The Constitution protects free religious exercise except where Establishment is being violated. Where precisely in the Constitution is "religion" defined in a manner which excludes Islam?Don't forget "free exercise thereof".As I'd argue it, the key point at issue is what the Constitution means by "religion" in the phrase "establishment of religion".
The context of this phrase includes the wider context of the Declaration of Independence, which opens with references to "the Laws of Nature and of Nature's God" and to men being "endowed by their Creator with certain unalienable Rights".Leaving aside the question of whether or not the Constitution's context can be said to include a document it does not reference in any way, these are phrases that could be uttered by a Muslim without real fear of heresy.
This, as may be verified in the writings of the framers of the Constitution, is referring to the 18th-century concept of natural law and the underlying tradition of natural rights extending back through John Locke to Thomas Aquinas, Augustine, the Sermon on the Mount, and ultimately, the Ten Commandments. In this tradition the Ten Commandments and the Golden Rule are considered to embody certain principles which are the foundation of a just social order. These principles are common to Judaism and Christianity and are alluded to in the Declaration of Independence's phrase "unalienable Rights", which are the "Rights" the "Bill of Rights" is enumerating. This is not excluding non-Christian religions (cf. my Post #24); it is, however, excluding religious practices based on principles which radically depart from the principles common to Judaism and Christianity that derive from natural rights (thus, for instance, to take an extreme example, the Constitution would not protect a religious practice involving ritual murder).Again, it does not say so. It merely says "religion". Madison's point was that any suppression of religion at all opens the door to any which can be conceived. Actions may be proscribed, and certainly government preference prohibited. But the rules must be the same for all faiths, or lack thereof.
Certainly your theory would suggest that atheism and areligion are not protected, while the Courts have ruled most emphatically that they are. But more to the point is your reference towards Islam. Islam proclaims that it worships the same God as Christianity. Both the leader and the official doctrine of the largest Christian sect in the US and the world proclaim agreement. Jesus of Nazareth himself has higher status in the Islamic faith than the Jewish. Your claim that Islam is not protected because it is not close enough to Christianity fails all applicable tests: the legal, the historic, and the theological.
Also, the Bill of Rights is addressing states' rights issues and protecting the right of individual states not to have their established religions infringed upon by the federal government (keep in mind that the states originally had established religions), whereas the legal argument in the case in question is attempting to have the federal government impose Islam on a non-federal level of the educational system.The states may no longer have established religions as the Fourteenth Amendment applied the limitations of the Bill of Rights to all levels of government. I know some deny the validity of this, but it is as accepted a part of modern law as judicial review. I would also submit that its a good thing, and that were it not already considered part of law an Amendment to do it more explicitly would pass easily.
Note that I am not arguing the Constitution only protects Christianity; I am arguing that Judaism and Christianity are the paradigm of what the Bill of Rights protects, and when Islam attempts to claim rights which step outside that paradigm, it steps outside the protection of the Constitution. Christians do not have a Constitutional right to violate school dress codes--why should Islam?My point is that they do: dress codes should only exist to maintain order and the forbidding of passive displays such as crosses, yamulkes (sic) and Islamic veils represents protected free exercise. Rather than pandering to the anti-Islamic bigotry of the ignorant that is clear from some of the other posts in this thread (not yours), I would think that Christian organizations would support this girl.
-Eric
This Christian certainly will.
I'm afraid this would get a bit long if I respond adequately to all of your points, so I'm going to focus on a few essentials, with apologies for not being able to do justice to your entire post. I appreciate your intelligent defense of your position; unfortunately to really get into the details of this would require referencing some case studies, biographical details of the Founding Fathers, etc., which would consume more time than I have at the moment. I will take your arguments into consideration for when I have more time to mull over them.
>The context of this phrase includes the wider context of the Declaration of Independence, which opens with references to "the Laws of Nature and of Nature's God" and to men being "endowed by their Creator with certain unalienable Rights".
Leaving aside the question of whether or not the Constitution's context can be said to include a document it does not reference in any way,
But as I see it, this is a key question: what does the Bill of Rights mean by "religion"? There is no definition of "religion" in the Bill of Rights itself, so to define it we have to consider external documents, and the Delcaration is one of the most significant of these.
these are phrases that could be uttered by a Muslim without real fear of heresy.
Sure, and this is a point where the Judeo-Christian tradition and Islam appeal to a common set of principles, which relates to the point I'm getting at: you can have religious toleration between Judeo-Christian groups and non-Judeo-Christian groups to the extent these groups agree upon some common set of principles. During the 18th century when the Constitution was written, such common principles were widely recognized to be embodied in such historic legal statements as the Ten Commandments and the Golden Rule. To the extent practitioners of Islam abide consistenly with such principles, I see no problem with extending the same Constitutional protection that applies to Jews and Christians to Muslims. But I see a problem when a religion departs from these principles in a way that is radically inconsistent with them, because this undermines the basis upon which religious tolerance is founded. On a somewhat different issue--though related, because again there is an issue of consistency--I see a problem when Islamic legal activists (by which I have in mind primarily CAIR) try to use the Bill of Rights to secure preferential legal treatment. This of course gets to another point you bring up:
My point is that they do: dress codes should only exist to maintain order and the forbidding of passive displays such as crosses, yamulkes (sic) and Islamic veils represents protected free exercise.
This relates to the states-rights issue I raise in my other posts: I would argue that the Bill of Rights is merely prohibiting the federal government from enforcing/forbidding the expression of religion via the wearing of religious apparel; it is not giving the federal government the right to prohibit state/local or private educational institutions from enforcing dress codes; so when Islam claims protection under such an alleged right, I would argue that it is claiming a protection not even provided to Jews and Christians under the Bill of Rights, and is it thus claiming a right to preferential treatment by the federal government. Your counter-argument would appear to be along the lines of the argument you raise here:
The states may no longer have established religions as the Fourteenth Amendment applied the limitations of the Bill of Rights to all levels of government. I know some deny the validity of this, but it is as accepted a part of modern law as judicial review.
I would be one who would challenge the validity of this, and I would do so partly on the grounds that judicial precedent is only valid to the extent that it is consistent with the intent of the original legal document underlying the precedent in question. Here I would also (beyond the points you raise, so I'm not claiming this is what you're arguing, though I see it as a related issue) be taking issue with the legal realist/critical legal school of legal philosophy, which I feel is the school of legal philosophy underlying CAIR's position on how the Bill of Rights applies to Islam.
Rather than pandering to the anti-Islamic bigotry of the ignorant that is clear from some of the other posts in this thread (not yours), I would think that Christian organizations would support this girl.
I support the girl as a person, but I do not support her lawyers' legal argument.
Again, I appreciate the discussion, and I will take your arguments into consideration.