A Bad Year For The Establishment Clause by Robert Tiernan (November 1995)

The only thing that makes this constitutional law area easy to do is the client. Most clients get really upset, especially in criminal cases but also in civil cases, when you don’t win the case. The Freedom From Religion Foundation people realize that there’s a tremendous bias in our political system including our court system, and that it’s very difficult to win.

Let’s talk about the Ten Commandments case. That was filed in 1989 with the Denver district court asking that a granite slab prominently featuring the Ten Commandments be removed from Lincoln Park, which is one block below the state capitol building. In Lincoln Park, along the walkway there is a large statue of a Hispanic medal of honor award winner from World War II. In the center of the park is an obelisk that commemorates all of Colorado’s war veterans. To the right of that is a liberty bell, which obviously commemorates the revolution. Along the main walkway, on Broadway, there’s a little drinking fountain in honor of a woman who helped the war’s wounded in the early 1900’s.

The Denver district court judge decided that the Ten Commandments monument was not an endorsement of religion. We took it to the Colorado Court of Appeals, which is the intermediate court here and got a 3-0 decision that agreed that if a person looked at the Ten Commandments monument in that setting, it would be concluded that it is an endorsement of religion by the state of Colorado, because the monument is owned by the state. The state took it to the Colorado Supreme Court and they decided by a 4-3 vote on June 12, 1995, that the Ten Commandments sitting in Lincoln Park was not an endorsement of religion by the government, but a part of a melange of our cultural history. Here we have all these memorials to war, then the Ten Commandments, and somehow the court comes to the conclusion that this is a part of a melange of cultural history.

Chief Justice Rivera was retired on June 30. We thought we’d ask for rehearing at the last minute in hopes that since Judge Rivera was leaving the court, maybe we’ll get something out of it. We filed a petition for rehearing on June 29, the day before his retirement. Would you believe that the very next day, our petition was denied? It took the state of Colorado six years for us to get through this process. It took them one day to deny our petition for rehearing.

By the way, Judge Rivera has retired and now there’s a new judge. Her name is Love. She’s a daughter of a former Republican Governor of Colorado. When she was sworn in, the statement she made about what she enjoyed most was the brand new bible that her two daughters had given her that she could be sworn in on. That’s what we’re dealing with.

On Wednesday, September 27, we filed a document called a petition for writ of certiorari in the United States Supreme Court. This is a petition that asks the court to please review the case and come to a different conclusion. The United States Supreme Court rarely grants petitions for writ of certiorari, probably one in 500 is granted. Our argument is this case is so contrary to decisions of the Court that the Court, in order to preserve the integrity of previous decisions, should take it and reverse it. Here again, hopefully we can get a consensus of the Court to listen to the case and hopefully the Court would decide that this is crazy.

The Ten Commandments are religious and have nothing to do with Colorado history or United States history other than part of the history of religion. If you carry the logic of the Colorado Supreme Court’s decision, they could put a church or a crucifix in Lincoln Park!

I’d like to point out that the standard for deciding questions of displays is two-fold: 1) What is the purpose? 2) What is the effect? This Ten Commandments monument was given to the State of Colorado in the mid-1950’s by the Paternal Order of Eagles, and was part of a program started by a retired juvenile court judge in Minnesota who thought it would be useful to have these monuments all over the country. He also had the Ten Commandments displayed in his court as guidance for youths. The purpose of putting the monument up was to promote the principles of the Ten Commandments, the first principle being, “I am the Lord, thy God, thou shalt have no other Gods before me.”

These courts have said that that really wasn’t the purpose. The Eagles are not a religious organization, even though they require an oath before God to become a member. But the purpose, they say, is “educational”–to help juvenile delinquents and so forth. If you use that argument, the end will always justify the means.

The purpose of the prayer luncheon, we’re told, is because of all the gang violence and so forth. So Chuck Colson is going to come and tell us about gang violence (he certainly knows about gang violence). If you accept that argument, then you’re going to say that religion can permeate everything, because as long as there is a secular purpose, you can use religious means. That totally destroys the Establishment Clause. The second principle that’s used, which was articulated by Supreme Court Justice Sandra Day O’Connor, is: “Does a reasonable observer see the activity as an endorsement of religion?” Well, we don’t have the right to a jury trial in these cases, so we have to rely on the judges to decide whether a “reasonable observer” would see this as an endorsement of religion. Many of the judges were appointed by Jimmy Carter, who’s a born-again Christian; Ronald Reagan, who’s not a real Christian but bowed to the Religious Right. And frankly all the Presidents that go back to, probably, Lyndon Johnson, have appointed Federal District Court judges and Court of Appeals judges who are of primarily strong religious tendencies. We’re in a situation where the person who decides whether a “reasonable observer” would view this as an endorsement of religion is a person who believes strongly in religion. What do you think the result is going to be? It’s discouraging.

The prayer luncheon is modeled after the national prayer breakfast, where members of Congress, the United States Supreme Court and the President host a prayer breakfast. A prayer breakfast is a religious event. The Colorado prayer luncheon is patterned after the prayer breakfast, and the argument that was made in the case was this: Governor Roy Romer and Mayor Wellington Webb both testified that they have the right to practice and endorse their religion, and that they were not doing this in their official capacity. We replied that if they wanted to put their name on the invitation as Wellington Webb, fine. But they’re putting it on as Mayor Wellington Webb, Governor Roy Romer, Speaker of the House Chuck Berry. That’s the issue that’s going to be decided on in the Court of Appeals. We lost the case at the District Court judge; we’re now in the Colorado Court of Appeals.

These guys had the nerve to get up there and say, “Governor Roy Romer on the invitation is not in his official capacity,” and the State is defending him! Taxpayer money is being used to defend that they are acting as individuals. If they’re acting as individuals, why is the state of Colorado defending them? They should be defended by their own attorneys. We know what the score is, we know how these people work. They use their political office to promote religion and then mince about it.

It’s all political. They can’t say no. If they say, “No, we’re not going to host the prayer luncheon because it violates the Constitution,” the wrath of Dobson and all these people will come down on them and they don’t have the guts to hold to their oath of office and say, “We said we would support the Constitution, and that’s what we’re going to do.” They don’t have the courage.

The problem we have in this country today is not only with the religious people, it’s the politicians. I blame the politicians. We don’t have a President who’s willing to stand up to these people and say, “This is a nation of diverse people, some who believe, some who don’t. I took an oath of office to uphold the Constitution and that means I am not going to inject government into religion or religion into government.” Hold your politicians accountable. I don’t care if they’re Democrats or Republicans or who they are. This country lacks leadership. These politicians are pandering to people who don’t even pay a dime in taxes! It’s representation without taxation!

I wasn’t in Denver when the Pope came a couple of years ago. I missed that excitement. We really turned out the welcome mat for him. Mayor Webb even gave the Archbishop of Denver a bust of the Pope (probably at taxpayer expense). We (FFRF, Inc. with the Colorado chapter) filed suit for damages and requested that the city and state be enjoined from doing this kind of thing in the future. That was before a judge named Martinez (guess what religion). I’ve asked for juries but the argument is that you only have the right to a jury in cases where you would have a right to a jury at common law. Well, this is not a case of common law because it deals with the Constitution. We could ask for an advisory jury, but judges have also denied those requests. That’s a jury that doesn’t make the decision, but advises. I’m a big believer in the jury system. I think the only thing that stands between democracy and total tyranny is the jury system.

(I try to make this point every time I make a speech. We’re talking about the Establishment Clause of the First Amendment, but there’s other parts of our Constitution that are just as important. The right to be safe and secure in your home and not to have an officer come in without a search warrant. The right to confront the accuser against you. The right to a fair trial. There are a lot of rights guaranteed by the Constitution, and our government is taking those rights away slowly but surely. They’re using groups in the society to fight against each other and end up losing these rights. It’s a tragedy.)

Back to FFRF. Judge Martinez threw us out on three grounds. 1) We didn’t have standing. Ridiculous, we do have standing. We’re citizens of the state of Colorado and we’re alleging that tax money was spent on religious activities. 2) The event has concluded and therefore there’s no controversy. Even though they’re going to do it again I’m sure, if they get the chance. 3) The government is immune from suits. So, it doesn’t matter if the government’s promoting religion, it’s immune from suit from anyone who claims it should stop. That is in the Court of Appeals. The state attorney general’s office is defending all these cases. The government has asked that the Colorado Supreme Court take it directly and they just denied that. It will go through the process in the Colorado Court of Appeals and then probably into the Colorado Supreme Court. Unfortunately we’re behind in all these cases, but thank goodness for an understanding client.

“In God We Trust.” The national office had a survey conducted about this motto. Over 70% of those who were surveyed, through a representative sample of the United States, said that, in effect, “In God We Trust” is an endorsement of religion. We filed a suit in the Federal District court, not the state court, to take “In God We Trust” off money. The survey was going to be one of our principle arguments; that it’s viewed as an endorsement of religion by a “reasonable observer” as is shown by the survey results, so that’s got to be considered by the court.

The law is clear from Supreme Court cases that these issues are intensely fact sensitive. So what does the judge do? He throws us out. He grants the government’s motion to dismiss on the grounds that “In God We Trust” on money is ceremonial deism. I have no idea what that is. So we filed an appeal in the United States Court of Appeals for the 10th Circuit. The 10th Circuit has made more bad decisions in this area than good, like all the other federal courts. We have an oral argument in the “In God We Trust” case before the United States Court of Appeals for the 10th Circuit on November 16. Hopefully the Court of Appeals will send it back to the district courts, saying to give these people a trial before you shaft them. I want to get back to the district court and ask for an advisory jury so at least we can have a panel of (probably bigoted) people, who are at least willing to listen and maybe have some reverence for the Constitution. We’ll see. If the Court of Appeals finds in favor of the government then the decision has to be made whether to take the case up to the United States Supreme Court.

We’re asking that “In God We Trust” be taken off money–that’s a tough one. But it remains that “In God We Trust” on money is a promotion of religion. It doesn’t have the history behind it of many other practices that the court has said are condoned because they go back to the founding of the Constitution. “In God We Trust” on paper money started in my lifetime. I was a junior in college when they changed the Pledge of Allegiance and so forth, so it’s not that old and the court, to be fair, should look at it and deal with it for what it is.

The title of my speech is “A Bad Year for the Establishment Clause,” so let’s talk briefly about the KKK case, in which this group planted a cross at Christmastime right beside a Columbus, Ohio state building. The U.S. Court of Appeals for the 6th Circuit said that the state had no right to require that it be removed because it was placed by private parties. The rule is, that if it’s an endorsement of religion by a government, or it appears to be, it violates the Establishment Clause. The United States Supreme Court, in it’s infinite wisdom, Scalia writing the majority opinion, said that if it’s a private placement, it cannot be held as a state endorsement, no matter what a reasonable observer thinks. That was the majority. In this case, the argument goes, most people know it was placed by the Klu Klux Klan because of all the controversy, so an informed reasonable observer would know it wasn’t endorsed by the state. What about the person from Illinois who drives through and doesn’t know anything about it, who sees a cross beside the state capitol and assumes the state of Ohio is promoting religion? The dissent said letting unattended religious displays stay on government property constitutes endorsement because many reasonable observers would see it that way. Well, the rule in the case was that, if it’s placed by a private party on public property it is an exercise of your First Amendment right to free speech and freedom of religion, and the state can’t touch you.

Why then, you ask, can’t the Foundation place its “no gods, no devils” monument on capitol grounds? Why doesn’t that fall into the same category? Because it’s not Christian, that’s why. The state of Colorado wants to give us a run-around. But if it was a Christian group it would be different. I told the woman in Diane Maddox’s office, when I called about the demonstration over at Lincoln Park and she didn’t return my call, that if my name had been Ralph Reed she would have called me back in five minutes.

The other case the U.S. Supreme Court decided was that the University of Virginia, which Thomas Jefferson considered his crown jewel, has to allow taxpayer funds to be used to publish a “student” paper promoting religion. David Souter wrote the dissent, saying if there’s anything that goes to the core of religion, it’s this evangelical stuff, trying to convert people, and allowing state funds to go for that is wrong. But a majority of the court decided that this was not a violation of the Establishment Clause. It’s been a bad year for the Establishment Clause.

Robert R. Tiernan, of Denver, received his law degree from Boston College Law School in 1958. He was an advance man for John F. Kennedy’s 1960 presidential campaign. He practiced law in Washington, DC, for 25 years before moving to Denver, where his specialty is criminal defense and plaintiffs’ injury claims. He is representing the Foundation in a number of lawsuits.

Freedom From Religion Foundation