The Saturday morning worship service hosted by Governor-elect Bill Lee’s inauguration committee is driving The Freedom From Religion Foundation (FFRF) up the proverbial wall, the so-called “wall of separation between church and state.” The Foundation sent a letter to the Lee campaign this week asking them to desist. I read the letter, and the Foundation’s view of the Establishment Clause isn’t just silly and its cited legal “authority” overstated, it’s deadly.
Just Plain Silly
What’s silly about the letter is the fact that Lee will not be Tennessee’s governor at the time of the service. He will not be “the government” yet. Furthermore, all the evidence points to the fact that all the inaugural events, including this one, are being paid for by private funds, not the government.
This is about as much an establishment of religion as Lee inviting all those who voted for him to join him last Sunday at his church, which is also supported with private funds.
Maybe next week, after he’s sworn in, Lee should invite the Foundation’s “more than 350 members in Tennessee” to join him at his church for worship and see if the Foundation sends him a letter for that. After all, then he will actually be “the governor.” Why, Lee may never again be able to wear a “Welcome-my-name-is-Bill Lee” sticker at church events without “establishing” the religion of which he is an adherent.
What makes this really silly is that in 1978, the U.S. Supreme Court said Reverend Paul McDaniel of Chattanooga had a First Amendment Free Exercise right to run for public office and held unconstitutional the provision in Tennessee’s Constitution prohibiting “ministers of the Gospel” from running for a state legislative position.
Imagine Reverend McDaniel’s shock if, after winning his election, he had found out the Establishment Clause required him to leave the pulpit!
Exaggerating the Function of Court Opinions
But let’s get to the heart of the legal matter, the letter’s reliance on “Establishment Clause jurisprudence,” not “the Constitution.” This distinction is important.
Opinions that form the “jurisprudence” on which the Foundation relies are not part of the judicial “power” delegated to and exercised by any court:
The operative legal act performed by a court is the entry of a judgment; . . . As valuable as opinions may be to legitimize judgments, to give guidance to judges in the future, or to discipline a judge’s thinking, they are not necessary to the judicial function of deciding cases and controversies.1
In other words, it is the Constitution that ultimately controls civil government in the United States and government officials, and that’s why Supreme Court opinions get reversed. Opinions are legally not part of the Constitution.
Organizations like FFRF hope elected officials don’t know this. But government officials who think the Constitution supports their actions and the “constitutional jurisprudence” thrown in their face is wrong should be bold enough to act according to their understanding of what the Constitution says. Sure, they will be sued, but that’s one of the main ways that bad “constitutional jurisprudence” gets changed.
This is not lawlessness. This is called a “check and balance,” a largely forgotten concept when it comes to checking and balancing the “constitutional jurisprudence” of the Supreme Court.
An Unworkable Establishment Clause Can Be Deadly
Moreover, the FFRF’s interpretation of the Establishment Clause is unworkable. That’s because it fails to understand the basic principle of antithesis, which says if something is X, then it can’t also be non-X. For example, a nation can’t be both at war and in a time of peace; a person can’t be both materially poor and be materially wealthy, etc.
The letter says that “Establishment Clause jurisprudence” means that “government may not . . . promote . . . religion over non-religion.” Really?
Please, don’t ask us to believe that prohibiting all religious observations, religious words, and use of all religious symbols by government officials doesn’t promote “non-religion” over “religion.” Denying religion a place in the public square is promoting non-religion in the public square!
But that’s not the worst of it. Believing that religion has no place in the government sector is a belief about religion. As Abraham Kuyper, a theologian and Prime Minister of the Netherlands, once wrote: “If you exclude from your conceptions all reckoning with the Living God . . . , you certainly bring to the front a sharply defined interpretation of your own for our relation to God.”2
What groups like this want is government actors/officials to embrace their views about religion and its relationship to government over other views on the same subject and to exclude those other views.
Let’s all be grown-ups here and admit that there is no such thing as religious neutrality.
Religious neutrally and its corollary, religious liberty, are tactics used by those who don’t like the religious views of the prevailing majority, whether they be Christians, Muslims, Jews, or atheists. They use it in order to get a seat at the lawmaking, culture-influencing table. Then they press their religious views until they become the predominate lawmaking group. However, the recently conquered and former majority religious group begins to insist on religious liberty, and around we go.
Among Christians, it’s the Devil who believes in religious neutrality. In fact, he’s good with you-can-believe-anything-you-want religion and for those unsure of what they want, religious neutrality is an option. But not God. In fact, if I recall correctly, Adam and Eve were told that religious liberty meant death.
The inability of leaders of groups like the FFRF to understand the principle of antithesis and their ability to get judges to buy into it has not only taken the Establishment Clause far away from its original purpose, but rendered it unworkable.
And unworkable, in this instance, means a false view of religion and God. That eventually leads to death, as it has since the very beginning, only here it’s the death of the nation that embraces it.
- Edward A. Hartnett, A Matter of Judgment, Not A Matter of Opinion, 74 N.Y.U. L. REV. 123, 126-27 (1999) (footnotes and internal alterations and quotation marks omitted).
- Abraham Kuyper, Lectures on Calvinism, p. 23 (WM. B. Eerdmans Publishing Company, Reprinted 1999).
David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.
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