Thursday, September 3, 2009

When Judges play God

In 2008, American Atheists filed a lawsuit against the state claiming they suffered sleeping disorders and "mental pain and anguish" because the Kentucky Office of Homeland Security recognized "the safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God."
Well, they can finally get some rest. Last Wednesday, Franklin Circuit Judge Thomas Wingate struck down the part about relying on God, which leaves legislators and the rest of us wondering who we should now rely on.
"This is the very reason the Establishment Clause was created: to protect the minority from the oppression of the majority," Wingate wrote in his 18-page opinion.
Even if this was true, who is to protect the majority from the tyranny of the minority?
The trouble with Wingate's ruling is that it has no basis in our history. According to our founding political document, the Declaration of Independence, our nation is predicated on the idea that law comes from God. Law does not originate in people. Nor does it reside with special groups who clothe themselves in black robes, even if they might confuse themselves with the Almighty.
Like the Office of Homeland Security, the Declaration states, "With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor." So if it was good enough for Thomas Jefferson and the other 55 signers to firmly rely on God, why is it so wrong with Kentucky acknowledging that our protection comes from God as well?
To be consistent, atheists and sympathetic judges ought to take on the preamble to the Kentucky Constitution and the Latin motto which was enacted in 2002. Then again, consistency seems to be in short supply these days. The official Latin motto is "Deo gratiam habeamus." It means "Let us be grateful to God" and finds its basis in the Preamble of the State Constitution which says, "We, the people of the Commonwealth of Kentucky, grateful to Almighty God for the civil, political and religious liberties we enjoy, and invoking the continuance of these blessings, do ordain and establish this Constitution."
Wingate justifies his ruling by applying the First Amendment to this case, but such application is foreign to our history. The First Amendment was enacted to keep Congress from imposing a national church. It was not originally applied to states; some had state-sponsored churches into the early 19th century. It was not until the 1947 Everson ruling that the First Amendment was applied to individual states.
Sponsor of the Homeland Security provision, State. Rep. Tom Riner (D-Louisville), responded to the charge that the language establishes a religion. "They make the argument ... that it has to do with a religion, and promoting a religion," Riner said. "God is not a religion. God is God."
At a very basic level, Wingate's actions violate the separation of powers and usurp legislative authority. Legislators legislate. Judges are supposed to apply the law. Legislators hammer out public policy openly and consider public input. Judges render decisions privately with or without regard to public input. By striking down the legislature's action without a firm basis in history or precedent, Wingate shifted the balance of power in his favor as other unaccountable judges have done for decades. This judicial activism is an undemocratic way of going about the Commonwealth's business. By the way, when was the last time the legislature told a court it was wrong?
There are 32 references to God in state statutes and the constitution. The question is: who should decide how and when we acknowledge God – the people through their legislators, or judges who sometimes confuse themselves with God?