HONORABLE RICHARD B. SANDERS
We gather to celebrate the cause of religious liberty and to defend it against those who would take it away. This however is not just the of the religious but all those who believe in a free society what ever their religious inclinations if any. As William O Douglas, Washington's unique contribution to the Supreme Court, said it: “The right to be let alone is indeed the beginning of all freedom.”
Except to insure public peace health and safety, the Founding Fathers envisioned a society where each to freely pursue his happiness in the way the suited the unique individual. In fact, according to the Declaration of Independence to preserve that inalienable right was the central purpose of government.
But now it seems the tables have been turned: government so long is the watchman of our liberty but the thief who would steal it in the night. Requiring any citizen to buy health care insurance that would violate his conscience, much less a church or religious institution, is a protection of our freedom but its negation.
As George Washington said in his farewell address:
of all dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.
Perhaps to further secure these ends the Congress proposed and the people of the several states ratified the first amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...” These words were not intended to take religion out of the public square, but, to the contrary, to insure that individuals could practice their faith free from Federal interference.
I would argue our last line of defense for religious liberty and , more broadly, the right be let alone is in the province of an independent judiciary—that is to say a judiciary independent of the other branches of government so that it can protect us form the other branches. Unfortunately, the judiciary has not always been up to the task.
For example just two years ago the United States Court of Appeals for the Ninth Circuit rejected the claim of Everett high school student Katheryn Nurre that her First Amendment right to religious freedom, and free speech in general, was violated by the Everett School District. It seems that Katheryn was in the high school wind ensemble and according to tradition chose to preform an instrument rendition of Ave Maria to showcase their talents. However because Ave Maria had religious connotations district administrations banned the ensemble from playing the piece during graduation. The district leaders claimed they were justified in doing so would be an unconstitutional establishment of religion.
Let us recall what establishment of religion meant to the Founders. At the time of the constitution 9 of the thirteen colonies indeed had “established religions,” which is to say the states had an official religion supported by tax dollars. In fact the inspiration for the Establishment Clause was not to ban state established religions but to protect them from Federal interference in the form of a congressional enacted national religion.
How far we have gone from the original intent. As stated by Judge Milan D. Smith, Jr., in dissent, much of the music composed in the western world during classical times was of religious origin. “60-75 percent of serious choral music is based on sacred themes or text.” “Approximately forty-four percent of the music recommended by the Music Educators National Conference for inclusion in the public school curriculum..has religious significance.” As a matter of fact this arrangement of Ave Maria was composed not for a church but a fireman’s chorus.
Once again, we do not have protection of religious freedom by the government but hostility, even by the courts upon which we must rely.
Nor is this problem limited to Federal Courts.
It is obvious that our state constitutional provides greater protections for religious freedom than dos its federal counterpart. It states in part:
Absolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peach or safety of the state...
But in Open Door Baptist Church v. Clark County, for example our state Supreme Court sat in judgment on Clark County ordinances which prohibited the establishment of a church as a matter of right in each of its zones. You may build a house as a matter of right, construct a factory, or erect a porn theater, but not establish a church. Rather the church was required to get special permission in the form of a conditional use permit—which is to say a permit to allow something which is otherwise illegal. The problem was the government may only license or permit that which it can prohibit. The government can require you to get a drivers license and prohibit you from driving if you don't have one in the interest of public safety. But the government cannot license journalists because we have a constitutional right to a free press. So too, I thought, with religion. But the church lost 7-2. Open Door Baptist Church, because of Clark County and our state Supreme Court which failed to do its duty to uphold religious liberty, closed its doors forever.
My friends, we have a problem here. Though of different faiths, or no faith at all, we must stand together and in aid of one another to protect our freedom. We elect our state judges, we elect our school boards, we elect our Congress. Our freedom should not be the subject for personal or political action—but the government and the courts have let us down. We must act to make it right.
Judge Learned Hand said it right:
What do me mean when we say that first of all we seek liberty? I often wonder whether we rest our hopes too much upon constitutions, upon laws, upon courts. These are false hopes. Liberty lies in the hearts of men and women; and when it dies there, no constitution, no law, no court can save it.