August 3, 2004
Article III, Section 2 and the Wobbly Wall Between Church and State
by Maureen Farrell
"Whatever else it achieves, the presidential campaign of 2000 will be remembered as the time in American politics when the wall separating church and state began to collapse." -- New York Times Magazine, Jan. 30, 2000
On July 24, The Atlanta Journal-Constitution featured an article by Jay Bookman that resonated with the same epiphany-provoking oomph generated nearly two years ago, when he suggested that the impending war in Iraq was more about global domination than about UN resolutions or weapons of mass destruction.
This conclusion, unscrupulously mocked by some as anti-Semitic crazy talk, has since been substantiated by the likes of veteran journalist Seymour Hersh. Moreover, six months before the Iraq war started, Bookman predicted: "Having conquered Iraq, the United States will create permanent military bases in that country from which to dominate the Middle East, including neighboring Iran." Fourteen projected military bases and substantial saber rattling later, Bookman looks like a prophet.
This time around, however, he’s not warning about the looming war in Iraq, but about developments in another war, the culture war, being waged here at home. The defeat of the Federal Marriage Amendment banning gay marriage, it seems, wasn’t accepted graciously by House leaders, who, citing "an obscure and largely untested provision" of the U.S. Constitution (Article III, Section 2) voted 233-194 to pass the Marriage Protection Act (H.R. 3313), a bill which will prevent the Supreme Court from considering the constitutionality of the 1996 Defense of Marriage Act.
What does this mean? While discrimination will not be inserted into the Constitution anytime soon, lawmakers have a found a way to subvert the usual checks and balances, while using this provision as battering ram against constitutional freedoms, civil liberties and the wall separating church and state.
"This bill is a mean-spirited, unconstitutional, dangerous distraction," Rep. Jim McGovern said. "Instead of addressing the real concerns faced by American families, the leadership of this house has decided to throw its political base some red meat. They couldn't amend the Constitution last week, so they're trying to desecrate and circumvent the Constitution this week."
Calling it "a power grab of breathtaking consequence," Bookman explained:
House Minority Leader Nancy Pelosi underscored Bookman’s concerns. Saying that it would "constitute the first time in the over 200 years of our country’s history that Congress has enacted legislation totally eliminating any federal court from considering the constitutionality of federal legislation," she said: "This bill will impact the very foundation of our government. It impedes the uniformity of federal law, it sets a dangerous precedent, and it does grave damage to the separation of powers."
The New York Times also weighed in, using particularly strong language. Calling the Marriage Protection Act "a radical assault on the Constitution," the Times deemed it a "radical approach" which "would allow Congress to revoke the courts' ability to guard constitutional freedoms of all kinds." Moreover, the Times noted the precedent it would set. "And although gays are the subject of this bill, other minority groups could easily find themselves the target of future ones," the editorial asserted.
Rep. Sheila Jackson Lee reminded fellow Congressmen that had such a law passed in the 1950s, there would be no Brown v. Board of Education and no desegregation in public schools. Rep. Carolyn Maloney said the bill "would deny judicial review to an entire class of citizens" and "is willing to trample on our Constitution in order to do so."
Not everyone is inclined to fret about constitutional freedoms and civil liberties, however. In fact, those diligently working to transform America into a Christian nation believe that their Biblical world view trumps other concerns. In an Oct. 6, 2003 op-ed in the Washington Times, former Rep. William E. Dannemeyer openly advocated using this tact. "Congress should use Article III, Section 2, clause of the U.S. Constitution to recover what has been stolen," he wrote, listing egregious acts such as: "Enacting a wall of separation between church and state; Banning nondenominational prayer from public schools; Removing the Ten Commandments from public school walls; and Removing God from the Pledge of Allegiance" as primary transgressions.
Not surprisingly, ever since the Washington Post dubbed George Bush the first U.S. president to become the Religious Right’s "de facto leader," the campaign to topple the wall separating church and state has gained more momentum than the Road Runner on diet pills. In February, lawmakers introduced the Constitutional Restoration Act of 2004 which also says that the Supreme Court has no jurisdiction over "any matter" regarding public officials who acknowledge "God as the sovereign source of law, liberty, or government."
Heralded as "the most important piece of legislation in the last fifty years" by conservative radio host Chuck Baldwin (who also cited Article III, Section 2) and reminiscent of Judge Antonin Scalia's Biblically-inspired contention that "government. . . derives its moral authority from God," the Constitution Restoration Act was looked upon less favorably by a host of others, including former Christianity Today correspondent Katherine Yurica.
Distinguishing between the stated purposes and hidden realities of the bill, Yurica explained that it is "drawn broadly and expressly includes the acknowledgment of God as the sovereign source of law. . .," which could, in the scariest of scenarios, turn America into a theocracy wherein judges could "institute biblical punishments without being subject to review by the Supreme Court or the federal court system."
Columnist James Heflin also underscored the hidden subtext:
Not only would the Act bar the Supreme Court from reviewing cases in which public servants acknowledge God as the source of law, but it would make judges who rule on cases such as Judge Moore’s Ten Commandment debacle vulnerable to impeachment. (Hence, the Star-Telegraph said it should be named the "Roy Moore Gets to Flout the Constitution Act.")
But more importantly, notes Heflin, "It is unclear exactly what actions a public servant could get away with under the banner of invoking God as the source of law." And while visions of Rev. Sun Myung Moon’s recent Messianic coronation in the U.S. Senate comes readily to mind, Heflin’s concern is more aptly echoed in Bookman’s argument that if the Marriage Protection Act is enacted, Congress (in theory anyway) could "pass a law making Christianity the national religion, and bar the courts from hearing a challenge." Yes, Virginia, the Religious Right has more than one theocratic trick up its sleeve.
But it’s not just the Marriage Protection Act or the Constitutional Restoration Act that are raising eyebrows. Another bill (HR 3920 IH) "to allow Congress to reverse the judgments of the United States Supreme Court" is yet one more example of extreme maneuvering. Not surprisingly, the Christian Coalition actively supports all three pieces of legislation (Christian Coalition Washington Weekly Review; "Support The Senate's 'Marriage Protection Act'").
So, if Jay Bookman is correct, the movers and shakers of the Religious Right and their henchmen in the House of Representatives have crossed the line. "[If] implemented as House Republicans now intend, it would have enormous ramifications on the system of government and concepts of justice that have evolved over the last 200 years," Bookman wrote. Rep. Carolyn Maloney put it bluntly: "The Republican leadership is trying to use a wedge issue to appeal to right-wing constituencies in a highly charged election year, and they are willing to trample on our Constitution. No issue is ever worth such a price."
And even though the New York Times expressed doubts that the Senate will go along with the this travesty, the fact that this bill had widespread support is alarming in and of itself. "Still, even one house of Congress backing this sort of assault on the federal judiciary is an outrage," the editorial asserted.
Outrageous, yes, but not surprising. In March, the Washington Times reported that House Majority Leader Tom Delay was about to "announce his own legislative agenda" in a closed door session. "One goal, he said, will be to re-establish what he sees as the rightful role of religion in public places. . ."
Rep. Mike Pence, one of the original sponsors of the Constitutional Restoration Act, was impressed. "What Tom's doing is pretty refreshing," he said. Though "the White House normally sets the agenda," DeLay's initiative, Pence mused, "signals the dynamics of the president's second term, hopefully very different" (i.e. with an even more pronounced rightward bent).
With that in mind, anyone who is even remotely concerned about the extreme measures the extreme right ("Vast, Right-Wing Cabal?," ABC News; "Avenging angel of the religious right," Salon; "Reverend Doomsday," Rolling Stone) has taken since the 2000 election should wonder why they were so eager to crown candidate Bush in the first place.
And, more importantly, they should fully consider what a second Bush
term might look like.
Maureen Farrell is a writer and media consultant who specializes in helping other writers get television and radio exposure.
© Copyright 2004, Maureen Farrell