"Separation of Church and State"
"Begs the question"
Today, as we read through a 6th Circuit Court of Appeals opinion, we witnessed a judge get not one, but both of these phrases correct in one brilliant stroke of the pen.
Separation of Church and State:
"[T]he ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. [citations] Our Nation's history is replete with governmental acknowledgment and in some cases, accommodation of religion. [citations] After all, “[w]e are a religious people whose
institutions presuppose a Supreme Being.” Zorach, 343 U.S. at 313, 72 S.Ct. 679. Thus, state recognition of religion that falls short of endorsement is constitutionally
permissible.
Beg the Question:
Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it. “[T]he Establishment Clause inquiry cannot be distilled into a fixed, per se rule.” [citations] Although treating the subject matter categorically would make our review eminently simpler, we are called upon to examine Mercer County's actions in light of context. “Simply having religious content or promoting a message consistent with a religious
doctrine does not run afoul of the Establishment Clause.” Van Orden, 125 S.Ct. at 2863 (plurality opinion). Moreover, “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 680, 104 S.Ct. 1355. The Constitution requires an analysis beyond the four-corners of the Ten Commandments. In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.
Stephen and Rich, our aspiring linguist friends, would be pleased.
