To no one's surprise, the legal challenges have begun.
South Carolina legislators have broached the contentious issue of separation of church and state with two provocative laws that some say are sure to cost taxpayers money in legal fees and could take resources away from other pressing matters.
1. Have no other gods.2. Make no idols.3. Don't take the Lord's name in vain.4. Keep the sabbath day.5. Honor your father and mother.6. Do not murder.7. Do not commit adultery.8. Do not steal.9. Do not falsely accuse.10. Do not covet.Note: This ordering is used by most Protestant traditions, but Jewish, Catholic, Orthodox and Lutheran faiths use a slightly different ordering.
A law passed in early June by the General Assembly provides for the production and distribution of a new vanity license plate that features a cross superimposed on an image of a stained-glass window and the phrase "I Believe."
To produce the plate, the state must get a $4,000 deposit or 400 prepaid orders. Lt. Gov. Andre Bauer offered to cover the deposit from his own pocket and get reimbursed as orders come in.
Then, on June 11, Gov. Mark Sanford signed into law a measure that allows for the display of the Ten Commandments and the Lord's Prayer in public buildings.
The religious texts would be displayed in a historical context, alongside documents such as the Magna Carta and Bill of Rights, helping to illuminate the legal principles of the United States, proponents say.
Both initiatives have stirred controversy.
At the plate
The idea for the new plate was not suggested by an outside group, as is often the case with specialty plates, but appears to have been promoted from within the Legislature. Sanford allowed the measure to become law without endorsing it.
"While I do, in fact, 'believe,' it is my personal view that the largest proclamation of one's faith ought to be in how one lives one's life," Sanford wrote in a letter to legislator Glenn F. McConnell, president pro tem of the Senate. "Galatians talks of the fruit of the spirit as peace, patience, kindness, gentleness and more. And, accordingly, if God is working in one's life, these things will say what no license plate will ever say."
The Rev. Barry Lynn, president of Americans
United for Separation of Church and State, was so impressed with Sanford's response to the "I Believe" plate that he distributed a note recommending public praise.
"I think the governor deserves our appreciation via e-mails and phone calls," he wrote to members of the organization in South Carolina.
But Sanford's thoughtful words haven't stopped the inevitable litigation. Americans United is suing the state, arguing it has violated the Establishment Clause of the U.S. Constitution by promoting or preferring one religious denomination over others, according to Heather Weaver, an attorney for the group.
The Rev. Dr. Monty Knight, pastor of First Christian Church (Disciples of Christ) and president of the Charleston chapter of Americans United, was asked to be a plaintiff in the case. The other South Carolina plaintiffs are the Rev. Dr. Thomas A. Summers, Rabbi Sanford T. Marcus, the Rev. Dr. Neal Jones and the Hindu American Foundation.
Knight said he objects to the new plate and the public display of sacred texts on religious grounds. Calling state-sanctioned faith "shallow, idolatrous and compromised," Knight said religion and government, when commingled, tend to corrupt one another.
"Public religion tends to undermine the integrity of Christianity," he said. "Historically, the tail ends up wagging the dog."
When faith is used in coercive ways, it loses its transcendent quality and becomes a mere manifestation of culture, he said. Yet Christians are meant to be members of a greater community that stands above mere nations: They are part of the Kingdom of God, Knight said.
Limiting himself to a legal opinion, S.C. Attorney General Henry McMaster said he assessed the "I Believe" license plate proposal, as well as the law permitting the addition of the Ten Commandments and the Lord's Prayer, to public displays of historical documents, and deemed both to be justifiable. He based his opinions, which were solicited by the governor, on the principles of religious freedom and freedom of speech, he said.
"The law passed by the Legislature is one that I agree with, one that would be a permissible display under current law," McMaster said.
He pointed out that the General Assembly had not mandated the display of religious texts but merely provided "guidance" for what would be appropriate.
Constitutional law expert John Simpkins, who teaches at the Charleston School of Law, said he wasn't surprised to learn of the legislation permitting display of the Ten Commandments, and that the state's rationale might hold up in court if challenged. On March 2, 2005, the U.S. Supreme Court heard two cases — Van Orden v. Perry and McCreary County v. ACLU of Kentucky — whose outcomes set a precedent for the argument that display of the Ten Commandments in a certain secular and historical context might be legitimate.
But the Lord's Prayer? "That, to me, is the more surprising inclusion," Simpkins said, questioning the historical or legal significance of the text. "The Lord's Prayer seems to fall much more squarely on the side of the religious."
Unlike the Ten Commandments, which comprise a set of laws, the Lord's Prayer is "a plea to God," he said.
State Sen. Brad Hutto, an Orangeburg Democrat, amended the legislation to include the Lord's Prayer, prompting McConnell, the only senator to vote against the bill, to call it "constitutional quicksand."
"The taxpayers are going to end up footing the bill for all of this," McConnell told The Greenville News. "If we had stuck to the documents that have been pretty much court-tested, we would be fine. But we expanded it beyond that. And I believe it will cause the package to explode in the courts."
S.C. Sen. Chip Campsen, a Republican who sat on the subcommittee reviewing the legislation, said he wanted to limit the bill to those display items that already have passed constitutional muster. That included the Ten Commandments, but not the Lord's Prayer. "Then it got out of hand," Campsen said.
In full committee, lawmakers added the Rev. Martin Luther King Jr.'s "I Have a Dream" speech. And on the floor of the General Assembly, various amendments were proposed, including Hutto's. Campsen said he voted against the Lord's Prayer amendment, but thinks it will withstand any legal challenge. It was the Lord's Prayer that served as a basis of civil law in Georgia when James Oglethorpe argued for the cancellation of existing debts, he said.
Hutto said he suggested adding the Lord's Prayer as a challenge to fellow lawmakers who rejected the inclusion of other documents, including Sen. Barack Obama's speech on race, the Gettysburg Address and Robert E. Lee's farewell address, citing constitutional concerns. To his surprise, the Lord's Prayer amendment passed.
"This was not my idea," he said of the legislative wrangling. "We have many more overriding issues we should have dealt with than this."
Nevertheless, Hutto said he thinks both religious documents are appropriate to include in public displays as long as the purpose is educational.
"So long as it's done in the context of history or comparative religion and not in the context of prayer," he said.
Simpkins said that the Van Orden case, in which a plurality vote of the Supreme Court determined that the state of Texas could continue to display a large stone monolith of the Ten Commandments because it had a secular purpose and could not easily be construed as an endorsement of religion, failed to make the case that legal histories and traditions are fixed.
What happens when different people consider that history at a different time and in a different light? Will a new set of circumstances change the meaning of the monolith? Perhaps, Simpkins said.
"So, theoretically, now we could make the case to add another (symbol or document)," he said. "It creates a field in which we can now contest for the inclusion of our religious texts in the context of the public space."
In other words, he said, it opens the floodgates.
"And it's a huge distraction," Simpkins said. "The dollars spent to litigate could go toward the (state's) budget shortfall or education or health care."
Some who think public religious displays are justified cite the intentions of the Founding Fathers, Simpkins, Knight and others noted. They said cursory review of ideas that prevailed in the 18th century reveals that many of the founders, though religious, were determined to protect the faithful from the state by refusing to allow government to endorse or sponsor any one tradition. It was the pervasive integration of religion and government from which so many had recently escaped.
Many of the founders were deists concerned only abstractly with the "Creator," Simpkins said. For them, God is the force that established the universe, but nature and reason are the forces that govern it.
Knight said that among Christians there is much disagreement over social, theological and ecclesiastical matters. When he invited a Baptist minister to participate in a panel discussion that included members of other denominations, the minister refused, saying that Catholics and Episcopalians weren't really Christians, Knight said.
Considering the long history of disagreement, it seems particularly senseless to try to promote some aspect of faith in the public realm, he said.
"If we're a Christian nation, what kind of Christian nation are we?"
The rationale for the inclusion of the Ten Commandments among historical documents set forth by the General Assembly is as follows:
"The Ten Commandments have profoundly influenced the formation of Western legal thought and the formation of our country," the bill states, citing the beginning of the Declaration of Independence, which refers to self-evident truths, equality and unalienable rights. "The Ten Commandments provide the moral background of the Declaration of Independence and the foundation of our legal tradition."
As for the Lord's Prayer, lawmakers said:
"The Lord's Prayer, used to teach people how best to seek their daily needs, is a model of philosophy and inspiration for legal and moral systems throughout the ages. In the colonies, James Oglethorpe brought debtors to freedom in our neighboring state of Georgia in remembrance of 'forgiving our debts as we forgive our debtors.' "
The 'Lemon test'
In 1971, the U.S. Supreme Court ruled in Lemon v. Kurtzman that Rhode Island's 1969 Salary Supplement Act, which allowed for the salaries of parochial school teachers to be subsidized with public funds, fostered "excessive entanglement" between religion and government. The case established the "Lemon test," guidelines that are often invoked when contemplating how state-sponsored religion can be applied to public life.
From the opinion: "First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster an excessive government entanglement with religion."
Alex Sanders, former chief justice of the S.C. Court of Appeals, former president of the College of Charleston and one of the founders of the Charleston School of Law, said agreeing on the historical value of the Ten Commandments could be difficult when people can't even agree on which version of the text is the right one.
Is it "Thou shall not kill" or "Thou shall not murder"? The difference is potentially vast, Sanders noted.
"Obviously, it's problematical to have public displays of icons of some particular religion," he said, especially if religion is merely being dressed in secular garb. "If the motive (of the new legislation) is to promote the Christian religion in the public square, then what they're doing is unconstitutional."
If legislators insist on displaying messages of faith, they should consider the Golden Rule, or ethic of reciprocity, which is common to all religions and cultures, even secular humanism, Sanders said.
"So in everything, do to others what you would have them do to you, for this sums up the Law and the Prophets," said Jesus (Matthew 7:12).
No one would disagree with that, Sanders said.
Mounting a challenge
Lynn, of Americans United, said Wednesday that his organization was suing the state of South Carolina for sponsoring the "I Believe" license plate, and that his staff might consider legal action against the display of the Ten Commandments and Lord's Prayer.
He said the argument that these documents help citizens understand legal or governmental history is weak.
"The Ten Commandments and Lord's Prayer have little if anything to do with the creation of the South Carolina Constitution or the U.S. Constitution," he said. "It's clear they would promote Christianity above all other faiths."
In March 1999, a state judge ruled that Charleston County Council violated the First Amendment when it mounted a plaque of the Ten Commandments outside council offices. Four of the 10 commandments are purely religious in nature, emphasizing the oneness of God and the proper way to honor him; six refer to social behavior.
Lynn said the display guidelines just set forth by the state Legislature are similar to the 2005 Kentucky case in which the Supreme Court ruled such a display was unconstitutional. As in the Kentucky case, the South Carolina display would be new, with newly added religious items recently authorized. If it only included the Ten Commandments, it would probably be found unlawful, Lynn said.
"But the addition of the Lord's Prayer makes it clear that this is the promotion of one particular religious viewpoint," he said. "It's the icing on the cake."
That's where the law could run into trouble, even if it prevails in court, Lynn said. The Establishment Clause forbids government to favor one faith over another.
This fall, the U.S. Supreme Court will hear arguments in the Summum case. Summum is a modern esoteric movement, based in Utah, whose basic tenets include the rites of mummification and "transference." The group has argued, with success, that its seven guiding principles should be displayed in a Pleasant Grove City park, beside a monument of the Ten Commandments.
There is some legal precedent for temporary displays of religious items in a limited open forum, but the question of long-standing or permanent displays has not yet been resolved by the courts, Lynn said.
"Does a new group have the right to say, 'Well, put up mine also?' " Lynn said.
In another example of how such legislation can have unintended results, the Federal Equal Access Act, vigorously promoted by conservative Christian groups who wanted to meet on public school grounds before or after class, and passed by the U.S. Congress in 1984, opened the door to many noncurricular student organizations.
The law, which was upheld by the Supreme Court in 1990, has been used by the Gay-Straight Alliance to justify meetings on school property.
7 Summum principles
Summum, a modern esoteric movement based in Utah, has argued, with success, that its seven guiding principles should be displayed in a park in that state next to a monument of the Ten Commandments. These are the seven principles:Psychokinesis: Summum is mind, thought; the universe is a mental creation.Correspondence: As above, so below; as below, so above.Vibration: Nothing rests; everything moves; everything vibrates.Opposition: Everything is dual; everything has an opposing point; everything has its pair of opposites; like and unlike are the same; opposites are identical in nature, but different in degree; extremes bond; all truths are but partial truths; all paradoxes may be reconciled.Rhythm: Everything flows out and in; everything has its season; all things rise and fall; the pendulum swing expresses itself in everything; the measure of the swing to the right is the measure of the swing to the left; rhythm compensates.Cause and Effect: Every cause has its effect; every effect has its cause; everything happens according to Law; Chance is just a name for Law not recognized; there are many fields of causation, but nothing escapes the Law of Destiny.Gender: Gender is in everything; everything has its masculine and feminine principles; Gender manifests on all levels.
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