Courts declare war on public expression of religion

e-mail this story discuss this issue in our forums Guest column • Jim DeMint: Public education cannot continue to be one size fits all (09/16/04) • Bob McAlister: Courts declare war on public expression of religion (09/15/04) • Jennie Wakefield: Emrys project encourages performance to fit cityscape (09/14/04) • Henry McMaster: Open government a cornerstone of a great democracy (09/13/04) • Ed Leap: Doctors challenged with balancing pain, addiction (09/12/04) More details Bob McAlister, who grew up in Greenville, owns a public relations company in Columbia. He can be reached at mccom@sc.rr.com. This column was taken from a paper he co-authored with Dr. Wendell Estep, pastor of First Baptist Church in Columbia. Dr. Estep recently presented the paper to the Oxford Round Table at St. Anthony's College in Oxford, England.

The first is judicial rejection of representative government. Associate Supreme Court Justice William Brennan was remarkably candid when he said in 1985, "The majoritarian processes appeal under some circumstances, but I think ultimately it will not do." He continued: "Faith in democracy is one thing; blind faith is quite another."

To Justice Brennan and his progenies, "blind faith" in democracy means trusting the judgment of the people through their elected representatives.

The second principle is a logical extension of the first. If the masses cannot be trusted, then the law cannot be based upon the religious sensibilities that inform them. The courts have therefore assumed unchallenged supremacy in secularizing America and creating a legal system in its own image.

Chuck Colson cites a Supreme Court decision a few years ago that overturned a law Congress passed that would have eased the court's Miranda decision of 1966. Miranda established strict procedures for obtaining criminal confessions. The ruling asserted, "We hold that Miranda, being a constitutional decision of the court, may not in effect be overruled by an act of Congress."

Colson writes that these shocking words demonstrate the Supreme Court considers itself the sole power to decide the law of the land. Americans who have grown up in the era of judicial dominance think it's supposed to be that way. But that is not at all clear. The Constitution created three co-equal branches of government and does not authorize one branch to dominate the others.

John Marshall argued that the founders intended to grant to the court judicial review authority, but neglected to put it in the Constitution. Thomas Jefferson disagreed. He wrote in 1820 that making judges the ultimate arbiters of constitutional questions "would place us under the despotism of an oligarchy."

The Jeffersonian distrust of the judiciary was dealt a fatal blow when the Supreme Court in 1803 — led by John Marshall — decided that it could declare laws unconstitutional.

In their book, "Judicial Dictatorship," University of South Carolina law professors William Quirk and Randall Bridwell say judicial review worked pretty well for most of American history because most judges exercised restraint most of the time.

It has only been in the last half century that the judiciary unbridled itself, and in 1963, the Supreme Court felt free to declare open warfare on religion, especially Christianity. The most radical element of that decision was not just the banishment of school prayer, but the logic used to do it.

For the first time, the court made indifference to religion a constitutional imperative.

To demonstrate the radical nature of that ruling, consider the Zorach case just nine years earlier. Justice William O. Douglas, no right-wing zealot, said the Constitution did not require the government to be indifferent to religious groups. "That," he said, "would be preferring those who believe in no religion over those who do believe."

Nine years later, the court did just that, and it has not stopped. The most recent assault involved the Santa Fe, Texas, school board policy of allowing voluntary prayer before football games if the student body chose to do so. In a chilling decision, the majority ruled that "worship is a responsibility and a choice committed to the private sphere."

It may only be a matter of time when the idea of privatized worship is logically expanded beyond football games and public schools.

Think about it: If worship must be private, then what about television broadcasts of church services on public airwaves? Or prayers at inaugurations? Or Billy Graham crusades at taxpayer-financed stadiums?

If you think that far-fetched, how many foresaw that the school prayer decision in 1963 would lead to the declaration that worship must be private?

Contrast where we are today to the Supreme Court ruling in 1892 that declared, "Our laws and institutions must necessarily be based on and must include the teachings of the Redeemer of mankind." So in one century, the Supreme Court went from affirming religion's role in public life, to establishing the constitutional threshold of indifference, to privatizing it.

If religion should be confined to the private sphere, then it follows that it should have no influence on public policy. It is here that the judiciary struck with a vengeance, assuming supremacy in reshaping the culture.

The high court bypassed representative government to institute abortion on demand, denying the citizens the right to debate the issue. In Vermont and Massachusetts, same-sex marriages have been affirmed, not by elected state legislatures, but by state courts.

The Great Falls Town Council ruling is just the latest reminder of Thomas Jefferson's prophetic nightmare: The "despotism of an oligarchy" is upon us.