Posted on 10/20/2010 10:03:03 AM PDT by opentalk
No it's not. The Establishment Clause prohibits the federal government from creating a state religion.
Go read the Tenth Amendment,
"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
Federal law trumps state law except in this instance. States are granted power by the Tenth Amendment to introduce laws of their own, which the federal government cannot prohibit. A recent example of that is Arizona's SB1070, the immigration law, based on federal law itself, which the Department of Justice and the White House says is "unconstitutional".
The First Amendment has never allowed a state church. Everson had nothing to do with religion. The plaintiff in this case was against a tax funded school district that provided reimbursement to parents of both public and private schooled children taking the public transportation system to school. The taxpayer contended that reimbursement given for children attending private religious schools violated the constitutional prohibition against state support of religion, and the taking of taxpayers' money to do so violated the constitution's Due Process Clause. Of the private school that benefitted from the payment policy, 96% of them were Catholic schools.
Hugo Black based his opinion on the First Amendment. He stated:
"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 form 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.'" 330 U.S. 1, 15-16.
The dissenting opinion (by Justice Jackson) stated:
"The funds used here were raised by taxation. The Court does not dispute nor could it that their use does in fact give aid and encouragement to religious instruction. It only concludes that this aid is not 'support' in law. But Madison and Jefferson were concerned with aid and support in fact not as a legal conclusion 'entangled in precedents.' Here parents pay money to send their children to parochial schools and funds raised by taxation are used to reimburse them. This not only helps the children to get to school and the parents to send them. It aids them in a substantial way to get the very thing which they are sent to the particular school to secure, namely, religious training and teaching." 330 U.S. 1, 45.
The "wall of separation" didn't start with Everson, it started with Thomas Jefferson writing in the Federalist Papers. Jefferson himself was an atheist, but he understood that the federal government should not endorse or sanction a state religion, which was common in England (The Church of England was a state-sanctioned and endorsed church).
Scalia and Thomas are two Justices that I know of that can explain the Constitution and written law in ways that your average citizen can understand.
Jefferson's Letter to the Danbury Baptists
The Final Letter, as SentTo messers. Nehemiah Dodge, Ephraim Robbins, & Stephen S. Nelson, a committee of the Danbury Baptist association in the state of Connecticut.
Gentlemen
The affectionate sentiments of esteem and approbation which you are so good as to express towards me, on behalf of the Danbury Baptist association, give me the highest satisfaction. my duties dictate a faithful and zealous pursuit of the interests of my constituents, & in proportion as they are persuaded of my fidelity to those duties, the discharge of them becomes more and more pleasing.
Believing with you that religion is a matter which lies solely between Man & his God, that he owes account to none other for his faith or his worship, that the legitimate powers of government reach actions only, & not opinions, I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should "make no law respecting an establishment of religion, or prohibiting the free exercise thereof," thus building a wall of separation between Church & State. Adhering to this expression of the supreme will of the nation in behalf of the rights of conscience, I shall see with sincere satisfaction the progress of those sentiments which tend to restore to man all his natural rights, convinced he has no natural right in opposition to his social duties.
I reciprocate your kind prayers for the protection & blessing of the common father and creator of man, and tender you for yourselves & your religious association, assurances of my high respect & esteem.
Th Jefferson
Jan. 1. 1802.
"[...]make no law respecting an establishment of religion, or prohibiting the free exercise thereof," is the "wall"
If the establishment clause applied to the states then it would not have been necessary for Jefferson to write his own Virgina Statute for Religious Freedom. The first amendment left the question of religious establishment up to the states to decide.
If the establishment clause applied to the states, then why was it necessary for Madison to write his own “Memorial and Remonstrance Against Religious Assessments” which says that the duty of every man to pay homage to his Creator is precedent to the claims of civil society?
I will point out to you again Elk Grove.
Here’s Clarence Thomas.
This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. ... History also supports this understanding: At the founding, at least six States had established religions.
Anyway, yes, we are in agreement that the Federal Government is what’s being restrained by the establishment clause.
Think states rights, think federalism. I think we’re in agreement here, but not sure?
Liberals think the Virgina Bill of Rights just as unconstitutional as the Declaration of Independence!
We had state establishments, they weren’t struck down until 1947 or after.
Here’s Clarence Thomas again.
This textual analysis is consistent with the prevailing view that the Constitution left religion to the States. ... History also supports this understanding: At the founding, at least six States had established religions.
The “Wall of Separation” TJ quote from Danbury was a little known footnote in history until 1947, not a famous pillar of jurisprudence. Hugo Black wanted to find something, anything, to justify himself, maybe just to get the idea in there later, and found this obscure TJ quote. It’s Hugo Black that made this quote famous. It wasn’t a famous quote that Hugo Black used.
Thomas Jefferson wrote it, and I clearly understand it.
Jefferson was an atheist, but he understood that religion was an issue that was between man and his god. (Notice he used "g" instead of "G" because I believe it to mean he's not singling out one religion over another.)
Atheism, in my view, is a religion. Because religion means that you have a fervent belief in "something" even if that "something" is "nothing" (as in "there is no 'supreme being'")
Additionally, secularism is a religion because it believes that the earth has domain over man. Whereas, Christianity believes that man has domain over the earth and everything within it.
As the former Chief Justice pointed out what Thomas Jefferson had to say on the matter of the 1st amendment is not only subjective,(by legislator he probably meant congress which is the federal legislator) it is at best of 2ndary importances to to both the text and the people who wrote & radiated the amendment.
Thats right Jefferson was in France at the time, and had little to no say in the matter. The letter is not only being misunderstood, even if it wasn’t being misunderstood its author was never of any kind of special authority to speak on the matter in the first place. Simply put he wasn’t there, he didn’t write it, and he didn’t ratify it.
never forget the first part of the 1st ammedment which you left out in your quote instead replaying it with this “[...]” them first 2 words are “Congress shall”
So we have:
1: The text.
2: The anther(Madison in others in convention)
3: The radifyers.
4: The common practice at the time(State religions didn’t fall completely out of favor until after the “Civil War”.)
All telling us one thing, and you have on the other hand a federal court in 1947 telling us anther on the basis of something Thomas Jefferson said.
Sounds like a real solid case against religious self-deterioration. But of course our Federal court doesn’t need solid cases, they just look for the most expendent way to justify their ends. An unfortunate habit as it inevitably leaves a real legal mess behind in addition to constitution-less government.
“If the establishment clause applied to the states then it would not have been necessary for Jefferson to write his own Virgina Statute for Religious Freedom.”
—The Constitution didn’t exist. The Virginia Statute for Religious Freedom was written well before the first amendment.
If the Constitution with the Bill of Rights did exist, than I think it likely that Jefferson wouldn’t have bothered creating the Statute. Same with Madison and the “Memorial and Remonstrance Against Religious Assessments”, which was written before the Constitution.
Determining “original intent” for the religion clauses may not be very useful in determining their correct application. The founders seem to have had disparate views on what they actually meant. There are at least three distinct views of thought that can be discerned from the time of the founding:
1) The evangelical view: that “worldly corruptions...might consume the churches if sturdy fences against the wilderness were not maintained.” (mainly from Roger Williams)
2) Jefferson’s view that the church should be walled off from the state in order to protect secular interests (public and private) against “ecclesiastical depredations and incursions.”
3) Madison’s view that religious and secular interests alike would be advanced best by diffusing and decentralizing power so as to assure competition among sects rather than dominance by any one.
The problem is further compounded by the changes in the country since that time. The founders knew differences primarily between Protestant sects; the country is far more heterogeneous religiously today.
Moreover, with regard to the Crevo debate occurring on this thread, public education did not exist, as we know it, at the time of the founding. It is difficult to apply their conception of the religion clauses to situations they could not have imagined.
For instance, views passed down from the 18th century will have little use in deciding how our conception of public education being “available to all citizens” informs what might constitute an “establishment of religion” with regard to public schools.
Essentially, the divergent views of the framers makes it possible for those on all sides of the debate to invoke history in support of their propositions. This is often the case in answering constitutional questions. For this reason, I’m often frustrated by appeals to “original intent.” Whose intent, exactly?
According to which document? For instance, many FReepers are fans of the Federalist. I am too, but one ought to keep in mind that they were newspaper editorials designed with a very specific purpose. They wanted to convince the people of New York State to ratify the Constitution. They may have emphasized aspects which New Yorkers would find appealing and glossed over or “spun” others that they might not have agreed with so easily.
Furthermore, people often conflate “literalism” or “plain meaning” of the text with “original intent.” But they’re actually quite different. For instance; the Constitution says that Congress shall have the power “To establish Post Offices and post Roads...” Read literally, this, along with the 10th Amendment, might suggest that Congress only has the power to operate Post Offices and build post Roads, but not actually to deliver the mail using those Post Offices and post Roads. Maybe the States were supposed to deliver the mail. But both common sense and original intent tell us that, no, the founders intended the Federal Government to deliver the mail as well, using those Post Offices and post Roads.
And what if applying the text literally or according to founders’ intent creates perverse consequences which actually contradict the underlying purpose (as opposed to intent)?
For instance, does Congress have the power to use the mail as a weapon? Nowadays, we don’t think of it as a very big deal, but way back when, the Post Office was how the Federal Government extended its power throughout the union. Without it, commerce came to a halt. So can the Federal Government use it as a coercive tool by threatening to withhold it, as it does highway funds? If not, why not? IF it has the power to operate a Post Office, why can’t it withhold that service from a State?
All I’m trying to say is... “Plain meaning,” “original intent,” and “underlying purpose” usually don’t get you very far in practice, even with something as simple as the post office. The Constitution is vague and ambiguous, and it was likely “intended” that way.
Good point, Diamond.
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