Sunday, December 31, 2006


The lawsuit centered on the Mt. Soledad cross will complete its 18th year in May without its initial litigant, Philip Paulson, who passed away in 2006. A great deal of time and passion has been expended on that suit (and on others) to make sure that religious expression is quarantined in a way that applies to no other set of ideas.

The pretext for this policy is recent, dating from around 1970. According to the “living document” school of constitutional interpretation, “establish­ment of religion” no longer means what it clearly meant in 1791—i.e. a government funded institution like the Church of England. Instead, it means any “excessive entanglement” of government with things religious.

“Excessive” entanglement was later revised to mean any government-affiliated religious expression whatsoever, including invocations at high school graduations, Christmas nativity scenes, and, according to some 9th Circuit judges, the words “under God” in the Pledge of Allegiance. Indeed, our black-robed betters have decreed that the only religious trappings of our heritage that are “constitutionally” permitted are those with no religious significance. That is, as long as no one takes “In God We Trust” seriously, it can remain on our currency.

I doubt that this fingers-crossed jurisprudence is more than a way station to a religionless public square where the only exceptions are existing monuments that bear witness to a time when the Constitution wasn’t wax in the hands of secular sculptors.

It’s ironic that advocates of church-state separation (more accurately, religion-state separation) appeal regularly to Thomas Jefferson’s 1802 letter to the Danbury Baptists—as if that missive were scripture. Jefferson, after all, was a vocal opponent of what is today called “judicial activism.” And our third president issued frequent warnings about the Constitution becoming a mere scrap of paper subject to legal deconstruction.

Moreover, Jefferson was a strong advocate of limited government who would be appalled at the size and scope of the public sector today. Nowadays, government at all levels affects almost every segment of life—directly controlling about 35% of the nation’s GDP and indirectly leveraging (via loan and other programs) another chunk of our culture.

Were governments the size they were at the start of the 20th century, the religious cleansing of the public square would have “only” a symbolic impact. But since government, in accord with socialist inclinations, insinuates itself into vast areas of public life, the reinterpretation of the first amendment has had far-reaching consequences—functioning like a secular sieve to transform the dollars of God-fearing taxpayers into greenbacks that promote ever-expanding “god-free” zones. In these areas, ideas that presuppose a godless universe are regarded as “neutral” expressions of free speech not subject to the special restrictions put on religion.

Even an unorthodox theist like Jefferson would find such judicial-sponsored gag rules more odious than the reasonable reflection of religious belief in a government designed to represent those same individuals. At present, a largely religious nation must pay tribute to the “gods” of secularism while courts declare that this shell game is demanded by a “living” Constitution.

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