Culture Wars

The Threat to Your Family and Your Freedom

By Marie Alena Castle

See Sharp Press

Copyright © 2013 Marie Alena Castle
All rights reserved.
ISBN: 978-1-937276-47-8

Contents

Introduction (by Tim Gorski),
Preface,
Acknowledgments,
1. Interpreting the Constitution,
2. The Theology of Sex,
3. Dumb as a Rock: Theology and Nature’s Sexual Diversity,
4. Women and Religion: An Abusive Relationship,
5. Theology-Based Healthcare,
6. No Right to Know: Science, Education and Free Expression,
7. Religion and Taxes: Freeloading at its Finest,
8. The Nation’s Most Favored Welfare Recipient,
9. Public Religion: Insults and Injuries,
10. To the Barricades,
Resources,
Bibliography,
Index,

CHAPTER 1

Interpreting the Constitution

“I believe I have rights because I exist, in spite of my government, not because of my government. Judge Bork believes that rights flow from the majority, through the Constitution to individuals, a notion I reject.”

— Senator Joseph Biden, hearings on nomination of Robert Bork to the U.S. Supreme Court, 1987

The First Amendment’s religion clause begins: “Congress shall make no law …” But Congress does make those laws, and we pay for them with our money, our health, our freedom … and sometimes our lives.

The social and political chaos generated by our culture war would not exist if laws that serve only theological beliefs were declared unconstitutional, as violations of the Establishment Clause of the First Amendment. Unfortunately, and disturbingly, we have at least one Supreme Court Justice, Antonin Scalia, who openly rejects the concept of state-church separation, while the Court as a whole, judging by its rulings under Chief Justice John Roberts, appears to be leaning increasingly toward supporting religious beliefs rather than maintaining government neutrality.

Jeffrey Toobin, in his 2012 book, The Oath: The Obama White House and the Supreme Court, writes that Roberts has expressed contempt for what he calls the “fluid and wide-ranging jurisprudence” of the Court that brought about so much civil rights progress under Chief Justices Earl Warren and Warren Burger during the 1960s, ’70s and ’80s. This progress included improvements in protection for minorities, state-church separation, the ability of citizens to challenge governmental as well as business practices, and the establishment of women’s right to abortion. When William Rehnquist became Chief Justice in 1986, all of these rights and liberties (called “excesses” by Justice Roberts) came under attack. Now, as Toobin documents, it has become “Roberts’ mission to lead the counterrevolution” to finish the job.

There is great danger in this. We have long assumed that our freedoms are protected by the Constitution, but this is not true. The Constitution does absolutely nothing to protect us until and unless a Supreme Court ruling spells out that protection — or, in some cases, denies it, as in the notorious 1857 Dred Scott decision that affirmed the status of slaves as property.

In reality, we are governed not by the Constitution but by constitutional law, which is based on the Supreme Court’s interpretation of the Constitution. However, there can be no interpretation unless a law is challenged, as is required by the Constitution itself. Article III, Sec. 2 limits federal judicial power to controversies arising under the laws and Constitution of the United States. Unless someone brings a legal challenge to a particular law or practice, there is no controversy over which the Court has any legal authority. Without (a) Supreme Court ruling(s), freedoms can exist in some states while being denied in others. Although state-church violations have been rampant throughout our history (and are still rampant today), no significant challenges came before the Court until the 1940s. The reasons are understandable. It takes considerable personal courage and financial resources to challenge such abuses.

Before the founding of the American Civil Liberties Union (ACLU) in 1920, individuals who wanted to litigate a state-church violation would have had to bear the considerable legal costs themselves, so no one did. The ACLU changed that by supplying plaintiffs with the attorneys and funds needed for cases it deemed important. Since then, other state-church separationist groups have supplied funding, as has the federal government. In 1976, Congress passed the Civil Right’s Attorneys Fee Award Act. It provides that any governmental unit that enacts an unconstitutional law must pay the attorneys’ fees and costs for a party that successfully challenges that law.

But even with legal fees covered, plaintiffs have often faced daunting perils. Challenges frequently result in death threats, social ostracism, and job or business losses due to the hostility of those who want religious beliefs and practices enshrined in law. Plaintiffs often have to file a challenge anonymously, go into hiding, or move far away to ensure their safety.

In addition to these problems, there is always the possibility of a ruling that furthers state-church entanglement rather than removing it, thus setting a legal precedent that makes the success of subsequent challenges on the same issue almost impossible. Here is an example of how legal challenges are sometimes withheld — and therefore justice denied — when the Supreme Court is unreliable regarding the First Amendment: On June 7, 2001, the ACLU of Ohio announced that it would not appeal the ruling of the full 6th Circuit Court that Ohio’s motto, “With God All Things Are Possible” was constitutional. The ruling overturned a previous three-judge panel ruling that the motto infringed on the First Amendment of the Constitution. The reason the ACLU decided not to take the case to the Supreme Court was that the current conservative bloc on the court had hacked away at the wall of separation of church and state in previous rulings. According to an article in the Columbus Dispatch at that time, Raymond Vasvari, legal director for the ACLU of Ohio, said: “It’s no secret that there’s a conservative bloc on the Supreme Court that takes a skeptical view of church and state separation. For now, this will be the last word.”

In 2007, in Hein v. Freedom From Religion Foundation (FFRF), the Supreme Court ruled that taxpayers do not have standing to challenge the constitutionality of expenditures by the executive branch of government. FFRF had argued that the use of money appropriated by Congress to support faith-based social programs was unconstitutional. The Court ruled, however, that the funds involved had actually been appropriated for use by the executive branch for unspecified purposes and the President was therefore free to use those funds as he wished. This, of course, means that public money can be spent on religious activities as long as it is laundered through an appropriation designated for carte blanche use by the President.

Taxpayer money laundering seems to be the up-and-coming preferred strategy in circumventing the First Amendment — as well as state constitutions, which tend to be more specific and therefore stronger in prohibiting taxpayer support for religious activities and institutions — especially schools. In 2011, in the Arizona Christian School Tuition Organization v. Winn4 case, the Supreme Court ruled that taxpayers do not have standing in federal court to challenge state tax credits for contributions to school-tuition organizations that then provide scholarships to students at private schools, including religious schools. (In 2010, in Arizona, this amounted to $60 million, 92% of which went to religious schools.) The effect of this is that, instead of giving money directly and unconstitutionally to religious schools, the state can “launder” it through an organization that takes a parental donation and turns it over to the school of the parent’s choice. The parent is then reimbursed by the state in the form of a dollar-for-dollar tax credit in the amount of the tuition donation.

The Roberts Court based its ruling on the plaintiff not having claimed a personal financial injury. This effectively negated the 1968 Warren Court’s ruling in Flast v Cohen that taxpayers could sue to stop government expenditures that violated the Establishment Clause. Chief Justice Warren had argued that, without this right, the courts would have no avenue (that is, no controversy brought to them) leading to examination of constitutional violations.

So now one needs to show a personal financial injury. But is it not injurious to be forced indirectly to support religious schools? Tuition tax credits come from taxes paid by citizens, citizens who did not expect their taxes to end up in a money laundering scheme designed to circumvent the First Amendment. One would think that challenging such a constitutional run-around would be an essential prerogative — even a duty — of a citizen in a constitutional democracy. But the U.S. Supreme Court thinks otherwise. So now we must show that a state-church violation does tangible harm to us personally. Destroying the civil liberties the Constitution was created to protect is apparently not harmful enough.

Even when there is personal injury, religious institutional prerogatives often outweigh the rights of victims. For example, in 2012 the Supreme Court ruled in favor of a religious school in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission. The case concerned the church’s claim that it had an unrestricted right to discriminate on the basis of race, sex, disability and other characteristics regardless of secular laws prohibiting such action; therefore, its firing of a teacher because of a medical condition should be allowed. Several civil liberties and religious organizations asked the Court to rule for the plaintiff, saying that the right of religions to discriminate in their personnel practices should not apply in situations not related directly to the institution’s religious mission. They argued that religion-specific justifications for discrimination should not be extended into — as an amicus brief filed by Americans United for Separation of Church & State said —”a shield for all forms of discrimination and retaliation, regardless of motivation.” The Roberts Court, judging by its ruling, evidently thought such discrimination was perfectly acceptable — as long as it resulted from religious belief.

Because the Supreme Court’s interpretations can be, and inevitably are, influenced by the ideological mindset of the justices, constitutional law can just as easily destroy our freedoms as protect them. The current makeup of the Court is such that there is reason to fear a destructive phase is at hand, and that the Court will uphold at least some, if not all, of our theology based laws if they are challenged. But those of us who love freedom and the civil rights and liberties promised by our Constitution must accept the danger. There may be some hills worth dying on, and so — although care must be taken — challenges must be made. Religious beliefs must be removed from government and privatized if we are to remain a nation dedicated to liberty and justice for all.

The Problem with Challenging Religion-Based Laws

Challenges to theology-based laws are seldom, if ever, presented as challenges to violations of the First Amendment’s establishment of religion clause. Instead, plaintiffs often employ secular right-to-privacy or equal-treatment arguments. Such arguments are often convoluted in comparison with establishment clause arguments, but are common due to the Court’s unreliability on First Amendment issues.

It is important to note how subjective the Court’s interpretations can be. For example, Robert Bork, well known as President Ronald Reagan’s unsuccessful nominee for appointment to the U.S. Supreme Court in 1987, was defeated because of strong opposition to his belief that the Constitution conferred no right to privacy in matters relating to women’s reproductive decisions, that the civil rights decisions of the Warren and Burger courts were made in error, and that the Federal government had no right to impose standards of voting fairness on the states. An October 24, 1987 article in the New York Times about the Senate debate on the confirmation, contained the following. It shows the philosophical differences that underlie so many Court decisions and the impact they can have on our rights:

Later, in closing the debate, the Judiciary Committee chairman [Senator Joe Biden] said: “This has been a great debate, a debate about fundamental principle, about how one interprets the Constitution.” Senator Biden repeated the statement with which he opened Judge Bork’s confirmation hearings last month, and which he has made a theme for the entire proceeding. “I believe I have rights because I exist, in spite of my government, not because of my government,” he said. “Judge Bork believes that rights flow from the majority, through the Constitution to individuals, a notion I reject.”

Currently on the U.S. Supreme Court, Justice Antonin Scalia echoes Bork’s views of the limited scope of the Constitution and the apparently unlimited power of whatever constitutes the majority of voters. His exact words are instructive as to the value of the Constitution in protecting our civil rights and civil liberties. This is what he said during a Q&A interview published by The Daily Journal Corporation:

Q. In 1868, when the 39th Congress was debating and ultimately proposing the 14th Amendment, I don’t think anybody would have thought that equal protection applied to sex discrimination, or certainly not to sexual orientation. So does that mean that we’ve gone off in error by applying the 14th Amendment to both?

A. Yes, yes. Sorry, to tell you that. … But, you know, if indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society. Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a Constitution to keep things up-to-date. all you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

Chief Justice John Roberts expressed a similar sentiment in July, 2012, in explaining the sometimes ideologically inconsistent way he voted: “It is not our job to protect the people from the consequences of their political choices,” he said. Really? Doesn’t the Constitution exist precisely to protect a minority from the harmful consequences of the majority’s political choices when its civil rights and civil liberties are at stake? And isn’t it the job of the Supreme Court to see that the Constitution does just that? Not according to Justice Roberts.

It’s true that you don’t need a Constitution if you think the majority should rule at all times. But we do have a Constitution, whose very purpose is to protect the rights of the minority against the tyranny of the majority. It’s also true that when Thomas Jefferson wrote, “All men are created equal,” he meant, literally, only men, not women, and only white men, not blacks, and only white men who owned property. Women were, at that time, considered men’s property (and in some respects, still are). Slavery was also enshrined in the law. So were many other religion-based laws and policies (some still in operation — the motivation for this book). But, countering that, the Constitution and the Bill of Rights provided for a government that would adjust to changing times.

All references to religion in the Constitution were exclusionary — religion and government were not to be involved with each other. How would Bork and Scalia establish justice consistently if that were left to majority rule? How could the blessings of liberty be secured (and for whom?) if we had liberty in some states but not in other states, whenever the whims of a state’s current majority decreed it? How could we be equal citizens under the law or have the basic right to privacy in our personal lives if that were based on the shifting sands of majoritarian rule? What would it mean to be “the land of the free” if our freedom depended, election by election, on the whims of whatever group had at least 50% plus 1 of the votes?

The rights Bork and Scalia cannot find in the Constitution, and that Roberts considers “excesses,” have tended to be rights that run counter to archaic religious beliefs embedded in our laws, such as those related to sexuality and reproduction. The very fact that these laws are based on religious beliefs shows they do not belong in our laws at all. They are an establishment of religion in the most harmful way possible. Of course, the current religious right activists who agree with Bork and Scalia don’t accept the concept of state-church separation any more than they accept the concept of liberty and justice for all. They believe that might makes right — that they should have the “freedom” to impose their religious beliefs on others, and their chosen method is the law.

(Continues…)Excerpted from Culture Wars by Marie Alena Castle. Copyright © 2013 Marie Alena Castle. Excerpted by permission of See Sharp Press.
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