspire' to live according to the rule of law' is 'not readily separable from their understanding of the Court.""

Richard A. Posner, The People's Court, THE NEW REPUBLIC, July 19, 2004, available at http://www.tnr.com/doc.mhtml?pt=DX¡DIQtR6xTqTkBS vzhYJH==. Posner rightly labels such inflated self-importance as “nauseat[ing]," but we give the Court no reason to think otherwise so long as it is not challenged by the People and reigned in by the other branches of government.

25

See, e.g., Supreme Court Hostility Toward Religion in the Public Square: Hearings before the Senate Subcomm. on the Constitution, Civil Rights, and Property Rights, 104th Cong. (2004) (statement of Vincent Phillip Muñoz) [Hereinafter Hearing].

offended by the display or act-then the federal courts declare the display or act to be unconstitutional. Obviously, because so many of this country's laws and traditions have been directly influenced by Christianity, the "reasonable observer" will see the Christian religion everywhere and non-believers may feel offended by this pervasive influence. The result is the removal of anything from the public square that shows even the slightest hint of stemming from Christianity, including all acknowledgments of God despite the fact that they do not constitute "religion." In sum, as American Enterprise Institute Fellow Vincent Phillip Muñoz has aptly put it:

"The Constitution's text prohibits laws respecting an establishment of religion or prohibiting the free exercise thereof. It says nothing about government 'endorsement of religion.' Justice O'Conner effectively has replaced the text and original meaning of the First Amendment with her own words and ideas. Justice Kennedy's 'psychological coercion' test is also far off the mark. The Founders understood religious 'coercion' to mean being fined, imprisoned, or deprived of a civil right on account of one's religion. Coercion to them did not include feeling uncomfortable when other people mention God."

"The modern Court has lost sight of the fact that the framers of the First Amendment meant to protect religious freedom, not to banish religion from the public square. The free exercise of religion is the primary end of the First Amendment; 'no-establishment' is a means toward achieving that end."

,,26

Not only have the federal courts strayed far from the text of the Constitution that is supposed to be their guide, but their approach has resulted in making a mess of the law on the issue in question. One would think that having the federal courts as the sole arbiter of constitutional meaning and having the Supreme Court as the final arbiter of constitutional questions-as principally and historically incorrect as that is—would at least provide consistency and stability to constitutional decision-making. Sadly, again nothing could be further from the truth, particularly in cases allegedly implicating the principle of separation of church and state. In my case, the method of decision-making used by the Eleventh Circuit Court of Appeals was typical of federal courts in these cases: "Establishment Clause challenges," the Court asserted, “are not decided by brightline rules, but on a case-by-case basis with the result turning on the specific facts." This means that little certainty exists as to which displays or actions will pass constitutional muster according to the federal courts and which will fail.28 Indeed, as one federal district court expressed recently in deciding that a public display of the Bible is unconstitutional, while the Lemon test is supposed to be the standard for Establishment Clause violations, "[u]nfortunately, it is difficult to find coherent guidance from the

27

26 Id.

27 Glassroth v. Moore, 335 F.3d 1282, 1288 (11th Cir. 2003).

28 The Third Circuit Court of Appeals has observed that “[t]he uncertain contours of these Establishment Clause restrictions virtually guarantee that on a yearly basis, municipalities religious groups, and citizens will find themselves embroiled in legal and political disputes over the content of municipal displays." ACLU of New Jersey v. Schundler, 104 F.3d 1435, 1437 (3rd Cir. 1997).

929

Supreme Court's later opinions applying the Lemon v. Kurtzman analysis." "Coherent guidance," the one thing that ought to be expected from a Court that declares itself "supreme" in all things related to the Constitution, is the one thing it has failed to provide in Establishment Clause jurisprudence.

30

There is one point in these cases, however, on which the federal courts are quite clear, and the point is demonstrated by a contrast between my case and another recent case involving a Ten Commandments monument. While the Eleventh Circuit affirmed the decision that the granite monument of the Ten Commandments that I placed in the Alabama Judicial Building was unconstitutional, just last year the Fifth Circuit in Van Orden v. Perry," ruled that a granite monument of the Ten Commandments erected on the grounds of the Texas State Capitol was constitutionally permissible. The primary difference that ostensibly made the Texas monument permissible but the Alabama one impermissible was that the Texas monument was one of a number of monuments erected on the capitol grounds, while the Alabama monument was what the courts label a "standalone" Ten Commandments monument. While this may seem to be a distinction without a difference both monuments display the Ten Commandments-the distinction makes all the difference in the world to the federal courts. If a display of the Ten Commandments is surrounded by historical documents, if it is included as just one of many displays on public property, if special attention is not drawn to God's law, then the federal courts generally will extend the imprimatur of constitutionality on the given display. However, if, like the Alabama monument, the Ten Commandments are displayed more prominently or stand alone, and therefore draw attention to the God who wrote those commandments rather than relegating the Ten Commandments to a mere historical influence on our laws that carry no current relevance, the federal courts cannot countenance it and will order the removal of the display. In other words, the one clear rule in Establishment Clause cases is that if the display or action in question acknowledges God, it will be declared unconstitutional, but if the display or action relegates God to a footnote in history, then it will be tolerated." Thus, the one thing that should without question be constitutional because it does not constitute "religion" under the First Amendment-the acknowledgment of God is the one thing that the federal courts and especially the Supreme Court will not allow.

29 Staley v. Harris County, F Supp. 28 ___, __(S.D. Tex. Aug. 10, 2004). That district court is far from being alone in expressing this sentiment. The Fifth Circuit Court of Appeals has referred to this area of the law as a "vast, perplexing desert." Helms v. Picard, 151 F.3d 347, 350 (5th Cir. 1998), rev'd sub nom. Mitchell v. Helms, 530 U.S. 793 (2000); the Fourth Circuit has labeled it "the often dreaded and certainly murky area of Establishment Clause jurisprudence.” Koenick v. Felton, 190 F.3d 259, 263 (4th Cir. 1999); the Tenth Circuit admitted that there is "perceived to be a morass of inconsistent Establishment Clause decisions." Bauchman for Bauchman v. West High School, 132 F.3d 542, 561 (10th Cir. 1997). 30 351 F.3d 173 (5th Cir. 2003).

31 My case unequivocally demonstrates this fact, as sometime after the monument of the Ten Commandments was removed from the rotunda of the Alabama Judicial Building, the remaining eight justices of the Alabama Supreme Court placed in the same rotunda a display containing the Ten Commandments together with several other historical documents such as Magna Charta, the Code of Justinian, the Mayflower Compact, and, ironically enough, the United States Constitution. Neither the federal district court nor the plaintiffs who sued to have the monument removed complained about the subsequent display. The only explanation for why this second display would not "offend" sensibilities is that it does not acknowledge God.

This conclusion is simply absurd. The First Amendment was never intended to exclude acknowledgments of God. As the Senate Judiciary Committee observed during a time when some were questioning the constitutionality of the Congressional chaplaincy:

"[The Founders] had no fear or jealousy of religion itself, nor did they
wish to see us an irreligious people; they did not intend to prohibit a just
expression of religious devotion by the legislators of the nation, even in
their public character as legislators; they did not intend to spread over all
the public authorities and the whole public action of the nation the dead
and revolting spectacle of atheistical apathy."

9932

Unless action is taken by Congress, “atheistical apathy" or worse is exactly where we are headed courtesy of the federal judiciary.

II. The Way Back: The CRA

A) Restricting Jurisdiction

Obviously, given the current landscape in which federal judges feel no compunction about removing God from the public square regardless of the will of the People or what the Constitution dictates, action must be taken to curb the overreaching of those judges. A convenient and constitutional solution can be found in the proposed Constitution Restoration Act of 2004 (CRA), H.R. 3799,33 which this subcommittee has convened to discuss today. Simply put, the major thrust of the CRA is to employ Congress's Article III, § 2 power to restrict the jurisdiction of the federal courts, preventing them from hearing "any matter" that concerns a federal or state official's "acknowledgment of God as the sovereign source of law, liberty, or government.' Enactment of the CRA would mean that the federal courts could no longer hear legal challenges to such things as public displays of the Ten Commandments, our national motto "In God We Trust,” “One Nation Under God,” invocations of prayer at public functions by public officials, and the like.

34ܕ

Some have questioned whether Congress has the authority under Article III, § 2 to limit the jurisdiction of the federal courts on issues such as the CRA proposes. The pertinent constitutional language provides:

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original jurisdiction. In all other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

༢༨

This passage plainly provides that in all cases in which the Supreme Court does not have original jurisdiction Congress is free to limit or deprive altogether the Supreme Court's

32

The Reports of the Committees of the Senate of the United States for the Second Session of the ThirtySecond Congress, 1852-53, The Senate Judiciary Committee, January 19, 1853 (Washington: Robert Armstrong, 1853).

33 The Senate counterpart is S. 2323

34 H.R. 3799, 108th Cong. (2004).

"U.S. Const., Art. III, § 2, para. 2 (emphasis added).

36

jurisdiction over those cases. Establishment Clause cases are not among those over which the Supreme Court has original jurisdiction. Because the lower federal courts are creatures of statute according to the Constitution, the result is that Congress possesses the authority to deprive both the Supreme Court and lower federal courts of cases implicating the public acknowledgment of God.

39

37

That the Constitution grants Congress plenary power to regulate the jurisdiction of the federal courts is, by far, the view accepted by most constitutional law scholars." While a handful of scholars have taken issue with this reading of the Constitution,** these alternative views have been widely criticized as illogical and policy-driven rather than being faithful to the constitutional text. Moreover, the Supreme Court has approved congressional regulation of the federal courts' jurisdiction based on the Constitution's text since at least 1799, and Congress has employed this power recently in a number of legislative enactments, including as recently as last year. Certainly a large number of those in Congress, and at least 13 members of this subcommittee, believe that it possesses this power as they have recently supported bills calling for removing the federal courts' jurisdiction in the areas of marriage" and the Pledge of Allegiance.“ Thus, there can be no doubt of Congress's power to regulate the jurisdiction of the federal courts in the fashion proposed by the CRA.

40

42

Not only is preventing the federal courts from hearing cases concerning the public acknowledgment of God authorized under the Constitution, it is also the principled thing to do. As I have already explained, there have been numerous examples of acknowledgements of God throughout the history of our nation that, until the modern Supreme Court took them under consideration, were never considered to be violations of the First Amendment. No one's right to worship (or not worship) God according to the dictates of his conscience is infringed through public acknowledgments of God.43 No one is forced to believe in God because of the words in the Pledge; no one is forced to become a Christian or a Jew because the Ten Commandments are displayed in a government building; no member of this body is forced to join in when the chaplain of

37 Appendix A: "Select Bibliography on the Constitutional Restoration Act” (hereinafter “Appendix A”), part I-A.

38 See "Appendix A," part I-B.

39 See "Appendix A,” part 1-C.

40

See Appendix B: "A Brief History of Congressional Regulation of the Federal Courts' Jurisdiction" (hereinafter "Appendix B"). Some of the information in Appendix B may be found in William E. Dannemeyer, Article III, Section 2, THE WASHINGTON TIMES, Oct. 7, 2003, available at http://www.washtimes.com/op-ed/20031006-085845-5892r.htm.

41

The Marriage Protection Act of 2004 (H.R. 3313), which prohibits federal courts from hearing certain types of marriage cases as well as any challenge to the Defense of Marriage Act of 1996 (DOMA), passed the House of Representatives by a vote of 233 to 194 this year. The MPA has 48 co-sponsors, including three members of this subcommittee: Representatives J. Randy Forbes, William Jenkins, and Mike Pence. Subcommittee members Mark Green, Melissa Hart, and Rick Boucher also voted for the MPA.

42 The Pledge Protection Act (H.R. 2028) proposes to deprive the federal courts of jurisdiction over cases challenging the phrase "Under God" in the Pledge of Allegiance. The PPA has 224 co-sponsors, including ten members of this subcommittee: Representatives Spencer Bachus, John Carter, J. Randy Forbes, Elton Gallegly, Bob Goodlatte, Henry Hyde, William Jenkins, Ric Keller, Mike Pence, and Lamar Smith.

43

See James Madison, Memorial and Remonstrance Against Religious Assessments, (June 20, 1785) in 5 The Founders Constitution 82 (P. Kurland & R. Lerner eds. 1987).