Two appeals court judges are asserting that court antagonism to religion is going too far these days, because the law of the land allows acknowledgement of religion and even the presence of religious statements and memorials in the public eye.

“Simply having religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause,” two judges from the 10th U.S. Circuit Court of Appeals wrote in a dissent this week.

“Our cases should further the meaning of the Establishment Clause as it was understood by the Framers. This case presented a good opportunity to take another look at the map and reverse course.

“Though returning to a more historically congruent understanding of the Establishment Clause is the ultimate province of the Supreme Court, there is much we could have done to correct our law in this area while still operating within the proper boundaries of an inferior court.”

The opinion came from Judge Paul J. Kelly Jr., who was joined in the dissent by Chief Judge Timothy M. Tymkovich.

The majority of the court refused a request for a rehearing in the case Jane Felix and B.N. Coone vs. city of Bloomfield, N.M.

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In the case, the city had a Ten Commandments monument on the lawn of its city hall. Two observers complained that it violated the First Amendment, and the court ordered the city to remove it.

Jonathan Scruggs of the Alliance Defending Freedom contended, however that Americans “shouldn’t be forced to censor or whitewash religion’s role in history simply to appease the emotional response of two offended individuals with a political agenda.”

“As the U.S. Supreme Court has ruled, a passive monument, such as this display of the Ten Commandments, accompanied by others acknowledging our nation’s religious heritage cannot be interpreted as an establishment of religion. This court’s order failed to recognize ‘the historical understanding of what an establishment of religion is and what the First Amendment actually prohibits.’ Because of this misinterpretation of the law, we are consulting with our client to consider their options for appeal.”

While the majority of the court bench rejected the request for a rehearing in which the city could again argue to keep its Ten Commandments, the two judges took the extraordinary step of dissenting.

“This decision continues the error of our Establishment Clause cases,” they wrote. “It does not align with the historical understanding of an ‘establishment of religion’ and thus with what the First Amendment actually prohibits.”

They noted that the settlers to America mostly came from countries that had established churches supported by taxes. That also was the norm in the American colonies, they said, even after the Revolution.

The Massachusetts constitution, for example, declared that “the happiness of a people and the good order and preservation of civil government essentially depend upon piety, religion and morality.”

So it established “the institution of the public worship of God and the public instruction in piety, religion and morality.”

Eventually, the First Amendment’s language was adopted: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”

So states were free to continue offering encouragement to religion, but they could not control churches.

“This distinction between religion generally and the church specifically also made sense in light of the historical practices of the First Congress. On the same day the House of Representatives voted to ‘make no law respecting an establishment of religion,’ it proposed a resolution requesting President George Washington to set aside a ‘day of public humiliation and prayer’ in his Thanksgiving Day Proclamation,” the judges pointedly wrote.

In the present case, the decision didn’t even follow the 10th Circuit’s precedents, they said.

“The panel opinion emphasizes that a city must make ‘sufficiently purposeful, public and persuasize actions’ to overcome any religious message … and then provides examples of such remediation: accompany the monument with other secular markers, avoiding religious ceremonies when unveiling the monument, and displaying clear disclaimers.”

They continued: “Yet the city of Bloomfield did each of those things. … What more should the city have done, besides not having a Ten Commandments display at all?”

Then came their plea.

“It is time we re-examine our Establishment Clause cases. The Supreme Court has ‘often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights. … Those actions often took the form of supporting religion generally but never establishing an official religion or church.

“According, this distinction should inform our understanding of what the First Amendment allows, and what it does not.”

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