We stand ready to be corrected, but we are unaware of any law the Congress of the United States has passed in the the 220 years since the First Amendment was ratified that has to do with establishing religion. Remarkable, isn’t it? Congress has passed so many laws in 220 years it requires continually adding gigabytes of storage space in the Federal Register just to document them all, yet not one law respecting an establishment of religion.
On the other hand, there are boxcarloads of memory space devoted to the litigation surrounding the Establishment Clause. Equally remarkable. You all know why that is, of course. There has been so much litigation over the First Amendment because, contrary to the wishes of the Founders, lawyers have taken matters into their own hands and decided the people are not capable of reading, understanding or applying their own Constitution.
The State of Utah decided to honor fallen heroes from among the ranks of its highway patrolmen by erecting large steel crosses as memorials to them in proximity to state highways , the same highways the troopers patrolled everyday and where many of them lost their lives. Well of course the atheists didn’t like it, the atheists sued and the atheists won.
It is becoming a tired old play in American jurisprudence that a minority, sometimes an infinitesimal minority, of people can claim a right or an umbrage against the wishes of an overwhelming majority of the citizenry and be upheld. None more so than in the arena of the Establishment Clause versus the second half of the all important freedom of/from religion part of the First Amendment. We understand from a bit of hasty research that the reason that people are prohibited from the free exercise of religion, which the First Amenendment is supposed to guarantee, is that somewhere along the way the Supreme Court applied the Fourteenth Amendment to the First Amendment and said that individual States, or even local governments could not infringe on the right of the people to be protected from Congress passing a law respecting the establishment of religion. Never mind that Congress has never passed a law respecting an establishment of religion, indeed no one has ever filed a lawsuit even claiming Congress passed a law establishing religion. Somehow the argument wins the day that a state or locality has violated a person’s right to not have Congress establish a religion.
Though not in the profession, we understand the weighty principles of federal supremacy, precedent, stare decisis, “settled law” and all that blather. We can also read. The Constitution says the Congress shall make no law. The Constitution also says that equal protection means that individual states cannot legislate in opposition to peoples’ freedom from religious tyranny. But the second part of the establishment clause also says Congress shall not enact a measure prohibiting the free exercise of religion. So that the practical effect of the Supreme Court’s supposed upholding the Establishment Clause is to deny the freedom envisioned in the second part of the equation, in this case the practice of erecting crosses, on public land, to memorialize fallen heroes.
And as we look out upon the thousands and hundreds of thousands of crosses beautifying and dedicating the federal public lands of our national cemeteries, as we gaze upon the symbols and the scriptures of a religious nature on our federal buildings and monuments, as we listen to the prayers and invocations and benedictions at sessions of the federal government, indeed as we watch as hands are placed upon Bibles and oaths are uttered at federal judicial proceedings and swearing-in ceremonies, not only in Washington but all across the land, we can only ask “Who do these people think they are, that they can abide these expressions of religious piety embossing the national landscape and deign to deny the same to the Sovereign States?”
Here’s who they are: They are the same people who can affirm out of one side of their legal bearing the right of individual citizens to keep and bear arms, as per the Second Amendment, but out of the other side cede to the states and the municipalities the right to restrict, regulate and other wise infringe on that same Constitutional right.
This is the point at which a government of laws and a government of men diverge. When it becomes clear that it depends on what the issue is as to whether those who take an oath (justices take oaths too, you know) to support the Constitution equally can divine the act of a state as being the same as Congress establishing a religion, on the one hand, but can allow state and local governments to play head games, mind games and even erect physical barriers to the practice of another fundamental right, the right to keep and bear arms, it is clear that equal protection under the law, this 14th Amendment thing, is nothing but a plaything for the legal profession and those who make a mockery of the laws and constitutional precepts they pretend to live under.
The Constitution of the United States is a simple document, written for the common man to be able to read, understand and rely on. That simplicity is the reason that it is not taught in the schools anymore, even in the graduate schools. We are a government of men. And it is therefore a tyranny that we live under. You could ask the citizens of Utah and the members and the families of the State Highway Patrol.