You'll understand if I disagree with you. You'll understand why when I'm done correcting your misunderstanding of the 1A establishment clause, American history and establishment clause jurisprudence.
It doesn't prohibit only the establishment of a full and functioning religion complete with churches. It prohibits any law (and by extension of the 14th Amendment, any formal government policy) "respecting," an establishment of religion. "Respecting" is not a throwaway word. It means that anything like an establishment, or anything touching upon an establishment, is prohibited.
Like a lot of people on the left you see the words "Congress shall make no law respecting an establishment of religion" but you read "No public entity shall mention anything respecting religion." The fellow who penned those words, one Fisher Ames, would probably know a bit more of the original intent of same than you and I. In his words:
Kinda blows your liberal reading of the establishment clause right out of the water Stultis. Taken to its logical conclusion your reading of the establishment clause would ban anything respecting religion from the public square. Your reading is simply wrong. Respecting religion and respecting an establishment of religion are two entirely different notions and you'd do well to understand that.
IOW it doesn't merely say you can't go all the way toward establishing religion, it says you can't go part of the way either.
It says no such thing. What the 1A say, in simple English, is that Congress shall make no law respecting the establishment of religion, ie no Church of England, or prohibit the free exercise thereof. The free exercise clause makes your respecting argument null and void as does American history.
It's also worth bearing in mind, which is frequently forgotten today, that "establishment of religion" had a much broader connotation in the American colonial and early republican context than it did in the European context.
Historically incorrect, the establishment clause was narrowly written prohibiting Congress from establishing one religion as favored over another. Since several of the states had established religions prior to, during, and after the ratification the evidence for that is quite clear. They didn't want their choice of establishments overridden by the federal government.
The Europeans did typically, and in some cases still do, establish a particular church or denomination as the official state religion. This was almost never done in the colonies or the early American states. Virtually all "establishments of religion" in America were either multiple (more than one denomination was recognized as official and supported by the state or by taxes) or general (for instance the citizen might be able to specify without restriction which denomination his otherwise mandatory religion tax would go to).
Historically inaccurate once again and a big surprise to those states who disestablished without the help of the 14th Amendment.
In consequence of these uniquely American patterns of religious establishment the writers of the constitution would have, and in fact did, recognized the term as including general measures respecting the advancement, or inhibition, of religion, not just specific favors toward a chosen sect or denomination.
Hardly, the establishment clause was a proscription on Congress. The free exercise clause on the other hand is an individual right. You see the difference?
I think it's pretty clear that government policies tending to validate the existence of an "intelligent designer" advance religion.
What religion? What religion has been established in Dover?
Now if there are independent reasons for such policies (for instance that ID really is, on objective examination, a part of science) then there's no problem with that. This same issue came up concerning evolution back in the 70's, when some creationists were still trying to ban it outright. They argued in court that evolution either inhibited religion, or that it advanced the "religion of secular humanism," and therefore that it was illegal to teach it. Judges refused to consider this argument because, they noted, evolution clearly was a part of science, and therefore there was a valid secular purpose in teaching it in a science class. IOW it didn't matter if it incidentally advanced or inhibited religon, so long as that wasn't the purpose of principal effect of the policy.
Evolution is not a religion., evolution is a fact. ID is not a religion, id is a fact. Using the establishment clause in a federal case to ban either is a joke, that's a fact as well.
In short it seems to me that the defendants will have to show a valid secular purpose, and that this purpose was the intent of the school board, and will be the principal effect of the policy, or they will lose.
Valid secular purpose for what? For stating that ToE has gaps? You must be joking. Of course the federal courts may well agree with the strong central government types and rule that they are the final arbiter of what gets taught in local schools but the holding will in no way be consistent with the first amendments original intent or conservatism.
I think they will lose, and rightly so.
Your hopes are based on a flawed understanding of the the Constitution. I hope you lose.
No I don't, as you well know since I explicitly discussed the meaning of "establishment". Indeed that's what we're debating. And just to maintain clarity, correct me if I misunderstand or mistate our disagreement:
You hold that the establishment clause only prohibits the government from officializing or favoring one religion or sect over another.
I hold that the establishment clause prohibits government from advancing religion generally, absent a valid secular purpose for a policy that may have that effect.
The fellow who penned those words, one Fisher Ames, would probably know a bit more of the original intent of same than you and I. In his words:
Kinda blows your liberal reading of the establishment clause right out of the water Stultis.
Why? I apologize for asking again, but how is this applicable? There was not a single school to which the establishment clause would apply at this time, nor would there be for several generations. How can a completely irrelevant point "blow my argument out of the water"?
Taken to its logical conclusion your reading of the establishment clause would ban anything respecting religion from the public square.
No, under my logic, including all conclusions therefrom, the government, first off, cannot "ban" anything respecting religion from the public square. They're restricted from doing so (or certainly should be) by the free exercise clause. What we're talking about is what the government itself does through it's own actions, policies and laws.
Under my logic, including all conclusions therefrom, even the government actually can do any number of things "respecting religon" except those things that advance religion (or inhibit it, see above). In fact, under my logic, government may even advance (or inhibit) religion provided this is not the purpose or principal effect of a policy, and is incidental to a law or policy with a valid secular purpose.
Respecting religion and respecting an establishment of religion are two entirely different notions and you'd do well to understand that.
I do. Isn't that what I said just above? (Ironically I actually wrote that before reading this sentence!) So we agree here I think, that "establishment" doesn't mean, as many knee-jerk secularists maintain, just anything whatsoever touching on religion. We seem to agree that it means actively favoring or advancing religion, and mainly disagree as to whether prohibitions apply to the general advancement of religon, or only the advancement of specific religions, sects, doctrines, etc.
What the 1A say, in simple English, is that Congress shall make no law respecting the establishment of religion, ie no Church of England,
Argument by bald assertion. Besides, there was no American equivalent to the "Church of England" at the time of the Constitution, nor had there been for some time. I'll have to check some references later to be sure, but I don't think there was even one state at the time of the consitution that established a single church or demonination. All establishments were either multiple or general.
or prohibit the free exercise thereof. The free exercise clause makes your respecting argument null and void as does American history.
How? Aren't I the one holding that the establishment and free excercise clause are consonant in that they are both general prohibitions on congress? You're the one arguing that one clause in the same sentence is meant to be taken very specifically and is quite limited, while the other should be understood generally and with little or no limit. What do you see in the sentence itself to justify that?
It's also worth bearing in mind, which is frequently forgotten today, that "establishment of religion" had a much broader connotation in the American colonial and early republican context than it did in the European context.
Historically incorrect, the establishment clause was narrowly written prohibiting Congress from establishing one religion as favored over another.
No, it's not. In fact I *think* (again I'll have to check some references) that it was not only generally true, but absolutely true. That is I don't think there was even one state at the time the Constitution was adopted that followed the European pattern of establishing a single church or demonination. (If there was an exception I wanna it would have been Maryland and the Catholic church.)
Again, most, if not all, states that established religion had either multiple or general establishments, that is they recognized and supported either more than one church or sect or recognized and supported all churches and sects.
Since several of the states had established religions prior to, during, and after the ratification the evidence for that is quite clear. They didn't want their choice of establishments overridden by the federal government.
But if all those establishments were multiple or general establishments of religion, how the heck can that be "clear evidence" for the claim that congress really meant establishment to refer only single or particular establishments?!?
the establishment clause was a proscription on Congress. The free exercise clause on the other hand is an individual right. You see the difference?
They're both prohibitions on Congress. Both clauses after all refer to the same "shall make to no law" prohibition. They are also both -- like most such prohibitions in the Constitution -- in recognition of rights properly retained by or devolving to the states or to individuals. Both also protect both individuals and private institutions. Granted it may tend to be individuals who are affected by inhibitions to free exercise, but demoninations or other groups can also be effected.
Please excuse typos and misspells, I'm in a hurry...