Religious Protestants, Catholics, and Jews have been under strict scrutiny by the activist courts for violating the Establishment Clause of the First Amendment for simple, peaceful, and innocuous displays of religious symbols. Some of these religious symbols, such as a replica of the Ten Commandments, or references to God, such as the one in the Pledge of Allegiance, have been a part of this country since its founding. Yet, the legal community feels that anything short of eradicating public display of Judeo-Christian symbols violates the constitutional directive against establishing a national religion. Why shouldn’t paganism and secular agenda items, which are adhered to with more fervor and devotion than any major religion, be subjected to the same scrutiny?
Let’s be clear, nobody is being fined or thrown into jail for not being a Christian. Nobody has had their property rights violated for opposing Christian beliefs. On the other hand, individuals are now being jailed or fined for not servicing homosexual weddings. And I’m not just talking about Kim Davis. There have been endless cases of private business owners who have been fined or forced to abandon their livelihood for refusing to service the homosexual religion with their private property and private labor.
Why shouldn’t paganism and secular agenda items, which are adhered to with more fervor and devotion than any major religion, be subjected to the same scrutiny?
At what point is this not a government-sponsored religion infringing upon the most unalienable rights of religious liberty and property rights, in violation of the Establishment Clause? As James Madison wrote in an essay on Property in 1792, “conscience is the most sacred of all property.” His original draft of the First Amendment was even more effusive than the final version adopted by Congress. “The civil rights of none shall be abridged on account of religious belief or worship…nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed….”
Yet, we now have actual property rights and the most sacred property – conscience – being forced to yield to a new super right – an entitlement to force states to redefine marriage – in order to service the fervency of the homosexual agenda. How can this be anything but the establishment of a national religion?
In 2013, just two years before Supreme Court Justice Anthony Kennedy played legislature and God from the bench, he declared marriage to be fully within the domain of the states. In the Windsor case striking down DOMA, when it was convenient to invoke state power over marriage, Kennedy cited the following precedent from Williams v. North Carolina, 317 U. S. 287, 298 (1942):
“[T]he states, at the time of the adoption of the Constitution, possessed full power over the subject of marriage and divorce . . . [and] the Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.” (Page 17)
How can this be anything but the establishment of a national religion?
He went on to say that “[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.” And “[T]he Federal Government, through our history, has deferred to state-law policy decisions with respect to domestic relations.”
Kennedy also admitted that “until recent years,. . . marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization.” (Page 13)
How could it be that a state like Kentucky, which did nothing wrong in the eyes of the law; it merely defined marriage as it had always been defined, as Kennedy conceded, and exercised its “exclusive province” over marriage to reinforce that interpretation with 75% of the vote, is now in contempt of court just two years later? How can this man have the power to overturn his own writings just two years prior in order to assert a new federal right superseding everything the state has ever done in defining marriage?
The only answer is that Kennedy has created a national religion in the year 2015 that will coerce state officials and even private land owners to obey the homosexual religion or face jail time. Who else would go to jail for peacefully declining to sign a document like that? A gay Texas judge is not being threatened with jail time for refusing to marry heterosexual couples, even though that was the law of the land since the state’s founding.
This is exactly what our Founders had in mind when they prohibited the establishment of a national religion. They did not mean to eradicate all religious symbolism, they merely desired that one religious denomination not persecute the other and violate their unalienable rights. That is exactly what is occurring under this pagan inquisition.
Ask yourself this question: why should Christianity and Judaism be any worse off – precisely because they are “deeply rooted in history and tradition” – than a new religion that is the antithesis of something rooted in our history and tradition? Does the fact that the homosexual agenda is not deeply rooted – the very litmus test required to assert a fundamental right – instill it with more legitimacy to imprison violators than the Christian religion which has been the dominant religion since the founding of the country? Why should the display of the Ten Commandments at government buildings garner less legitimacy than Obama’s display of the rainbow at the White House?
During the House floor debate over the First Amendment on August 20, 1789, James Madison explained the purpose of the Establishment Clause as follows: “Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.” [Emphasis added].
Here’s a parting question: if the primary concern of Madison was to ensure that the elected branch of the federal government not compel individuals by the force of law to service a particular religion (as opposed to the innocuous display of religious symbols or public prayer), what would he say about an unelected branch of government compelling individuals to serve paganism in any manner contrary to their conscience?
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Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.