Investigating an Anti-Christian Legal Attack on Pere Marquette Memorial

‘Tis the season it seems for legal attacks on Christian people and their displays. Every year someone tries to kick baby Jesus out of the park or off the courthouse steps. And now anti-Christian activists are trying to bully Pere Marquette Charter Township into removing an historic memorial, that yes, you guessed it, includes a cross.  In remembrance, a private group erected the historic memorial at the site of Pere Marquette’s death.  A review of the tribute at the memorial honors Marquette’s significant historical influence here in Michigan and elsewhere:

PERE JACQUES MARQUETTE – Famous Jesuit Missionary-Explorer

Born at Laon, France, June 1, 1637

Died at this site May 18, 1675

He came as a missionary to Quebec Sept. 20, 1666, learning the Indian languages and customs.

In 1668 he founded the first mission at Sault Ste. Marie, working among and Christianizing the Indians around the Straits of Mackinac.

June 17, 1673, with Louis Joliet, he discovered upper Mississippi, then the river of mystery.

They explored the Mississippi south to the mouth of the Arkansas.

Endeavoring to found a mission among the Illinois Indians, he spent the winter of 1674 & 75 on the banks of the Chicago River.

Due to impaired health, he was returning to the St. Ignace via the East shore of Lake Michigan when his condition worsened and he died at this spot.

Two years later an Indian cortege came from St Ignace, taking his remains back for burial.

Erected 1955

Pere Marquette memorial assn.

 

 

It is my understanding that a private group, the Pere Marquette Memorial Association, gave the memorial to the State. Over the years, the memorial ultimately fell under the ownership of the Pere Marquette Charter Township.

 The Historical Memorial to Pere Marquette does not Violate the First Amendment Establishment Clause  

 The First Amendment to the United States Constitution states: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof .…”  U.S. const. amend. I.

In resolving the issue of whether the historical memorial honoring Pere Marquette is Constitutional, one must look to the plain meaning of the words in the Establishment Clause.

Resolution of the issue facing Pere Marquette Charter Township necessarily requires a correct understanding of what the Establishment Clause means.  To correctly apply the Rule of Law in the Establishment Clause, the appropriate approach is to ask what do the words in that Clause mean? The United States Supreme Court has long sought to honor this duty by understanding those meanings in their historical context. As Chief Justice Burger observed in Marsh v. Chambers, “historical evidence sheds light not only on what the draftsmen intended the Establishment Clause to mean, but also on how they thought that Clause applied….” 463 U.S. 783, 790 (1983).

Reviewing the history of the Clause and its application, the Supreme Court held that a chaplain (employed by the government) did not violate the Establishment Clause by leading a legislature in prayer. Id.  Similarly, in Lee v. Weisman, 505 U.S. 577, 631 (1992), Justice Scalia, joined by three other justices, stated that in this search for truth, “the meaning of the Clause is to be determined by reference to historical practices and understandings.”

Webster’s 1828 American Dictionary of the English Language defined respecting as: “[r]egarding; having regard to; relating to,”[1] and Establishment as “[t]he act of establishing, founding, ratifying or ordaining.”[2]  Thus, the simple meaning of the Establishment Clause is that government should not shackle the consciences of the people, for whose sake it exists, through a state religion.

The experience of our Founders, which the Establishment Clause reflects and seeks to save us from, was aptly delineated by Justice Scalia, dissenting in Lee v Weisman, 505 U.S. 577, 640-41 (1992):

The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty. Typically, attendance at the state church was required; only clergy of the official church could lawfully perform sacraments; and dissenters, if tolerated, faced an array of civil disabilities. Thus, for example, in the colony of Virginia, where the Church of England had been established, ministers were required by law to conform to the doctrine and rites of the Church of England; and all persons were required to attend church and observe the Sabbath, were tithed for the public support of Anglican ministers, and were taxed for the costs of building and repairing churches (internal citations omitted).

Numerous government policies supporting, acknowledging, and accommodating religion are considered time-honored practices that are a part of our nation’s heritage. See e.g., Allegheny Co v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (Justice Kennedy, joined by Justices Rehnquist, Scalia, and White, dissenting). Properly understood, the “separation of church and state is not a limitation on churches or religion; it is a limit on the role of government with respect to churches and religious life in general.” See M. W. McConnell, Religion and its Relation to Limited Government, 34 Harvard J. of Law and Pub. Pol. 943, 944 (2010).

 The memorial to Pere Marquette does not violate the Establishment Clause because it was not an action regarding or relating to the act of establishing or founding of a religion.  Neither does the memorial, even with it’s cross, subject the American citizenry to governance under a theocracy. Nor does it coerce the American citizenry, by force of law and penalty, to practice one official religion to the exclusion of all others. The memorial to Pere Marquette does not, therefore, violate the Establishment Clause.

The United States Supreme Court Should Repudiate the Archaic Lemon Test

The Supreme Court’s “religion clause jurisprudence has become bedeviled (so to speak) by reliance on formulaic abstractions that are not derived from, but positively conflict with, our long accepted constitutional traditions.  Foremost among these has been the so-called Lemon test.”  Weisman, 505 U.S. at 644 (Scalia, J., joined by three other Justices, dissenting). The test, not yet overruled by the Supreme Court, regularly continues to receive “well-earned criticism.” Weisman at 644.  Perhaps this criticism is the reason why it is likely that a majority on the Court no longer support it.

In Lemon, the Court replaced the test proscribed by the Constitution—whether government action “established” a religion, with a test of its own creation, whether government action had a secular purpose or “endorsed” religion.  403 U.S. at 612-13.  The Court judicially contrived a three-part test, and then mandated that government action must satisfy all three elements to comport with the Establishment Clause:

First, the [government action] must have a secular [] purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the [government action] must not foster an excessive government entanglement with religion. Id.

A few justices addressed the second prong of the Lemon test by requiring the government action to not even symbolically endorse religion. No agreement existed though, even among those justices, on how to decide when a government action symbolically endorsed religion.[3]

The Lemon Court, in fashioning its test, ignored the plain meaning of the words in the Clause. When the Drafters wrote the Establishment Clause, they well knew the meanings of both “establish” and “endorse.”  They chose “establish” to express their intent.  If they had meant “endorse,” there is no doubt they would have chosen that word.  It was wrong for the Lemon Court to alter the meaning of the Establishment Clause, and the Court should repudiate that error.

Remarkably, when determining the constitutionality of a government action under Lemon, the content of the government action is irrelevant. Instead, the Lemon test requires that a judge make a subjective assessment as to whether the government actor had a secular purpose (i.e., the judge must attempt to personally divine the heart and mind of the President, legislator, county commissioner, etc., and then subjectively conclude whether the government actor had a secular purpose). If no, the judge must hold that the government action violates the Establishment Clause.

On behalf of federal and state legislators, I recently filed a legal brief in the United States Supreme Court in a case involving the Establishment Clause. In the brief I urged the Justices to repudiate Lemon v. Kurtzman because it extra-Constitutionally permits changeable political preferences of unelected judges to substitute their politically unaccountable will for politically accountable governance guaranteed by the Constitution. As explained below, Lemon’s “secular purpose” policy: 1) exceeds the scope of judicial power granted in Article III of the Constitution; 2) bypasses constitutionally required processes for amending the Constitution; 3) undermines the legitimacy of the judiciary; 4) creates substantial unpredictability in the law; and 5) fosters unjustifiable hostility toward the religious identity and dignity of numerous United States citizens.

Lemon’s “secular purpose” test exceeded the scope of judicial power stated in Article III of the Constitution. In pertinent part, Article III of the Constitution provides that:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish… (Section 1) The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority. . . .(U.S. Const. art III, § 2).

The Lemon Court conspicuously failed to identify any legitimate source of constitutional authority on which it relied when, under the guise of constitutional “interpretation,” it amended the meaning of the Establishment Clause.  The simple reason the Lemon Court failed to do so is that no enumerated judicial power exists for the judiciary to amend the constitutional law of the nation.

The Federal Government “is acknowledged by all, to be one of enumerated powers.”  That is, rather than granting general authority to perform all the conceivable functions of government, the Constitution lists, or enumerates, the Federal Government’s powers. . . .

The enumeration of powers is also a limitation of powers, because “[t]he enumeration presupposes something not enumerated.”  The Constitution’s express conferral of some powers makes clear that it does not grant others. And the Federal Government “can exercise only the powers granted to it.”

 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2577 (2012) (internal citations omitted) (quoting McCulloch v. Maryland, 17 U.S. 316, 404, 405 (1819); Const. art. I § 8, cls. 5, 7, 12; Gibbons v. Ogden, 9 Wheat. 1, 194-95, 6 L.Ed. 23 (1824)).

Nothing in Article III empowers the Court to change or “evolve” the Constitution.  Moreover, nothing in Marbury v. Madison’s ubiquitous assertion that it is the province of the Court to say what the law is, empowers the Court to say instead what it prefers the law to be.  5 US (1 Cranch) 137 (1803).

The Lemon Court, wandering far beyond the scope of its Article III powers, improperly permits changeable political preferences of unelected judges to amend a Constitutional Rule of Law (i.e., the Establishment Clause). Thus, Lemon amends “make no law respecting an establishment of religion” to instead require that “every government action must have a secular purpose” merely because a panel of Justices preferred it so.

Moreover, in amending the meaning of the words in the Establishment Clause, Lemon bypassed constitutionally required political processes that specifically require involvement of politically-accountable state legislatures. Article V of the Constitution, in pertinent part, provides:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress. . . . U.S. Const. art. V.

Although the judicial branch may hold the power to say what the provisions of the Constitution mean, that power does not extend to amending or evolving the meaning of these provisions. That power is delegated to the politically accountable branches of government in Article V.  Thus, when Lemon amended the meaning of the Establishment Clause, it usurped legislative authority in violation of Article V.

When a court steps beyond its limited duty and usurps legislative authority, as the Court did in Lemon, it undermines good governance under the Rule of Law and its own legitimacy. To test the provisions of a government action against the Constitution is one thing; judicially imposing a new meaning on the words of the Constitution to achieve a judicially preferred outcome or social policy is another.

Those supporting Lemon wrongly see the Constitution as an evolving organism, the meaning of which they believe their jurisprudence empowers them to actively manipulate. They become Platonic Philosopher Kings, ruling by judicial fiat, unbound by the constraints of the Constitution’s actual language.  Lemon embeds this tyrannical principle in our Constitutional jurisprudence by allowing judges to make subjective, ad hoc assessments as to whether a government actor had a secular purpose or motive.

For example, activists recently challenged a Presidential Executive Order (EO) banning travel from nations posing a threat to our national security. The activists contended the EO violated the Establishment Clause.  The lower courts in that case struck down the Presidential action because it violated Lemon’s distorted version of the Establishment Clause. The lower courts subjectively applied Lemon’s judge-made doctrine that all government actions must have a secular purpose. International Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir 2017).  In applying this judicially contrived test, the lower court ignored the content of the EO, and relied instead on religious references in candidate Trump’s pre-election campaign speeches to hold that the EO violated the Establishment Clause. Id.[4]  This case shows once again that Lemon’s subjective test makes a litigant’s success in judge-shopping the best indicator of whether a law will be struck down under the Establishment Clause.

If Lemon’s judicially manufactured doctrine existed during the Lincoln Administration, the Emancipation Proclamation would be unconstitutional because Lincoln expressly invoked “the gracious favor of Almighty God.” – not in a political speech during a Presidential campaign, but in the text of the proclamation itself.[5] Thus, when a Federal Judge asked an ACLU lawyer in the travel ban case whether it would be Constitutional if Presidential candidate Hillary Clinton had drafted the exact same Executive Order, the lawyer reluctantly, but truthfully, answered in the affirmative—revealing the absurdity of the doctrine and the potential for its abuse by a politically motivated judge or activist lawyer.[6]

Interestingly, contrary to the activists unsupported suppositions challenging the historical Marquette memorial, the memorial has a good chance of survival even if it must face the judicially-manufactured Lemon test. This is because, inter alia, the memorial’s primary purpose was, as evidenced by its historical context, principally a secular one – historical remembrance and honoring of a significant historical figure and the place where his life and service on this earth ended. The Catholic Church has never declared this site to be sacred… The State of Michigan though, has officially recognized it as an historical site.

Additionally, the Lemon test undermines predictability in the law, a vital component of good governance under the Rule of Law.  When it comes to judicial review of government action and the Establishment Clause, the subjectivist nature of the Lemon test produces inconsistent judicial precedents. This inconsistency is inevitable because judges utilizing Lemon make a personal subjective assessment as to whether a government actor had a secular purpose, rather than looking to the content of the government action itself.

Inconsistent judicial precedents lead to unpredictability in the law. The inconsistent precedents produced by Lemon’s subjectivist jurisprudence provide no useful guidance for government officials trying to act Constitutionally. To illustrate, compare two Establishment Clause cases handed down by this Court on the same day: Van Orden v. Perry, 545 U.S. 677 (2005) (upholding government action placing Ten Commandments on Government property as Constitutional) and McCreary County v. ACLU, 545 U.S. 844 (2005) (striking down government action placing Ten Commandments on government property as unconstitutional). Four justices would have upheld both. Four justices would have struck down both. One justice upheld one and struck down the other—but applying Lemon’s subjective standard, found one symbolically endorsed religion and the other did not.  (also compare Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding baby Jesus in a manger constitutional) and Allegheny County v Greater Pittsburg ACLU, 492 U.S. 573 (1989) (striking down baby Jesus in a manger as unconstitutional)).

If Lemon says the Ten Commandments are both Constitutional and unconstitutional; if Lemon says displaying baby Jesus in a manger is both Constitutional and unconstitutional; if Lemon says Hillary Clinton issuing an EO is Constitutional but President Trump issuing the same EO is not, then no predictability exists for those seeking to conform their conduct to the law.  Predictability in the law is a necessary component of good governance under the Rule of Law.  Lemon replaces predictability in the law with the evolving political preferences of unelected judges.

Finally, Lemon’s judicially contrived “secular purpose” test creates unjustifiable hostility toward the religious identity of numerous United States citizens.  Many United States citizens seek guidance from their faith in formulating their public policy positions.  Activist lawyers and politically motivated judges repeatedly use the Lemon doctrine to deprive and diminish a person’s religious identity.  They do so by requiring religious people to substitute a purpose informed by their religious conscience for one founded on secular beliefs or traditions.

Requiring that every government action have a secular purpose and not even symbolically endorse religion is not only hostile toward a person’s religious identity, it is an attempt to make that identity culturally, socially, and politically irrelevant.  Proponents of this secular approach favor it because it enables judges to nullify unalienable rights. They assert that everyone can participate in important policy discussions except those whose identity is informed by religious viewpoints.

For example, in the State of Louisiana, Darwin’s theory of evolution was taught in the government schools. Louisiana passed a law to also accommodate those with a different theory on the origin of the universe— creation science.[7] On its face, such an effort seems to embody the very essence of neutrality. The Court, however, reached an opposite conclusion in Edwards v. Aguillard, holding the law unconstitutional because it lacked a secular purpose and symbolically endorsed religious ideas. 482 US 578 at 583, 592 (1987). According to Lemon’s revisionist test, to be constitutionally “neutral,” all laws and other government action must have a secular purpose and not even symbolically endorse religion.[8]

Similarly, in Epperson v. Arkansas, 393 U.S. 97 (1968), the Court began its analysis by declaring that “[g]overnment in our democracy … must be neutral …” Id. at 103.  The Court nevertheless proceeded to hold that because the law was motivated by a religious purpose, it violated the Establishment Clause.

Thus, although often couching its analysis in terms of neutrality, court decisions utilizing Lemon require secularly informed purposes while prohibiting religiously informed ones. Descriptive of such an analysis is Justice O’Connor’s concurring opinion in Wallace v. Jaffree:

It is not a trivial matter, however, to require that the legislature manifest a secular purpose and omit all sectarian endorsements from its laws … It reminds government that when it acts it should do so without endorsing a particular religious belief or practice that all citizens do not share. 472 U.S. 38 (1985).

It is apparently acceptable, and sufficiently neutral though, for government to dictate and endorse a secular belief or practice that all citizens do not share.

The implications of decisions like Aguillard and Epperson are immense. Mandating the irrelevance of religious identity and God facilitates judicial extinction of unalienable liberty as viewed by the Framers.

Unfortunately, judges and other government authorities increasingly rely on Lemon to diminish religious identity and conscience. By way of example, senior citizens at a nursing home in Georgia were prohibited from praying before they ate their meal. The government said that because the meals were subsidized by the government, praying over the meal would be a violation of the Establishment Clause. Georgia Seniors Told They Can’t Pray Before Meals, Associated Press, (May 10, 2010). Likewise, those whose actions are informed by the sacred rather than the secular have faced Establishment Clause challenges for erecting the Ten Commandments, McCreary County v. ACLU, 545 U.S. 844 (2005), raising memorials for the fallen, Am Atheists, Inc v. Duncan, 616 F.3d 1145 (10th Cir 2010), engaging in a moment of silence prior to starting school, Wallace v. Jaffree, 472 U.S. 38 (1985), praying prior to football games, Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), and for displaying a manger scene at Christmas time. Allegheny County v. Greater Pittsburg ACLU, 492 U.S. 573 (1989).

Several Justices on the United States Supreme Court have recognized how, contrary to the plain meaning of the Clause, Lemon’s judicially contrived “secular purpose” test creates unjustifiable hostility toward the religious identity of numerous United States citizens:

Government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage …. Rather than requiring government to avoid any action that acknowledges or aids religion, the Establishment Clause permits government some latitude in recognizing and accommodating the central role religion plays in our society [citation omitted]. Any approach less sensitive to our heritage would border on latent hostility toward religion, as it would require government in all its multifaceted roles to acknowledge only the secular, to the exclusion and so to the detriment of the religious ….

When the state encourages religious instruction . . . it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.

* * *

Neither government nor this Court can or should ignore the significance of the fact that a vast portion of our people believe in and worship God and that many of our legal, political and personal values derive historically from religious teachings. Government must inevitably take cognizance of the existence of religion. Allegheny, supra, at 657-659 (Justice Kennedy, joined by Justices Rehnquist, Scalia, and White dissenting).

These Justices, dissenting in Allegheny correctly recognized that Lemon’s “view of the Establishment Clause reflects an unjustified hostility toward religion, a hostility inconsistent with our history and our precedents…” Id. at 655.

For some legislators viewing the world through their religious identity, God and his Word are real, and therefore really matter. Obergefell v. Hodges, 135 S.Ct. 2071 (2015).

They understandably, therefore, oppose devolutionary social engineering that threatens the health, safety, and morals of the nation, as viewed through their religious identity. And they oppose legal attacks on monuments because some element of the structure reflects that a part of the honored one’s historical significance was that he or she held Christian values. The government Lemon envisions must shape public policy informed by secular dogma, without regard to any religious conscience or moral considerations.  In such a government, wisdom derived from religious tradition or individual conscience informed thereby has no place. Lawmakers should not have to choose between fidelity to their religious identity or participating in the policymaking process. The Lemon test demands that they do, invalidating any policy they make that happens to be informed by their religious identity.

Moreover, the Lemon test deprives people of faith of their dignity by discouraging them from participating in government, by telling citizens that reliance on their faith while serving in government is unconstitutional.

Prohibiting a monument or a policy or a simply because it is informed by ancient sacred tenets prevents thousands of years of wisdom from informing the public ethic. The idea that God created humans in His image, and that all human life has dignity, ended slavery and advanced the rights of women around the world.  Conversely, when government suppresses religious identity and the free expression of religious ideals, it often results in tragic consequences. Stalin murdered over 42 million. Mao Zedong murdered over 37 million. Hitler murdered over 20 million. And the list of atrocities goes on and on where those in power selectively pick and choose which citizen’s identities it will arbitrarily censure.

We are, therefore, in the midst of a high-stakes battle over the character of the American nation. The extent to which Lemon’s “secular purpose” jurisprudence prevails over the view that the plain meaning of a Constitutional provision governs will determine: 1) whether unalienable truth, as envisioned in the Declaration, will continue to be relevant as an objective limit on government action; and 2) whether the judiciary replaces the Framers’ intent with its own personal social policy views.

Institutional integrity cannot exist without personal virtue.  Good governance and civic institutional integrity rest on the virtue of those holding power within those institutions.  Ideas grounded in one’s religious identity support and nurture this virtue and should, therefore, always be permitted within the marketplace of ideas and the policymaking process. The Lemon test precludes great ideas grounded in one’s religious identity from entering the policymaking process. People of faith should not be stripped of their dignity, religious identity, and conscience in order to serve in our constitutional republic.

In summary, judicial crafting of a subjective three-prong “secular purpose” test defining the Establishment Clause: 1) exceeds the scope of Article III; 2) bypasses constitutionally required politically accountable processes for amending a constitutional rule of law; 3) undercuts the legitimacy of the judicial power; 4) creates substantial unpredictability in the law; and 5) fosters unjustifiable hostility toward the religious identity and dignity of numerous U.S. citizens.

The Constitution is not just a set of guidelines.   It is the framework on which the government and our legal system are constructed. Its words both create the Supreme Court’s authority and give it definition.  Faithful adherence to those words is thus the touchstone for measuring the fulfillment of the Court’s sacred duty. Every Justice who takes the oath of office in the nation’s highest Court swears to uphold the Constitution as it is written, not as he or she would like it to be written.  Discerning and applying the meaning that the Drafters embodied in the Constitution’s language is the Supreme Court’s high calling. The Supreme Court should, therefore, renounce Lemon and no longer apply its outdated “secular purpose” test to government action.

 


[1]    (http://webstersdictionary1828.com/Dictionary/respecting, last visited July 27, 2017).

[2] (http://webstersdictionary1828.com/Dictionary/establishment, last visited July 27, 2017).

[3] For example, Justice O’Connor, concurring in Wallace v. Jaffree stated:

[W]hether a government activity communicates endorsement of religion is not a question of simple historical fact. *** The relevant issue is whether an objective observer, acquainted with the text, legislative history, and implementation of the statute, would perceive it as a state endorsement of [religion]. 472 U.S. 38, 76 (1985).

Elsewhere she likewise stated that: “the endorsement test necessarily focuses upon the perception of a reasonable, informed observer.” Capitol Square Review and Advisory Board v. Pinette, 515 U.S. 753, 773 (1995) (O’connor, J. concurring). Compare Justice O’Connor’s measure with that of Justice Souter, who opined that he “attribute[s] these perceptions of the intelligent observer to the reasonable observer of Establishment Clause analysis…, where I believe that such reasonable perceptions matter.” Id. at 786. Likewise, Justice Stevens articulated a less informed “reasonable person” standard to determine whether an endorsement of religion exists when addressing the second prong in Lemon:

If a reasonable person could perceive a government endorsement of religion from a private display, then the State may not allow its property to be used as a forum for that display. No less stringent rule can adequately protect nonadherents from a well-grounded perception that their sovereign supports a faith to which they do not subscribe. Id. at 799

[4] Contrary to the lower court’s unsupported suppositions, the President’s EO, issued after he was elected, survives even if it must face the judicially-manufactured Lemon test. This is because, inter alia, the President’s purpose in issuing it was purely a secular one – preserving national security. See, Executive Order 13780, Protecting the Nation from Foreign Entry into the United States, 82 Fed. Reg. 13209.

[5]    Available at (https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation/transcript.html, last visited August 2, 2017).

[6]  IRAP, 857 F.3rd 554 (4th Cir 2017) (Oral Argument, as reported in the American Thinker, available at

(http://www.americanthinker.com/blog/2017/05/aclu_lawyer_admits_trump_travel_ban_would_be_constitutional_if_hillary_issued_it.html#ixzz4o56hdFvM, last visited August 15, 2017)).

[7] The law prohibited the teaching of the theory of evolution in public schools unless accompanied by the instruction in creation science.

[8] For a scholarly discussion of how the neutrality principles demean religion in the United States, see G. Moens, “The Menace of Neutrality in Religion” (2004) (Summer) Brigham Young U. L. Rev 535, 566–572.