Will High Court Adopt the Coercion Test?


ACRU Staff


March 12, 2012

This column by ACRU Senior Fellow Robert Knight was published March 12, 2012 in The Washington Times.

As the American Civil Liberties Union prowls the land to muzzle public prayers, rip out Ten Commandments monuments and terrify small towns over Nativity scenes, help may be on the way from the U.S. Supreme Court.

Later this year, the court may decide to hear arguments for and against tearing down the 44-foot cross at the Mount Soledad veterans memorial in San Diego.

The ACLU says the cross, first erected in 1913 and rebuilt twice, is an unconstitutional establishment of religion. You can see the cross clearly at the top of a mountain from the San Diego Freeway, and it offends and traumatizes ACLU attorneys every time they glimpse it. Some bravely make it through that stretch while clutching their hearts, while others narrowly miss going off the road.

So far, ACLU attorneys have not claimed that this distracting edifice is a traffic hazard. Perhaps they’re afraid someone might make that case against a Hooters billboard.

Given the ongoing harassment by atheist and leftist groups, what we need is a legal nuke to settle such matters – in favor of religious liberty. One would think the clear language of the First Amendment would be enough, but court rulings and ever-fresh ACLU-generated cases suggest otherwise.

The answer might be the coercion test, a way to assess claims that does not distort the first part or ignore the second part of the First Amendment’s guarantee that “Congress shall make no law respecting an establishment of religion, nor prohibiting the free exercise thereof.”

Drafted as part of the American Civil Rights Union’s amicus brief in the Mount Soledad case, the test adds crucial perspective. ACRU General Counsel Peter J. Ferrara, the brief’s author, explains:

“At the time the First Amendment was adopted, the countries of Europe all had ‘Establishments of Religion,’ which meant official government religions enforced by laws requiring attendance at the official church, regular contributions to it, and other preferences in law for members of that church. These establishment policies all involved government coercion to force citizens to support the one favored church. Almost all of the American colonies had such establishments as well, with legal compulsion or coercion as their hallmark.

“These practices, and anything like them involving coercion in regard to religion, are what the framers meant to prohibit in adopting the Establishment Clause, for this is what an Establishment of Religion meant at the time. They did not mean, however, to prohibit any voluntary, public, religious speech, or religious expression or symbolism, which do not involve any such coercion.”

In other words, James Madison and George Washington never intended to bring down the heavy hand of government on, say, Neptune Township, N.J., which the ACLU forced last May to cover a historic auditorium’s religious symbols for a high school graduation, breaking a nearly 70-year tradition, or on veterans groups that raise money for memorial crosses to honor comrades who paid the ultimate price for our freedom.

In April 2010, the Supreme Court upheld the right of a veterans group to maintain a 7-foot memorial cross in the Mojave National Preserve in California. The cross had been offending an ACLU member and park employee who had retired and moved to Oregon but was still annoyed.

Last year, the Supreme Court forsook an opportunity to clarify this issue when it chose on Oct. 31 not to hear an appeal of a ruling against a Utah group that raises 12-foot-crosses in roadside memorials to fallen state troopers.

The court’s inaction surprised some observers because in the Mojave case, Salazar v. Buono, the majority opinion, written by Associate Justice Anthony M. Kennedy, seemed to welcome the state-trooper issue:

“A cross by the side of a public highway marking, for instance, the place where a state trooper perished need not be taken as a statement of governmental support for sectarian beliefs.”

It’s a fair bet the court skipped the Utah case because the Mount Soledad case has better circumstances for clarifying the right to public religious expression.

Despite what most law schools teach, the key to a durable standard is not precedents but the language of the Constitution itself and the Founders’ intentions.

Even Justice William J. Brennan, who championed the corrosive idea of the “living Constitution,” said in a 1963 concurring opinion striking down a Pennsylvania requirement for Bible reading in schools (Abington School District v. Schempp): “The line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers.”

Devotees of the “living Constitution” can be right at least some of the time. Brennan throwing a crumb here is a bit like the villain Lex Luthor committing a random act of kindness.

Public religious expression has long been a fixture in American life. As Mr. Ferrara notes, “The very next day after the House of Representatives of the First Congress voted to adopt the Establishment Clause, the House adopted a resolution requesting President Washington to proclaim ‘a day of public thanksgiving and prayer, to be observed by acknowledging the many and signal favors of Almighty God.’ “

In his 1998 book Religion and the Founding of the American Republic, James H. Hutson, a Library of Congress historian, made an incontrovertible case that religion was central to the nation’s founding and functioning. He noted that church services were held in the U.S. House chambers up to the Civil War and afterward, including on May 13, 1866, “when Congress passed the 14th Amendment, which, according to some later judicial theories, forbids religious activities on public property.”

Since English colonists founded Jamestown in 1607, public expressions of faith have been common. It’s been fairly recently, since liberals fabricated an un-American distortion of the “separation of church and state,” that the ACLU has been able to drive religion – and Christianity in particular – out of the public square.

The coercion test may be just the ticket to restore sanity and genuine freedom of religious expression.



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