Secular Elation

The major problem with all these modern issues over c/s separation is that the principle is, honestly, poorly defined in the Constitution.

That's it. The only place in the Constitution that forms c/s separation (if you want to be annoyingly nitpicky, yes, there is a later article that bans religious tests for office, but you know what I mean). The principle lies in the First Amendment, under the Establishment Clause and the Free-Exercize Clause.

The frustrating part is that it's difficult to battle the Religious Right and their many efforts using Constitutional reasoning. For example, one Rightist argued that placing "In God We Trust" and the Ten Commandments in schools, public, etc., does not violate the c/s principle because congress is not in fact establishing a law in support of an established religion, therefore the religious displays are acceptable. When you examine the First Amendment, there doesn't seem to be a clear violation.

Of course, people like us are against such postings, but it's difficult to argue against it for Constitutional reasons. Sure, we may argue how we interpret c/s separation - but the Rightists will simply argue their interpretation. Trouble is, both sides are based in subjective interpretation, so there is no absolute correctness to either side!

Sure, there's been statements made by the likes of Justice Hugo Black - but they are just statements! They are not located in the Constitution. Additionally, there is no enforcement of those constitutionally unestablished statements.

That's why this whole bit is frustrating. And it cannot be denied that the Religious Right is a powerful force in America. They have the upper hand.

[ May 07, 2002: Message edited by: Secular Elation ]</p>

Peregrine

That is why you turn to Madison, the author of the establishment clause. In C&S issues, Madison's writings are pretty much supporting the separation. But be careful when it comes to other amendments, Madison might just bite you in the ass.

Scalia likes to quote Madison concerning the second amendment, but he ignores Madison on the establishment clause. I wonder why.

Toto

The history of this language is pretty clear - by saying that Congress shall make no law "respecting" an establishment of religion, the framers meant "don't even think about passing a law touching on religion." It was the strongest language they could think of.

Anyone can find a lawyer who will argue that black means white. That doesn't mean that a reasonable person could think that black means white, or that the courts will buy it.

Secular Elation

That is why you turn to Madison, the author of the establishment clause. In C&S issues, Madison's writings are pretty much supporting the separation.

The Rightists do not care. All that matters is what is in the Constitution. What's there is not good enough for them, it seems.

The history of this language is pretty clear - by saying that Congress shall make no law "respecting" an establishment of religion, the framers meant "don't even think about passing a law touching on religion." It was the strongest language they could think of.

This is precisely what I mean about interpretation. Sure, you think the language is clear in saying Congress shall make no law that "even touches religion." However, many of the Rightists could turn around and say that the phrase, "congress shall make no law respecting an establishment of religion," simply means that Congress will not pass a law that respects an established religion. They argue that IGWT and the Ten Commandments in school is not the same as Congress actually passing a law that respects an establishment of religion. They are simply allowing the existence of religious documents in schools and the public. They would not be passing a law sponsoring a specific religion.

Furthermore, I once argued against a Rightists, saying "the Ten Commandments in school violates c/s because it respects an establishment of religion."

The Rightists replied, "Show me in the Constitution where it says we cannot post the Ten Commandments. Also, Congress hasn't passed any law that deals with religion. This local school district has simply decided to place the Ten Commandments on school walls. There is no established religion law here."

I disagree with this, of course, but that's the problem. Both sides are arrogantly confident of their "superior" interpretations, and neither can be absolutely established as true.

C/S supporters may argue that Madison wrote about certain things in regards to C/S that supports their position, but Rightists will argue that others considered this a Christian nation (in fact, I saw one Rightist who quoted Patrick Henry, who called this nation Christian).

What a headache debate.

trunks2k

Most of the Constitution was purposely written in vague language. That way it could have a range of interpretations and be able to deal with any changes in the feelings of the country but yet still keep certain rights. Jefferson origianlly proposed that the Constitution be rewritten/eddited every so many years (I think it was 25 years)this way it could keep up with changes of the society. However most of the other founders wanted something more stable and continuous, so instead they made a lot of the language vague, therefore being able to somewhat keep Jefferson's idea.

Buffman

S.E.:

If you wish to present the strongest, most reasoned and historically accurate case for Church-State separation, I highly recommend that you spend some serious time reviewing all the available information at this URL:

<a href="http://members.tripod.com/~candst/index.html" target="_blank">http://members.tripod.com/~candst/index.html</a>

Your passing comment about the "nit-picky" part of the Constitution concerning the Art. VI, para 3, "no religious test," statement would indicate, to me, that you need to do more research. However, if you need some truly insightful knowledge about how the "establishment" phrase came into being in the 1st Amendment, I would recommend that you obtain a copy of "The Complete Bill of Rights: The Drafts, Debates, Sources, & Origins" edited by Neil H. Cogan, Oxford University Press, 1997. Chapter 1 opens with "Amendment 1: Establishment and Free Exercise Clauses" and is 82 pages long.

Secular Elation

Your passing comment about the "nit-picky" part of the Constitution concerning the Art. VI, para 3, "no religious test," statement would indicate, to me, that you need to do more research.

Um...I was not calling that part of the Constitution "nit-picky" as you seem to think. I was calling the readers of this post "nit-picky" if they attempted to criticize me for stating that C/S is only in the First Amendment.

Grumpy

There's more to it than the U.S. Constitution. Many state constitutions are more explicit when it comes to non-establishment (though some are more accomodating).

Take Tennessee, which is currently tackling its own 10C battle (albeit in federal court):

Or how about in neighboring Kentucky, where they're throwing 10C fits of their own:

Sound familiar? Sure, there's nothing there explicitly prohibiting the display of religious plaques, especially when tax dollars are not involved. But there's more language to look at if you're trying to discern the spirit of the law.

Lastly, how are things on Planet Roy, in good ol' Alabama?

I'm not a lawyer, but if I wanted to stick it to Roy Moore, I might argue that his truckin' the stone tablets into the lobby turns the courthouse into a place of worship -- where people are compelled to attend (as jurors, litigants, employees, etc.) Roy might dodge it by claiming he didn't establish the 10Cs by law, but I'd have to ask, By what authority did he put those stones there, if not by law? Was he littering?

Buffman

Sorry, S.E.! My bad!

Have you reviewed the information here?

<a href="http://www.religioustolerance.org/chr_10c1.htm" target="_blank">http://www.religioustolerance.org/chr_10c1.htm</a>

When presented with the specious argument that the Constitution/Bill of Rights do not specifically forbid the posting of the 10 Commandments, you should point to all the other items not specifically enumerated in those documents that are, never-the-less, rights or laws as determined by Supreme Court decisions.

Additionally, the religious right are perfectly correct to point to a number of instances where religion is, indeed, supported by the Government with the full approval of the judiciary. Is that a violation of C-S? IMHO it is. Sadly, until enough Americans can be educated to the true value of C-S separation, for both religious and non-religious believers of every ilk, superstition and myth will always tend to triumph. Unfortunately, there are no new continents on this planet to which religiously oppressed minorities can escape...even from their own brethren in superstitious beliefs. Voltaire said it well.

"If you have two religions in your land, the two will cut each other's throats; but if you have thirty religions, they will dwell in peace."

Until now, America has been a validation of that contention...but only because of Constitutional C-S separation being enforced. Many Americans fail to appreciate that there has been no monolithic Christian dogma since the Reformation. I believe that one of the tasks of the non-religious is to call that fact to the attention of anyone claiming, and all those within earshot, that their Christian dogma is the only one approved by their specific supernatural god. Additionally, all Christians need to be reminded that their religious dogma is not the only religious dogma on the planet even though they lay unprovable claim to its inerrancy.

Jamie_L

It would seem to me that:

Public buildings are created and maintained by public funds. Laws define the allowed usaged of those funds, and thus the buildings. Laws define what authority of the people who control those funds and buildings have. Actions taken with respect to those funds and by those in authority either are or are not sanctioned by those laws.

If government employees take actions in an official capacity effecting the use of public funds and/or properties, AND those actions respect an establishment of religion, AND this is considered sanctioned by the afforementioned laws, THEN those laws are respecting an establishment of religion. C/S separation applies. If the law doesn't sanction those actions, then the actions are illegal.

Furthermore, the fourteenth ammendment extends the Bill of Rights so that it does not apply only to the federal government. Thus, it doesn't matter whether it was Congress that passed the law or the city council. No law in the United States can respect an establishment of religion. Period.

Lastly, any power not explicitly granted to the government in the Constitution is denied to it. It was from this standpoint that many argued against having a Bill of Rights - there's no need to say what the government can't do, because we never said they could do it. The only reason the Bill of Rights existed is because some framers wanted some rights explicitly spelled out. So, even if the Constitution doesn't explicitly say the government can't promote religion (which is does), the government still can't promote religion. It wasn't granted the power to do so.

Edited to add:
This was the exactly the situation that opponents of the Bill of Rights feared: if you list things the government CAN'T do, people will assume the government CAN do anything not listed. That's not the intent or the letter of the Constitution.

Jamie

[ May 08, 2002: Message edited by: Jamie_L ]</p>