the separation of the church and idiocy

Well, as you all may or may not be aware (dependant upon how often you read this weblog), I had a recent falling out, so to speak, with the American Civil Liberties Union. Additionally, being that I generally have more than two neurons firing at one time, I have always had some manner of objection to the ludicrous and generally pointless “separation of church and state” that the ACLU has always been such a strong proponent of, and that, in all reality, has no basis in anything more binding than a Supreme Court ruling. Yes, governmental-illiterates everywhere, the “separation of church and state” has no Constitutional basis, as some people would have you believe. In fact, for those people a little fuzzy on their American Government, the First Amendment to the Constitution, which is always claimed to be the basis for the “separation”, reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

Emphasis added. Notice that it does not say that religion cannot exist within the American government, nor does it state that the American government is incapable of making any manner of religious comment or allusion, nor does it mean that the American government has to be a purely human secularist organization. It merely states that the government cannot make any law concerning religion, nor can it prohibit people’s ability to worship, or not, as they see fit. Nothing more, nothing less.
In fact, the “separation” has its roots in the 1947 ruling of the Supreme Court in Everson v. Board of Education, stating that the First Amendment magically erected a “wall between church and state”. Over time, and mostly by accident it would seem, we have granted the Supreme Court more and more power concerning the interpretation of the Constitution, but no such ability exists. Judging whether a situation or event is lawful under the Constitution, and settling arguments under the Constitution is one thing – making up an entirely new construct that has no basis in the Constitution whatsoever is just plain ludicrous. Nothing personal against the Supreme Court, but I hate the Pope because he tries to interpret the Bible for his subjects. Try not to be like him.
I have been advocating that line of reasoning and logic for as long as I had interest in American politics, but, needless to say, any liberals or secular humanists I attempted to point out this situation to immediately went off the deep end, and started their insatiable name-calling and other such nonsense. What is worse is that the American government has shown no indication of relenquishing its deathgrip on the “separation” construct, though attempt after attempt has been made to chink at its armor (even though attempts at building it higher have succeeded with amazing effectiveness).
Well, amazingly enough, someone else has more than two neurons firing at a time as well… I give you ACLU of Kentucky v. McGinnis.
Now, for those not wanting to sift thorugh 14 pages of legalese goodness, I will give you the most interesting of the bits, highlighted relevantly. Is that a word? Anywise…

Were we to focus on the perceptions of individuals, every religious display would be “necessarily precluded so long as some passersby would perceive a governmental endorsement thereof.” Pinette, 515 U.S. at 779 (O’Connor J., concurring). Thus, we find unavailing the ACLU’s own assertions that it finds the display offensive and that the display “diminishes [its] enjoyment of the courthouse.” (Compl. ¶ 18.) Religion does not become relevant to standing in the political community simply because a particular viewer of a governmental display feels uncomfortable. Id. at 780 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992) (“People may take offense to all manner of religious as well as nonreligious messages, but offense alone does not in every case show a violation. We know too that sometimes to endure social isolation or even anger may be the price of conscience or noncomformity.”). Our concern is that of the reasonable person. And the ACLU, an organization whose mission is “to ensure that . . . the government [is kept] out of the religion business,”16 does not embody the reasonable person.
The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. See Lynch, 465 U.S. at 673; Lemon, 403 U.S. at 614; Zorach v. Clauson, 343 U.S. 306, 312 (1952); Brown v. Gilmore, 258 F.3d 265, 274 (4th Cir. 2001); Stark v. Indep. Sch. Dist., No. 640., 123 F.3d 1068, 1076 (8th Cir. 1997); see also Capitol Square, 243 F.3d at 300 (dismissing strict separatism as “a notion that simply perverts our history”). Our Nation’s history is replete with governmental acknowledgment and in some cases, accommodation of religion. See, e.g., Marsh v. Chambers, 463 U.S. 783 (1983) (upholding legislative prayer); McGowan v. Maryland, 366 U.S. 420 (1961) (upholding Sunday closing laws); see also Lynch, 465 U.S. at 674 (“There is an unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789.”); Capitol Square, 243 F.3d at 293-99 (describing historical examples of governmental involvement with religion). After all, “[w]e are a religious people whose institutions No. 03-5142 ACLU of Kentucky, et al. v. Mercer County, Kentucky, et al. Page 14 presuppose a Supreme Being.” Zorach, 343 U.S. at 313. Thus, state recognition of religion that falls short of endorsement is constitutionally permissible.
Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it. “[T]he Establishment Clause inquiry cannot be distilled into a fixed, per se rule.” Pinette, 515 U.S. at 778 (O’Connor J., concurring); see Lee v. Weisman, 505 U.S. 577, 597-98 (1992). Although treating the subject matter categorically would make our review eminently simpler, we are called upon to examine Mercer County’s actions in light of context. “Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause.” Van Orden, 125 S. Ct. at 2863 (plurality opinion). Moreover, “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under
the Establishment Clause.” Lynch, 465 U.S. at 680. The Constitution requires an analysis beyond the four-corners of the Ten Commandments. In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.
Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow. Cf. Mercer County, 219 F. Supp. 2d at 789 (“Endorsement of religion is a normative concept; whereas acknowledgment of religion is not necessarily a value-laden concept.”). Because nothing in the display, its history, or its implementation supports the notion that Mercer County has selectively endorsed the sectarian elements of the first four Commandments, we fail to see why the reasonable person would interpret the presence of the Ten Commandments as part of the larger “Foundations” display as a governmental endorsement of religion.
We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation’s cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff. See Washegesic ex rel. Pensinger v. Bloomingdale Pub. Sch., 33 F.3d 679, 684 (6th Cir. 1994) (Guy, J., concurring) (describing the “eggshell” plaintiff as unknown to the Establishment Clause). Instead, he appreciates the role religion has played in our governmental institutions, and finds it historically appropriate and traditionally acceptable for a state to include religious influences, even in the form of sacred texts, in honoring American legal traditions.

Now, granted, this is only the United State Sixth District Court of Appeals, and not the Supreme Court, but… daaaamn. Talk about shutting the ACLU down cold, and taking one hell of a potshot at the “separation”… It will be interesting to see where this decision goes (undoubtably the Supreme Court will be one of its stops), but it is also interesting to note that this tremendous blow for logic and reason has gone largely unnoticed by the main-stream media. I say “interesting” and not “surprising”, because only someone who has lived in a cave for the past ten years would be surprised by that.
You have no idea how happy I am to hear this ruling, and how amused it makes me to hear a court of the United States calling the “separation of church and state” a “tiresome” concept. Nooo…. tell me it ain’t so! Equally amusing is the court pointing out that the ACLU does not “embody the reasonable person.” Congrats to the judges for making a fair and rational decision, while still getting in more than a few backhanded monkey-slaps.
(Hat tip to Andrew Milo.)