Courts Move To (Religious) Right (June/July 1995)

State/church separation received devastating blows from the U.S. Supreme Court with decisions issued on June 29 forcing the State of Ohio to let the Ku Klux Klan plant crosses on public property, and another forcing Thomas Jefferson’s University of Virginia to subsidize a Christian student group because it funds secular student groups.

Justice Anthony Kennedy, writing for the narrow 5-4 majority, said the university denied the “free speech” rights of religious students by refusing to subsidize printing of their magazine. This, as Justice Souter noted in the dissent signed by Stevens, Ginsburg and Breyer, means that the Court, “for the first time, approves direct funding of core religious activities by an arm of the state.” For an excerpt of Souter’s 28-page dissent, see page 14-15.

In the Ohio case, only two justices, Stevens and Ginsburg, dissented from the finding of the court, written by Justice Scalia, that Ohio must permit the Ku Klux Klan to leave unattended crosses on state property. Justice Steven’s eloquent dissent will be published in the August issue. Also see editorial, page 16.

In another blow for state/church separation, on June 12, 1995, the Colorado State Supreme Court overturned, by a 4-3 vote, the Foundation’s victory at the Appeals Court level to remove a Ten Commandments marker from state grounds near the Denver capitol.

Below is a letter from the Foundation’s attorney in this case, which was published in the Rocky Mountain News:

“In reference to today’s editorial about the decision of the Colorado Supreme Court on the Ten Commandments monument which stands in Lincoln Park, my name is Robert R. not Robert P. Tiernan. The R. stands for ‘Reitano’ which is Italian and the name ‘Tiernan’ is Irish. My ancestors emigrated to this country to be free–free to live in a land where the Irish would not be subject to religious persecution by the Church of England and free from the abject poverty they endured in Sicily while the Pope sat in Rome on his throne of gold.

“I was an altar boy in the Roman Catholic church from second grade until graduation from high school. I graduated from a Jesuit college and a Jesuit law school. That education instilled in me a special reverence for the U.S. Constitution, especially the Bill of Rights, which commands that government stay out of the affairs of religion. I am proud to represent a group of people who believe so strongly in that principle. It saddens me to see the judiciary chipping away at the principle as the Court did in the Ten Commandments case.

“Your editorial cites with approval the statement by Colorado Supreme Court Justice Scott that the Ten Commandments set out principles on which this nation’s Constitution is based. With all due respect to both you and his Honor, that is incorrect. Our Constitution makes no reference whatsoever to the Ten Commandments nor to any of the tenets expressed in the Ten Commandments. In fact, the only reference to God in the Constitution is that no religious test shall ever be required as a qualification for public office. The oath of office for President prescribed in the Constitution does not contain the phrase ‘so help me God’ nor does it provide for the President to swear on a bible. In spite of that, it has unfortunately become traditional for Chief Justices (who should know better) to do so as part of the swearing in ceremony.

“As for the Ten Commandments case, my clients were simply asking the government to do what the Constitution commands, that is, to stay out of religion. We are not arguing that a state religion is just around the corner because the Ten Commandments sit near the Capitol. We are only asking that the Court enforce the Constitution and keep the State of Colorado out of religious arena. Stop and think about that for a moment. Do you want Colorado to get involved in spreading the word of god? If so, how far do you think the State should go? Should the State recommend that its citizens believe in the one and only God and keep the Sabbath holy as the Ten Commandments dictate? Who is going to stop the State from enforcing the Ten Commandments once it starts?

“Removing the Ten Commandments from the State Capitol grounds is not hostile to religion. Religion enjoys blanket exemptions from federal, state, and local taxes. Government provides a broad range of services to religious institutions, including police and fire protection, but other taxpayers like you and me end up paying the bill. The media is saturated with religion. Religion has immense political power. With all these advantages, why does the public landscape have to be sullied with religious displays?

“For an institution whose very existence depends upon Constitutional protections against government intrusion into a free press, the Rocky Mountain News certainly takes a cavalier attitude about the remainder of the First Amendment.”

Freedom From Religion Foundation