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PotOnWheel
Registered Member
Date Joined Jul 2001
Total Posts : 9890
| Posted 5/4/2004 6:46 AM (GMT -6) |   | CANADIAN Law versus the Christian Church
quote:
Canada
http://www.ourchurch.com/view/?pageID=155718
Standing Episcopal Conference of Orthodox Bishops
Official Statement: Affirmation on Holy Marriage
II. SAME SEX UNIONS
Faced with the dilemma of constitutional challenges, civil authorities in countries worldwide have begun to adopt different legal positions on same sex unions. The pretext continues to be that to exclude same sex unions in the legal defintion of marriage is equivalent to discrimination against persons who live with someone of the same sex. We again reference the document by the Marriage Institute of Canada (III. The Perils of the Current Remedy) which states "the many good reasons" for objecting to proposed current remedies. Although specific to the Canadian situation, these reasons are applicable elsewhere:
- This remedy is not in continuity with the history, tradition, and values of Canadian society. It attempts to re-design an institution which is older and more fundamental to Canadian society than Parliament itself.
This rememdy wrongly impugns that institution, and its many supporters, as discriminatory.
- This remedy, while meant to respect diversity, actually diminishes diversity by homogenizing very different forms of relationships. However well-intentioned, it is an inappropriate and inadequate response to concerns about the equality under law of persons of homosexual orientation.
- This remedy pre-empts legitimate debate, inside and outside of the legal system, as to the meaning of Section 15 equality rights.
- This remedy threatens to obstruct the ability of governments to develop policies which promote the distinct characteristics of marriage, affirm the good of intact families, and support the relationship of children to their mothers and fathers.
- This remedy threatens the freedom of individuals and communities working to support and promote the common human understanding of marriage as the union of a man and a woman, inasmuchas it may open such activity to charges of discriminatory speech or conduct. It threatens religious freedom, academic freedom, and the freedom of parents to educate their children according to their traditions, norms and beliefs.
- This remedy, in the words of Mr. Justice Robert Blair of the Ontario Superior Court, is not merely an incremental change in the law, but a "profound change." He indicated, "They will touch the core of many people's belief and value systems, and their resolution is laden with social, political, cultural emotional and legal ramifications."
Within this framework is also the matter of the separation of church and state, although this aspect of the issue remains largely ignored in the debates and discussions. Regardless of the particular and present status of same sex unions in a specific nation or country, Orthodox Christians are called to give unfaltering witness to the moral truth and to the holiness of marriage and family life in their entirety. In situations where homosexual unions are already recognized in the civil sphere or where they have been given the equivalent status and rights belonging to marriage, our faithful must be adamant, unwavering and certain in their opposition.
With all due respect to our civil authorities and lawmakers, we are called to testify by word and action, to the essential truths of our faith. The venerable history of our Orthodox Church illustrates that we can stand firmly and with success against those forces and institutions which seek to pressure the Church to be relevant or accomodating of those things which are foreign to the very foundations of our faith.
Though we may, indeed, face many challenges and perils because of our position in these matters, we are reminded that "if Christ be for us who can be against us." Our faithful - bearing witness to this same Christ and His Holy Orthodox Church - are called to be loving, compassionate and forgiving but not actively nor passively accomodating of those civil bodies which are bringing these matters into law or applying them. In this, each and every Orthodox Christian can exercise the right to objection based upon moral conscience, as has been the case in other situations that touch upon moral and/or ethical realities in our present age.
III. CONCLUSION
The Orthodox Church of Canada upholds the sanctity and exclusivity of marriage as being the holy, God-willed and blessed union of a man and woman, who are joined together in their humanity and in their spirituality, sharing in the life of the Holy Trinity. The definition of marriage (between a man and woman) has been accepted by cultures and societies through time until our present day. Only in the new social reality is the very nature of marriage and consequently, family life, being challenged. We oppose any civil legal legislation that would attempt to alter the definition of marriage to include same sex couples, for this contradicts the only acceptable definition of this institution upon which society has been based and is perpetuated.
Although every precaution and care is taken not to discriminate against those who live a homosexual lifestyle, the Orthodox Church of Canada draws a clear distinction between the homosexual condition and homosexual acts. Homosexual acts are a "misuse" of the gift of sexuality and are - like all others including adultery , fornication, incest, etc. - sinful and morally wrong. To those persons who have "an exclusive psychosexual attraction toward members of the same sex" (cf. the Encyclopedia of Bioethics Vol. 2, p.671) "and who seek or would like to seek actual sexual fulfillment of this desire by sexual acts with a person of the same sex", the Church seeks to provide these persons, through various ministries, spiritual and moral support.
As all humanity struggles with sin in whatever form, the Church offers to those who truly seek a turning away from sin, various spiritual instruments for conquering these passions. This includes prayer, worship, fasting, Holy Confession and prayerful reflection of Scripture and the patristic and spritual writings of the Church.
Moreover, we acknowledge the need to increase our pastoral concern for those who struggle with the homosexual condition and to provide increased and appropriate counselling and programs for those who sincerely desire to conquer these passions of the flesh. In this, the presbyters of the Church and indeed, all faithful, must be loving, compassionate and understanding of those who enter into this struggle with sincerity of heart and honest desire.
We also agree and support guarantees to the basic rights afforded to all persons including dignity, freedom, and non-discrimination. It must be understood that the Orthodox Church of Canada condemns the homosexual lifestyle as sinful and calls those individuals engaged in it to repentance and metanoia. In this all peoples are included in the flock of Christ, His Church, and all are in need - because of our sinful humanity - of God's great and abundant mercy, love and forgiveness.
Given by our hand this Seventh day of August in the 2003rd year of the world’s salvation.
Vladyka +YAROSLAW
Archbishop-Primate of All North America
Archbishop of Toronto and Eastern CANADA
Metropolitan +MICHAEL
Moderator, Standing Episcopal Conference of Orthodox Bishops
Archbishop of Columbus, Ohio USA
Metropolitan +YURI
Archbishop of Gainesville, Florida USA
Abbot-Archbishop +MARTIN
Our Lady of the Most Blessed Sacrament Monastery
Coleman, Michigan USA
Archbishop +ARLEN
Anglican Rite Archdiocese USA
Archbishop +STEPHEN
Auxiliary, Archdiocese of Gainesville USA
His Grace +PAUL
Bishop of the Delaware and
North American Missions (Western Rite) USA
His Grace +ANDREW
Bishop of the Anglican Archdiocese, Celtic Rite USA
His Grace +SAVA
Auxiliary, Archdiocese of Gainesville USA
His Grace +GREGORY
Bishop of Phoenix, Arizona USA
His Grace +JOSEPH
Bishop of Edmonton, Alberta CANADA
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PotOnWheel
Registered Member
Date Joined Jul 2001
Total Posts : 9890
| Posted 5/4/2004 7:06 AM (GMT -6) | | quote:
...a "misuse" of the gift of sexuality...
This, I think, is a salient aspect!
Secuality is not a toy, not a right. Sexuality is a GIFT. And as in 1 Cor 13 gifts are never for the individual, they are for the "other" and the "community." (That rule guides Paul's admonitions and instructions in 12 and 14.)
Communion is God's "mode of existence (Zizioulas), and is our calling -- to be IN CHRIST. To have it be in us (the Church, hiw Body) that the FULLNESS of Christ FULLY dwell. That is a thing of the other, and of the community -- the Body.
Sexuality is not just for the individual; no matter how many individuals are added up. Sexuality is designed to be a mystical thing. Together, joined in one flesh, man and wife constitute the image of God in humanity. They become an icon of Trinitarian love. That is the CALLING of sexuality. And as a couple so joined -- even long after the physical ability has left (Billy Graham and his wife "do it" with their eyes, and it is more transcendent than mere goochy.) -- the bring an aspect to the totality of the community of the Body no less and maybe more vital than monastics.
Marriage is a monastic pledge, a uniting of three Persons: husband, wife, and God. | | Back to Top | | |
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PotOnWheel
Registered Member
Date Joined Jul 2001
Total Posts : 9890
| Posted 5/7/2004 2:53 PM (GMT -6) | | Thanks, BBB.
Skillen's brother teaches English at Gordon College. And James W. Skillen used to speak at the Reformed college I taught at. Good stuff!
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PotOnWheel
Registered Member
Date Joined Jul 2001
Total Posts : 9890
| Posted 5/8/2004 5:02 AM (GMT -6) | | Here's something that is NOT an urban legend. I heard it on NPR by the scholar who's work it is. REady?
Seems that in the mileau of the timeperiod in which the "Pledge" was written the "under God" part did not mean "run by God" but rather was "not superior to God." Makes sense! Our country IS NOT God. It's not "My country, love it or leave it." Conscience (even atheistic) is not superior to the allegence the state says is due.
THAT can't possibly offend anyone!
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BBBCanada
Registered Member
Date Joined Jun 2001
Total Posts : 2763
| Posted 5/8/2004 10:02 AM (GMT -6) | | You are of course correct! Wow man! On two occasions we are in agreement. This is unfrigg'n believable! No it's not. I'm just joking.
Check this out.
http://www.cpjustice.org/stories/storyReader$1180
and here is a copy of the brief as is.
Question for ya POW. What do you think of the idea of deism being established? I know of a few people that say that this is an establishment of a deism. What are your thoughts on this.
No. 02-1624
================================================================
In The
Supreme Court of the United States
-------------------------------- ? ---------------------------------
ELK GROVE UNIFIED SCHOOL DISTRICT, and
DAVID W. GORDON, SUPERINTENDENT, EGUSD,
Petitioners,
v.
MICHAEL A. NEWDOW,
Respondent.
--------------------------------- ? ---------------------------------
On Writ Of Certiorari To The
United States Court Of Appeals
For The Ninth Circuit
--------------------------------- ? ---------------------------------
BRIEF AMICI CURIAE OF CHRISTIAN
LEGAL SOCIETY, THE CENTER FOR PUBLIC
JUSTICE, CONCERNED WOMEN FOR AMERICA,
AND CHRISTIAN EDUCATORS ASSOCIATION
INTERNATIONAL IN SUPPORT OF PETITIONERS
--------------------------------- ? ---------------------------------
STUART J. LARK
HOLME, ROBERTS & OWEN
90 South Cascade Avenue
#1300
Colorado Springs, CO
80903
(719) 473-3800
GREGORY S. BAYLOR
Counsel of Record
KIMBERLEE WOOD COLBY
CENTER FOR LAW AND
RELIGIOUS FREEDOM
CHRISTIAN LEGAL SOCIETY
4208 Evergreen Lane,
Suite 222
Annandale, VA 22003
(703) 642-1070, ext. 3502
================================================================
COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831
i
QUESTION PRESENTED
Whether a public school district policy that requires
teachers to lead willing students in reciting the Pledge of
Allegiance, which includes the words “under God,” violates
the Establishment Clause of the First Amendment, as
applicable through the Fourteenth Amendment.
ii
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
TABLE OF CONTENTS ............................................. ii
TABLE OF AUTHORITIES........................................ iv
STATEMENT OF INTEREST OF AMICI CURIAE ........ 1
SUMMARY OF ARGUMENT ..................................... 2
ARGUMENT............................................................... 3
I. THE PHRASE “UNDER GOD” AFFIRMS
THIS COUNTRY’S SYSTEM OF LIMITED
GOVERNMENT............................................... 3
A. THIS COUNTRY’S FOUNDERS GROUNDED
LIMITED GOVERNMENT IN THE
PROPOSITION THAT INALIENABLE
RIGHTS COME FROM GOD....................... 4
B. THE PHRASE “UNDER GOD” WAS
ADOPTED TO DISTINGUISH OUR SYSTEM
OF LIMITED GOVERNMENT FROM
THE COMMUNIST SYSTEM..................... 6
II. GOVERNMENT MAY AFFIRM A RELIGIOUS
BASIS FOR INALIENABLE RIGHTS WITHOUT
VIOLATING THE RELIGIOUS NEUTRALITY
REQUIRED BY SUCH RIGHTS......... 7
III. GOVERNMENTAL AFFIRMATION OF THE
RELIGIOUS BASIS FOR INALIENABLE
RIGHTS PROTECTS RELIGIOUS LIBERTY..... 9
iii
TABLE OF CONTENTS – Continued
Page
CONCLUSION............................................................ 11
ADDENDUM................................................................App. 1
iv
TABLE OF AUTHORITIES
Page
CASES
Engel v. Vitale, 370 U.S. 421 (1962) .............................. 8, 10
Everson v. Board of Educ. of Ewing, 330 U.S. 1
(1947) ................................................................................ 5
Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001)............. 7
Wallace v. Jaffree, 472 U.S. 38 (1985) ............................... 10
Zelman v. Simmons-Harris, 536 U.S. 639 (2002) ............... 7
Zorach v. Clauson, 343 U.S. 306 (1952) ............................ 10
CONSTITUTIONAL PROVISIONS AND STATUTES
U.S. Const. amend. I ...................................................passim
Declaration of Independence (U.S. 1776).................... 3, 4, 9
Virginia Act for Religious Freedom, Va. Code Ann.
§ 57-1 (West 2003) ........................................................ 5, 9
OTHER AUTHORITIES
H.R. Rep. No. 83-1693, at 1-2 (1954), reprinted in
1954 U.S.C.C.A.N. 2339, 2340......................................... 6
James Madison, Memorial and Remonstrance
Against Religious Assessments, in Everson v.
Board of Educ. of Ewing, 330 U.S. 1, 64 (1947)
(appendix to dissenting opinion of Rutledge, J.)............. 4
Michael W. McConnell, Why is Religious Liberty
the “First Freedom”?, 21 Cardozo L. Rev. 1243
(2000) .................................................................. 4, 5, 8, 10
v
TABLE OF AUTHORITIES – Continued
Page
Steven D. Smith, The Rise and Fall of Religious
Freedom in Constitutional Discourse, 140 U. Pa.
L. Rev. 149 (1991) ........................................................... 10
Thomas C. Berg, Religion Clause Anti-Theories, 72
Notre Dame L. Rev. 693 (1997)........................................ 8
1
STATEMENT OF INTEREST OF AMICI CURIAE1
Amici curiae are religious organizations that believe
that the ultimate basis for religious liberty, as well as for
all other inalienable rights, rests in the fact that individuals
are “endowed by their Creator” with such rights, as
stated in the Declaration of Independence. The amici
further agree that only this fact adequately constrains the
authority of government with respect to the exercise of
inalienable rights. Finally, the amici agree that the government
may affirm the fact that inalienable rights come
from God without violating the religious neutrality that
such rights impose upon government.
Representing its membership of Christian attorneys,
law students, judges, and law professors, Christian Legal
Society believes that the phrase “under God” in the Pledge
of Allegiance is an important affirmation of the basis for
this nation’s concept of limited government that, in turn, is
the basis of our legal system.
The Center for Public Justice is a national, public
policy and civic-education organization that advocates the
equal treatment of all faiths in the public square. For 25
years the Center has been advancing the case for the free
exercise and non-establishment of religion in public as
well as in private life.
1 The parties have consented to the filing of this brief. Copies of the
letters of consent have been lodged with the Clerk of the Court. This
brief was not authored in whole or in part by counsel for a party. The
Alliance Defense Fund has made a monetary contribution towards the
preparation and submission of this brief.
2
Concerned Women for America (“CWA”) is the nation’s
largest public policy organization for women. Located in
Washington, D.C., CWA is a non-profit organization that
provides policy analysis to Congress, state, and local
legislatures, and assistance to pro-family organizations
through research papers and publications. CWA seeks to
inform the news media, the academic community, business
leaders and the general public about family, cultural and
constitutional issues that affect the nation. CWA has
participated in numerous amicus curiae briefs in the
United States Supreme Court, lower federal courts and
state courts.
Christian Educators Association International (“CEAI”)
was founded in 1953 and became the first national organization
of professional Christian educators serving in public,
private and charter schools. CEAI currently has a national
membership of approximately 7,500 professional educators,
the majority of whom serve in public educational institutions.
CEAI is a leader in promoting the rights of religious
persons in public education and has actively promoted a
“Declaration for Public Education” that encourages local
church and community organizations to be active participants
and supporters of public schools.
Statements of interest specific to each amicus are
found in the Addendum.
--------------------------------- ? ---------------------------------
SUMMARY OF ARGUMENT
Considered in its context, the phrase “under God” in
the Pledge of Allegiance represents not an endorsement of
monotheism, but rather a proposition from the Declaration
of Independence that is both theological and political,
3
namely, that all individuals are “endowed by their Creator
with certain inalienable rights.” The phrase was adopted
to affirm the basis for this country’s concept of limited
government.
Even though the phrase refers to a particular theological
proposition, it does not implicate the Establishment
Clause neutrality requirement. The focus of Establishment
Clause neutrality is on government action and policy
at the “operational” level, not on the principles underlying
such action and policy – where in fact neutrality is not
possible. Indeed, the neutrality requirement itself relies
upon the religious doctrine that genuine religious faith
cannot be coerced. Therefore, the neutrality requirement
should not be construed to prohibit the government from
affirming the principles upon which the requirement
depends merely because such principles are religious in
nature. To hold that the government cannot affirm such
principles would ultimately weaken protection for religious
liberty and other inalienable rights by undermining
the basis for such rights.
--------------------------------- ? ---------------------------------
ARGUMENT
I. THE PHRASE “UNDER GOD” AFFIRMS THIS
COUNTRY’S SYSTEM OF LIMITED GOVERNMENT.
The court below correctly asserted that the phrase
“under God” is “normative,” but it incorrectly characterized
the normative principle as an endorsement of monotheism.
Appendix to the Petition for a Writ of Certiorari
(hereinafter “App.”) at 11a-12a. The relevant normative
principle is, rather, one of limited government grounded in
4
the concept that individuals are endowed by God with
certain inalienable rights. Put differently, the phrase
asserts that government is not the highest authority in
human affairs.
A. THIS COUNTRY’S FOUNDERS GROUNDED
LIMITED GOVERNMENT IN THE PROPOSITION
THAT INALIENABLE RIGHTS
COME FROM GOD.
There can be little doubt that the Founders believed
that the authority of government must be limited with
respect to certain inalienable rights given to individuals by
God. The existence of such rights is affirmed succinctly
and powerfully in the Declaration of Independence:
We hold these truths to be self-evident, that all
men are created equal, that they are endowed by
their Creator with certain inalienable Rights,
that among these are Life, Liberty and the Pursuit
of Happiness. That to secure these Rights,
Governments are instituted among Men . . . .
The Declaration of Independence, ¶ 2 (U.S. 1776).
The right to religious liberty, sometimes referred to as
our “First Freedom,” provides the paradigmatic example of
limited government with respect to an inalienable right.
See generally Michael W. McConnell, Why is Religious
Liberty the “First Freedom”?, 21 Cardozo L. Rev. 1243
(2000). The Founders started from the twin propositions
that duty to God transcends duty to society and that true
religious faith cannot be coerced. These propositions are
reflected in James Madison’s Memorial and Remonstrance
Against Religious Assessments:
5
It is the duty of every man to render to the Creator
such homage, and such only, as he believes to
be acceptable to him. This duty is precedent both
in order of time and degree of obligation, to the
claims of Civil Society. Before any man can be
considered as a member of Civil Society, he must
be considered as a subject of the Governor of the
Universe[.]
Ibid., reprinted in Everson v. Board of Educ. of Ewing, 330
U.S. 1, 64 (1947) (appendix to dissenting opinion of
Rutledge, J.). Thomas Jefferson incorporated the same
propositions into the Virginia Act for Religious Freedom,
in its beginning words: “Whereas, Almighty God hath
created the mind free.” Va. Code Ann. § 57-1 (West 2003).
The Act continues by stating that any attempt by the
government to influence the mind through coercion is “a
departure from the plan of the Holy Author of our religion,
who, being Lord both of body and mind, yet chose not to
propagate it by coercions on either, as was in his Almighty
power to do . . . .” Ibid.
The Founders argued that because individuals possess
an inalienable right and duty to worship God as they deem
best, government can have no authority over religious
exercise as such. In more general terms, the scope of
governmental authority over individuals is inherently
limited with respect to their exercise of inalienable rights
given by God. McConnell, supra, at 1247.
6
B. THE PHRASE “UNDER GOD” WAS
ADOPTED TO DISTINGUISH OUR SYSTEM
of LIMITED GOVERNMENT FROM
THE COMMUNIST SYSTEM.
The reliance upon God as the source of inalienable
individual rights is the most fundamental distinction
between the political theory underlying our democratic
republic and the Marxist-Leninist theory underlying the
communist regime of the former Soviet Union. By adding
the phrase to the Pledge of Allegiance, Congress wished to
emphasize this distinction, as the conference report makes
clear:
At this moment of our history the principles underlying
our American Government and the
American way of life are under attack by a system
whose philosophy is at direct odds with our
own. Our American Government is founded on
the concept of the individuality and the dignity of
the human being. Underlying this concept is the
belief that the human person is important because
he was created by God and endowed by
Him with certain inalienable rights which no
civil authority may usurp. The inclusion of God
in our pledge therefore would further acknowledge
the dependence of our people and our Government
upon the moral directions of the
Creator. At the same time it would serve to deny
the atheistic and materialistic concepts of communism
with its attendant subservience of the
individual.
H.R. Rep. No. 83-1693, at 1-2 (1954), reprinted in 1954
U.S.C.C.A.N. 2339, 2340.
Following as it does the discussion of inalienable
rights endowed by God, the reference in the report to
7
“dependence . . . upon the moral directions of the Creator”
should be understood as another way of saying that our
political system relies upon the moral norms of inalienable
rights that come from God.2 The conference report suggests
that by acknowledging a source of authority above
government, such moral norms limit the power and scope
of government and offer a principled basis for protection of
individuals against the power of government. Congress
sought to contrast this theory with that of the communist
system, which did not rely upon such norms to limit
government and protect individuals.
II. GOVERNMENT MAY AFFIRM A RELIGIOUS
BASIS FOR INALIENABLE RIGHTS WITHOUT
VIOLATING THE RELIGIOUS NEUTRALITY
REQUIRED BY SUCH RIGHTS.
There is no doubt that the Establishment Clause
requires the government to maintain a position of neutrality
with respect to religion. See, e.g., Zelman v. Simmons-
Harris, 536 U.S. 639, 651-53 (2002). But when choosing
among foundational principles, the government cannot be
neutral. As one commentator has put it:
Madison . . . sought equal religious liberty at
what might be called the operational level: how
government actually treats citizens of different
religious and non-religious persuasions. He did
not, and no one can, seek total equality or
2 See Legal Services Corp. v. Velazquez, 531 U.S. 533, 545 (2001)
(“[W]hen there are two reasonable constructions for a statute, yet one
raises a constitutional question, the Court should prefer the interpretation
which avoids the constitutional issue.”).
8
neutrality at the justificatory level. The operational
rule adopted by government must inevitably
rest on some view or combination of views
about the role of the state and the nature of religion,
and some views will be rejected at that
level.
Thomas C. Berg, Religion Clause Anti-Theories, 72 Notre
Dame L. Rev. 693, 730 (1997).
The Establishment Clause neutrality requirement
itself is based on a particular religious proposition that
emphasizes private religious choice. Berg, supra, at 732.
This proposition in turn is based upon the proposition that
inalienable rights, including the right to religious exercise,
come from God. McConnell, supra, at 1247. Although this
choice of foundational propositions is not neutral with
respect to religion, it does lead to neutral treatment of
religion (and non-religion) at the operational level. In the
same way, reliance on religious doctrine to ground other
civil rights does not violate Establishment Clause neutrality
at the operational level.
Further, the Establishment Clause should not be read
to prohibit the government from expressly affirming the
underlying principles upon which it relies merely because
such principles may have religious substance. A statement
of political theory with religious content must be distinguished
from prayers and other religious exercises in
which the government may not engage. See, e.g., Engel v.
Vitale, 370 U.S. 421, 435 n.21 (1962). Put differently, there
is a fundamental difference between a statement that
“there is one and only one God” and a statement that
“inalienable rights come from God.” To the extent that the
phrase “under God” refers to the proposition that inalienable
rights come from God, the phrase is a statement of
9
foundational principle about which the government cannot
be neutral. This is the one type of statement with substantive
religious content that the government may affirm
because it is the foundation upon which rests the requirement
that the government must in all other respects be
neutral toward religion.
III. GOVERNMENTAL AFFIRMATION OF THE
RELIGIOUS BASIS FOR INALIENABLE
RIGHTS PROTECTS RELIGIOUS LIBERTY.
By prohibiting the government from affirming underlying
principles with religious content, the reading of the
Establishment Clause by the court below would render
unconstitutional the Declaration of Independence and the
Virginia Act for Religious Freedom, both of which expressly
rely upon particular religious propositions. Ironically,
such a reading would strike down Jefferson’s
groundbreaking law establishing religious liberty on the
basis that it violates the very principles of religious liberty
it established.
Apart from these untenable results, the analysis of
the court below would unmoor religious liberty from its
underlying rationale. As one commentator has suggested:
[W]ithout a plausible rationale for the commitment
to religious liberty we cannot understand
what that commitment entails. It is commonplace
that legal enactments should be interpreted
to effectuate their purposes. But a law’s
“purpose” arises out of, and is a projection of, its
justification. Therefore, if we cannot articulate a
convincing justification for the commitment to religious
freedom then we cannot know its purpose,
10
and we are accordingly paralyzed in our efforts to
interpret the commitment.
Steven D. Smith, The Rise and Fall of Religious Freedom
in Constitutional Discourse, 140 U. Pa. L. Rev. 149, 223
(1991).
Fortunately, this Court has never adopted the reasoning
of the court below. Indeed, in Wallace v. Jaffree, 472
U.S. 38 (1985), this Court relied upon the theological
doctrines that underlie the First Amendment when it
noted that religious liberty “derives support not only from
the interest in respecting the individual’s freedom of
conscience, but also from the conviction that religious
beliefs worthy of respect are the product of free and
voluntary choice by the faithful. . . .” Wallace, 472 U.S. at
53. Freedom of conscience and the importance of uncoerced
religious belief are fundamentally religious propositions.
See McConnell, supra, at 1250-51; Smith, supra, at
154. The Court has consistently invoked these religious
concepts to protect religious liberty. See e.g., Engel, 370
U.S. at 432 (“[R]eligion is too personal, too sacred, too holy,
to permit its ‘unhallowed perversion’ by a civil magistrate.”).
Indeed, the Court has expressly observed that this
country’s “institutions presuppose a Supreme Being.”
Zorach v. Clauson, 343 U.S. 306, 313 (1952). Whether
through reliance by the courts on religious propositions or
through the phrase “under God” in the Pledge of Allegiance,
governmental affirmation of the fundamental
principles underlying religious liberty and other inalienable
rights serves to strengthen the protection of such
rights.
The court below held that the phrase “under God”
results in governmental coercion of religious practice. App.
11
at 11a. Amici agree with the dissent below that, although
relying on “elements and tests,” the court below seemingly
failed to consider “the good sense and principles that
animated those tests in the first place.” App. at 23a (Fernandez,
J., concurring in part and dissenting in part).
--------------------------------- ? ---------------------------------
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted,
GREGORY S. BAYLOR
Counsel of Record
KIMBERLEE WOOD COLBY
CENTER FOR LAW AND RELIGIOUS
FREEDOM
CHRISTIAN LEGAL SOCIETY
4208 Evergreen Lane, Suite 222
Annandale, VA 22003
(703) 642-1070, ext. 3502
STUART J. LARK
HOLME, ROBERTS & OWEN
90 South Cascade Avenue
#1300
Colorado Springs, CO 80903
(719) 473-3800
December 19, 2003
App. 1
ADDENDUM
STATEMENT OF INTEREST OF AMICI CURIAE
The Christian Legal Society, founded in 1961, is a
nonprofit interdenominational association of Christian
attorneys, law students, judges, and law professors with
chapters in nearly every state and at over 140 accredited
law schools. Since 1975, the Society’s legal advocacy and
information division, the Center for Law and Religious
Freedom, has worked for the protection of religious belief
and practice, as well as for the autonomy from the government
of religion and religious organizations, in the
Supreme Court of the United States and in state and
federal courts throughout this nation.
The Center strives to preserve religious freedom in
order that men and women might be free to do God’s will.
Using a network of volunteer attorneys and law professors,
the Center provides information to the public and the
political branches of government concerning the interrelation
of law and religion. Since 1980, the Center has filed
briefs amicus curiae in defense of individuals, Christian
and non-Christian, and on behalf of religious organizations
in virtually every case before the Supreme Court
involving church/state relations.
The Society is committed to religious liberty because
the founding instrument of this Nation acknowledges as a
“self-evident truth” that all persons are divinely endowed
with rights that no government may abridge nor any
citizen waive. Declaration of Independence (1776). Among
such inalienable rights are those enumerated in (but not
conferred by) the First Amendment, the first and foremost
of which is religious liberty. The right sought to be upheld
here inheres in all persons by virtue of its endowment by
App. 2
the Creator, Who is acknowledged in the Declaration. It is
also a “constitutional right,” but only in the sense that it is
recognized in and protected by the U.S. Constitution.
Because the source of religious liberty, according to our
Nation’s charter, is the Creator, not a constitutional
amendment, statute or executive order, it is not merely
one of many policy interests to be weighed against others
by any of the several branches of state or federal government.
Rather, it is foundational to the framers’ notion of
human freedom. The State has no higher duty than to
protect inviolate its full and free exercise. Hence, the
unequivocal and non-negotiable prohibition attached to
this, our First Freedom, is “Congress shall make no
law. . . . ”
The Christian Legal Society’s national membership,
years of experience, and professional resources enable it to
speak with authority upon religious freedom matters
before this Court.
The Center for Public Justice is a national, public
policy and civic-education organization that advocates the
equal treatment of all faiths in the public square. For 25
years the Center has been advancing the case for the free
exercise and non-establishment of religion in public as
well as in private life.
Concerned Women for America (“CWA”) is the nation’s
largest public policy organization for women. Located in
Washington, D.C., CWA is a non-profit organization that
provides policy analysis to Congress, state, and local
legislatures, and assistance to pro-family organizations
through research papers and publications. CWA seeks to
inform the news media, the academic community, business
leaders and the general public about family, cultural and
App. 3
constitutional issues that affect the nation. CWA has
participated in numerous amicus curiae briefs in the
United States Supreme Court, lower federal courts and
state courts.
Christian Educators Association International was
founded in 1953 and became the first national organization
of professional Christian educators serving in public,
private and charter schools. CEAI currently has a national
membership of approximately 7,500 professional educators,
the majority of whom serve in public educational
institutions. CEAI is a leader in promoting the rights of
religious persons in public education and has actively
promoted a “Declaration for Public Education” which
encourages local church and community organizations to
be active participants and supporters of public schools.
Brandon
"Corporations are simply the kind of structure that rises when hordes of people need to be managed, and after spending some time in a large church, I've found that our spirituality does not exempt us from these inefficient and dehumanizing practices."--Steve Lansingh's review of "The Office" at The Film Form | | Back to Top | | |
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