The relationship between church and state is the subject of several major court cases that have recently been decided or are currently winding their way through the American legal system. Later this year, the U.S. Supreme Court is expected to decide whether the phrase "under God" should be removed from the Pledge of Allegiance. Last year, state courts ruled that a monument to the Ten Commandments in a the Alabama Judicial Building was an unconstitutional establishment of religion, and that same-sex couples in Massachusetts have the right to marry.
Pledge of Allegiance
One of the most contentious legal cases in recent memory concerns whether the words "under God" should remain in the Pledge of Allegiance. In 2000, Michael Newdow, an atheist who lives in Sacramento, California, filed suit against the Elk Grove Unified School District, where his daughter attends elementary school. In accordance with state law and district policy, teachers in the district begin each school day by leading their students in a recitation of the Pledge of Allegiance. Newdow claimed that, because of the phrase "under God," this daily recitation amounted to a state endorsement of religion, in violation of the Establishment Clause of the First Amendment.
The trial judge dismissed his case, but in June 2002 a three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled that the pledge did in fact constitute a state endorsement of religion, and that students not only had a right to not recite the pledge themselves, but also had a right to not hear the words "under God" in the pledge recited by other students. Judge Alfred Goodwin wrote in the majority opinion that "'One nation under God' may reasonably appear to be an attempt to enforce a religious orthodoxy of monotheism, and is therefore impermissible." The full Ninth Circuit declined to review the three-judge panel's ruling, but stayed enforcement pending an appeal to the U.S. Supreme Court.
Reaction to the ruling was swift, and overwhelmingly negative. The U.S. Senate voted 99-0 to condemn the decision, and Senator Robert Byrd (D-WV) called Goodwin "stupid" and "that judge who shouldn't be a judge." The Flashpoints USA with Bryant Gumbel and Gwen Ifill nationwide survey indicates that the ruling widely unpopular with the public as well. According to the poll, 84% of Americans believe that the phrase should remain in the pledge, and only 14% think that it should be removed. When asked if they were comfortable with having the rest of the children in a public school recite the words "one nation under God" even if it means students who may not believe in God will feel singled out for not reciting those words with the rest of the students, 63% of those surveyed said yes, and 34% said no.
In October 2003 the Supreme Court agreed to hear the case, and arguments are expected early this year. Justice Antonin Scalia recused himself from the case after Newdow called attention to a speech to a religious group in Fredericksburg, Virginia, in which Scalia made remarks critical of the Ninth Circuit's decision. The event, a "Religious Freedom Day" observance, was sponsored by the Knights of Columbus, the Roman Catholic men's service organization which organized the 1954 campaign to add the words "under God" to the Pledge.
Roy Moore, former Chief Justice of the Alabama Supreme Court, is no stranger to religious controversy. As a circuit judge in Etowah County, Moore was sued in 1995 by the Alabama chapter of the American Civil Liberties Union for opening jury sessions with clergy-led Christian prayers, and for hanging a homemade rosewood plaque of the Ten Commandments above the dias in his courtroom. Publicity over the case and campaign promises to "restore the moral foundation of law" helped to get Moore elected as Alabama's chief justice in November 2000.
Less than nine months later, in the middle of the night, Moore installed a four-foot-tall, 5,300 pound granite monument to the Ten Commandments in the rotunda of the Alabama Judicial Building in Montgomery. The Alabama ACLU, Americans United for Separation of Church and State and the Southern Poverty Law Center filed suit in U.S. District Court, charging that the display "sends a message to all who enter the State Judicial Building that the government encourages and endorses the practice of religion in general and Judeo-Christianity in particular." Moore countered that the monument was not a religious display, but simply an acknowledgement of the moral foundation of U.S. law. "It's not about religion. It's about the acknowledgment of almighty God," he said, and claimed that removing the monument would be a violation of his oath of office.
Both the U.S District court and U.S. Court of Appeals ruled that the monument was unconstitutional, but Moore continued to refuse to remove the monument. He was unanimously overruled by the eight other members of the Alabama Supreme Court, and the monument was removed on November 12, 2003. The following day the Alabama Court of the Judiciary unanimously removed Moore from office.
According to the Flashpoints USA nationwide survey, a majority of Americans disagree with the court's ruling. Sixty-eight percent of those surveyed believe that it should be permissible to install a monument to the Ten Commandments in a courthouse, while 30% believe it should not be permissible. Furthermore, 55% of those surveyed say they think of the Ten Commandments more as universal rules of behavior that all people agree on, rather than something particularly associated with Judeo-Christian religious beliefs.
Moore is still fighting to get his job back, and says that he is organizing an effort to introduce legislation in Congress that would prevent federal courts from restricting the "acknowledgement of God" by the states.
The Massachusetts Supreme Judicial Court's November ruling that the state could not deny gay and lesbian couples the right to marry reignited passions in a debate over whether and how to legally recognize gay relationships that has been smoldering for over a decade. In 1996 a court in Hawaii ruled that same-sex marriage was a constitutional right. While the decision was quickly overturned by a state constitutional amendment, the case prompted Congress to pass the Defense of Marriage Act, which denied federal recognition of same-sex marriages and gave states the right to refuse to recognize same-sex marriages performed in other states.
In 1999, Vermont's state supreme court ruled that "the State is constitutionally required to extend to same-sex couples the common benefits and protections that flow from marriage under Vermont law," but gave the legislature the option of creating a parallel "civil union" system that extended most of the rights of marriage to same-sex couples, but under another name. Since the law legalizing same-sex civil unions went into effect in July 2000, more than 5,000 civil unions have been performed in Vermont about 4,000 of them to out-of-state couples.
On November 19 of last year, the Massachusetts Supreme Judicial Court ruled that the state had "failed to identify any constitutionally adequate reason" to deny same-sex couples the right to marry, and gave the legislature 180 days to "take such action as it may deem appropriate in light of this decision." The legislature has asked the court whether legalizing civil unions would be satisfactory, but is also preparing to meet in February to consider amending the state constitution to outlaw gay marriage.
Many gay marriage opponents are pushing for an amendment to the U.S. Constitution that would ban gay marriage nationwide. President George W. Bush has indicated his support for such an approach. "If necessary, I will support a Constitutional amendment which would honor marriage between a man and a woman, codify that," Bush said in a December interview with ABC News correspondent Diane Sawyer. But he seemed to indicate that he would be open to the idea of states enacting civil union laws. "The position of this administration is that whatever legal arrangements people want to make, they're allowed to make, as long as it's embraced by the state," Bush said in the same interview. This angered some conservatives, who want the amendment to ban civil unions as well.
According to the Flashpoints USA nationwide survey, 61% of Americans oppose the legalization of same-sex marriage, and 49% of Americans support a constitutional amendment that would define marriage as specifically between a man and a woman. Fifty-three percent also oppose any sort of officially licensed partnership, such as civil unions. But in general, survey participants believed that same-sex couples should receive many of the rights granted to married couples. Sixty-four percent believed that same-sex partners should be presumed to inherit the other partner's estate at death unless otherwise specified in a will, 77% believed that they should be allowed to take out a mortgage or buy a house together, and 78% believed that they should have the right to make medical decisions when their partner is hospitalized. But only 49% believed that same-sex couples should have the right to adopt children while 47% opposed, and 55% believed that they should be allowed to file a joint tax return, while 41% opposed.
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