[Sir Gawain]

The link was on another thread, but this definitely deserves its own thread.

[cdrw]

outstanding post

[E Rocc]

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years.

Reynolds was more than 100 years old when this decision was written. Interestingly, Madison, referenced next by Rehnquist, used similar language to Jefferson in personal writings, explicitly stating that the Constitution strongly guaranteed a separation between religion and government.

"The real object of the [First] [A]mendment was not to countenance, much less to advance, Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment which should give to a hierarchy the exclusive patronage of the national government.

Madison most strongly disagreed:

Who does not see that the same authority which can establish Christianity, in exclusion of all other Religions, may establish with the same ease any particular sect of Christians, in exclusion of all other Sects? that the same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment in all cases whatsoever?

Finally, note that this was a dissent. Rehnquist is right on most issues but he is quite wrong on this one.

-Eric

[Liz]

BTTT

[William Tell]

From the article: "In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State.'

This statement provides yet another example of flawed logic by those who seek "penumbras" in the Constitution.

I characterize this logical flaw as the confusion of "cause" and "effect". The "effect" described above is that of erecting a wall of separation between church and State. This "effect" was to be "caused" by prohibiting Congress from passing certain laws. That is all that was intended by our Founder's support of the Bill of Rights. A further effect intended by the prohibition against Congress passing certain laws was that everyone would be assured the free exercise of religion. Now the liberals wish to restrict Judge Moore's free exercise of religion by removing a monument over which he previously had control.

This example of logical confusion is similar to the liberals' misreading of the Second Amendment. The "effect" desired was the continuing ability to have a well-regulated Militia. The way this "effect" was to be "caused" was to mandate that "the right of the people to keep and bear arms shall not be infringed". Here there is no limitation to just laws of Congress.

Since the language of the First Amendment protects free speech by simply prohibiting Congress from passing laws, there is more justification for believing that individual states may prohibit free speech than that they may infringe the right to keep and bear arms. I know of no reason to believe that States could quarter soldiers in people's homes or that States could impose excessive bail. There is no presumption that these constraints applied only to the federal government.

[nightdriver]

I have a question, S.G., for those more knowledgeable than I.

Does the word "CHURCH", as in "separation of," mean Christianity, or does it apply equally to Hinduism, Islam, Zoroastrianism, Shinto, Buddism, VooDoo, Wicca et al?

[WOSG]

Awesome and Great. Rehnquist knocked the cover off the ball here, and it shocks me any Judge would be non-persuaded by this reasoning. The Lemon test is *wrong*! The anti-Judge Moore folks really need to see this! I am also gratified that we "good guys" have one our side Justice Story and pretty much the whole of American Jurisprudence and enlightened thinking on the 1st up until Everson:

Thomas Cooley's eminence as a legal authority rivaled that of Story. Cooley stated in his treatise entitled Constitutional Limitations that aid to a particular religious sect was prohibited by the United States Constitution, but he went on to say:

"But while thus careful to establish, protect, and defend religious freedom and equality, the American constitutions contain no provisions which prohibit the authorities from such solemn recognition of a superintending Providence in public transactions and exercises as the general religious sentiment of mankind inspires, and as seems meet and proper in finite and dependent beings. Whatever may be the shades of religious belief, all must acknowledge the fitness of recognizing in important human affairs the superintending care and control of the Great Governor of the Universe, and of acknowledging with thanksgiving his boundless favors, or bowing in contrition when visited with the penalties of his broken laws. No principle of constitutional law is violated when thanksgiving or fast days are appointed; when chaplains are designated for the army and navy; when legislative sessions are opened with prayer or the reading of the Scriptures, or when religious teaching is encouraged by a general exemption of the houses of religious worship from taxation for the support of State government. Undoubtedly the spirit of the Constitution will require, in all these cases, that care be taken to avoid discrimination in favor of or against any one religious denomination or sect; but the power to do any of these things does not become unconstitutional simply because of its susceptibility to abuse. . . ." Id., at * 470--* 471.

Cooley added that

"[t]his public recognition of religious worship, however, is not based entirely, perhaps not even mainly, upon a sense of what is due to the Supreme Being himself as the author of all good and of all law; but the same reasons of state policy which induce the government to aid institutions of charity and seminaries of instruction will incline it also to foster religious worship and religious institutions, as conservators of the public morals and valuable, if not indispensable, assistants to the preservation of the public order." Id., at *470.

[aristeides]

Philip Hamburger, Separation of Church and State (Harvard Univ. Press 2002).

[Pagey]

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[mtbrandon49]

bttt

[aristeides]

The "crucible of litigation," ante, at 2487, is well adapted to adjudicating factual disputes on the basis of testimony presented in court, but no amount of repetition of historical errors in judicial opinions can make the errors true. The "wall of separation between church and State" is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned.

Bump.

[EdReform]

BTTT

read later

[redbaiter]

bump and thanks!

[ArGee]

Bump for later read.

[CyberAnt]

Yes, thank you for posting this - I have bookmarked it!

[Ohioan]

An excellent opinion, to be sure. The pity is that there is so strong a bias for writing hostility to religion into the Constitution, that most Courts today--including his own--still fail to see its compelling logic. The one point that was perhaps glossed over, is the significance of the precise compromise language, finally selected. "Congress shall make no law respecting an Establishment of Religion." Thus not only the concept of a Federal Church was ruled out, but any interference in any Church, including the existing Established Churches in some of the States. There is no rational way that such language can be applied, via the 14th Amendment, or any less suspect source, to prevent a State Court from displaying the Ten Commandments.

A number of posters have argued that Jefferson had a different understanding, based upon the language quoted in the opinion, and other language quoted from other sources. But that is simply not the case. Jefferson, as President, may have declined to take certain actions that his contemporaries had taken, but he actively sought to encourage religion in Virginia, and to encourage others to promote religion in their own States--though not the doctrines of any particular denomination--and he recognized in some of his speeches the idea that it was perfectly proper for the States to make such promotion via their schools and institutions. His effort to disestablish the State Church in Virginia, was never taken as a right to dictate such disestablishment in any other State.

The idea that there could only be one monolithic policy on such an issue--the ACLU view--would have been anathema to Jefferson; as would have been the idea that one could not display the Ten Commandments in a State Court House.

William Flax Return Of The Gods Web Site

[PhilipFreneau]

More on the Separation of Church and State myth (I posted this earlier, but am reposting here since it fits the content:

Jefferson, in a letter to Gideon Granger on Aug. 13, 1800 stated, "The true theory of our constitution is surely the wisest & best, that the states are independent as to everything within themselves, & united as to everything respecting foreign nations. Let the general government be reduced to foreign concerns only, and let our affairs be disentangled from those of all other nations, except as to commerce, which the merchants will manage the better, the more they are left free to manage for themselves, and our general government may be reduced to a very simple organization, & a very unexpensive one; a few plain duties to be performed by a few servants. But I repeat, that this simple & economical mode of government can never be secured, if the New England States continue to support the contrary system.

In another letter, to Rev. Samuel Miller on Jan. 23, 1808 Jefferson stated, "I consider the government of the U S. as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment, or free exercise, of religion, but from that also which reserves to the states the powers not delegated to the U.S. Certainly no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the general government. It must then rest with the states, as far as it can be in any human authority."

That second statement by Jefferson came a full 6 years after he coined the quotation "wall of separation of church and state" to the Danbury Baptist Association January 1, 1802. So it is obvious to assume that the so-called "wall of separation" applied only the general (federal) government, and not to the states.

[hope]

Great post...This "misleading metaphor" as Justice Rehnquist puts it, has been hammered into every law student since the 60's and you'd think that more of them would challenge it since it's not even a phrase in the Constitution..

[concentric circles]

Bump for an excellent post, discussion and for a vigorous American electorate.

[A. Pole]

It is impossible to build sound constitutional doctrine upon a mistaken understanding of constitutional history, but unfortunately the Establishment Clause has been expressly freighted with Jefferson's misleading metaphor for nearly 40 years. Thomas Jefferson was of course in France at the time the constitutional Amendments known as the Bill of Rights were passed by Congress and ratified by the States. His letter to the Danbury Baptist Association was a short note of courtesy, written 14 years after the Amendments were passed by Congress. He would seem to any detached observer as a less than ideal source of contemporary history as to the meaning of the Religion Clauses of the First Amendment.

Bump

[Libertina]

BTTT