The past year, 2013, saw the continued attack on religious freedom stretching the entire year, not just around the yuletide season.  Actually, it was a further attack on Christian freedom.  Christianity saw the usual Christmas time bans on school carols and atheist billboards, but also saw a year-long battle in the military.  Legal actions to effect these bans and outright attacks on Christianity are always conducted under the auspices of separation of church and state.  I agree with the separation counter argument that it is not explicitly stated in the Constitution and the legal pretext should not have been created.  However, the Supreme Court established that precedent.  On the other hand, I would argue against the authenticity of the separation of church and state on the basis of tradition and negative endorsement supporting the fundamental right of religious freedom.

Early in 2013, the military extended an invite to MRFF founder Mikey Weinstein for consultations to “develop court-martial procedures to punish Christians in the military who express or share their faith.”  The threat seemed a little far flung, but as the year wore on, there were reports of: the Air Force cracking down on Christians, the Air Force punishing evangelical Christians, Catholic chaplains furloughed and threatened with arrest for performing Mass during the shutdown, the Army considered Christians and the Tea Party a terrorist threat, a Pentagon training manual labelled white males having unfair advantage, the VA forced out chaplains, the Air Force dropped “so help me God” in oaths, the Air Force bans the Nativity Scene, and ruling that the Mt. Soledad war memorial cross be removed, to name a few.  This is on top of the well-worn yearly Christmas bans on displaying Christian symbols or the Christmas colors green and red in the classroom, singing carols in schools, Atheists running anti-Jesus Christmas billboard ads, and network or cable TV choosing not to run Christian ads.

Separationists contend that the Constitution gives the justification to separate church and state.  Yet the phrase separation of church and state does not appear in the Constitution under the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;

The separation is attributed to Thomas Jefferson’s letter to the Danbury Baptist Association, and quoted by the Supreme Court, wherein he posited a wall of separation:

Believing with you that religion is a matter which lies solely between man and his God, that he owes account to none other for his faith or his worship, that the legislative powers of government reach actions only, and not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should ‘make no law respecting an establishment of religion, or prohibiting the free exercise thereof,’ thus building a wall of separation between church and state.

That the Supreme Court interpreted the due process clause as enabling it to bind the states to constitutional prohibitions of the Federal government, appears to be over stepping their bounds (Everson v. Board of Education, 330 U.S. 1 (1947)).  The incorporation doctrine serving as the model used to bind the states is controversial and seems to fly in the face of the framers who clearly omitted the states from those prohibitions, especially with respect to the First Amendment – “The prohibition on states was removed by the Senate, while the restrictions on the Federal Government were combined and recast into what came to be the First Amendment.

Unfortunately, we are stuck with the precedent of that, and subsequent, Supreme Court decisions.  Or are we?  I would argue that there is legal precedent that could overturn or defeat separation law suits.  I offer the following arguments for reversal of the Mt Soledad cross verdict, and others.  The courts have entertained tradition in the determination of Due Cause and Fundamental Rights.  Religious freedom is a right among the latter.  Tradition, in the sense of statutory limits, has legal implication for other certain rights such as property rights pertaining to easements.  In particular, easements by prescription, whereby the use is open and notorious, actual and continuous, adverse to the rights of the true property owner, hostile, and continuous for a statutorily defined period of time.  With respect to the Mt. Soledad cross, you could argue that a prescriptive easement has been established by the enduring placement of the cross, for whatever original reason, since its erection in 1913.  I would also argue the same for nativity scenes placement on public land, in front of town halls across the US.  They are traditionally placed and in a repetitive manner, over time, so as to establish a continual presence every year at the designated time of Christmas.  Notwithstanding arguments of prescription, the act of endorsement, vis a vis the First Amendment, engenders a positive and negative act.  An entity condoning an act could be perceived as positively endorsing said act.  Whereas an entity restricting an act could be perceived as negatively endorsing said act.  If the Establishment Clause of the First Amendment is taken to mean that government will not positively endorse an act and the Prohibition Clause, “prohibiting the free exercise thereof,” is taken to mean that government will not negatively endorse an act, then the government must remain passive to any such endorsement, be it positive or negative.  Especially with respect to a fundamental right.  The right to religious freedom also implies freedom of conscious, where government cannot infringe on a person’s beliefs.  Therefore, while a person may work for the government, that person’s beliefs cannot be infringed.  That person or persons should then be free to place a religious symbol as they see fit.  Separationists conveniently forget to include the Prohibition Clause, which renders the government impotent to make any law for or against religion, when taken as a whole with the Establishment Clause.

That’s where I stand.  If I haven’t offended you, then I haven’t tried hard enough.