Jamie_L

I read a Newsweek article over the weekend. You can find it here:

<a href="http://www.msnbc.com/news/774315.asp" target="_blank">http://www.msnbc.com/news/774315.asp</a>

It seemed fairly balanced on the surface, but a few things bothered me. Chief among them was this bit:

The article advances as fact (not a debated point) that strict C/S separation is basically an invention of modern judges and not an intention of the Bill of Rights. My knee-jerk reaction is to cry foul. What do others think of this? What are some good responses to this line of arguement?

Jamie

[ July 03, 2002: Message edited by: Jamie_L ]</p>

hezekiah jones

That's just silly. The coercion and endorsement tests were formulated by conservative Justices in the face of dissatisfaction with the three-prong Lemon test. It's the Lemon test that is seen by the conservatives as too narrowly restrictive, and thus too expansive in terms of the establishment clause's reach.

To say that the coercion and endorsement tests are expanding the establishment clause's reach is ridiculous. Quite the opposite was intended. The Court has indeed reaped what it has sowed in the Ninth Circuit's opinion, and rightly so.

The establishment clause reads, "Congress shall make no law respecting an establishment of religion." How the conservatives (supposedly dedicated to restrictions on government power) get "some laws" from "no law" is beyond me.

Darwin's Finch

hezekiah jones is spot-on about the inherently conservative tendency of the "endorsement" and "coercion" tests; that is why they were adopted.

As an aside, I wonder how many of today's conservatives (not necessarily the scholars but the rank-and-file) would have spouted off about Marbury v. Madison being an instance of judicial activism if they had been around at the time of that ruling?

simian

The reporter in this case clearly doesn't get that C/S separation is good for everybody, INCLUDING THE CHURCHES. Please note the reporter wrote this:
"Among them: rulings that ban prayer at school graduations, and even student-led invocations at public-high-school football games."

Anybody who bothered to look at the facts on the Sante Fe case (Texas football prayer case) would notice everybody involved was Christian. What was going on was that the majority denomination (Southern Baptists, if I remember correctly) were using every possible opportunity to bash their Catholic and Mormon neighbors. To the best of my knowledge, the Catholic and Mormon families who filed suit were never named in public, due to the likelihood they would suffer due to their taking a stand. That is the sort of stuff that happens when a religion is placed above others by the government: soon a denomination must be placed above others. One of the Founding Fathers said this (or something very similar), but I don't have it at hand. When will the smaller denominations figure out they will ultimately be losers also?

Bill Snedden

I concur that it's just plain silly.

The framers actually considered and discarded language that would have made it clear that they were only attempting to prevent the establishment of a national church. Therefore, to claim, as the article does, that the founders only intended to prohibit support for an "official" church, would seem to contradict historical fact.

Regards,

Bill Snedden

Mageth

To the best of my knowledge, the Catholic and Mormon families who filed suit were never named in public, due to the likelihood they would suffer due to their taking a stand.

I lived in the next town over from Santa Fe during these events (about 5 miles away). At least some of these families were known (I remember seeing newspaper articles interviewing them). And they were persecuted.

ohwilleke

There is an element of court created rights in the First Amendment, but this definition of establishment is not it.

While the application of the First Amendment to Congress is clear, modern constitutional law states that the First Amendment applies to the states because it is an indispensible element of the 14th Amendment command that "nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." (Justice Thomas in his most recent concurring voucher opinion expressed the view that this was the wrong interpretation).

It is fair to guess that the 14th Amendment was not accepted as including the First Amendment in 1900, since this was not raised as an issue in the case of Petit v. Minnesota, 177 U.S. 164 (1900) when the Supreme Court was asked to address the issue of the legality of Sunday closing laws solely on the question of whether or not they had a rational basis, and not on First Amendment grounds. Similarly, in 1878 when the Supreme Court decided the case Reynolds v. U.S., 98 U.S. 145 (1878) about whether was ban on polygamy by Congress under its right to govern the territories was unconstitutional, the Court was careful to note that it was ruling on how the First Amendment applied when Congress was concerned.

Some of the first cases to hold that the 1st Amendment protection of freedom of religion applied to the states were Meyer v. Nebraska, 262 U.S. 390 (1923)("While this court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men." at page 399)and Hamilton v. Regents, 293 U.S. 245 (1934). Some people argue that Everson v. Board of Educaiton, 330 U.S. 1 (1946) was the first case to apply the establishment clause rather than the free exercise clause to the states, but I have doubts about the accuracy of this fact, and doubts that the Court really made the distinction between the two parts of the freedom of religion.

Other parts of the First Amendment were incorporated at about the same time in Gitlow v. New York, 268 U.S. 652 (1925) ("For present purposes we may and do assume that freedom of speech and of the press -- which are protected by the First Amendmetn from abridgment by Congress -- are among hte fundamental personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment from impairment by the States"), a case addressing a New York "criminal anarchy" statute enacted out of pre-WWI fears of anarchists.

Thus, while there is a rational, if widely rejected argument for not applying the First Amendment to state and local governments, there is no argument in my mind for stating that "Congress shall make no law respecting an establishment of religion" permits the federal government to favor one religion over any other religious belief or absence of religious belief.

[ July 03, 2002: Message edited by: ohwilleke ]</p>

Stephen Maturin

Jamie,

Bill and Hezekiah hit it right between the eyes. I suppose it's also worth noting that the Bill of Rights was drafted, revised, discussed, debated, argued over and voted upon by numerous men with divergent ideals, objectives and beliefs. The claim that these men possessed some sort of unitary "intention" about exactly how any specific provision would operate for all time is naive at best. At worst, and in all likelihood more accurately, such claims are made-up bullshit used to justify a particular political agenda.

simian

Unfortunately, I can't say I am surprised. Any chance you can locate any of the articles discussing their persecution? No big deal if you can't.

Simian

Mageth

I don't think I can reproduce the article. A little research and memory jogging, however:

The two families (one mormon and one catholic) who filed the lawsuit remained "anonymous." However, SF is a small town and many deduced (wrongly or rightly) who these families were. There just aren't many mormon students in SF.

The persecution I remember reading about was along the lines of Fundie protestants generally persecuting catholics and mormons in the community (verbally, threatening msgs, etc.) Further, anyone who spoke out in favor of the lawsuit was generally vilified. Special attention was paid to those suspected of being in on the lawsuit.