Down With the Establishment…Clause?

The Aquila Report ran an article yesterday detailing the frustration of many NYC church leaders with the pastors of their city’s megachurches, that they have been remarkably silent regarding the school district’s decision to bar religious groups from renting their facilities for worship space. Although I am inclined to let the Caesar keep what is his, our congregation has been praying regularly for the affected congregations nonetheless. So what struck me about this article was not the disinterest of NYC’s megachurch pastors. Rather, what rankled me was this quote from our own Presbyterian Tim Keller:

“I disagree with the opinion written by Judge Pierre Leval that: “A worship service is an act of organized religion that consecrates the place in which it is performed, making it a church.” This is an erroneous theological judgment; I know of no Christian church or denomination that believes that merely holding a service in a building somehow “consecrates” it, setting it apart from all common or profane use. To base a legal opinion on such a superstitious view is surely invalid. Conversely, we concur with Judge John Walker’s dissenting opinion that this ban constitutes viewpoint discrimination and raises no legitimate Establishment Clause concerns” (emphasis added).

For a man of Keller’s ability and intellect, this assessment of Judge Leval’s opinion is unacceptable. Think about it: a judge on an American bench declared that Christian worship consecrates space. And by Keller’s own admission, that was a theological judgment. Since when are American magistrates allowed to make theological judgments in official legal opinions (it now amazes me that the Supreme Court refused to hear the case)!? Furthermore, how then can Keller write that “this ban…raises no legitimate Establishment Clause concerns”? From the standpoint of the churches renting from the NYC school district, that is no doubt true. But what about from the standpoint of an American magistrate making theological judgments on behalf of the Christian church? From this standpoint, the ban raises lots of legitimate Establishment Clause concerns (at least American courts were being consistent when they refused to hear theological arguments in the 1930s as many seceding Presbyterian congregations were trying to keep their property).

I will kindly thank Judge Leval, as an American magistrate, to keep his opinions about my religion to himself. And I would encourage my brother Rev. Keller, due to the extraordinary circumstances of the case and for the sake of his brothers, to do a much better job of holding Caesar’s feet to his own fire. Judge Leval’s opinion was not just “superstitious” and “invalid”; it was downright unconstitutional.


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