Doug Napier has a Christian Post column out today that looks at how the repeal of DADT has played right into the hands of homosexual activists, and how, ironically, even though “Don’t ask, Don’t tell” has been done away, we still can’t ask.

The column can be viewed here

After DADT was stripped away last year, the military entered 2012 in a whole new world. It’s one in which the dismantling of DADT has actually provided homosexual activists the momentum they needed to step up and try to fashion not just the military in their own image, but other related agencies and associations as well.

When a handful of atheists recently sued over the display of a memorial cross in the 9-11 memorial, I wasn’t expecting much different in their legal complaint. Their papers trotted out the customary tedious distortions about the so-called “separation of church and state,” claims of deep offense -  in short, what Claude Rains’ police captain role in Casablanca called “the usual suspects.”

Then my eyes fell on a paragraph with something new! The plaintiffs were claiming they suffered from a variety of physical ailments (the symptoms of their distress), the first of which was “dyspepsia.”  Naturally, I was intrigued. I had a faint memory of the word from something like a Pepto Bismol commercial, but what exactly was this malady?  I rushed to an unimpeachable source for further insights (Dictionary.com) and found this enlightening definition: “deranged or impaired digestion.”

Now, any lawyer understands the concept of damages – that in order to sue, one must have some sort of actual (as opposed to hypothetical) harm.  Generally, the people behind these suits stick to their preferred script in which their harm is that they were … well … offended. It has always struck me that the “offended” approach is a public relations difficulty for them. It sounds a little whiny and self-absorbed, since all of us are routinely offended by things in life, and almost never make a federal case out of it. In fact, these same people often wax eloquent about “diversity” and the need to get along with others who are different. This magnanimous sentiment fails, however, when it is their offense; so diversity is apparently a one way street.

Perhaps in recognition of this public relations problem, the plaintiffs in this memorial cross case have elevated the claims of harm. Rather than mere offense, they also suffer from deranged or impaired digestion. Saying “I can’t digest my pate de fois gras” certainly sounds less shrill than “I am offended,” and might garner some sympathy.

But let’s explore this line of thinking further. If some kind of physical ailment should be taken seriously, I would like to point to another group – our clients in the United Retired Firefighters Association, which speaks for about 7,000 retired NY City firefighters.  We have the great honor of representing this group to express their indignation against the memorial cross lawsuit. The members of this organization went to scores of funerals following 9-11, often for the children of fellow members. As well, many members were active firefighters that day and suffered serious ailments, such as burns and respitory problems.  If the combination of “offense” and impaired digestion is sufficient harm for a constitutional claim, how should we view the feelings and injuries of New York’s bravest? Consider as well, these plaintiffs focus on their personal offense, and not the wounds of thousands who find comfort in that memorial cross. How different are these firefighters, who forgot personal safety to save, and perhaps even die for, others in need? The two motivations could not be more dissimilar.

Which side in this cultural debate deserves to be heard and heeded? With all due respect to impaired digestion, I think I know where most Americans line up.

The lawsuit brought by a few offended atheists over a memorial cross in the 9-11 memorial and museum both misunderstands and misapplies the First Amendment. The lawsuit is another effort to shoehorn hostility toward religion into the “Establishment Clause” of the First Amendment, which most people have heard of, but few could quote. The words of the First Amendment that touch on “establishing” a religion are remarkably simple and direct: “Congress shall make no law respecting an establishment of religion…” The prohibition is, by design, straight-forward, and lest anyone mistake the meaning for some kind of mandated hostility, the amendment continues “…or prohibiting the free exercise thereof.” In modern language we might paraphrase it this way: Congress, don’t set up an official national religion, like the Church of England, and don’t pass any laws that will interfere with how people worship God according to the dictates of their conscience.

Precisely because the words are so clear – we do not want an “established” national religion – the proponents of religious cleansing almost never quote them. Instead, they look to Jefferson’s metaphor of a “wall of separation” between church and state, and twist its meaning out of context. The wall metaphor was penned in a letter to a Baptist Church in Connecticut to reassure the congregation that the First Amendment acted as a shield for the church against hostility from a state established religion. In other words, the wall of “separation” existed to protect the church.

People like the plaintiffs in this lawsuit, however, use the wall metaphor not as a shield, but rather as a sword to attack religious expression or accommodation. Their argument misconstrues language, and for that matter, language not even found in the First Amendment; they must avoid the actual text or people will see the emperor had no clothes. There is, however, one notable consistency to their claims, or rather their tactics; repeat your tiresome mantra often enough and supply your own meaning, and people will gradually assume it is in the Constitution.

That’s why it’s worth asking what the framers of the Constitution had in mind when they wrote the First Amendment: What exactly is an “establishment” of religion?

Historically, it is easy to see the kinds of activities that did not run afoul of “establishment” concerns. The founders, including Jefferson himself (the author of the wall metaphor) had no problem holding Christian worship services … in the U.S. Capitol. Oh yes, and for good measure Jefferson ordered the Marine Corps band to play worship at the services. The founders had no aversion to legislative prayer, issuing proclamations for national prayer, designating ministers to deliver sermons to Congress, and other activities that regularly invite lawsuits today. If you had posed the question to them whether a memorial cross was an establishment of religion, they likely would have thought you were joking.

For the founders, establishing a religion had to do with compulsion. An established religion dictates belief and demands compromise with one’s conscience. On the other hand, the claim that a memorial cross demands that people worship a certain way is simply preposterous. It could not be clearer that a passive symbol that brought hope and comfort to many does not establish a religion. Rather, this is a clear case of accommodation of religious beliefs – which the founders (including Jefferson) routinely encouraged. Allowing the display of a symbol that brought hope and strength to many in one of the darkest chapters of America’s history is exactly in line with our Constitution and heritage.

by Joseph Infranco – ADF Sr. VP – Allied Attorney Support & Coordination

The American Atheists lawsuit against the September 11 Memorial and Museum is truly a remarkable thing.

The complaint contains allegations typically found in these suits, including a gratuitous cheap shot at faith-based initiatives. (The lawsuit outrageously describes the terrorist attack of September 11 as a “faith-based initiative.”)  There are the usual claims that the U.S. Constitution has been violated because these atheists are “offended,” the tiresome twisted interpretation of the so-called “separation of church and state,“ and for good measure, assertions the atheists who sued now suffer “dyspepsia … depression, headaches, anxiety, and mental pain and anguish.”

The cause of this kerfuffle is a girder resembling a cross, which will be included in the National 9/11 Memorial in New York. Yet, there is one highly unusual twist in this latest lawsuit in the campaign to expunge public symbols of our religious history:  Human hands did not fashion the cross-shaped beams.

For those not familiar with the background, the controversy comes from the September 11 Memorial and Museum’s decision to display a fragment of steel beams roughly shaped like a cross. This “cross,” which was naturally formed through the destruction of the Twin Towers, was discovered by workers scouring the site for survivors the following day.

A retired firefighter sifting through the rubble came to a clearing where a beam of light penetrated the gigantic pile of rubble and illuminated the cross-shaped girder. Word spread quickly, and in the gloom and uncertainty of those early days, many saw the “cross” as a glimpse of hope in what was otherwise incomprehensible devastation. Several New York City newspapers published the photo, and the cross was carefully salvaged and displayed near the footprint at a local church.

This fragment of a once-mighty girder worked its way into the city’s psyche and became a symbol of both hope and resolve to move forward. The complaint acknowledges this, quoting one of the defendants as saying “… construction workers at the site told him they saw the cross as ‘a sign’ that God never abandoned us at Ground Zero.”  In the weirdly inverted world of these plaintiffs, this amounted to a shocking admission that “religion” was lurking nearby.

When the “cross” remnant found its way into the planned museum, the offended atheists sprang into action. Their lawsuit alleges that after September 11, workers found “steel girders shaped like a cross standing in the rubble.” But here the atheists have a dilemma:  their belief system requires that they believe the girders “shaped like a cross” happened randomly. But how can a “random” arrangement of steel become an establishment of religion? Doesn’t “establishing” a religion require some action or intention from someone? One establishes by, well, doing something – or at least planning a bit.

Consider the point this way: Imagine these atheists hearing a story about someone finding a religious image in a cloud, or a piece of grilled cheese. Doubtless they would scoff and say some superstitious or deluded person is reading religious meaning into a random arrangement. But isn’t that precisely what these same people are now doing? Are they not finding religious meaning lurking in – well, a “random” arrangement of steel girders?

Or take the case of the plaintiff in the lawsuit whom the American Atheists say is upset because the “randomly” created steel arrangement is not a “Lutheran cross.” Come again? Is this plaintiff upset that random forces did not create a Lutheran cross, in preference of some other denomination?

The reality is that “cross” shapes are found everywhere all around us, and the meaning is not always the same for all people. Readers of reports and books will see typographic crosses simply as references to footnotes. The U.S. military sees a Distinguished Service Cross as an award for valor and courage. And some people who saw the ravaged girder in the footprint remains of the Twin Towers saw a symbol of hope; or even a sign that God had not abandoned them.

So here, perhaps, we get to the crux of the problem. The steel beam cross must be an establishment of religion because some people who look at it read in a religious meaning. Such a claim is farcical and contrary to all constitutional jurisprudence. If it claim became a legal standard, every time someone looked at a “random” arrangement on public property and read in a religious meaning, the Constitution would be violated. Common sense is endangered and held captive by the most fertile imaginations.

Now, I will concede for argument there is one way the atheists may have a point. If they believe that this cross-shaped beam was created intentionally (dare we say by intelligent design?), then we may have an ”establishment” issue. Of course, for this to happen there is no possible agent for intentionality except God, in which case their argument has, shall we say, more profound difficulties.

This lawsuit is claiming something I have never seen in a case in First Amendment history – namely, that some person or persons intend to establish Christianity through a symbol that no person created. It strikes me as someone trying to poke his thumb in the eye of the God he insists does not exist.

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As others have pointed out, the Obama administration’s legal attack on the Defense of Marriage Act, which partially relies on the move to repeal “Don’t Ask, Don’t Tell,” lacks controlling legal precedent or persuasive moral reasoning.  That alone is sufficient reason to oppose it.  But the President’s use of DADT repeal to attack DOMA is wrong for two other important reasons.  When President Obama rammed repeal through the lame-duck Congress, he did so while relying heavily on the existence of DOMA to ward off many of the problematic implications of repeal.  Moral concerns about marriage and religious liberty, along with fiscal concerns about benefits and housing, were rejected as irrelevant because DOMA allegedly prevented many of them from materializing.  Effectively, Congress was told to accept DADT repeal based on DOMA’s authority, all while the President was just a month away from launching an unprecedented attack on DOMA as soon as he secured DADT repeal.

But the actual situation now is much worse than a regrettable tale of political shenanigans and hypocrisy.  The military’s attempt to brace service members for repeal—via painfully inadequate PowerPoint training slides—still relies on DOMA’s existence to answer many controversial problems.  Thus, our troops are having a radical change imposed on them during a time of war by a Commander-in-Chief who is training them to rely on a law that his administration is actively trying to subvert.  This is wrong.  Misleading Congress is one thing.  Misleading the men and women in harm’s way who must follow his leadership is a wholly indefensible other thing and should not be tolerated.  Congress should demand that the President explain his duplicity to it and stop his mistreatment of our troops.

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