Religion in the federal courts:

Is our Thanksgiving holiday at risk?

In 1791 when James Madison

drafted the religion clause of the First Amendment he was concerned about

another Church of England. One could ask whether with the expanding number

of federal cases removing any reference to God and religion from our public

affairs whether or not we are establishing atheism as the national religion.

After the federal court in

Atlanta removed the Ten Commandments from the Alabama courthouse they

tried to reassure us: "We do not say that all recognitions of God

of the federal income tax promised that our income taxes would never exceed

10 percent.

Recent cases in the federal

courts prohibited the public recognition of the Ten Commandments and the

Pledge of Allegiance as violative of the First Amendment to the United

States Constitution. These cases are part of a 50-year trend.

We need to resolve the disagreement

over religion and the First Amendment. Otherwise, God and religion will

be completely removed from our public lives.

Examples: God on our currency

and our motto of "In God We Trust." Consider a soldier dying

on the battlefield and calling for a chaplain. Wouldn't it be shameful

to consider this to be a prohibited use of tax dollars? Perhaps Thanksgiving

(in which we give thanks to the Almighty) is at risk.

Legal scholars and judges on

both sides of the issue agree that the religion clause in the First Amendment

is unclear. It reads that "Congress shall make no law respecting

an establishment of religion, or prohibiting the free exercise thereof...."

(See also the Tenth and Fourteenth Amendments for reference).

The First Amendment is ambiguous,

in part, due to the word "respecting." In 1791, (four years

after creating our Constitution) Congress adopted the first Ten Amendments,

known as the Bill of Rights.

Madison's first version

of the First Amendment read, "Congress shall not establish a national

religion...." Congress passed a fourth version of the First Amendment

adding the troubling word "respecting."

In 1971 in Lemon v. Kurtzman

Chief Justice Warren Burger described the First Amendment as "a blurred,

indistinct and a variable barrier." We need to clarify what role

religion should have in our public lives and also to reaffirm our constitutional

rule of law.

The role of religion in early

America is abundantly clear. Thirty-four percent of all materials of our

early historical documents came from Bible scripture. Our Declaration

of Independence refers to the "laws of nature and of nature's

God" and that government is formed "with a reliance on the protection

of divine providence." Our Constitution was undertaken to "secure

the blessings" of the Almighty and was dated as 1787 in "the

year of our Lord." In Zorach v. Clausen (1952), U.S. Supreme Court

Justice William O. Douglas emphasized that we are a nation of believers.

While many remember America

in 1776 as a legal miracle, America was also a religious miracle.

The early Supreme Court cases

removing religion from our public affairs began with Everson v. Board

of Education (1947), commencing a review of state laws regarding religion

and the public schools. Everson relied upon the First and Fourteenth amendments

and announced a troubling metaphor which has become the battle cry of

the secular/atheist movement: "Separation of church and state."

This phrase previously existed

nowhere in any case, statute, or legal source, but simply in a letter

from Thomas Jefferson to a church in Connecticut reassuring them that

Congress would not bother them.

The prominent case of Engel

v. Vitale followed in 1962. The Engel court shielded New York school students

from the following 22-word prayer: "Almighty God, we acknowledge

our dependence upon Thee, and we beg Thy blessings upon us, our parents,

our teachers and our country."

Query: If the U.S. Supreme

Court was so troubled by this prayer why, to this day, does it open court

with the prayer, "God save the United States and God save this honorable

court"?

A big player in this drama

has been the secular/atheist movement, inspired in the mid-1800s by British

atheist G.J. Holyoake. They believe that morality comes not from the Almighty,

the Eternal or the Spiritual but solely from the temporal human perspective.

The book "Treason" by Ann Coulter details the political rise

of secularism.

The recent Pledge of Allegiance

case was initiated by an atheist father who convinced the Ninth Circuit

Court of Appeals to ban the Pledge of Allegiance by California school

children. The U.S. Supreme Court has agreed to hear the Pledge case and

may provide guidance on the law.

In the Ten Commandments case,

Alabama Chief Justice Roy Moore's non-taxpayer funded attempts to

erect a display which included the Ten Commandments was struck down by

an Atlanta federal appeals court. Moore unsuccessfully argued that the

Alabama Constitution seeks "the favor of Almighty God." A poll

indicated that 78 percent of America favors the display of the Ten Commandments

in public courthouses.

Yes, there is disagreement.

But Justice Douglas warned us of a preference for non-believers over believers.

One could certainly ask, have we now become a nation devoted to atheism?

Have we now violated the establishment of religion that Madison and the

Founding Fathers feared by making atheism our national religion? Will

all good things we do give way to the fear of an expensive law suit?

One proposal to resolve this

ambiguity is federal legislation to restrict the jurisdiction of federal

judges (which would probably be "stop gap" at best). Or we can

scrutinize candidates for federal judgeships.

Unless the Pledge of Allegiance

case answers everything, maybe the only way to resolve this issue is through

a constitutional amendment. Maybe we should amend the First Amendment

to the United States Constitution.

Wow ! Too big a job for America?

We did it for the prohibition against alcohol. And then we did it again

to repeal Prohibition. As central as religion was to our Founding Fathers

doesn't this current debate warrant our efforts? Tell your senators

and members of Congress that you think this is important.

[© 2003 John Mrosek. The

above is excerpted from a speech given by Mrosek, a Fayetteville attorney

and part-time judge, who can be reached at P.O. Box 1168, Fayetteville,

GA 30214.]