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The Myth of Church-State Separation ^ | Friday, August 29, 2003 | David Limbaugh

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.


TOPICS: Constitution/Conservatism; Culture/Society; Editorial; Government; News/Current Events
KEYWORDS: christianity; church; courts; davidlimbaugh; establishmentclause; judges; religion; scotus; separation; state
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  1. The Faith of the Founding
  2. Federalism And Religious Liberty: Were Church And State Meant To Be Separate?
  3. Christianity, Our Early State Constitutions, and American Federalism
  4. Reply To Judge Richard A. Posner on The Inseparability of Law and Morality
  5. The Separation of Church and State
  6. Religious Clauses in State Constitutions
  7. Authors Most Frequently Cited By the Founders of the United States
  8. Amendment I (Religion) Amendment X

1 posted on 08/29/2003 9:12:24 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: Vindiciae Contra TyrannoSCOTUS
...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?

2 posted on 08/29/2003 9:25:41 AM PDT by sheltonmac (1775: "Give me liberty, or give me death!" -- 2003: "Thank you, sir, may I have another?")
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To: sheltonmac
AMENDMENT ONE Americans disapprove of federal court orderto remove 10 Commandments (77%!!)

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:



3 posted on 08/29/2003 9:34:13 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: sheltonmac
Contact the 260 RERESENTATIVES that voted AGAINST the UNLAWFUL court order (Federalism) about the above actions.
4 posted on 08/29/2003 9:39:42 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: Vindiciae Contra TyrannoSCOTUS
"Often the sword of separation is used to smother, rather than promote religious liberty."

English 101: Do swords smother/promote?

Better possible metaphors:

1) "Often the pillow of separation is used to smother, rather than comfort religious liberty."

2) "Often the sword of separation is used to attack, rather than defend religious liberty."
5 posted on 08/29/2003 9:40:49 AM PDT by sully777 ( Work is a four-letter word to some.)
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To: Vindiciae Contra TyrannoSCOTUS
Rehnquist's Dissent in Wallace v. Jaffree (1985)
6 posted on 08/29/2003 9:41:29 AM PDT by LiteKeeper
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To: Vindiciae Contra TyrannoSCOTUS
The interpretation embraced by the secularists originated in anti-Catholic sentiment started back in the mid 19th century, at the rise of the public school movement. Public schools were invented because most churches have no centralized financial system and thus could not afford to build schools for their children.

Many people didn't like the idea that so many non-Catholics had to attend Catholic schools, so they cooked up this argument that the government should not be giving money to schools that teach religion. Even though this line of argument was originally started by bigoted Protestants, it's since been adopted wholesale (and extended much more offensively) by the militant atheists. Sadly, many liberal Christians and Jews buy it as well.
7 posted on 08/29/2003 9:45:55 AM PDT by GulliverSwift
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To: LiteKeeper
THANKS! This and future threads on this subject need that.
8 posted on 08/29/2003 9:46:20 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: GulliverSwift
Many liberal Catholics embrace the stamping out of religion, not knowing the great irony of their actions.
9 posted on 08/29/2003 9:47:09 AM PDT by GulliverSwift
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To: Vindiciae Contra TyrannoSCOTUS
WASHINGTON, D.C. -- The U.S. Supreme Court heard oral arguments yesterday in the divisive case brought by a Mormon and a Catholic family challenging prayers before high school football games. The questions by the Supreme Court Justices seemed to indicate that the justices were split on the issue, but that the majority may strike down the school's policy facilitating the prayers.

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."

10 posted on 08/29/2003 10:07:11 AM PDT by jimt
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To: Vindiciae Contra TyrannoSCOTUS
All that may be true but we should just be grateful that the wise men properly trained in interpreting our founding documents wearing the long black robes are kind enough to even grace us with their opinions let alone question them.
11 posted on 08/29/2003 10:14:54 AM PDT by Lost Highway
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To: jimt




SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE, individually and as next friend for her minor children, et al.


No. 99—62. Argued March 29, 2000–Decided June 19, 2000



168 F.3d 806, affirmed.

    Stevens, J., delivered the opinion of the Court, in which O’Connor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.

12 posted on 08/29/2003 10:17:57 AM PDT by jimt
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To: sheltonmac

A clashing of principles and jurisdictions

Posted: August 23, 2003

"Undeniably, the federal constitution's Supremacy Clause makes the federal constitution and constitutional federal laws supreme over state constitutions and laws and binding on state judges."

Good find. Obviously, the man is a confused idiot, as he got it right the first time, as above.
13 posted on 08/29/2003 10:18:01 AM PDT by tpaine ( I'm trying to be Mr Nice Guy, but politics keep getting in me way. ArnieRino for Governator!)
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To: Vindiciae Contra TyrannoSCOTUS
The case David Limbaugh discusses is indeed a parallel of the Roy Moore thing.

The question is whether government employees may use government facilities to favor a particular religious viewpoint.

The answer is no.

14 posted on 08/29/2003 10:21:24 AM PDT by jimt
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To: Vindiciae Contra TyrannoSCOTUS
Bumpus Maximus
15 posted on 08/29/2003 10:35:06 AM PDT by talleyman (It's not the heat, it's the stupidity.)
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To: jimt
ACLU = Spawn of Satan
16 posted on 08/29/2003 10:40:08 AM PDT by talleyman (It's not the heat, it's the stupidity.)
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To: jimt

The U. S. Constitution's guarantee against an "Establishment of Religion" is not violated by 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.

  1. This suit should never have gone to court. The plaintiffs complained that they found the monument "offensive," that it made them feel like an "outsider," that Moore was "using religion to further his political career," that Moore was guilty of a "shameless political use of religion," etc. None of these highly personal, subjective feelings qualifies as a "case or controversy"--the only type of action that Article III of the Constitution allows federal courts to hear.
  2. There is no "law" involved in this case. A "law," by definition, commands, prohibits, or permits a specific action. Chief Justice Moore's installation of the monument does not command, prohibit, or permit any action by any party.
  3. There is no unconstitutional "establishment of a religion" involved in the monument's creation and placement.
    1. The Ten Commandments as displayed in the Judicial Building are memorialized as a fundamental source of American and English law and Western civilization. A "law" and its "source" are not the same thing. The Ten Commandments as the moral foundation of our law are supported by a variety of large, influential religious groups--evangelical Protestants, conservative Catholics, orthodox Jews, and Mormons (for example). If the Ten Commandments per se constitute a "religion," which of these "religions" is "established"?
    2. Interrelationships between law and non-legal values, reflected in the Ten Commandments, are inevitable. "Without religion, there can be no morality: and without morality there can be no law" (top-ranking British judge Alfred Lord Denning, 1977). Reflecting this truth, the U. S. Supreme Court has correctly ruled that "This is a Christian nation" (1892, 1931).
    3. A "pluralism" of fundamental religious and legal values can extend only so far. Both federal courts ruling against Chief Justice Moore argue for religious "pluralism"--asserting a "history of religious diversity" in America (the Court of Appeals) and branding any effort by law to recognize a single definition of "religion" as "unwise, and even dangerous" and as "tending towards a 'theocracy'" (the District Court). But the courts call for the impossible. "Values are necessary for the functioning of any society, and if they are not consciously adopted and publicly acknowledged, they will be smuggled in surreptitiously and often unconsciously. Values are always in real or potential conflict. And the state inevitably favors some values over others" (American historian James Hitchcock, 1981). Thus, American law can be based on the Ten Commandments or on a non-theistic value foundation. There is no alternative. And if public acknowledgement of the former constitutes "establishment of religion," so does the latter.
    4. All of the Ten Commandments have a secular significance to the law. Even the first four Commandments, most directly involving Deity, reveal that there are a Higher Authority and Higher Law to which human law must be submissive--the only sure safeguard against tyranny by human government.
  4. There is an unconstitutional establishment of religion created by the two federal court decisions.
    1. The District Court's assertion that the state "draws its powersfrom the people, and not God" is a religious position (an anti-theistic one). This assertion throws the power of the court behind a religious view in violation of the Establishment Clause.
    2. Both federal courts base their conclusions on the mythical "wall of separation" doctrine. This concept is not in the Constitution's text, is not supported by American history and tradition, and calls for the impossible (see #3b. and #3c. above). Because the mythical "separation" doctrine was created by the Supreme Court in 1947--156 years after the Establishment Clause was written, and therefore has no fixed content--federal courts have had to constantly re-define and create "tests" of "establishment." The most notably is the Lemon three-pronged test (Lemon v. Kurtzman, 1971). Since 1971, various Supreme Court Justices have exposed the true nature of this myth and the "tests" it has spawned, describing them as "all but useless," "mercurial in application," "unhistorical," "non-textual," and productive of a body of Establishment Clause law that is plagued with "insoluble paradoxes" and "unprincipled, conflicting litigation." Despite these fatal flaws in the "separation" myth and Lemon test, both federal courts utilize them as the basic standards for finding against the Chief Justice and the monument.

In a 1798 letter to American military officers, President John Adams declared that "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 ...

17 posted on 08/29/2003 10:45:45 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: jimt
18 posted on 08/29/2003 10:47:55 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: Lost Highway

properly trained in interpreting our founding documents according to Marx, Castro, Lenin, Dewey, Mao….

19 posted on 08/29/2003 10:49:55 AM PDT by Vindiciae Contra TyrannoSCOTUS
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To: Vindiciae Contra TyrannoSCOTUS
I have seen your post #17 on other threads.

The question is whether government employees may use government facilities to favor a particular religious viewpoint.

Are you saying they can?
20 posted on 08/29/2003 10:53:30 AM PDT by jimt
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