Posted on by Mark Movsesian · 4 Comments

“Big Mountain Jesus”

Yet another religious display case, this time from Big Mountain, Montana.  For more than 50 years, the Knights of Columbus has maintained a six-foot tall statue, “Big Mountain Jesus,” as a tribute to World War II veterans who told of seeing similar shrines while fighting in Italy. The statue is on public land administered by the US Forest Service. In response to a complaint from the Freedom from Religion Foundation that the  statue violates the Establishment Clause, the Forest Service told the Knights the statue could not remain. This decision caused a public outcry, and the Forest Service is now reconsidering. One possible solution is a land swap, in which the Forest Service would give the 25 x 25 foot parcel on which the statue stands to a nearby ski resort in exchange for another piece of real estate.

This dispute is very similar to Salazar v. Buono, the Mojave Desert Cross case from 2010, the last occasion on which the Court addressed religious displays on public property. Salazar involved a Latin cross erected on public land by a private group as part of a war memorial; when lower courts ruled the cross unconstitutional, the government executed a land swap to convey the memorial to private parties. Procedural complications made Salazar rather narrow, though, and it doesn’t give too much guidance here. Quite apart from Salazar, the Court’s jurisprudence on public religious displays is famously unpredictable. Under some versions of the endorsement test, “Big Mountain Jesus” is pretty clearly unconstitutional. But the Court doesn’t always apply the endorsement test, and Justice Kennedy’s plurality opinion in Salazar indicates that even a sectarian display, in the context of a longstanding war memorial, may be constitutional. The Forest Service plans to announce its decision next year.

Posted on by Marc O. DeGirolami

President Bush’s Thanksgiving Proclamation of 1989

Most contemporary Thanksgiving proclamations (from the 20th century forward)  have been relatively short — usually one-paragraph affairs which noted the custom of giving thanks to God and got on with it.  George H.W. Bush’s Thanksgiving proclamations tended to be a bit longer and it is evident that he put some time into making them unique.  They are often laced with citations, sometimes from American history, sometimes from scripture, and they stand out for the care with which they were conceived.  Below, the text of President Bush’s first Thanksgiving proclamation in 1989. 

On Thanksgiving Day, we Americans pause as a Nation to give thanks for the freedom and prosperity with which we have been blessed by our Creator. Like the pilgrims who first settled in this land, we offer praise to God for His goodness and generosity and rededicate ourselves to lives of service and virtue in His sight.

This annual observance of Thanksgiving was a cherished American tradition even before our first President, George Washington, issued the first Presidential Thanksgiving proclamation in 1789. In his first Inaugural Address, President Washington observed that “No people can be bound to acknowledge and adore the Invisible Hand which conducts the affairs of men more than those of the United States.” He noted that the American people – blessed with victory in their fight for Independence and with an abundance of crops in their fields – owed God “some return of pious gratitude.” Later, in a confidential note to his close advisor, James Madison, he asked “should the sense of the Senate be taken on … a day of Thanksgiving?” George Washington thus led the way to a Joint Resolution of Congress requesting the President to set aside “a day of public Thanksgiving and Prayer, to be observed by acknowledging with grateful hearts the many and signal Favors of Almighty God.”

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Posted on by Marc O. DeGirolami

President Washington’s 1789 Thanksgiving Proclamation

George Washington’s 1789 Thanksgiving Proclamation was the very first in this American tradition.  What I find particularly noteworthy is the very first line.  The President says that the duty to give thanks to God is not a personal duty, or even a collective social duty, but a national duty.  It is the duty of a country to give thanks to God and to “obey his will.”  This is an idea which is difficult to find in the modern proclamations.  Indeed, one wonders about its constitutional status under some modern religion clause doctrines.  The text of the country’s first Thanksgiving proclamation follows.

Whereas it is the duty of all Nations to acknowledge the providence of almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favor – and Whereas both Houses of Congress have by their joint Committee requested me “to recommend to the People of the United States a day of public thanksgiving and prayer to be observed by acknowledging with grateful hearts the many signal favors of Almighty God, especially by affording them an opportunity peaceably to establish a form of government for their safety and happiness.”

Now therefore I do recommend and assign Thursday the 26th day of November next to be devoted by the People of these States to the service of that great and glorious Being, who is the beneficent Author of all the good that was, that is, or that will be – That we may then all unite in rendering unto him our sincere and humble thanks – for his kind care and protection of the People of this country previous to their becoming a Nation – for the signal and manifold mercies, and the favorable interpositions of his providence, which we experienced in the course and conclusion of the late war –for the great degree of tranquillity, union, and plenty, which we have since enjoyed – for the peaceable and rational manner in which we have been enabled to establish constitutions of government for our safety and happiness, and particularly the national One now lately instituted, for the civil and religious liberty with which we are blessed, and the means we have of acquiring and diffusing useful knowledge; and in general for all the great and various favors which he hath been pleased to confer upon us.

And also that we may then unite in most humbly offering our prayers and supplications to the great Lord and Ruler of Nations and beseech him to pardon our national and other transgressions – to enable us all, whether in public or private stations, to perform our several and relative duties properly and punctually – to render our national government a blessing to all the People, by constantly being a government of wise, just, and constitutional laws, discreetly and faithfully executed and obeyed – to protect and guide all Sovereigns and Nations (especially such as have shewn kindness unto us) and to bless them with good government, peace, and concord – To promote the knowledge and practice of true religion and virtue, and the increase of science among them and Us – and generally to grant unto all mankind such a degree of temporal prosperity as he alone knows to be best.

Given under my hand at the City of New York the third day of October in the year of our Lord 1789.  GO. WASHINGTON.

Posted on by Marc O. DeGirolami

President Lincoln’s Second Thanksgiving Proclamation of 1863

The practice of presidential Thanksgiving proclamations was interrupted for 45 years between 1816-1861, to be revived by Abraham Lincoln in earnest.  He issued four proclamations between the years of 1862 – 1864.  Here is the eloquent text of his second 1863 Thanksgiving proclamation.

The year that is drawing toward its close has been filled with the blessings of fruitful fields and healthful skies. To these bounties, which are so constantly enjoyed that we are prone to forget the source from which they come, others have been added which are of so extraordinary a nature that they can not fail to penetrate and soften even the heart which is habitually insensible to the ever-watchful providence of Almighty God.

In the midst of a civil war of unequaled magnitude and severity, which has sometimes seemed to foreign states to invite and to provoke their aggression, peace has been preserved with all nations, order has been maintained, the laws have been respected and obeyed, and harmony has prevailed everywhere, except in the theater of military conflict, while that theater has been greatly contracted by the advancing armies and navies of the Union. Needful diversions of wealth and of strength from the fields of peaceful industry to the national defense have not arrested the plow, the shuttle, or the ship; the ax has enlarged the borders of our settlements, and the mines, as well of iron and coal as of the precious metals, have yielded even more abundantly than heretofore. Population has steadily increased notwithstanding the waste that has been made in the camp, the siege, and the battlefield, and the country, rejoicing in the consciousness of augmented strength and vigor, is permitted to expect continuance of years with large increase of freedom.

No human counsel hath devised nor hath any mortal hand worked out these great things. They are the gracious gifts of the Most High God, who, while dealing with us in anger for our sins, hath nevertheless remembered mercy.

It has seemed to me fit and proper that they should be solemnly, reverently, and gratefully acknowledged, as with one heart and one voice, by the whole American people. I do therefore invite my fellow-citizens in every part of the United States, and also those who are at sea and those who are sojourning in foreign lands, to set apart and observe the last Thursday of November next as a day of thanksgiving and praise to our beneficent Father who dwelleth in the heavens. And I recommend to them that while offering up the ascriptions justly due to Him for such singular deliverances and blessings they do also, with humble penitence for our national perverseness and disobedience, commend to His tender care all those who have become widows, orphans, mourners, or sufferers in the lamentable civil strife in which we are unavoidably engaged, and fervently implore the interposition of the Almighty hand to heal the wounds of the nation and to restore if, as soon as may be consistent with the divine purpose, to the full enjoyment of peace, harmony, tranquillity, and union.

In testimony whereof I have hereunto set my hand and caused the seal of the United States to be affixed.

Done at the city of Washington, this 3d day of October A.D. 1863, and of the Independence of the United States the eighty-eighth.
ABRAHAM LINCOLN

Posted on by Marc O. DeGirolami

President Adams’s 1798 Thanksgiving Proclamation

Over the next couple of days, I thought I would reproduce some historic Thanksgiving proclamations here at CLR Forum.

The first of these is John Adams’s in 1798.  Adams was, in my view, one of the keenest minds to grace the presidency.  In light of my colleague Mark’s post below on this year’s Thanksgiving address, it is worth taking a close look at the text of Adams’s 1798 Thanksgiving proclamation.  An interesting note — it was issued in March and proclaimed May 9, 1798, a “day of solemn humiliation, fasting, and prayer” — a day to offer “devout addresses to the Father of Mercies.”  In other words, the decision to offer “thanks” and other entreaties to God was not a kind of pro forma “ceremonial” event that occurred sometime every late November, but an urgent happening that the grave problems of the time were believed to make necessary.  Adams’s moving proclamation follows.

A PROCLAMATION by the President of the United States of America:

As the safety and prosperity of nations ultimately and essentially depend on the protection and the blessing of Almighty God, and the national acknowledgment of this truth is not only an indispensable duty which the people owe to Him, but a duty whose natural influence is favorable to the promotion of that morality and piety without which social happiness can not exist nor the blessings of a free government be enjoyed; and as this duty, at all times incumbent, is so especially in seasons of difficulty or of danger, when existing or threatening calamities, the just judgments of God against prevalent iniquity, are a loud call to repentance and reformation; and as the United States of America are at present placed in a hazardous and afflictive situation by the unfriendly disposition, conduct, and demands of a foreign power, evinced by repeated refusals to receive our messengers of reconciliation and peace, by depredations on our commerce, and the infliction of injuries on very many of our fellow-citizens while engaged in their lawful business on the seas – under these considerations it has appeared to me that the duty of imploring the mercy and benediction of Heaven on our country demands at this time a special attention from its inhabitants.

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Posted on by Mark Movsesian

Keeping Thanks in Thanksgiving

This Thursday, Americans celebrate Thanksgiving, a national holiday that commemorates a meal the Pilgrims shared with their Native American neighbors in the Plymouth colony almost 400 years ago. It is, at least in origin, a religious holiday; the “thanks” are being “given” to God. Yet Thanksgiving does not cause the dissension that official Christmas commemorations sometimes do in America, probably because it is not clearly tied to a particular faith tradition.

Starting with George Washington, American Presidents customarily have issued Thanksgiving Day proclamations, although the secular-minded Thomas Jefferson famously declined. Traditionally, Presidents call on Americans — to quote one of Bill Clinton’s proclamations — “to express heartfelt thanks to God for our many blessings.” Separationist purists object to this sort of thing, which may violate some versions of the Supreme Court’s endorsement test, but the proclamations really do fall within the American tradition of public religious expression.

Last week, President Barack Obama issued his Thanksgiving Proclamation for 2011. In many respects, including its references to God, it’s quite traditional. In one respect, though, it’s not.  In addition to thanking God, President Obama encourages us to “thank each other” for the blessings we enjoy. A subtle redefinition of the holiday? An example of a new secularism in America? I’m not sure; but I do wonder if this idea of appreciating one another will eventually displace the original, religious meaning of the holiday, much as the celebration of family and friends has displaced, for many, the original meaning of Christmas. Not that I object to expressing appreciation to other people. In fact, in the spirit of the President’s proclamation: Thanks, everyone. You know who you are.

Posted on by Mark Movsesian

Court Denies Cert in Utah Highway Crosses Case

Today the Supreme Court denied certiorari in  Utah Highway Patrol Ass’n v. American Atheists, the Utah highway crosses case. The Tenth Circuit had held that memorial crosses an association of police officers had erected alongside public roadways violated the Establishment Clause under the endorsement test. Justice Thomas filed a 19-page dissent from the denial of cert, arguing that the case would have provided a good vehicle for reconsidering the test, which, he argues,  confuses lower courts and leads to unpredictable results.

As Lyle Denniston explains at SCOTUSBlog, it’s impossible to know whether any of the other justices voted to grant cert — though, obviously, there were not four who wanted to hear the case. Perhaps the fractured nature of the last religious display case the Court decided, Salazar v. Buono  (2010), which also involved a cross on public property, has chastened the justices and made them reluctant to try again so soon. Perhaps there were problems with the record. Perhaps the justices who favor abandoning the endorsement test cannot yet agree on a substitute and don’t want to confuse things even more. One fact is clear. Public religious displays continue to generate an enormous amount of interest. The Court received 46 amicus submissions in support of cert in the Utah case. — MLM

Posted on by Mark Movsesian · 2 Comments

Another Ten Commandments Case

It is a truth universally acknowledged, that the Supreme Court’s decisions regarding religion in America’s public schools are widely disregarded.  No matter how many times the Court rules that officially-sponsored school prayers are unconstitutional, for example, the prayers continue.  The same pattern holds with regard to public Ten Commandments displays – though here, the Court bears much of the blame.  The Court has issued three decisions on public Ten Commandments displays over the past three decades, but they turn on very specific facts and fail to announce an easy principle.  For example, in two decisions issued on the same day in 2005, the Court held that a display of the Commandments in a Kentucky courthouse was unconstitutional, because reasonable observers would perceive an endorsement of religion, but that a display of the Commandments on the Texas State Capitol grounds was constitutional, because, well, the display had secular elements and hadn’t seemed to bother people.  One could forgive local officials for being confused.

A new Ten Commandments case has arisen in Giles County, Virginia, where the ACLU is suing the local school board in federal court for ordering that the Commandments be placed in the lobby of a local high school.  The school board argues that it has displayed the Commandments along with other historical documents, like the Declaration of Independence, that show that the school is not endorsing religion as such.  But the Supreme Court has been particularly suspicious of displays of the Commandments in public schools, and the facts suggest that, as in the Kentucky case, officials in Giles County surrounded the Commandments with secular documents only after some parents complained Read more

Posted on by Mark Movsesian · 1 Comment

Latterell on “In God We Trust”

The National Motto, “In God We Trust,” poses a bit of a problem for the “endorsement test,” the most-widely used test for the constitutionality of state-sponsored religious expression.  Under the endorsement test, government cannot communicate a message that suggests either approval or disapproval of religion, even religion in general.  Yet the words  “In God We Trust” appear on American currency, and have since the Civil War.  Some excuse the motto as a historical remnant or an example of merely “ceremonial deism,” and it seems unthinkable that the Court would ever order its removal; but the tension with the endorsement test remains.

Justin Latterell (Emory) has published an interesting-looking historical piece, In God We Trust: Abraham Lincoln and America’s Deathbed Repentance, that focuses  on Abraham Lincoln’s role in establishing the motto.   The abstract is below. – MLM

This article maps several key moments in the evolution of religious symbolism and language on U.S. currency, focusing largely on Abraham Lincoln’s overlooked role in signing the motto ‘In God We Trust’ into law. Interpreting the motto through the lens of Lincoln’s “Second Inaugural Address” — which he delivered just one day after Congress passed the first statute allowing ‘In God We Trust’ to be stamped on U.S. coins — offers a counter-intuitive interpretation of the motto that functions as a deep, ironic, and historically significant critique of religious nationalism.

Posted on by L&R Forum

Wexler on Government Disapproval of Religion

BU Professor Jay Wexler has posted an interesting new paper, Government Disapproval of Religion, on SSRN. Wexler notes that state and local governments increasingly take actions that disparage religious beliefs — a San Francisco ordinance condemning the Catholic Church’s refusal to allow gay adoptions, for example. He points out that such actions are subject to the Supreme Court’s endorsement test, which forbids state action that endorses or disapproves of religion, but argues that the test covers only “explicit negative references” to religion. That is, governments may not expressly disparage religion, but may take positions that incidentally offend religious believers. Wexler believes that his approach would allow government to function effectively, while avoiding messages that make particular religious communities feel like outsiders — the whole point of the endorsement test. Worth reading.
— MLM