This speech was delivered at the 26th annual convention of the Freedom From Religion Foundation at the Washington Court Hotel-Capitol Hill, Washington, D.C., on Oct. 12, 2003.
After I won the pledge case before the Ninth Circuit, someone asked me, “Do you feel like David and Goliath?” I thought about it for a second, and I said, “Yeah, I feel like Goliath, because the law is extraordinarily on my side.” If you go through all of the tests that the Supreme Court has ever enunciated on the Establishment Clause, the two words “under God” in the Pledge of Allegiance are clearly unconstitutional. Last night we heard about the Lemon Test. The Lemon Test has three prongs. The first prong is: was the law passed for a religious purpose?
The second prong asks if it has a religious effect. The third: is there an entanglement with religion and whatever’s going on there in government?
Why did they stick the two words, “under God,” in the Pledge of Allegiance? Clearly it had to be a religious purpose. It fails the first prong of Lemon. What’s the effect? Clearly its effect is to have God in our government. That fails the second prong. And it’s entanglement to the hilt. Government is saying the words. That’s clearly unconstitutional. There’s also the neutrality test. The words “under God” are not neutral.
The government is taking a position on the question: “Is there a God? Is there not a God?” There’s the imprimatur test. This places government’s imprimatur on the idea of God. Clearly, by every one of the Supreme Court’s legal tests, we should win this case. Moreover, we’re the Goliaths in this case in principle, even if you didn’t have a test. If you try to express, try to put into normal vernacular the words of the Establishment Clause–“Congress shall make no law respecting an establishment of religion”–what does it mean?
We have separation of church and state is one way of stating it. But no matter what you come up with, sticking the two words “under God” in a nation’s pledge clearly would fail the Establishment Clause. So we’re Goliaths in terms of the principle as well. Where we’re Davids, on the other hand, is in numbers.
Ninety-three percent of the population believes in God, and most of those people would like to have God in their government. The problem with that is we have a Constitution that very wisely does not permit majority rule over matters of conscience. The other place where we’re Davids is in terms of finances.
The religious right has a lot of money. Just to give an example, most of you know that the religious right tried to get the mother of my child involved, to derail the case. When the case first broke, they flew her out by private jet from California to Washington, D.C.
A private jet costs about $25,000. That flight is five times as much as what I’m going to spend totally for this entire case. As of a year ago, those attorneys already had about $145,000 in legal fees accumulated, before the latest round of briefs.
I’m just one guy, I don’t have a secretary, I have to make my own copies on the copy machine I bought for $50, buy my own papers, send everything just regular mail. So we’re Davids in that regard. I’m going to look at case precedent from most to least recent to show how we’re Goliaths in terms of the law.
The last major case on the separation of church and state was in 2002, actually announced a day after the Ninth Circuit pledge decision was announced, on June 27, 2002. The Supreme Court heard a case known as Zelman v. Simmons-Harris, that talked about school vouchers in Ohio.
The Supreme Court, in a 5-4 decision, approved the program, saying it’s neutral.
There really is a tension here.
On the one hand, we don’t want to discriminate against religion any more than we do for religion. On the other hand, we don’t want government money going to religious institutions. It also should be acknowledged that when public money goes to these religious schools, it’s supposed to be used just for the secular aspects of those schools.
Clearly, if you give money to the secular aspects, that’s more money then that is available for the sectarian aspects. So that’s always the issue.
If you look at the opinion, it tells us that 96% of the vouchers that were used for private institutions went to religious institutions. That’s obviously of concern, and therein lies the tension with the ideal of government not being for or against religion.
That’s very different, though, from what’s going on like the pledge case. Even in the Zelman case, Chief Justice Rehnquist, who wrote the decision, carefully said that the reason this case is okay is because the government is acting neutrally. It’s saying individuals are spending public money on religious institutions, but the government has to be neutral. Clearly the government isn’t neutral when it sticks the two words “under God” in the middle of our pledge. So even under Chief Justice Rehnquist’s analysis, the pledge case has failed, if you went by what he did in Zelman.
The next case–we move back a year–was in 2001 called the Good News Club. That was a 6-3 decision. Basically we have three sets of three judges. We have on the “bad” side–no editorializing here–Rehnquist, Scalia and Thomas, who will always vote against separation. On the “good” side, the great side, we have Souter, Stevens and Ginsberg.
They want strict separation. In the middle we have three justices that we have to watch, and those are really whom we have to direct our cases toward: Kennedy, O’Connor and Breyer. In the Good News case, Justice Breyer actually went on the other side, along with O’Connor and Kennedy.
The Good News Club is a bible club that wants to use school classrooms to meet with children after school is out.
The school district policy permitted nonprofits and community groups to use its schools after hours, with an exception for religious institutions. The Supreme Court said the district was discriminating against religion. Justice Breyer, in voting with the majority, noted the record just hasn’t been developed yet. If it is shown that there is coercion to these little children, he would remand the case and let the lower courts look at that.
Again, if you apply the neutrality issues with regard to the pledge, it’s still in our favor quite strongly.
Back another year was Mitchell v. Helms, a case in Louisiana about government aids to private schools. We’ve had quite a few of these cases. The first major religious freedom case and parochial-aid case was Everson in 1947, which was about busing children: should we pay to bus children who go to sectarian schools? The Supreme Court said yes, we should, if we’re going to pay for other kids to get to public schools.
Again, we have that tension.
Do we want to discriminate against religion? On the other hand, we are giving public money and it’s benefiting the sectarian institutions. It’s a tough call. If you’re a strict separationist you say no. If you’re like Rehnquist and Scalia, then clearly that would be fine. In Mitchell v. Helms, we had four justices, who in religious aid cases seem to twist the Lemon Test around, even though all the justices who have twisted it have complained about it constantly.
Scalia referred to the Lemon Test as “some ghoul in a late-night horror movie, that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried.
Lemon stalks our Establishment Clause jurisprudence, once again frightening little children and school attorneys.” After complaining about Lemon so much, they simply rearranged it, removing the entanglement prong, saying, “We only have two prongs: purpose, and effect.” Then they said, “An effect is now itself divided into three prongs, one of which is entanglement.
The others are: does government invoke any religious belief or give aid based on the religion of the recipient?” In Good News, you have the big three again–Thomas, Rehnquist and Scalia–with Kennedy joining this time, saying: “As long as government is neutral, we don’t care about what happens to the money. We don’t care if the funds get diverted to sectarian institutions. Government has acted neutrally, and that’s fine.”
The five other justices did not like that theory. They said you need more than that. Neutrality is required, but you also need to make sure that there are no funds being diverted. O’Connor and Breyer said, “We think that the diversion in this case is not adequate to worry about, so we’re going to vote with the majority party.”
Our three–Souter, Stevens and Ginsberg–all said, “We think there’s too much diversion,” and so they voted against it. Once again, we see that this is a case very different from something like the pledge challenge. Go back one more year, to 2000. Santa Fe Independent School District v. Doe was the case that said you can’t have prayer at high school football games. This followed a 1992 case, Lee v. Weisman, which said you can’t have prayer at high school graduations.
In the original 1992 case, Lee v. Weisman, they said the government, the school board, the school principal, is calling in some stranger to give a prayer, and even if it’s nonsectarian, it’s a prayer to God, and some people are uncomfortable with that. Because it’s government acting, you can’t do that.
It was a great case for us. In the Santa Fe case, they went even further. In Santa Fe, what happened was the students themselves were voting, and they were electing their own student to give any talk on anything, but it always turned out to be a talk on religion.
So the Supreme Court ruled 6-3 in our favor, with Breyer, Kennedy and O’Connor all coming over to our side. They said: “What we’re having is a majority vote that allows them to use the machinery of the state to invoke their religious beliefs. We’re not going to allow that.” They also referred to another case that they decided simultaneously, Southworth, which spoke about viewpoint neutrality.
“The whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views.” Again, if you look at that with regard to the pledge, clearly the minority view that there’s no god is not given the same respect as the majority view when we say we’re “one nation, under God.”
All of these cases taken together show that in the law, at least as it now stands, we are the Goliaths. All law is on our side, there is nothing against us.
So I still think quite strongly, although some people think I’m wrong, that we’re going to win.
There’ve been a whole bunch of Ten Commandments cases lately. All of you have certainly heard of the one in Alabama, which I’ll get to in a minute. It’s estimated there’s about 20 active Ten Commandments cases right now. There was the case that we’ve just heard about with Margaret Downey in Pennsylvania, Third Circuit.
She won it in the district court level, which was great, but she did get overturned in the court of appeals. Her case involved a Ten Commandments plaque put in the courthouse in the 1920s. A previous case in the Third Circuit, about a Ten Commandments plaque dating to 1918, was also lost.
What they said was, “These are historical. They’re not invoking religious belief, you can hardly see ’em, it’s part of the building now, and so we’re going to let it slide.” They kind of got grandfathered in. I think that’s wrong. At some point in time this was stuck in there for religious purposes, and that act should be fixed. But they didn’t see it that way.
It’s not the end of the world for us, it certainly doesn’t say that people can start putting Ten Commandments monuments and plaques around anymore. Most of the Ten Commandments monuments being litigated were put up by a group called the Fraternal Order of Eagles, which has an acronym: FOE. I don’t know if that’s intentional! The Eagles is a group that generally does good stuff, they give to diabetic foundations and kidney diseases and everything else.
But in the 1950s when Cecil B. DeMille directed “The Ten Commandments” and Charleton Heston came down from the mountain, the Eagles got together with DeMille and decided to put up these monuments. I actually contacted the Grand Wizard or whoever it is, and he told me that it just became cost-prohibitive, so they’ve stopped doing that.
But there still are these plaques and monuments around, and these are being litigated frequently. There’s a case in Adams County, Ohio. That one went our way. They had these Ten Commandments monuments in four high schools, and those were ruled unconstitutional. There was one, Adland v. Russ, in 2002, involving a monument they wanted to place at the Kentucky capitol building, which was ruled unconstitutional by the Sixth Circuit Court of Appeals.
Another involved the Summum religion. I don’t know how many of you have heard of Summums, but it’s a religious group in Utah, and is about 30 years old.
The Summums did something I think was very wise and I would recommend that anybody who litigates these cases in the future do the same thing. They were in the Tenth Circuit in Utah–and the Tenth Circuit had already ruled that monuments with the Ten Commandments were okay in certain circumstances. They went to the city of Ogden, Utah, which had a Ten Commandments monument displayed. They called it a violation of the Establishment Clause, and said if you don’t grant relief by getting rid of this thing, what we want you to do is put up our thing. We have seven principles, and we want to put up a monument with our seven principles.
They won. They lost on the Establishment Clause ground, but they won on the grounds of free speech and the violation of viewpoint neutrality. The city was saying, “We’re going to take the Judeo-Christian monument, it’s okay, but we’re not letting other people put up theirs.”
The court said, “You go back and figure out a way for them to get their seven principles put up or you get rid of the other.” I actually went to Utah and met with the Summums, and it was an interesting time. The group that I met were mostly Korean, and they do a lot of proselytizing, and we went out to the city of Ogden–not to one of the finer areas of the city.
They were looking for people to convert, and they found this guy, he was sitting on the curb and playing these bongos, somewhat disheveled and not very happy-appearing, didn’t seem to be too bright. They invited him back to their meeting hall and gave him some Korean food.
Interestingly, they gave him a lot of Bacardi, kind of got him drunk. I remember him playing the bongos and kind of a humming and making these sounds and it was startling, because when they first came up to him he looked kind of lost, and all of a sudden he converted to Summum, and you could see this confidence come over him, this sense of aplomb that would come when some dumb, numb and glum Summum slum bum, would hum and drum with dimsum and rum. (Actually, that’s not a true story.)
One of the monuments the Eagles donated was in La Crosse, Wis. La Crosse is an interesting name; I guess it’s better than La Jesus, but not too much. The Freedom From Religion Foundation has taken on that case and they won at the federal level so far. So way to go, Freedom From Religion. I think it’s hard to talk about Ten Commandments cases without mentioning Judge Roy Moore in Alabama. Judge Roy Moore had prayers before his sessions, and he put a Ten Commandments plaque on his wall in his lower courtroom.
The ACLU was absolutely right to challenge him. The problem was Judge Roy Moore got very famous and became known as the Ten Commandments judge and was consequently elected to be Chief Justice of the Alabama Supreme Court.
I think the case with Judge Roy Moore really highlights why the Establishment Clause is so important. This man is not only a citizen, not only a lawyer, not only a judge, not only a justice in the State Supreme Court, but the chief justice of the State Supreme Court, who was ordered by the federal government to take this thing down and refused. What would give somebody the gall to do that? Only religion, only belief in God.
He’s convinced that he’s right and he’s willing to totally forego the law for the rest of society. That’s an incredible thing. I think the fact that he did that should be a warning. That’s why we need the Establishment Clause. He is the best advertisement we have. Probably the most important thing about the case is that every time something like this happens, God contacts me. He called me up (which is something because I have an unlisted number), and he said I should write another song, so I wrote another song for Judge Roy Moore. This is the world debut of the song, hope I don’t choke.
Because this is a song about something done in the South, I’m going to do this with a Southern accent. But because I’m from New York, it’s South Bronx. (Performs “Roy’s Rock”) So now I want to talk about two other cases of mine.
First I’ll talk about the one against congressional chaplains. There’s a case called Marsh v. Chambers, 1983, in which state legislative chaplains were challenged, and the litigant lost. Ernest Chambers was a legislator out in Nebraska, who was forced to listen to chaplains every time the Nebraska legislature met, and brought suit against that.
The case got to the US Supreme Court, and Chief Justice Burger wrote the opinion. There’s nothing in the opinion about what the Establishment Clause means. Clearly, the Chief Justice couldn’t write about what the Establishment Clause means, because it certainly means that you can’t have tax-paid chaplains coming in and giving religious prayers before congressional sessions. So Burger didn’t even bother to discuss the Establishment Clause–I guess he was precluded from discussing that.
Instead he said, “Look at the history.” And he came out with what’s a good point, at least on first blush. In 1787, the Founders met and came up with our Constitution. The deal was that if they got nine states to ratify it, we would have a United States.
On June 21, 1788, New Hampshire became the ninth state. We had a country. At the end of 1788, Congress first met, they had the electoral college, they elected George Washington president, and on April 30, 1789, Washington was inaugurated as president. We still didn’t have a Bill of Rights at that time. We still only had the Constitution. It wasn’t until June 8, 1789, that James Madison first even proposed the Bill of Rights. During the summer of 1789, they finalized the wording for the Bill of Rights, the first ten amendments to our Constitution, and on Sept. 25, they sent the text out to the states to ratify.
The Bill of Rights wasn’t ratified until December 1791.
What Chief Justice Burger said was, “If you look in the record, on Sept. 22, 1789, three days before the final wording of the Bill of Rights was created, the same people who came up with this wording voted to pay for chaplains. Whatever the Establishment Clause means, and I’m not going to discuss it because I’d lose this case if I do, the fact that the same people who came up with the wording and voted for the Bill of Rights also voted to pay the chaplains, shows that clearly it doesn’t mean you can’t have chaplains.”
However, it’s not really the complete argument and doesn’t give the complete history. First of all, those people, we know, were politicians, and we saw what happened in the pledge case–99 out of 99 senators went out and said, “This is a horrible thing.” A large portion of those senators are lawyers and I’m sure they understand the issues here, yet there wasn’t any question.
They’re politicians; they can count. Ninety-three percent of the population believes in god and you don’t want to go against that. I don’t think there was any difference back in the 1700s. The fact is: the chaplains were actually instituted before we had the Bill of Rights. They were put in place in April and in May 1789 in the Senate and the House respectively.
So before the Bill of Rights had ever been introduced, we’d put chaplains into our government. What politician’s going to say, “Oh, let’s get those chaplains out of here”? He’s going to lose his job. So that’s a very good reason to understand why chaplains would still be there. Chaplains fail all of those tests that I mentioned for the Establishment Clause, so this seems to be an unconstitutional practice.
Justice Brennan wrote a really good dissent to Marsh, but it was a 6-3 decision against us. We’ve seen since that time the problems that come with chaplains. Four years ago we put a Catholic chaplain in the House–the first Catholic chaplain, tremendous problems with that. Danny Hastert, who was speaker of the House, said, “In all my years in this Congress I have never seen a more cynical, more destructive political campaign than occurred with trying to get a Catholic chaplain in the House.” If there’s anywhere where we don’t want this sort of religious controversy, it’s in the halls of Congress.
That’s another reason why I think Marsh should be overturned.
There’s the question of original intent.
First of all, there is a question as to whether original intent was the “original intent.” Did the Framers want to bind the future for hundreds of years–or thousands of years, however long we last–with what they were seeing back in the 1700s? I think the answer is clearly no.
I like to think of it in terms of the Internet. If we came up with laws now in regard to the Internet, who in their right mind would think we’d want those laws applicable in the year 2200? You’ve got to be nuts. Things change and I think that they certainly had that in mind.
The other thing is we never can know what the Framers intended. There were 55 separate men who came up with the body of the Constitution. By the time the first Congress met for the Bill of Rights, there were about 116. There was no original intent. They were very different individuals. One of the first individuals in the first Congress was Rep. Thomas Tucker from South Carolina. One of the things the first Congress passed was the resolution to go to President Washington to declare a day of thanks. That’s originally where we got Thanksgiving.
Thomas Tucker said: “You can’t do that. We don’t have the power to pass a law like that or pass a resolution because we are forbidden from getting involved in religious matters. And this is a resolution to thank God.
We can’t do it.” Remember, this had to be ratified by the people, so it doesn’t even matter what these original Founders had in mind, it matters what the people had in mind in every one of the states. So we’ll never know what original intent is. Even if we did know what original intent was, we frequently don’t abide by original intent.
The Alien and Sedition Acts were passed in the 1790s. You got put in jail or fined if you wrote bad things about the government. Those acts would clearly be unconstitutional today under our First Amendment jurisprudence. If we think that original intent can be measured by what these men passed in Congress, those men in Congress passed the unconstitutional Alien and Sedition Act. They also had death as a penalty for counterfeiting.
They had 39 stripes (whippings) for altering any court records. Marbury v. Madison, possibly the most famous case, was about the fact that those original founders, those original members of Congress, passed a law that was unconstitutional. So what they did, the laws they passed, even though they created the Constitution, may not in fact coincide with the Constitution. We have a letter from John Adams saying the first chaplain, who was established during the constitutional convention in 1774, was put in place for political reasons, that we were using religion for politics. That’s exactly what we don’t want to ever happen. DuchŽ was the first chaplain, an Anglican. Remember, the Anglican Church was the Church of England back then.
John Adams said this was a masterful stroke. By getting an Anglican minister to come out on our side, they thought that we got a lot of people to support us. So it was using religion for political purposes. The other thing that I find astounding is that the Supreme Court will say, “Well, we have to stick by this original intent idea.” The Supreme Court’s first pledge case was in the 1940s, before “under God” was added. This was a case of Jehovah’s Witnesses who don’t pledge, who said they can’t pledge to flags.
They got expelled from school in 1940 in the Minersville case, and the Supreme Court upheld it. Now let’s think about it. The Supreme Court in 1940 had the benefit of the briefs and the cases that had progressed in the district court, and the court of appeals. They had months to go over this argument, they could discuss it with their clerks and among themselves, and they came out and said, “You can expel them because they won’t salute the flag.” Three years later they completely reversed themselves. They overruled Minerville. They reversed themselves after all that thought, and recognized they made a mistake.
The Framers put together a whole country–it wasn’t like they were just focused on this one thing–and didn’t have nearly the amount of time that this Supreme Court had in these two particular cases.
How come we can’t say 200 years later that their decision to have a chaplain before the Bill of Rights was passed is inapplicable today? The other case I brought is the inaugural case.
Actually Prof. Dershowitz wrote about it right after it had occurred. On January 20, 2001, Pres. Bush had two Christian ministers come in giving very Christian prayers. Prof. Dershowitz wrote that the first act by the new administration was in defiance of the Constitution, which it was. I just want to read you the prayers that were read. I didn’t tune in to this for any reason, I just happened to be home, put on the TV. Rev. Franklin Graham was the first speaker, he gave the benediction, and Kirbyjon Caldwell gave the invocation. Billy Graham was supposed to come, but God works in mysterious ways.
Billy was sick. So Franklin substituted for him and he said: “Let us pray. Blessed are you, our Lord, our God. Yours, O God, is the greatness and wonder and glory and the splendor and the majesty, for everything in heaven and earth is yours. Yours, O Lord, is the kingdom.
You are exalted as head over all. Wealth and honor come from you. You are the ruler of all things. In your hands are strength and power to exalt, and to give strength to all.” Just starting with “Let us pray” already violates the Constitution. Then he ends: “Now, O Lord, we dedicate this presidential inaugural ceremony to you.
May this be the beginning of a new dawn of America as we humble ourselves before you, and acknowledge you alone as our Lord, our Savior, and our Redeemer.” Doesn’t end there: “We pray this in the name of the Father, and of the son the Lord Jesus Christ, and of the Holy Spirit. Amen.” This is in the middle of our inauguration!
This is incredible.
Then we have the other person, this Kirbyjon Caldwell. (This was President Bush wanting to show us how he respects diversity; Kirbyjon Caldwell is an African-American pastor, and is to alliteration where Jesse Jackson is to rhyme.)
He went like this: “Let us pray please. Almighty God, the supply and supplier of peace, prudent policy and nonpartisanship, we bless your holy and righteous name. Thank you O God for blessing us with forgiveness, with faith, and with favor. Forgive us for choosing pride over purpose, forgive us for choosing popularity over principle, and forgive us for choosing materialism over morals.”
Then he thanks Bush and ends: “We respectfully submit this humble prayer in the name that’s above all other names, Jesus the Christ, and all who agree say Amen.”
This is at our inauguration. It’s incredible! After I had the oral surgeon put my teeth back in my jaw, I decided to file this suit. I already had practice, I had filed the pledge case, so it was pretty easy.
I filed a lawsuit, and we should hear from the Ninth Circuit soon on assigning an oral argument in that case. We’ll see what happens. When I filed in district court, the government argued that I didn’t have standing, saying I live in California, and they gave these invocations in Washington, D.C. The judge didn’t buy that one.
They then said, “Well this is covered by Marsh v. Chambers.” I said, “No it’s not, it’s covered by Lee v. Weisman in Santa Fe,” and they said, “No, no, Lee v. Weisman is about graduation, which is important.” The judge responded, “Are you saying that the inauguration isn’t important?”
I’ll just give you a little history. The first inauguration was with George Washington and was in City Hall in New York, New York, the capital at the time, down on Wall Street. The building had this balcony and George Washington came out to the balcony and took the oath. The oath of office is in the Constitution, and there’s no “So help me God” in there. George did that on his own.
He pulled out a bible, which they didn’t even have prepared, someone had to go to the Masonic Lodge and get a bible. He then went into the City Hall, he gave a speech to Congress, and then the whole entourage left the City Hall and walked about a half a mile to St. Paul’s chapel, where there was a chaplain.
Bear in mind again this was April 30, 1789, before Madison had even introduced the Bill of Rights, so we had no First Amendment to violate. Nobody knows what the chaplain said. As far as we know, he may have said, “Y’know, I think we should have separation of church and state here.”
In any event, he gave his speech, it’s not been recorded, and from that time on until 1937, there was not another chaplain at a presidential inauguration. If you read Chief Justice Burger’s opinion in Marsh v. Chambers, he talked about the “unambiguous and unbroken history of more than 200 years.”
Well, we don’t have that with presidential inaugurations. So I don’t think Marsh v. Chambers applies at all. I made that argument, and the judge seemed to buy that. So then he looked for another issue, as he clearly didn’t want to tell the president of the United States that he’s violating the Constitution.
So he said during our hearings, “George Bush says ‘God Bless’ at the end of everything, do you want to get rid of that?” Of course, I said, “Yes, I do want to get rid of that, but he has his own free exercise rights, it’s a different issue, I’m complaining about this bringing in of chaplains.” So the judge kind of gave up on that one, too.
Where the case now lies is a separation of powers issue. This is a really interesting thing. Does the judiciary have the right to tell another branch of government whether or not it’s violating the Constitution? I had thought that’d been covered in Marbury v. Madison in 1803, but it isn’t actually that clear.
There are cases that kind of make you wonder what the judiciary can do. Anyhow, it’s in the court of appeals, and we’ll see if they uphold that idea. Finally, we have Justice Souter, who in Lee v. Weisman, that case with the graduation prayers, said it’s clear that these are politicians and politicians can raise constitutional ideals on one day and turn their backs on them the next. So the whole basis we have for Marsh v. Chambers is no longer tenable. That’s why I brought the case and hopefully that’ll overturn Marsh.
