[inquest]

Cantwell simply began the process of incorporation

Of the free-exercise clause, not the establishment clause.

Not finding a violation is hardly the same as agreeing that the establishment clause does not apply to the states.

Being as legally well-read as you are, I'm sure you're aware of the distinction between holding and dictum, no? In any case, let's examine Justice Black's obiter checklist, shall we?

- "Neither a state nor the Federal Government can set up a church." Justice Moore hasn't done this.

- "Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another." No law has been passed, and he hasn't aided any religions, as religion is defined by Madison ("the duty we owe to our Creator, and the manner of discharging it.") If he had, then "In God We Trust" would be guilty of "aid[ing] all religions".

- "Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion." Check.

- "No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance." Check.

- "No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever from they may adopt to teach or practice religion." One would be hard-pressed to call Moore's monument a "religious institution", so that passes.

- "Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa." Check.

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And perhaps Brennan's opinion would have been more clear to you if I had included the next paragraph

Still no mention of the 14th amendment therein.

[general_re]

Being as legally well-read as you are, I'm sure you're aware of the distinction between holding and dictum, no?

Sure. You can pick up with Lemon v Kurtzman for the last piece of the puzzle, if you like.

Still no mention of the 14th amendment therein

Read the opinion he was concurring with, then - I suggested Brennan simply as an overview of the issues involved. The context was a public school's requirement for the reading and recitation of Bible verses at the beginning of each school day. Not to spoil the surprise of reading it or anything, but how do you think they presumed that the establishment clause applied to a local Pennsylvania school district? ;)

[WOSG]

The problem is this: The court that ruled on Everson in 1947 or so WOULD MOST CERTAINLY HAVE CONSIDERED JUDGE MOORE'S ACTIONS FULLY LEGAL AND PROPER.


SO the fact that Judge Moore's actions abide by the rules of Justice Black's opinion is no surprise. OYu can 'check' the list all you want - the problem istn *there*.

The real problem is that Judge Moore is running into the buzzsaw of the extremist Brennanite view of the establishment clause that forbids practically any expression of religious sentiment in any official capacity. this is oppressive, anti-freedom and wholly outside the scope of the intended text of the establishment clause. Look at the "Lemon" test, and you will see the problem.

The same nutty extremism that forbids "under God" in the pedge for example, leads us to this case.

So you may do well not to bother flogging the horse of Everson, but looking at the extremism inherent in the Lemon test and more recent bad rulings from the ACLU-inspired extremists.