Masterpiece Cake Shop v. Colorado Civil Rights Commission Amicus Brief (Part IV)

The Assault on Religion:

The assault on religion started in the 1947 case Everson v. Board of Education. The Establishment Clause says, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” It should come as no surprise that the first 160 years of our history there was little controversy over the Establishment Clause. The controversy only started over the past 70 years due to hurt feelings and people being offended by religious practice. In Everson, the Court sided with the New Jersey state government reimbursing student’s bus fare to attend religious schools, but Hugo Black’s majority opinion introduced Thomas Jefferson’s “wall of separation between church and state” comment from a “courtesy” letter written to a Danbury Connecticut Baptist Church. Separation of church and state is not in the constitution and Jefferson did not participate in the writing of the Constitution nor in the Bill of Rights (He was in France working as US Ambassador). Therefore, Jefferson’s interpretation of the Establishment Clause does not show the true intent or meaning of the clause. James Madison drafted the Bill of Rights and his interpretation of the clause should hold more weight. But the Court has taken this one Jeffersonian statement, uncorroborated by other founders as the true meaning of the Establishment Clause. The separation of church and state comment does not even corroborate Jefferson’s actions as President who would regularly attend Church services held in the House of Representatives chambers. The Establishment Clause’s true intent was to prevent what happened in England when they established the Church of England. In fact, the Establishment Clause does not stop states from establishing religion. States, like Massachusetts, were founded and established by the Puritan Church. Hence, the goal of the clause was to prevent a National Church and religion. Bruce Fein, former associate deputy attorney general said this of Black in his Emerson decision “Black, however, seemed to sense the absurdity of his categorical prohibition, which would have required public ambulances to deny service to a cleric who suffered a heart attack which preaching from the pulpit. Accordingly, he immediately retreated from his unbending stance – but without saying so.”

The separation of church and state doctrine opened the flood gates to dozens of cases of people claiming to be tormented by religious practice. In 2002, the Court held in Zelman v. Simmons-Harris that the state of Ohio could issue education vouchers for students to attend private religious schools. The Court held that the vouchers could be used for any religious school and therefore did violate the Establishment Clause. However, in 2004 the Court held in Locke v. Davey a Washington State scholarship program could bar funds to students majoring in Theology. In 1992, the Court held in Lee v. Weisman that graduation prayers were unconstitutional because it “psychologically coerces” prayer on students who do not practice religion. In other words, prayer made non-religious persons feel uncomfortable. This decision essentially elevated the right “not to feel uncomfortable” to over the practice of religious liberty.

In 2004, the Court held in Elk Grove School District v. Newdow that the phrase “under God” in the Pledge of Allegiance did not violate the Establishment Clause. However, stare decisis from Weisman should have led the Court to strike those words out of the Pledge (Using the Ninth Circuit’s logic). The only reason Newdow did not change the words of the Pledge was because a majority of liberal justices said Newdow did not have standing to file suit otherwise our Pledge would have fallen victim to political correctness. The obvious next step of religious intolerance groups would have the words “In God We Trust” stricken from our currency. Justice Kennedy wrote the Weisman decision and then dodged his precedent by claiming “no standing” in Newdow because he saw how unworkable and dangerous his precedent in Weisman was.

There have been numerous cases contesting the display of the Ten Commandments on public property such as in state capital government buildings. In McCreary County v. Kentucky ALCU (2005) the Court held that a Ten Commandments display was unconstitutional while in Van Orden v. Perry (2005) the Court held a Texas capitol Ten Commandments display was constitutional. It is just a matter of time before the Declaration of Independence is a banned document on public grounds and in our schools because it makes many references to God.

The bottom line is that separation of church and state by building a wall between the two is completely unworkable. In Chief Justice Rehnquist’s opinion in Wallace v. Jeffree (1985) he outlines a dozen’s examples of how the Court’s jurisprudence conflicts such as “parochial students may receive counseling, but it must take place outside the parochial school” or “A state may give cash to a parochial school to pay for the administration of state-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects.” Separation of church and state is nothing more than political correctness where atheists or non-believers may feel offended, annoyed, or have some hurt feelings. This is no different than what is happening in the Masterpiece Cake Shop case. There is no longer any tolerance or patience for religious beliefs in our country. Religious Liberty has been under assault for decades. The Colorado Anti-Discrimination Commission’s decision to classify Masterpiece Cake Shop as a discriminatory business in the same sense that a White Supremacist’s discriminates is not just unfair, but it demonstrates how little tolerance and patience government laws have for religious liberty.

The Court and Political Correctness:

The Constitution does not distinguish between genders or races. However, that has not stopped the Court from introducing gender (Roe v. Wade, abortion) and race (Grutter v. Bollinger, diversity) into their opinions. What does diversity say about our country? It not only endorses reverse discrimination, it wrongly asserts that African-Americans are not equal to other Americans which stigmatizes the accomplishments of African-Americans who will always be seen as benefitting from skin color than on merit. But conversely, this Court has ignored the word “citizen” in the Constitution to provide aliens and illegal aliens the same rights as citizens. This is wrong for several reasons. First, the Court has no say over immigration laws since Article I, Section 8 states Congress has the power “to establish a uniform Rule of Naturalization.” Secondly, the Court has ignored earlier precedent in Heim v. McCall (1915, New York could hire citizens over aliens for transit projects) and Ohio v. Clarke Deckenbach Auditor (1927, once again the Court rejected a Fourteenth Amendment Equal Protection Clause argument making aliens equal to citizens). However, in Graham v. Richardson (1971) the Court held minimum residency requirements for aliens to receive welfare benefits were unconstitutional. In Hampton v. Mow Sun Wong (1976) the Court held citizenship was not required to hold a government job under the Equal Protection Clause. In a 1973 case Sugarman v. Dougall, the Court invalidated a New York statute requiring civil servants to be citizens. In Plyler v. Doe (1982), the Court held illegal aliens had a right to a public-school education.

This Court has provided enemy combatants equal rights as U.S. citizens. In the 2004 cases between Rasul v. Bush and Hamdi v. Rumsfeld the Court decided war criminals who kill American soldiers and hide behind innocent civilians have the right to have their detention cases heard in federal court. These are rights that are not even afforded to our own military personnel who must use military tribunals for justice, not the federal court system. Time and time again, this Court sides with non-citizens over our own citizens. The Supreme Court has no jurisdiction over war decisions, and it once again ignored previous precedent in Johnson v. Eisentrager (1950) when affording prisoners of war more rights. These decisions endanger national security because sensitive information must be made public at trials. Can anyone imagine the circus if the Court made a similar ruling during World War II? Prisoners of war would be making hundreds, if not thousands of appeals to federal courts. If the goal is to make it easier for the enemy to be released so they can return to the battlefield and resume killing Americans, then the Court succeeded.

The moral of the story is that the Court will use Social Justice and Political Correctness to “protect” perceived disenfranchised groups of people at the expense of more qualified persons or actual US citizens. The Court finds color or race in the Constitution where there is none, and omits citizenship from the Constitution where there are nearly a dozen references including in the Fourteenth Amendment used to invalidate citizenship rights while elevating illegal aliens’ rights. In fact, the Court has provided enemy combatants more rights than our own military personnel. This practice of social justice and political correctness has carried over into state statutes such as the Colorado Anti-Discrimination Act (CADA) to protect classes of people unidentified in the Constitution at the expense of people practicing rights (free speech and religious liberty) enumerated in the Constitution. Justice Thurgood Marshall said this of White people, “You guys have been practicing discrimination for years. Now it is our turn.” The Court should not be in the business of inventing minorities to protect, promoting vengeance over past wrongs, or discriminating for any reason. Justice Scalia said it best “To pursue the concept of racial entitlement—even for the most admirable and benign of purposes—is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.” [Adarand Constructors Inc. vs. Peña, 1995]