RI Supreme Court’s Motto Taken from a Religious Persecutor
Thursday, March 05, 2015
The Latin inscription, which is being challenged as unconstitutional in a lawsuit filed in federal court yesterday, is translated as: Not under man, but under God and law. The quotation is attributed to Sir Edward Coke who served as a prominent attorney, member of parliament, and chief justice of one of the highest courts in England.
In an informational booklet on the Rhode Island Supreme Court, current Chief Justice Paul Suttell says the quotation reflects the highest ideals of justice in the state. “Its spirit is tightly woven into the fabric of Rhode Island justice. Only through law and its fair application are we a free, just and secure people,” Suttell writes in a letter introducing the booklet. Coke, as the story goes, made the statement in a confrontation with King James I. Coke was asserting the principle that no one was above the law, not even the king.
A religious persecutor
But there is another side to Coke (pronounced “cook”): a man who appears to reflect some of the worst prejudices of his age—whose avowed hatred towards heretics, atheists, witches, and Roman Catholics seem out of place in a state founded as place of toleration and a refuge for religious dissidents by Roger Williams.
In his famous Institutes of the Lawes of England, Coke compared heretics to lepers. He defended burning heretics even after the act of parliament authorizing the death penalty had been repealed. Coke also dwells at length in his Institutes on the problem of witches.
In a record of one of his legal cases Coke was hardly much kinder towards atheists: “All Infidels are in Law … perpetual enemies (for the Law presumes not that they will be converted, that being … a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace. … And herewith … it is holden that a Pagan cannot have or maintain any action at all.”
Coke’s prosecution of Sir Walter Raleigh, an explorer who founded the colony of Virginia, on charges of treason is seen as one just one manifestation of his strident anti-Catholicism. Raleigh, by all accounts, was Protestant, not Catholic. But among the charges leveled against him was the accusation that he had been “conspiring to … alter religion; to bring in the Roman superstition.”
In his lawsuit over the inscription from Coke, the local attorney, Nicholas Gelfuso claims that not only does it violate the First Amendment proscription against established religion, but that it also endorses a “particular religious viewpoint” with which he does not agree. Gelfuso, who was recently suspended by the state Supreme Court from practicing law for a month, did not respond to a request for comment.
A spokesman for the state judiciary, Craig Berke, also declined comment, citing ongoing litigation.
Is it unconstitutional?
Despite Coke’s own religious intolerance, his statement itself is not necessarily a violation of the First Amendment prohibition against laws respecting an establishment of religion. Diana Hassel, a constitutional law professor at Roger Williams University, said the U.S. Supreme Court has upheld the constitutionality of “ceremonial deism” mean to solemnize an occasion or institution. Generic deistic statements that have historic value are also likely to pass constitutional muster, according to Hassell.
“If the purpose is to promote a particular religious ideology, then it’s less likely” Hassel said.
Flanders said the inscription expresses the conviction that the law is not up to the human whim or caprice but that justices serve a “higher authority,” which he identified as reason, precedent, and tradition. “That’s really the fundamental tenet of the rule of law,” Flanders said.
One set of cases illustrates just how fine line the line constitutional deism and unconstitutional state endorsements of religion can be. In 2005, the Supreme Court ruled that displays of the Ten Commandments at courthouses in three Kentucky counties violated the Establishment Clause because the intent was to promote a religious message, according to Hassel.
But that same year the high court determined that a monument with the Ten Commandments on the grounds of the Texas state capitol was not unconstitutional because it was deemed to serve a historical purpose.
“The courts have been much more sensitive to these issues in the school context, however, recognizing the vulnerability of children, the coercive nature of the school setting and similar concerns. As a result, the courts have uniformly rejected the government’s promotion of prayer in school for over 50 years,” said Steven Brown, the executive director of the Rhode Island ACLU.
The uncle of the student behind the Cranston prayer banner case, Steve Ahlquist, said that case and the lawsuit against the state Supreme Court inscription were only “superficially similar.” “There are many worse violations of church state separation to be concerned with, like the upcoming voucher bill in the General Assembly,” added Ahlquist, who serves as the president of the Humanists of Rhode Island.
But so-called ceremonial deism has been challenged in court. In 2002, the United States Court of Appeals for the Ninth Circuit ruled that the phrase “under God” in the Pledge of Allegiance violated the Establishment Clause of the First Amendment. But the Supreme Court later ruled that the parent who sued over the matter did not have legal standing, rendering the appeals court decision invalid as a precedent.
“Speaking generally, we believe the government’s promotion of religious messages, however minor they may seem, often does a disservice both to religion and to those who disagree with the religious endorsement the messages contain. One example I like to cite is Theodore Roosevelt's strong opposition when he was President to the placement of ‘In God We Trust’ in currency because he considered it sacrilegious, noting that the currency would be used to purchase immoral and illegal items,” Brown said.
Ties to ‘rebel’ Roger Williams
Coke had questioned legal rights for heretics and atheists and attacked other religious traditions. Contrast Williams, who wrote, “It is the will and command of God that a permission of the most paganish, Jewish, Turkish, or anti-Christian consciences and worships, be granted to all men in all nations and countries.”
But Coke did actually influence Williams, who was an apprentice to the prominent jurist in his later years. Coke’s tendency to be a “rabble rouser” made an impression on Williams, according to Elyssa Tardif, a public historian at the Rhode Island Historical Society. “He spoke out strongly for what he believed. I think that is certainly a trait Williams would have picked up and emulated later on,” Tardif said.
Coke did not live to see the different path his apprentice would take. Coke died in 1634, two years before Williams’ expulsion from Massachusetts and his settlement in Rhode Island. But Coke’s daughter left little doubt as to what she thought her father’s opinion would be of Williams’ endeavors. In one letter she wrote that her father never imagined that Williams would have “proved such a rebel to God, the king, and his country.”
When asked how to balance Coke’s relevance for legal history with the more unsavory aspects of his background, Tardif said the question was not an easy one to answer, noting that that such issues would arise for “really any historical figure.” Rather than making value judgments, she said it’s better to focus on a figure’s influence over time.
“Because everybody’s complex,” she added.
Related Slideshow: Religious Freedom Controversies in Rhode Island
The below slides summarize some of the biggest and most notable of freedom of religion and church-state cases and controversies in Rhode Island. They are roughly listed in order from newest to oldest. Where available, a court case citation is provided. Generally in instances in which there was a court decision or settlement, the case is listed by the date of that decision or settlement.
Chafee's 'Holiday' Tree
2011 to 2014
Description: Governor Lincoln Chafee ignited controversy when he described the Statehouse Christmas tree as a “holiday tree” in invitations his office sent out for its lighting in 2011—even though the term reflected the practice of past Governors. State Rep Doreen Costa, R-North Kingstown, held a Christmas tree lighting at her office in protest and pushed through a resolution declaring the tree a “Christmas” tree. Chafee stuck to his guns in the following year but eventually relented in 2013 and 2014, referring to it as a “Christmas tree.” Chafee said the controversy over the name generated too much anger and that no fundamental values of the state were at stake in the debate over the name.
Photo courtesy of Ken Zirkel
Gay Pride Parade
Theodore J. Fabrizio, Jr. v. City of Providence et al.
Stephen J. Deninno, Jr. v. City of Providence et al.
Description: Two Providence firefighters sued then-Mayor Buddy Cianci in 2001, claiming that mandatory participation in a gay pride parade violated their Constitutional rights to freedom of religion, speech, and association. The firefighters, both Catholics, had argued that their religious beliefs barred them from condoning homosexual behavior. The case eventually made its way up to the state Supreme Court which, last year, decided against the plaintiffs.
The court reasoned that the firefighters had not had their rights violated because their participation in the parade could not be considered an act of personal expression. Instead, the firefighters were present “merely as relatively anonymous public servants,” the court concluded.
Woonsocket War Memorial
Description: In 2012, Wisconsin-based Freedom from Religion Foundation challenged the constitutionality of a war memorial on Woonsocket city property which had a cross affixed to its top. The criticism sparked a local backlash, prompting nearly 2,000 people to turn out in support of the memorial, which was for veterans of the two world wars. A number of public figures also expressed support for the memorial, including Bishop Thomas Tobin.
Pawtucket Athletic Fields
Rogers v. Mulholland
Description: In 2009, the Rhode Island ACLU filed a lawsuit on behalf of several parents alleging that Pawtucket was offering preferential treatment to parochial schools over local public schools in the use of city athletic fields. A federal judge ruled in favor of the city in 2012.
Cranston Prayer Banner
Ahlquist v. City of Cranston
2010 to 2012
Description: In 2010, the Rhode Island ACLU contacted the Cranston School District, alerting it to a complaint it had received from a parent about a prayer banner in the auditorium at Cranston West High School, which the ACLU said was a clear violation of First Amendment rights and case law on school prayer. The prayer petitions “Our Heavenly Father” for kindness, honesty, friendship, and sportsmanship among students. When the school did not take down the banner, Jessica Ahlquist, a student at Cranston West High School, sued in 2011. Ahlquist eventually prevailed in court and the banner had to be taken down.
Prisoner Preaching Ban
Wesley Spratt v. A.T. Wall et. al.
Description: Wesley Spratt, an ACI inmate, was barred from preaching at religious services held at the state prison in 2003, even though he had done so for seven years previously. Prison authorities cited security concerns in the ban. The Rhode Island ACLU sued in federal court in 2006 and reached a settlement the following year, allowing Spratt to resume his preaching.
Cranston Nativity Scene
Osediacz v. City of Cranston
Description: The Rhode Island ACLU filed a federal lawsuit in 2003 on behalf of a Cranston resident who objected to the display of a nativity scene and a menorah on the lawn of city hall. A federal judge later upheld the constitutionality of the display but not the policy behind it, which gave then-Mayor Stephen Laffey the authority to decide what could be displayed. According to the ACLU, an appellate court later found that the plaintiff did not have standing to sue.
School Prayer Case
Lee v. Weisman
Description: In 1992, the U.S. Supreme Court ruled that public schools may not invite clergy to deliver prayers—even if they are non-sectarian—at graduation ceremonies, declaring the practice a violation of the Establishment Clause of the First Amendment. The case arose after a parent tried to block a prayer by a rabbi at a graduation ceremony for a Providence middle school.
Glocester Police Test
Tucker v. Glocester Police Department
Description: According to the Rhode Island ACLU, the case opposed “questions relating to religious beliefs” on the “standardized psychologized test” given to police applicants. The case was favorably settled, according to the ACLU.
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