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State of Alabama v. ACLU
Supreme Court of the State of Alabama (1997)

V. Enforcing The Establishment Clause Does Not Create Secular Humanism

In the court below, Judge Moore argued that if his courtroom is ordered cleansed of religious symbols, and he is forbidden to open jury terms with prayer, the religion of secular humanism will have been established. The claim is not a new one; it has been rejected numerous times, most spectacularly in the case of Smith v. Bd. of Comm'rs, 655 F.Supp. 939 (S.D. Ala. 1987), rev'd, 827 F.2d 684 (11th Cir. 1987). Accord, eg., School District of Abington Twnshp. v. Schempp, 374 U.S. 203, 225 (1963); Grove v. Mead School Dist., 753 F.2d 1528 (9th Cir. 1985) (Canby, J., concurring); Brown v. Woodland USD., 27 F.3d 680 (9th Cir.1994); Fleishfresser v. Directors, School District, 805 F.Supp. 584 (N.D. Ill. 1992), aff'd, 15 F.3d 680 (7th Cir. 1994).

The problem with the argument is not merely that it faces an insurmountable barrier in precedent Rather, it is that it sets the Establishment Clause at war with itself. The argument, roughly stated, is that if religion is not affirmed by the state, then the state's silence on religious subjects constitutes an affirmation of Secular Humanism, which denies God any role in human affairs. The argument denies that there is any ground between active support of religion and active opposition to it. The Establishment Clause is incomprehensible without such a middle ground. It is fair enough to argue about the bounds of that middle ground; it denies any meaning to the Clause to deny its existence.

A courtroom without the Ten Commandment is not the same thing as a courtroom festooned with a placard carved with Marx's epigram "religion is the opium of the people" or the Secular Humanist manifesto. A courtroom with such symbols is as impermissible as one bearing religious slogans. But a courtroom which is simply silent on the subject of religion is neither hostile nor supportive of religion. It is simply one that recognizes that a courtroom is not an appropriate forum for official religious or anti-religious speech. The creation of that sort of neutral zone is exactly what the Establishment Clause is all about.

No more availing is the argument advanced by Appellants below that the Constitution prohibits official denominational preferences, not a preference for religion over non-religion. Appellants argue that the constitutional bar on religion is not to be interpreted as banning references to God. That is, they argue that the Constitution does not bar a general, non-sectarian preference for God and religion. They are wrong. It is on the basis that the Constitution bars naked official religious preferences that the Court struck an Alabama statute requiring schools to begin their day with a moment of silence for prayer or meditation, and it is on this basis that the Court rejected naked religious preferences in both Texas Monthly v. Bullock, 489 U.S. 1 (1988) and Estate of Thornton v. Caldor, Inc, 472 U.S. 703 (1985).

We put to one side the question of whether there is such a thing as a non-sectarian reference to God, or a generic brand of religion. The history of religion is largely to the contrary, but it is not within the power of the Court to decide that question. The Supreme Court has authoritatively resolved the question of whether religion may be preferred over nonreligion. In Wallace v. Jaffree, 472 US. 38, 52-53 (1985), the Court wrote (having first quoted the very authorities relied on here by Appellants):

At one time it was thought that this right merely proscribed the preference of one Christian sect over another, but would not require equal respect for the conscience of the infidel, the atheist, or the adherent of a non-Christian faith such as Islam or Judaism. But when the underlying principle has been examined in the crucible of litigation, the Court has unambiguously concluded that the individual freedom of conscience protected by the First Amendment embraces the right to select any religious faith or none at all. This conclusion derives support not only form the interest of respecting the individual's freedom of conscience, but also from the conviction that religious beliefs worthy of respect are the product of free and voluntary choice by the faithful, and from recognition of the fact that the political interest in forestalling intolerance extends beyond intolerance among Christian sects -- or even intolerance among "religions" -- to encompass intolerance of the disbeliever and the uncertain. (footnotes omitted)


For the reasons stated the judgment must be affirmed.

Respectfully submitted,

Marc D. Stern
American Jewish Congress
15 East 84th Street
New York, New York 10028
(212) 360-1545

May 1, 1997

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