ACLU/Reasonable

Reasonable Men:

Southern Appeal considers analysis of a decision that came out of the Sixth Circuit court. It's another "Ten Commandments" case, and the language is both unusual and rather harsh:

In an interesting decision from the 6th Circuit, the Court did not accept the ACLU's argument that the First Amendment requires separation of Church and State. Specifically, the Court affirmed the posting of the Ten Commandments in the Mercer County Court house. Some quotes of interest:

"Our concern is that of the reasonable person. And the ACLU, an organization whose mission is 'to ensure that . . . the government [is kept] out of the religion business,' does not embody the reasonable person."

"We will not presume endorsement from the mere display of the Ten Commandments. If the reasonable observer perceived all government references to the Deity as endorsements, then many of our Nation's cherished traditions would be unconstitutional, including the Declaration of Independence and the national motto. Fortunately, the reasonable person is not a hyper-sensitive plaintiff."

I think that's right, not only from a legal but from a historical perspective. The ACLU is advocating a position that belonged, properly, to Jefferson and a few others -- which is to say, it is an honorable position deeply rooted in American history. On the other hand, it was a minority position among the Founders, many of whom were deeply religious and felt a need to be guided by and to express their faith in their work.

The reading of the First Amendment as requiring the separation of church and state doesn't come from the intention of the First Amendment, which was written to prevent the establishment of an official state church to which one would have to swear oaths, such as existed in England and Ireland. It's reasonably clear from a historical perspective that "the Founders," if they could be summoned from the grave and asked to rule on the matter, would not ratify a "separation of church and state" reading. Jefferson would advocate it, as he did advocate it (at least, presuming that nothing in the next world had changed his opinion on the subject). Most of his contemporaries, including Washington, would not (again, presuming the same thing).

I don't think the ACLU is unreasonable to advocate for Jefferson's position. While they may not be acting as "reasonable observers" of history or public opinion, they are certainly reasonably reading the existing precedents.

However, the alternative reading is also not unreasonable -- far from it. A reasonable observer would have to read the history of the First as expressing very strong support for this position. Consider the weight of history, and the continuance of public opinion in support of that reading from the Founding to the present day. It seems right to say that such a broad and ancient current will but naturally cut a channel: a line of thinking so broad and old will find a way to express itself. I suspect the law will make room for it, sooner or later.