Joe posts this in one of his comments.

It will be interesting to see what happens when one of these cases ultimately makes it to the Supreme Court. Will Justice Scalia stick to his oft-repeated (and only abrogated when it comes to issues where the Roman Catholic catechism clashes) beliefs about original intent?

The Founding Fathers, as I’ve previously written, were pretty clear about their own intent regarding the endorsement of religion. It was their belief that government had no place doing it. This was voiced most clearly by Benjamin Franklin when he said,

When a religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support it, so that its professors [that is, those who ?profess? religion] are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one. . . . – Excerpt of letter written by Benjamin Franklin to Dr. Richard Price, October 9, 1780. Works of Benjamin Franklin (Sparks ed.), VIII 505-506, in Bigelow ed, VII, 139, 140. Church and State in the United States, Volume I , Anson Phelps Stokes, D.D., LL.D., Harper & Brothers (1950) pp 298; for more on what the other Founding Fathers had to say about this, look here.

The religious right—as the suspended Moore is proving—contends that there is a higher law. U.S. law has to take a backseat to it. And what is this higher law?

The [Ten] Commandments are a constant reminder of a higher moral authority than us….No matter how many laws we have against murder, how many police we have to catch the culprits, how many courts we have to prosecute and punish them and how many prisons we have to lock them up, only a conscience informed by a law greater than a human law can stop a murder before it happens. – Rev. Robert Schenk, “News: Judge Moore: Obeys A Higher Law,” www.dickstaub.com; emphasis mine.

The laws of the United States are, according to these folks, insufficient. Not only that, but if they happen to clash with their understanding of this “higher law,” then the “higher law” overrules the laws of the United States; the laws of the United States must give way.

And who, pray tell (pun intended), interprets these “higher laws”? It would have to be Judge Moore, Rev. Schenk, Jerry Falwell, Pat Robertson and other members of the religious right, because “god” has never presented him-, her-, or itself bodily in our courts to do it him-, her-, or itself. And this is quite interesting, because one of the arguments of the religious right is that non-elected officials (judges) are interpreting the law in ways the religious right doesn’t like. But Moore, Schenk, Falwell and these others are non-elected, as well—and they aren’t even officials! Furthermore, the very Founding Fathers they are so fond of quoting to support their point of view deliberately created a government which included an independent judiciary for the very purpose of allowing these judges to interpret the law without a concern for being voted out of office based merely upon those interpretations. These same Founding Fathers did not see fit to establish the religious right—or even the religious moderates—of their day as the Final Arbiters, whose job it would be to decide when the laws of the United States would have to give way to a “higher law.”

On the contrary, the Founding Fathers refused to honor or even officially recognize any higher law!

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. – Article VI, Clause 2, The Constitution of the United States of America, emphasis mine.

Thus the very arguments the religious right uses to justify their activism on these issues are the very reasons they cannot be allowed. Whereas both they and the judges they assail are not elected, the judges operate under the Constitution, and the Laws of the United States which have been made in pursuance thereof, which Constitution and laws are the supreme Law of the Land. Moore and the others may not like this, but that is exactly what the Constitution states. To change this, they will have to alter the Constitution.

Additionally, they repeatedly quote the Founding Fathers as supporting the views of the modern religious right. I will not rehash and reanalyze each and every quote here; I have done this with a number of these quotes in my article, “Thou Shalt Not Revolt.” As I noted there, many of these quotes show the Founding Fathers to be quite religious people. And it does not matter, in the long run, whether you argue that they were christian, or merely “deist.” Their status as belonging to either one group or the other does not change the fact that none of their comments indicates support for a governmental involvement with religious expression. On the contrary, they had ample opportunity (they were, after all, writing the Constitution!) to inject as much “god-talk” into the foundations of our government as they wished. Yet they did not.

Although, as I said, I analyzed mis-used quotes of the Founding Fathers previously, one or two examples here will serve to show why I’m saying these quotes do not provide support for governmentally-sponsored religious expression.

The religious right is fond of quoting people like Founding Father James Madison saying that the reason for the First Amendment was to safeguard “the duty of every man to render to the Creator…homage.” (Chuck Colson, “God Governs the Affairs of Men,” BreakPoint.org (February 26, 1998), quoted in “On the Origin of the ‘Wall of Separation of Church and State.’“) Let even those of us who argue vociferously for the separation of church and state say—if even only for a moment—that this is true. In what way does that comment indicate that Madison believed government should sponsor or participate in the paying of this homage? It says no such thing. It says—and, again, we will accept it as being absolutely correct and even true as rendered here by Colson—safeguard. It does not say, “participate in”; it does not say, “assist with”; it does not say “the government should pay homage.” It says exactly what I and so many other people have been saying: The government must create an environment in which individuals and even groups may freely do this themselves. And I will fight as vigorously against those who try to prevent this as I currently argue against those who try to use the apparatus, funds, or power of the government to pay homage to their gods. We safeguard their freedom to worship; we do not use our government to worship for them.

Another favorite quote of the religious right is this one they ascribe to Benjamin Franklin:

The longer I live, the more convincing proofs I see of this truth: That god governs in the affairs of men.

Franklin (Jefferson, too) was clearly a deist; he disdained christianity, especially as understood by the modern religious right. However, as I have said, that is irrelevant to the point here. Although he was disdainful of christianity, let us pretend that this comment was really about the christian god and was not just some deistic comment. It nevertheless does not provide justification for governmental involvement in recognizing, worshiping, paying homage to or even encouraging belief in this god. It would be—at the absolute very best—a statement only that Benjamin Franklin believed he had seen convincing proofs that god governs in the affairs of men. It does not say, “Now you, United States Government, begin to use your buildings, your money, your time and effort to spread this gospel.”

On the contrary, it was, as noted, this very same Benjamin Franklin who said (to repeat what I quoted above):

When a religion is good, I conceive that it will support itself; and, when it cannot support itself, and God does not take care to support it, so that its professors [that is, those who ?profess? religion] are obliged to call for the help of the civil power, it is a sign, I apprehend, of its being a bad one. . . .Excerpt of letter written by Benjamin Franklin to Dr. Richard Price, October 9, 1780. Works of Benjamin Franklin (Sparks ed.), VIII 505-506, in Bigelow ed, VII, 139, 140. Church and State in the United States, Volume I , Anson Phelps Stokes, D.D., LL.D., Harper & Brothers (1950) pp 298; for more on what the other Founding Fathers had to say about this, look here.

The other arguments used by the religious right, the majority of which are referenced in Schenk’s article belong to the same “Church of the Non Sequitur.”

Interestingly, while the religious right likes to argue that horrible godless non-elected judges are removing all vestiges of christianity from our society (rather than just admitting these judges are refusing to allow blatant government violation of the Establishment Clause of the First Amendment), they love to point out that the courts have allowed our money to say, “In G-d We Trust,” and have permitted other non-sectarian expressions of a “religious” flavor. The fact is that the courts have been somewhat inconsistent in their interpretation of the law, with christian components creeping in during years when numbers of judges who were christian have been less vigorous about enforcing the Establishment Clause. Even so, the majority of these references are essentially nonsectarian. There is usually no indication that the god symbolically recognized is the god of judeo-christianity rather than the Lockean “Nature’s G-d.”

And this brings up another favorite of the religious right: they note—without understanding the Lockean origin—that the Declaration of Independence references “Nature’s G-d.” And while Schenk uses this to say, “[The Founding Fathers] most certainly invoked God, publicly, in virtually every founding government document and in virtually every original government activity” (Schenk, supra.), they somehow failed to make even an obtuse or tangential mention of any god in the Constitution of the United States. Instead it contains numerous references to the fact that the Constitution itself is “the supreme Law of the Land.”

The religious right may have its heart in the right place, but its insistence that in order for christians to have true freedom of religion, the government must fund and, in some cases, do the worshiping, recognizing, or paying homage to their god for them clearly is contrary to the Constitution and the laws of the United States of America. Their continued attempts to thwart judicial enforcement of these laws based on claims that there is a “higher law” are destructive of the Rule of Law without which the United States has no moral authority to demand obeisance by anyone else.

If Moore, Schenk and the rest of their clan would spend more time actually worshiping their god instead of waging war on the Constitution, it would not be necessary to ask the courts and the government to do it for them.