If there were ever a more misguided federal court decision than the April 14, 2005, Fourth Judicial District Simpson v. Chesterfield (292 F. Supp. 2d. 805) opinion, it is its U.S. Supreme Court parent, Marsh v. Chambers (463 U.S. 783), 1983. The following review of Simpson will describe what Marsh has birthed: the unconstitutional principle that Federal Courts of the United States can effectively rewrite the Constitution, rather than abide by the words and principles of the Constitution as drafted by the Founding Fathers in 1787 and amended by the members of the First Congress in 1789, subsequently approved in 1788 and 1791 by the people of the United States through their respective state legislatures.
There is no constitutional principle more clearly stated or more thoroughly documented by James Madison ("Father of the Constitution" and co-chair of the six member joint Senate-House conference committee which drafted the final version of the First Amendment) than "separation between Religion and Government in the Constitution of the United States" (William and Mary Quarterly, 3:555). Yet, in 2005, three Federal Court Judges of the Fourth Circuit not only rejected James Madison, they ignored the strict constructionist wording of the religion commandments of the Constitution. The three judges unlawfully prostrated themselves before an illegitimate offspring begat by the Supreme Court of the United States, Marsh v. Chambers.
The words of the Constitution mean exactly what they say. How dare any Judge or Justice change them. It is a "religious" test which shall not be required as a qualification to any office or public trust under the United States (Art. 6., Sec. 3.). It is "religion" (First Amendment) which shall not be established by the coercive power of law or government at any level (thanks to the Fourteenth Amendment), whether federal, state, county, city, township, or school district.
The Fourth Circuit Court openly admits the Chesterfield County, Virginia, Board of Supervisors "adopted a policy under which some of its [official] public meetings include a non-sectarian invocation." With a straight face, the same Court denied the Board's established invocation had anything to do with the word written in the no Establishment Clause, that is, "religion."
The Fourth Circuit Court concurred with the U.S. District Court for the Eastern District of Virginia which wrote: "The avowed purpose of the invocation is simply that of a brief pronouncement of simple values presumably intended to solemnize the occasion. ... The context, and to a degree, the content of the invocation segment is governed by established [ESTABLISHED] guidelines by which the Board [THE BOARD OF SUPERVISORS OF CHESTERFIELD COUNTY] may regulate the content of what is or is not expressed ...." REALLY? Even though "it is no part of the business of government to compose official prayers for any group of the American people" ((Engel v. Vitale, 370 U.S. 421, 425)?
The Fourth Circuit Court actually argues the 1962 Engel v. Vitale ruling "for any group of the American people" does not apply to adults! What part of "any group of the American people" does the Fourth Circuit Court not understand? Cynthia Simpson should appeal on the basis of obvious judicial incompetence.
The Fourth Circuit Court writes: "Correctly adhering to Supreme Court precedent, the [Virginia] district court also found that this issue turns on the characterization of the invocations as government speech" (1984 government speak?). In spite of its outright distortion in attempting to justify a ludicrous distinction between "legislative prayer and prayer for the people" (either way, ³prayer² is religion), the Fourth Circuit Court admits the invited invocationists come from a collected list of community "religious leaders." The Fourth Circuit Court has it both ways. The invocationists are either "religious leaders" or "government" spokespersons. In this case, are they not both? Cynthia Simpson should remind the Fourth Circuit Court of what Jesus commanded in Matthew 6:5-6 and then appeal its decision on the basis of obvious judicial dishonesty.
What more can be said of an "activist" and "revisionist" Fourth Circuit Court which, in direct violation of the Establishment Clause, establishes, via Simpson, a "civil religion" or "civic faith" through which sectarian religious leaders invoke, in a "nonsectarian" way, a "divinity" of the "Judeo-Christian tradition," which does not include American citizens outside of that oxymoronic description--a Jew is not a Christian and Judaism is not Christianity; therefore, there is no such tradition. In 1797 President John Adams and the U.S. Senate wrote: "The Government of the United States of America is not in any sense founded on the Christian religion" (Treaty with Tripoli, Treaties, ed. Hunter Miller, 2:365). Cynthia Simpson should appeal on the basis of judicial ignorance.
More can be said of Marsh, which had the supreme audacity to conclude that so-called "non-sectarian legislative prayer generally does not violate the Establishment Clause." To the contrary, it is absurd to assert "legislative invocations ... seeking divine guidance" are not within the realm of "religion" or within the prohibition of "no law respecting an establishment of religion." Reference to the "divine," is, on its face, a matter of religion, and any law establishing the "divine" or "religion" in any way whatsoever is in violation of the Establishment Clause. Memo to Federal Judges and Justices: "religion" means religion, not something less, and "no law respecting" an establishment of religion means no law respecting an establishment of "religion."
Allow me to provide an illustration as to how ridiculous some judges and justices on some Federal Circuit Courts and on the Supreme Court really are: The Fourth Circuit Court says it agrees with the Tenth Circuit ... that "the mainline body of Establishment Clause case law provides little guidance for our decision in this case. Our decision, instead, depends on our interpretation of the holding in Marsh" (Snyder v. Murray City Corp.).
In order for the Fourth and Tenth Circuit Courts to make a decision, they require case law for guidance, that is, in this case, they concur with Marsh. In effect, they assert the Constitution is not sufficient and "provides little guidance," even though the Constitution plainly says "religion" is not to be established by government and even though recent case law has been very clear. For example, in McCollum v. Board of Education, Engel v. Vitale, and Abington v. Schempp, the Supreme Court ruled that government cannot make laws which establish required religion classes, required prayer, or required Bible reading, because they are laws in respect to "an establishment of religion." What about the many years of historical practice and tradition in those public schools where school districts provided sectarian religion instruction and required students to listen to government written prayers or government required Bible readings? The 1947, 1962, and 1963 Supreme Court rejected significant historical tradition and ruled in favor of constitutional intent. In those cases from Illinois, New York, and Pennsylvania, the Supreme Court established significant judicial precedent and clearly ruled against very traditional, but unconstitutional, state practices of public school provided sectarian religion teachers, prescribed prayers, and required Bible readings.
Various government establishments of religion have existed in America from its beginning and some have continued long after the First Amendment came into existence. They are evidence of historical hangovers from the Dark Ages and from some of the British colonies and independent states, but such establishments of religion are not evidence of the intent of the Constitution or the First Amendment in 1788 and 1791 any more than they were in 1947, 1962, and 1963. In America, religion is to be voluntary. Government is the essence of coercion. The constitutional principle established by the religion commandments is government-free voluntarism in matters of religion. The First Amendment specifically identifies Congress (the national legislature), and it provides no exception for "legislative prayer" any more than it does for required religion classes, required Bible reading, or required prayers in public schools. Neither does the Fourteenth Amendment provide for "legislative prayer" exceptions within state legislatures.
Because the Fourth and Tenth Circuit Courts simply dismissed the Constitution and yielded instead to Marsh v. Chambers, allow me to reinstate the Constitution: Try as mightily as they did, the minority in Marsh did not prevail and the majority ignored specific and primary documentation provided by James Madison, for example, in his two February 1811 vetoes of congressionally passed religion bills and in his "Detached Memoranda," wherein he specifically wrote (c.1817) that congressional (legislative) chaplains were palpably unconstitutional because "strongly guarded ... is the separation between Religion and Government in the Constitution of the United States" (William and Mary Quarterly, 3:555). In conflict with the Marsh distortion about passage of the congressional act to fund congressional chaplains, in 1822 Madison wrote, "it was not with my approbation, that the deviation from it took place in Congress, when they appointed Chaplains, to be paid from the National Treasury" (Gaillard Hunt, Writings of James Madison, 9:100).
The Marsh Court also failed to recognize chronological history in terms of the September 22, 1789, compensation Act which funded secretaries and chaplains (in the same sentence) and was passed by Congress prior to existence of the final draft of the First Amendment, which, after several wording changes between September 3 and 23, was not finally adopted in the House of Representatives until September 24, 1789, and did not exist, as a part of the supreme law of the land, until 1791, AFTER ratification by the required number of states.
In other words, the majority Justices in Marsh literally misrepresented the facts of history about Madisonıs roll in funding congressional chaplains. The September 22, 1789, Act approved by Congress included a long list of authorized funding measures for congressional members and others. The entire package was passed on the same day. James Madison was a member of the Congress responsible for drafting the congressional personnel funding bill which in Section 4 included chaplains; but, later, Madison plainly wrote such funding was passed without his approval. James Madison personally helped draft all of the religion commandments of the Constitution, and AFTER the Establishment Clause became law in 1791, Madison plainly wrote that chaplains were unconstitutional. It is unacceptable and irresponsible for courts to ignore chronology and James Madisonıs primary source commentary.
James Madison was, to the majority in Marsh, apparently not Founding Father enough or significant enough a member of First Congress (or even as an eight year President of the United States) to know the intent of the Constitutionıs religion commandments. Marsh, for all practical purposes, attempted to rewrite Madison as if he were not aware of the long list of encroachments by "Ecclesiastical Bodies" recorded in American government history. Regardless, the history careless majority in Marsh, concluded that long tradition and "historical patterns," trumped both James Madison and Supreme Court precedent in McCollum, Engel, Abington, including the principle of voluntarism, as determined by absence of government involvement.
Nevertheless, the historical record is clear. In Madisonıs 1811 vetoes he defended constitutional principle and the law of the land, by specifically rejecting congressional funding of religion and establishment of religion by law or government. Congress did not override Madison's vetoes, even though some members tried. A history deficient majority in Marsh abused both James Madison and the intent of the Constitution's religion commandments. Supporters of religion and government union have always existed in America, but so have Americans like James Madison, Thomas Jefferson, and John Leland. I repeat, Madison personally helped draft the religion commandments of the Constitution, and he said the congressional law establishing congressional chaplains is unconstitutional. Just as unconstitutional is (thanks to the Fourteenth Amendment) the Nebraska law establishing a chaplainship for the state of Nebraska, in spite of its long history.
For any Justice of the United States Supreme Court to fail to recognize James Madison's long history of objection to use of government for support of religion is to rape the historical record, not support it. American history is not a class typically offered in any law school, and some current Supreme Court Justices are well known to be history ignorant, for example, Justice William H. Rehnquist's dissent in Wallace v. Jaffree (See my rebuttal of the Rehnquist dissent at http://www.libertymagazine.org/article/articleview/162/1/41.)
Four years before drafting the First Amendment James Madison objected to taxation for support of religion in Virginia, and his "Memorial and Remonstrance" led to passage of the Virginia Statute for Religious Liberty, which declared: "to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; that even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions." Taxes and government are not voluntary, no matter how much history is provided as to state and federal violations of the principle in respect to religion after adoption of the Establishment Clause.
The long history of government encroachment in matters of religion, before and after adoption of the First Amendment, does not negate the Constitution or the principle of voluntarism established by its religion commandments. Indeed, it must be conceded, the massive number of such encroachments may possibly be exceeded only by the massive ignorance displayed by some legislators, judges, and justices in respect to the principle of voluntarism and the obvious intent of the religion commandments of the Constitution. "No religious test" and "no law" mean no coercion, that is, no test, no law, no government involvement. Nebraska established by government action, by law, an establishment of religion, a legislative chaplain, in violation of the Constitution.
The essence of religion and the essence of government are in contrast. Religion is not the business of government, except in enforcing the neutral laws of the land which apply equally to all citizens, regardless of religion. Neither religion nor legislatures are above the law, the supreme law of the land, the Constitution. Courts are sworn to uphold the Constitution, not unconstitutional, government involved, religion traditions.
Marsh v. Chambers should be overturned and rejected as definitely as was Scott v. Sanford and Minersville v. Gobitis. The Establishment Clause says "religion" is not to be established by law or Congress or (thanks to the Fourteenth Amendment) by government at any institutional level. It is dishonest to assert chaplains, paid or unpaid, are not included in the meaning of "religion." As James Madison wrote in his "Detached Memoranda," if government officials wish to participate in religion activities, "let them like their constituents do so at their own expense," not on government time paid for by the taxpayer. Of course, amphisbaenic or amphidiploid citizens or legislators (creatures of the Court created Judeo-Christian) can at any time pray silently and privately, as Jesus taught and as the Constitutionıs religion commandments allow, which solves the problem. In America religion is a personal matter for acceptance or rejection, and government is to remain neutral. Government appointment of a chaplain is not being neutral; it is an establishment of "religion" in violation of the Establishment Clause.
Should Cynthia Simpson have won her case? Absolutely not. The Establishment Clause is not about religion accommodation, it is about separation between religion and government. Government chaplains are obviously unconstitutional, whether Christian or Wiccan. The Simpson v. Chesterfield County decision should be appealed because it is wrongly decided by the Fourth Circuit Court, due to incompetent judges, misled by equally ignorant Justices on the Supreme Court of the United States, as documented by the majority opinion in Marsh v. Chambers.