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To: inquest
Cantwell simply began the process of incorporation, without itself being the be-all and end-all on the subject - you want to start from the beginning, right? ;)

Everson supported my view of the first amendment (it did not find a violation in the case before it)

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

The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. 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. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. 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.' Reynolds v. United States, supra, 98 U.S. at page 164.

- Justice Black, Everson v Board

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

I join fully in the opinion and the judgment of the Court. I see no escape from the conclusion that the exercises called in question in these two cases violate the constitutional mandate. The reasons we gave only last Term in Engle v. Vitale, 370 U.S. 421 , for finding in the New York Regents' prayer an impermissible establishment of religion, compel the same judgment of the practices at bar. The involvement of the secular with the religious is no less intimate here; and it is constitutionally irrelevant that the State has not composed the material for the inspirational exercises presently involved. It should be unnecessary to observe that our holding does not declare that the First Amendment manifests hostility to the practice or teaching of religion, but only applies prohibitions incorporated in the Bill of Rights in recognition of historic needs shared by Church and State alike. While it is my view that not every involvement of religion in public life is unconstitutional, I consider the exercises at bar a form of involvement which clearly violates the Establishment Clause.

959 posted on 08/22/2003 10:17:26 AM PDT by general_re (A clear conscience is usually the sign of a bad memory.)
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To: general_re
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.

------------------

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.

975 posted on 08/22/2003 10:51:02 AM PDT by inquest (We are NOT the world)
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