Skip to comments.The Myth of Church-State Separation
Posted on 08/29/2003 9:12:23 AM PDT by Vindiciae Contra TyrannoSCOTUS
Recently I have discussed the issues involved in the controversy surrounding Alabama Chief Justice Roy Moore. Before finally leaving the subject, I want to address this nettlesome notion of the separation of church and state.
Often the sword of separation is used to smother, rather than promote religious liberty. There is nothing in the Constitution mandating a separation of church and state. (The phrase originated in a letter from Thomas Jefferson.) When you hear people talking about the supposed "separation of church and state," what they usually mean is "The Establishment Clause of the First Amendment requires a separation." But it doesn't.
Aside from the fact that the Establishment Clause has been erroneously extended to apply to the states as well as Congress, let's look how far the scope of "establishment" has been stretched on both the state and federal levels. It's darn near criminal.
The Framers meant that Congress couldn't establish a national church. They did not intend to forbid every little activity on government property or partially funded by the government. Justice Moore's monument flap is just the tip of the iceberg.
The courts are using the Establishment Clause to scrub Christianity entirely from the public square, including public schools. Their restrictions on religious freedom in schools illustrate the obscene extremes to which the law has been extended.
The separationists contend that public schools, because they are funded by federal and state money, cannot engage in activities that are deemed an endorsement of a religion. Just the slightest nod toward a religion will be enough to trigger an Establishment Clause violation.
Consider the case in which public high school students held their own two-step election, first, to decide whether a student address, possibly containing a prayer, could be delivered at a football game, and second, which student would deliver it. The Supreme Court ruled, in effect, that just by permitting such an election the state was violating the Establishment Clause.
Now seriously, just how far do we have to suspend our disbelief to conclude that the Framers intended to prohibit such an election merely facilitated -- not initiated -- by a public school?
Well, first we have to ignore that the First Amendment restricted the federal Congress only. Second, we have to disregard that it also prohibited Congress from intruding on the states' right to establish religion if they so chose. Third, we have to assume that a local school, which happens to receive funding from both the state and federal governments, is deemed to be an extension of those governments, keeping in mind that there were no such government funded and controlled schools at the time of the nation's founding.
Fourth, we have to find that the students' voluntary action to elect a speaker to deliver a statement that might or might not contain a prayer, with no involvement from the school beyond permitting the election, should be imputed to the state or federal governments -- as if they are the ones choosing to say the prayer.
Fifth, we have to conclude that the reading of the prayer itself is tantamount to establishing a federal or state religion -- notwithstanding that there are thousands of other government-run schools throughout the United States that would be completely unaffected by the prayer and no other part of the nation would be affected by it. (How can we conclude that a single public school in a single community in a single state, by merely permitting and not encouraging its students to choose, on their own, to read a prayer at a football game, constitutes the establishment of a particular denomination as the national or state religion?)
Sixth, we have to assume that you can ignore all these obstacles, even though in the very process you are emasculating that other critically important religion clause of the First Amendment, the Free Exercise Clause, which also guarantees our religious liberty.
By precluding the student-led prayer through these outrageous legal fictions and convoluted reasoning, the Court sanctioned the school's encroachment on the freedom of students to worship as they pleased -- thwarting the very purpose of both First Amendment religion clauses.
The point here is not that it is desirable for the government to endorse religious activities. Rather it is that courts have made the law up as they've gone along, completing mucking up Establishment Clause jurisprudence, and, in the name of protecting religious freedom, have greatly suppressed it.
...courts have made the law up as they've gone along, completing mucking up Establishment Clause jurisprudence...
Well said, but Mr. Limbaugh has previously concluded that we are bound to obey the unconstitutional rulings of these rogue courts. If that's the case, what recourse do we have as freedom-loving citizens?
Congress, the Court, and the Constitution congressional testimony instructing Congress to force the federal Courts into compliance with the Constitution.
Removing federal jurisdiction:
Removing federal judges:
As expected, lawyers arguing for the Santa Fe Independent School District, located near Galveston, Texas, argued that the prayers are a form of free speech and should be protected by the U.S. Constitution. But lawyers for the two families challenging the school's policy say the policy imposes religion on students. "My clients are Catholic and Mormon, and they're not against prayer," said ACLU attorney Doug Leacock who argued for the two anonymous Texas families. "What they are against is having prayer imposed on their children."
The school district's policy allows students to vote for a student to represent them at the games, and allows that student to deliver an invocation or other message solemnizing the game.
Of the justices, Chief Justice William H. Rehnquist and Justice Antonin Scalia seemed to sympathize with the school district, and Justice Clarence Thomas, who was silent during the arguments yesterday, is also expected to sympathize with the district. Justice David H. Souter, who was the most vocal in criticizing the school district's position, was joined by Justices Ruth Bader Ginsburg and Stephen G. Breyer in criticizing the district. They are likely to be joined by Justice John Paul Stevens. That leaves Justices Sandra Day O'Connor and Anthony M. Kennedy as the likely deciding votes in the case.
But even O'Connor and Kennedy seemed uncomfortable with the district's position. Kennedy worried that the district policy allowing the students to choose their representative would lead to religious debates in school, as students campaigned for the privilege of representing the school "That is the kind of thing, I think, that our establishment clause wants to keep out of the schools." O'Connor worried about how the policy might be extended to other areas of school life, eventually resulting in student-led prayer in the classroom, "If this mechanism is approved here, the same thing could be done in every classroom, every day," she said. "We have to look at the extended application of this concept."
But Justice Souter's questions expressed the most doubt of the constitutionality of the school district's position. When the school district's Washington lawyer Jay Sekulow, provided by a national conservative organization, claimed that the district's policy was neutral, that the student could express any kind of message, Souter seemed to think the district was being ingenuous, noting that the policy was set up to allow prayer, "We are not required to close our eyes" to that history, he said. And Justice Breyer agreed, "This is a mechanism in which the school district has figured out how to have a prayer."
Justice Souter also worried that the prayers were still a mechanism provided by the district, "We are still faced with a system in which the school or the school district provides the forum," he said. "The school district is forcing children to sit there and participate in this prayer ceremony. . . . It is not merely religious subject matter. It is religious worship." He later said, "The school district is forcing school children to sit there for this prayer ceremony," adding that "is all we need to strike it down."
But Justices Rehnquist and Scalia disagreed. When Griffin, representing the two families challenging the district's policies, presented his arguments, Scalia asked, "Your clients' children don't have to go to football games, Is anyone forced to be a cheerleader or a band member or a football player?" But Griffin got the last laugh, "When you're a teenager, yes," he said, provoking a ripple of laughter in the courtroom. "That's spoken from experience."
SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, individually and as next friend for her minor children, et al.
No. 9962. Argued March 29, 2000Decided June 19, 2000
(a) The Courts analysis is guided by the principles endorsed in Lee v. Weisman, 505 U.S. 577. There, in concluding that a prayer delivered by a rabbi at a graduation ceremony violated the Establishment Clause, the Court held that, at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise act in a way that establishes a state religion or religious faith, or tends to do so, id., at 587.
The District argues unpersuasively that these principles are inapplicable because the policys messages are private student speech, not public speech. The delivery of a message such as the invocation hereon school property, at school-sponsored events, over the schools public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayeris not properly characterized as private speech.
Although the District relies heavily on this Courts cases addressing public forums, e.g., Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, it is clear that the Districts pregame ceremony is not the type of forum discussed in such cases. The District simply does not evince an intent to open its ceremony to indiscriminate use by the student body generally, see, e.g., Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 270, but, rather, allows only one student, the same student for the entire season, to give the invocation, which is subject to particular regulations that confine the content and topic of the students message. The majoritarian process implemented by the District guarantees, by definition, that minority candidates will never prevail and that their views will be effectively silenced.
See Board of Regents of Univ. of Wis. System v. Southworth. Moreover, the District has failed to divorce itself from the invocations religious content. The policy involves both perceived and actual endorsement of religion, see Lee, 505 U.S., at 590, declaring that the student elections take place because the District has chosen to permit student-delivered invocations, that the invocation shall be conducted by the high school student council [u]pon advice and direction of the high school principal, and that it must be consistent with the policys goals, which include solemniz[ing] the event.
A religious message is the most obvious method of solemnizing an event. Indeed, the only type of message expressly endorsed in the policy is an invocation, a term which primarily describes an appeal for divine assistance and, as used in the past at Santa Fe High School, has always entailed a focused religious message. A conclusion that the message is not private speech is also established by factors beyond the policys text, including the official setting in which the invocation is delivered, see, e.g., Wallace, 472 U.S., at 73, 76, by the policys sham secular purposes, see id., at 75, and by its history, which indicates that the District intended to preserve its long-sanctioned practice of prayer before football games, see Lee, 505 U.S., at 596. Pp. 918.
(b) The Court rejects the Districts argument that its policy is distinguishable from the graduation prayer in Lee because it does not coerce students to participate in religious observances. The first part of this argumentthat there is no impermissible government coercion because the pregame messages are the product of student choicesfails for the reasons discussed above explaining why the mechanism of the dual elections and student speaker do not turn public speech into private speech. The issue resolved in the first election was whether a student would deliver prayer at varsity football games, and the controversy in this case demonstrates that the students views are not unanimous on that issue.
One of the Establishment Clauses purposes is to remove debate over this kind of issue from governmental supervision or control. See Lee, 505 U.S., at 589. Although the ultimate choice of student speaker is attributable to the students, the Districts decision to hold the constitutionally problematic election is clearly a choice attributable to the State, id., at 587. The second part of the Districts argumentthat there is no coercion here because attendance at an extracurricular event, unlike a graduation ceremony, is voluntaryis unpersuasive. For some students, such as cheerleaders, members of the band, and the team members themselves, attendance at football games is mandated, sometimes for class credit. The Districts argument also minimizes the immense social pressure, or truly genuine desire, felt by many students to be involved in the extracurricular event that is American high school football. Id., at 593.
The Constitution demands that schools not force on students the difficult choice between whether to attend these games or to risk facing a personally offensive religious ritual. See id., at 596. Pp. 1821.
(c) The Court also rejects the Districts argument that respondents facial challenge to the policy necessarily must fail because it is premature: No invocation has as yet been delivered under the policy. This argument assumes that the Court is concerned only with the serious constitutional injury that occurs when a student is forced to participate in an act of religious worship because she chooses to attend a school event. But the Constitution also requires that the Court keep in mind the myriad, subtle ways in which Establishment Clause values can be eroded, Lynch v. Donnelly, 465 U.S. 668, 694, and guard against other different, yet equally important, constitutional injuries.
One is the mere passage by the District of a policy that has the purpose and perception of government establishment of religion. See, e.g., Bowen v. Kendrick, 487 U.S. 589, 602; Lemon v. Kurtzman, 403 U.S. 602, 612. As discussed above, the policys text and the circumstances surrounding its enactment reveal that it has such a purpose. Another constitutional violation warranting the Courts attention is the Districts implementation of an electoral process that subjects the issue of prayer to a majoritarian vote. Through its election scheme, the District has established a governmental mechanism that turns the school into a forum for religious debate and empowers the student body majority to subject students of minority views to constitutionally improper messages. The award of that power alone is not acceptable. Cf. Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. ___. For the foregoing reasons, the policy is invalid on its face. Pp. 2126.
168 F.3d 806, affirmed.
Stevens, J., delivered the opinion of the Court, in which OConnor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.
The question is whether government employees may use government facilities to favor a particular religious viewpoint.
The answer is no.
The U. S. Constitution's guarantee against an "Establishment of Religion" is not violatedby the placement in the Alabama State Judicial Building's rotunda of a 2 ½ ton monument inscribed with the Ten Commandments and a variety of other quotes. To the contrary, interpretations of the Constitution by a U. S. District Court in Alabama and a three-judge panel of the Eleventh Circuit Court of Appeals do violate the Constitution. The monument was designed and commissioned by Alabama Chief Justice Roy Moore in recognition of the moral foundation of the law.
In a 1798 letter to American military officers, President John Adams declaredthat "The Constitution was made only for a moral and religious people. It is wholly inadequate to the governance of any other." Chief Justice Roy Moore's installation of the Ten Commandments monument in the Alabama Judicial Building recognizes this truth. Chief Justice Moore does not violate the U. S. Constitution. The two federal courts who have ruled against him do. SUMMARY: Chief Justice Roy Moore's Case Defending The Display Of ...
properly trained in interpreting our founding documents according to Marx, Castro, Lenin, Dewey, Mao
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