Are some cows so sacred that Congress would actually put them beyond the power of even the U.S. Supreme Court?
Did you even need to ask?
Check out H.R. 1070, the Constitution Restoration Act of 2005, whose mirror in the Senate is S. 520, both of which are currently being considered by the respective houses' judiciary committees. Rather than "restore" any power to the Constitution, what those bills would do is to take away the Supreme Court's ability to stop government officials from attempting to establish religion in America, or to show preference for one religion over another.
Conservatives have long had trouble understanding the First Amendment's prohibition against Congress' making any law "respecting an establishment of religion, or prohibiting the free exercise thereof," even though Thomas Jefferson, one of the primary authors of that amendment, explained its meaning clearly in a letter he wrote in 1801 to the Danbury Baptist Association.
"Believing with you that religion is a matter which lies solely between Man & his God," Jefferson stated, "that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & 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 & State."
Jefferson's meaning couldn't be much clearer, since he quotes directly from the First Amendment and then immediately explains that that means that those words "build[] a wall of separation between Church & State."
Enter the Congressional Demolition Crew: Forty-seven representatives and nine senators would attempt to legislatively rewrite the Constitution – and along the way, prohibit the Supreme Court not only from implementing the First Amendment's separation clause, but also from even mentioning foreign constitutions, policy statements and judicial decisions in the rulings they render.
H.R. 1070 would amend Title 28 of the United States Code – the volume having to do with the judiciary and judicial procedure – to add a new Section 1260, "Matters not reviewable." That new section would read as follows: "Notwithstanding any other provision of this chapter, the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any matter to the extent that relief is sought against an entity of Federal, State, or local government, or against an officer or agent of Federal, State, or local government (whether or not acting in official or personal capacity), concerning that entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government."
In other words, if some public official or government or state agency or anyone speaking on behalf of a local, state or federal government entity "acknowledged" that "God" was "the sovereign source of law, liberty, or government," even though such a statement would violate the church/state separation doctrine of the First Amendment, the U.S. court system would be unable to do anything about that, no matter how many citizens may have been offended by the remark.
Of course, "acknowledged" is an odd weasel-word to use in this context. Its use implies that in fact "God" is the "sovereign source" of America's laws and government, not to mention the very concept of liberty itself, even though at least 16 percent of Americans don't believe in the Judeo-Christian "God" being referenced in the law. (For a breakdown of Americans' religious beliefs, go to atheistempire.com/reference/stats/main.html )
The point is that, considering some citizens' strongly-held non-Judeo-Christian beliefs, they shouldn't be made to feel like second-class citizens because some government official or agent uses his office or position to proclaim the "sovereignty" (supremacy) of his/her particular god – and government doesn't have the power to discriminate among the various religions; that's also part of the meaning of the "establishment clause."
The history of this legislative attempt is fairly simple. Last year, the Supreme Court decided a couple of "establishment clause" cases, both regarding the placement and display of copies of the Ten Commandments, a Judeo-Christian religious document. Basically, the court ruled that if the "Decalogue" (as the Ten Commandments document is also known) is part of an exhibit in a government building dealing with a number of different religions, or a display that traces the history of world religion, then it's okay to show the document. However, if the document is singled out as the basis of American "law, liberty or government," to use H.R. 1070's language, then its use becomes an establishment of religion, and thus violative of the Constitution.
Those rulings, which give much wider latitude to use of the Ten Commandments than a "strict constructionist" reading of the First Amendment would allow, still were not good enough for America's fundamentalists, who used their considerable influence among conservative legislators to draft and introduce this bill. Nothing short of complete freedom to use governmental power to promote Judeo-Christian beliefs will satisfy that crowd.
But that's not all! This Act would also prevent the various federal district and appellate courts from considering "establishment clause" cases involving government officials or agents, and would prevent them from citing, as precedent, any prior ruling by the Supreme Court or any other federal court that had to do with any official "entity's, officer's, or agent's acknowledgment of God as the sovereign source of law, liberty, or government." So if one federal circuit ruled, for instance, that former Alabama Chief Justice Roy Moore's two-and-a-half ton Ten Commandments monument had no proper place in the lobby of the Montgomery Federal Courthouse, that ruling could not be used as precedent to have a similar monument removed from the lobby of, say, the Los Angeles Federal Courthouse.
And finally – the icing on the cake, so to speak – H.R. 1070 allows the impeachment of any Supreme Court justice or federal judge who "exceeds the jurisdiction of the court" by attempting to rein in any government entity, official or agent who attempts to violate the "establishment clause" by proclaiming the sovereignty of his/her Judeo-Christian "God."
The meaning of this legislative attempt for the adult industry should be fairly clear. As H. Louis Sirkin has recently argued in the Extreme Associates case, the Supreme Court's decision in Lawrence v. Texas removes the concept of religious morality from the list of arguably legitimate reasons government might have to suppress sexually explicit material – and we know that it's Lawrence v. Texas that's being targeted by this law because religio-reactionaries have claimed – wrongly, of course – that the high court based its Lawrence decision in part on legal opinions from other countries. H.R. 1070 is clearly a back-door attempt to reinstate Judeo-Christian morality as a legitimate reason to suppress adult material, since under this law, the Supreme Court would be unable to rule on the use of religious doctrine in such a prosecution.
The U.S. narrowly missed having sexual bigotry written into its Constitution through the recently-debated Marriage Protection Amendment. Here, some congresscritters would attempt to sneak in through the back door a religiously-bigoted amendment to that same document.
