by David Barton
Having acknowledged the help and assistance of these individuals and groups, there remains one final acknowledgment. With this, I have saved the best – and the most important – for last. Since the Scriptures direct that in all of our ways we should acknowledge God (Proverbs 3:5-6), I therefore wish to do so by repeating some of the similar acknowledgments frequently made by the Founding Fathers:
Rendering thanks to my Creator for my existence and station among His works, for my birth in a country enlightened by the Gospel and enjoying freedom, and for all His other kindnesses, to Him I resign myself, humbly confiding in His goodness, and in His mercy through Jesus Christ for the events of eternity. JOHN DICKINSON, SIGNER OF THE CONSTITUTION
Unto Him who is the author and giver of all good, I render sincere and humble thanks for His manifold and unmerited blessings, and especially for our redemption and salvation by His beloved Son. JOHN JAY, ORIGINAL CHIEF JUSTICE OF THE U. S. SUPREME COURT
My soul I resign into the hands of my Almighty Creator, whose tender mercies are all over His works, who hateth nothing that He hath made, and to the justice and wisdom of whose dispensations I willingly and cheerfully submit, humbly hoping from His unbounded mercy and benevolence, through the merits of my blessed Savior, a remission of my sins. GEORGE MASON, FATHER OF THE BILL OF RIGHTS
The Scriptures inform us that “in Him we live and move and have our being” (Acts 17:28); Jesus further declares that “apart from Me you can do nothing” (John 15:5). I firmly believe this.
In summary, while my name appears on the cover of this work, I would be foolish to take credit for what this work represents: the contributions of numerous workers – both seen and Unseen – without whose assistance this book would not exist either with its current content or in its current format. To all of these individuals, both human and Divine, I offer a sincere and heartfelt, “Thank you!”
David Barton
August 2008
5th Edition
~1~
Religion and the Courts
In recent years, clashes over religious expressions have been among the most frequent controversies decided by federal courts, with the U. S. Supreme Court having issued numerous rulings on the subject (a previously unprecedented practice in American history). Consequently, a body of nine unelected Justices now exercises more control over how, when, where, or if public religious activities will occur than any other entity in America. In fact, one Justice describes the Court as “a national theology board.”1
The modern Court largely amassed its control over religion first by discarding the traditional limitations of the religion clauses of the First Amendment, and then by adopting the phrase “separation of church and state” as the modern measuring stick for judging the propriety of a challenged religious expression. By imputing a non-historic meaning to this celebrated historic phrase, the modern Court began declaring unconstitutional many long-standing religious practices and expressions. The subsequent over-zealous application by State and local officials of these court decisions (and of the “separation” phrase in general) produced even greater restrictions.
Because of the current widespread coupling of “separation of church and state” with First Amendment controversies, many Americans now believe that the phrase is part of the First Amendment. Yet concerning religion, the First Amendment only states:
Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof …
For generations after its ratification, the courts relied solely on the clear and unambiguous wording of the First Amendment; the reliance on the “separation” metaphor is a recent judicial trend. For example, in the Supreme Court’s first 150 years, the separation idiom was invoked by the Court in only two cases;2 it has since been cited in seemingly countless cases. In fact, in actual cases filed under the First Amendment’s religion clauses in recent decades, the First Amendment was cited by courts in less than three thousand cases while the separation metaphor was cited in over four thousand.3 Strikingly, in examining First Amendment controversies, courts are more likely to cite the separation metaphor than they are the First Amendment itself.
That metaphor became the contemporary standard for judicial policy in 1947 in Everson v. Board of Education when the Court proclaimed:
The First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach.4
Relying on this phrase rather than the First Amendment, courts began striking down religious activities and expressions that had long been constitutional. The result has been a series of unprecedented decisions that defy common sense and mystify average citizens. For example:
A citizen riding a public bus cannot give a fellow rider a book containing Bible stories. ANDERSON v. MILWAUKEE COUNTY, 20065
A Bible school or church may not use the word “seminary” or issue Biblical degrees unless the State first pre-approves the Bible courses, Bible teachers, and theological curriculum. H.E.B. MINISTRIES v. TEXAS, 20036
It is unconstitutional for an historic memorial, even to the fallen or slain, to contain a cross as part of its display, no matter how many previous decades the memorial had been standing. LOWE v. CITY OF EUGENE, 1969;7 ELLIS v. CITY OF LA MESA, 1993;8 CARPENTER v. CITY AND COUNTY OF SAN FRANCISCO, 1996;9 SEPARATION OF CHURCH AND STATE COMMITTEE v. CITY OF EUGENE, 1996;10 MURPHY v. BILBRAY, 1997;11 PAULSON v. CITY OF SAN DIEGO, 2002;12 BUONO v. NORTON, 200513
It is unconstitutional for the Ten Commandments to continue being displayed in a solitary setting at public courthouses and government buildings – despite the fact that the Ten Commandments are a basis of civil law in the Western World and are depicted in multiple locations throughout the U. S. Supreme Court and other federal buildings. HARVEY v. COBB COUNTY, 1993;14 YOUNG v. COUNTY OF CHARLESTON, 1999;15 ACLU OF TENNESSEE v. HAMILTON COUNTY, 2002;16 GLASSROTH v. MOORE, 2003;17 ADLAND v. RUSS, 2002;18 ACLU OF OHIO v. ASHBROOK, 200419
It is even unconstitutional for a courtroom to display the Ten Commandments among a collection of other historic documents related to American law, such as the Magna Carta, the Declaration of Independence, the Bill of Rights, and the Mayflower Compact. ACLU OF KENTUCKY v. GRAYSON COUNTY, 2002;20 ACLU OF TENNESSEE v. RUTHERFORD COUNTY, 2002;21 TURNER v. HABERSHAM COUNTY, 2003;22 MCCREARY COUNTY v. ACLU, 200523
It is unconstitutional for a public cemetery to have a planter in the shape of a cross, for if someone were to view that cross, it could cause emotional “distress” and thus constitute an “injury-in-fact.” WARSAW v. TEHACHAPI, 199024
In city seals with numerous symbols representing diverse aspects of a community (e.g., its industry, commerce, history, flora, schools, etc.), it is unconstitutional for any of those symbols to depict a religious element – even if religion was a primary historic influence in the city’s founding. FRIEDMAN v. BOARD OF COUNTY COMMISSIONERS, 1985;25 HARRIS v. CITY OF ZION, 1991;26 KUHN v. CITY OF ROLLING MEADOWS, 1991;27 ROBINSON v. CITY OF EDMOND, 1995;28 ACLU OF OHIO v. CITY OF STOW, 1998;29 WEBB v. CITY OF REPUBLIC, 199930
It is unconstitutional for a nativity scene to be displayed on public property unless surrounded by sufficient secular displays to prevent it from appearing religious. ACLU v. CITY OF BIRMINGHAM, 1986;31 COUNTY OF ALLEGHENY v. ACLU, 1989;32 AMANCIO v. TOWN OF SOMERSET, 1998;33 ACLU OF NEW JERSEY v. SCHUNDLER, 1997, 1999;34 ACLU v. CITY OF FLORISSANT, 199935
It is unconstitutional for Christians to pray public prayers that reflect their own personal faith and beliefs. DOE v. SANTA FE I.S.D., 1995;36 FURLEY v. ALEDO I.S.D., 1999;37 BACUS v. PALO VERDE U.S.D., 2002;38; RUBIN v. CITY OF BURBANK, 2002;39 WYNNE v. TOWN OF GREAT FALLS, 2004;40 HINRICHS v. BOSMA, 2005;41 DOE v. TANGIPAHOA PARISH SCH. BD., 2006;42 TURNER v. CITY COUNCIL, 200643
Even though the actual wording of a bill may be constitutional, the bill becomes unconstitutional if the legislator who introduced it had a religious activity in his mind. WALLACE v. JAFFREE, 198544
; These decisions are representative of the current hostility toward traditional religious expressions; and the hostility has spread well beyond the courts, now permeating the official public square. For example:
In Minnesota, a State employee was barred from parking his car in the State parking lot because he had religious stickers on his bumper.45
A military honor guardsman who was part of a special unit that conducted military funeral solemnities for fallen warriors was removed from his position for saying “God bless you and this family, and God bless the United States of America” while presenting a military family a folded flag in honor of a deceased family member – even though he had been asked by the family to include that blessing in the flag presentation to them.46
In DeFuniak Springs, Florida, a judge ordered that a copy of the Ten Commandments in the courthouse be covered during a murder trial, fearing that if jurors saw the command “Do not kill,” they would be prejudiced against the defendant.47
In Balch Spring, Texas, senior citizens meeting at a community senior center were prohibited from praying over their meals.48
In Russellville, Kentucky, a library employee was barred from wearing her necklace because it had a small cross on it;49 and in Clymer, Pennsylvania, a school employee was suspended for wearing a necklace with a cross.50
Although States print hundreds of thousands of custom license plates – plates ordered and purchased by individual citizens, Oregon refused to print “PRAY,” Virginia refused to print “GOD 4 US,” Vermont refused to print “ROMANS5,” and Utah refused to print “THANK GOD,” claiming that such customized license plates violated the “separation of church and state.”51
In cities in Texas, Indiana, Ohio, Georgia, and Nebraska, not only were citizens not permitted to hand out religious literature on public sidewalks or preach in public areas, but several were arrested for doing so.52
In Memphis, Tennessee, a library offered shelves for displaying community advertisements and announcements. When a local church placed a notification of its upcoming Christmas program and a small Nativity scene on the shelf, the library required the removal of Joseph, Mary, Jesus, and the Wise Men from the scene, leaving only the farm animals.53
In Eau Claire, Wisconsin, college students serving as residential assistants were prohibited from holding Bible studies in their own private dorm rooms, even though discussion groups on any other topic were permitted.54
In York, Pennsylvania, because a prosecuting attorney mentioned seven words from the Bible in the courtroom (a statement that lasted less than five seconds), a jury sentence was overturned for a man convicted of brutally clubbing to death a 71-year-old woman in order to steal her Social Security check.55
In the name of “separation of church and state,” courts and public officials have clearly imposed unreasonable restrictions on religious free speech across the general public sphere; and they have imposed even more egregious restrictions on students and education. For example:
If students are given the latitude of creating artwork of their own choosing, it is unconstitutional for them to include a religious image in their artwork. JOKI v. BD. OF EDUC. OF THE SCHUYLERVILLE CENTRAL SCH. DIST., 1990;56 C. H. v. OLIVA, 2000;57 FLEMING v. JEFFERSON COUNTY SCH. DIST., 2002;58 PECK v. BALDWINSVILLE CENT. SCH. DIST., 200559
Student artwork containing religious symbols (such as a Bible or a cross) may be treated as gang symbols, profanity, and satanic signs. BANNON v. SCH. DIST. OF PALM BEACH COUNTY, 200460
In nine western States, courts ruled it constitutional for public schools to require a three-week indoctrination to the Islamic faith in which all junior-high students must pretend they are Muslims and offer prayers to Allah (they are further encouraged to take Islamic names, call each other by those names, wear Islamic garb, participate in Jihad games, and read the Koran during those three weeks); yet the same court ruled it unconstitutional for those students voluntarily to mention “under God” in the Pledge of Allegiance. EKLUND v. BYRON U.S.D., 200561 and NEWDOW v. U. S. CONGRESS, 200262
It is unconstitutional to use a school PA system to inform students of a national crisis and ask that they pray for the victims. Furthermore, it is unconstitutional for students to engage in student-led, student-initiated discussions of religion during classroom activities, and a federally-selected monitor may be appointed in order to ensure compliance with student religious speech prohibitions. CHANDLER v. JAMES, 199763
If students are slain in a school shooting and fellow students create a memorial to their fallen friends, it is unconstitutional for that memorial to include any religious element or acknowledgment among the personal remembrances of students. FLEMING v. JEFFERSON COUNTY SCH. DIST., 200264
Classic historic paintings may be displayed in schools – unless they depict something religious. WASHEGESIC v. BLOOMINGDALE PUBLIC SCH., 1994;65 SKLAR v. HARRISON COUNTY SCH. BD., 200666
It is unconstitutional even to see the Ten Commandments at school since students might voluntarily read, meditate upon, respect, or obey them. STONE v. GRAHAM, 1980;67 see also RING v. GRAND FORKS PUBLIC SCH. DIST., 1980;68 DOE v. HARLAN COUNTY SCH. DIST., 2000;69 BAKER v. ADAMS COUNTY, 2004;70 MCCREARY COUNTY v. ACLU, 200571
It is unconstitutional for a graduating valedictorian to include personal comments about his or her own faith in their own celebratory speech; therefore, a student’s valedictory address may be reviewed and censored by school officials prior to being delivered. FURLEY v. ALEDO I.S.D., 1999;72 COLE v. OROVILLE UNION HIGH SCH. DIST., 2000;73 LASSONDE v. PLEASANTON U.S.D., 2003;74 ASHBY v. ISLE OF WIGHT COUNTY SCH. BD., 200475
If a school Baccalaureate is held in a religious building, it is unconstitutional for public school officials who attend that meeting to be publicly recognized or honored. DOE v. SANTA FE I.S.D., 199576
It is unconstitutional for a school graduation ceremony to contain an opening or closing prayer, even if it is the decision of the graduating class. GRAHAM v. CENTRAL COMMUNITY SCH. DIST., 1985;77 KAY v. DOUGLAS SCH. DIST., 1986;78 LEE v. WEISMAN, 1992;79 GEARON v. LOUDOUN COUNTY SCH. BD., 1993;80 HARRIS v. JOINT SCH. DIST., 1994;81 DEVENEY v. BD. OF EDUC., KANAWHA COUNTY, 200282
It is unconstitutional to present to students the concept of the Creator which is so openly acknowledged in the Declaration of Independence and numerous other Founding writings. EDWARDS v. AGUILLARD, 1987;83 FREILER v. TANGIPAHOA PARISH BD. OF EDUC., 1999;84 SELMAN v. COBB COUNTY, 2005;85 KITZMILLER v. DOVER AREA SCH. DIST., 2005;86 HURST v. NEWMAN, 200687
It is unconstitutional for a classroom library to contain books that deal with Christianity, or for a teacher to be seen with his personal copy of the Bible at school. ROBERTS v. MADIGAN, 199088
It is unconstitutional for advertisers who purchase advertising space in school settings to include any religious content in their paid advertisement. DILORETO v. DOWNEY UNIFIED SCH. BD. OF EDUC., 1999;89 ANDERSON v. MEXICO ACADEMY AND CENTRAL SCH., 2002;90 OXFORD BAPTIST CHURCH v. CATAWBA COUNTY SCH. BD. OF EDUC., 200491
It is unconstitutional for a speaker to deliver a secular message to public schools if that expert is also publicly known to be a Christian – even if he is a member of the President’s Drug Task Force. ALEXANDER v. NACOGDOCHES SCH. DIST., 1991;92 CARPENTER v. DILLON ELEMENTARY SCH. DIST. 10, 200593
It is unconstitutional for a kindergarten class to ask whose birthday is celebrated by Christmas. FLOREY v. SIOUX FALLS SCH. DIST., 197994
It is constitutional for public schools to display Jewish and Islamic religious holiday symbols but not Christian ones. SKOROS v. CITY OF NEW YORK, 200695
There are hundreds of similar rulings. It is therefore not surprising that an independent poll affirmed that 77 percent of the nation believes that “the courts have gone too far in taking religion out of public life,” and that 59 percent believe that judges have singled out Christianity for attack.96 Furthermore, as the latter two rulings suggest, Christmas tends to be an especially restrictive time of year, when many schools completely eliminate or severely censor h
istoric holiday words and traditions. For example:
“Christmas Holiday” is frequently changed to “Winter Holiday” or “Winter Break” to avoid using the word “Christmas,”97 which is offensive because it contains the word “Christ.”
Students are told they may not refer to “Christmas,” wish someone a “Merry Christmas,” have “Christmas parties,” or decorate “Christmas trees,” but rather must replace the word “Christmas” with “Holiday” (e.g., Happy Holidays, holiday parties, holiday trees, etc.).98
Many schools eliminate the use of Christmas carols;99 at other schools, if carols are used in school concerts, the words are rewritten. For example, “Christmas” is changed to “winter,” the words of “Silent night, holy night” are changed to “Silent night, cold in the night” or “Silent night, winter night,” and “We wish you a merry Christmas” becomes “We Wish You a Swinging Holiday.”100 Some schools even prohibit purely instrumental arrangements of Christmas carols;101 apparently, even though the music contains no words about Christmas, listeners might know the words and recognize it as a Christmas carol, which would be inappropriate.
Students are told they may not wear red or green since those colors are associated with Christmas; they may not even give out candy canes to their friends, because the candy cane is in the shape of a shepherd’s crook and is thus suggestive of the Christmas story.102
Even beyond the issue of Christmas in schools, because of the “separation” doctrine:
In Saint Louis, Missouri, a school official caught an elementary student praying over his lunch; he ordered the student out of his seat, reprimanded him in front of the other students, and took him to the principal, who ordered him to stop praying.103