Monday, October 31, 2011

My reply to Doug Indeap on the constitutional separation of church and state.

Commentor Doug Indeap has some comments on my posts about the principle of "separation of church and state". Doug is an attorney and an atheist.

Doug:

... the Constitution founds the government on the power of the people rather than god(s) and keeps its separate, in some measure at least, from religion.
The Constitution has nothing to say about God, for or against. It clearly ascribes sovereignty to the people ("We the people...") who, then as now, were overwhelmingly Christian and who were guided by explicitly Christian morals.

The salient point, which Doug omits, is that the Constitution nowhere makes any reference to "separation" from religion. If the Framers had meant to do so, they would have. There was clear intent to acknowledge sovereignty of the American people, who were a deeply Christian people.

The First Amendment constrains government from interfering in religion in two ways only:

"Congress shall make no law respecting an Establishment of religion or prohibiting the free exercise thereof."

No mention whatsoever of "separation".

In fact, when the Constitution was ratified, many states had established state churches, and a primary purpose of the Establishment Clause was to strengthen and protect the established state churches from the federal government-- the same federal government Doug now invokes to sandblast every vestige of Christianity from public schools.

"Establishment of religion", which is the only religious act prohibited to the federal government by the First Amendment, had and has a very specific meaning. It refers to the legal enactment of an official religion. The Church of England is an established church.

A state with an established religion divides it's citizens into two classes: adherents of the National Church, and non-adherents. All citizens are compelled to financially support the National Church. Citizens associated with the National Church are given preference in government jobs, voting rights, practicing certain professions such as teaching, etc.

That is what the Founders prohibited in the First Amendment. They did not mandate "separation" in any other form, because they knew that separation between religion and government was not possible for a sovereign people who were deeply religious. The Establishment Clause was intended to promote religious expression, by getting the federal government out of the "religious watchdog" business. That, of course, frustrates religious watchdogs, like Doug.

To bring home the point, the Founders added the Free Exercise clause. Free Exercise of religion was to be permitted, with no constraint by the federal government. The government was put out of the watchdog business. The purpose of the First Amendment was to get the government out of the business of regulating religious expression.

Ironically, atheists like Doug now spend much of their time trying to get the federal government to regulate religious expression.

It is important to distinguish between the "public square" and "government" and between "individual" and "government" speech about religion.

The distinction is nowhere in the Constitution. Doug is just makin' stuff up.

The constitutional principle of separation of church and state does not purge religion from the public square--far from it.

There is no "constitutional principle of separation of church and state".


Constitutional "separation of church and state" is a principle held dear by atheists, nativists, a host of anti-Catholic bigots, and notably the Ku Klux Klan, for whom "separation of church and state" is part of the Klan Creed. The constitutional "principle of separation" has long been used by ideologues to suppress disfavored religious expression. You might call it a religious "Jim Crow". The government water fountain isn't for people who believe in God.

So while there is no constitutional "principle of separation of church and state", the constitutional principle of separation of church and state has been used by atheists and others who despise Christianity precisely for the purpose of purging religion from the public square. They purge what they can. Have you ever seen an atheist sue in federal court to expand religious rights? They always sue to censor. No God-talk at the water fountain.
Indeed, the First Amendment's "free exercise" clause assures that each individual is free to exercise and express his or her religious views--publicly as well as privately.
Unless the public expression is by the people of a school district who want to have a plaque containing a prayer in their children's school. Then Doug calls the police to enforce the constitutional "principle of separation of church and state". Doug doesn't see the irony in the invocation of the First Amendment-- which was written to prohibit government injunctions against religion-- to empower the federal government to censor religious expression.
The Amendment constrains only the government not to promote or otherwise take steps toward establishment of religion.
No, Doug. The First Amendment only prohibits the Congress from making a law Establishing a religion. Full stop. Doug's "promote or otherwise take steps toward..." are weasel words that he (not the Constitution) applies to religious expression. Government life is full of promotion of religion-- the president says "God Bless America" or proclaims a National Day of Prayer, Congress begins sessions with prayer, references to God are everywhere on national monuments, and schoolbooks in every classroom in the country refer to "Endowed by our Creator with certain unalienable rights...".

None of these establish a national church. All of them are perfectly constitutional, and all of them "promote" religion.
As government can only act through the individuals comprising its ranks, when those individuals are performing their official duties (e.g., public school teachers instructing students in class), they effectively are the government and thus should conduct themselves in accordance with the First Amendment's constraints on government.
I agree. A schoolteacher should not make a law respecting an establishment of religion. A schoolteacher also must also not infringe on the right of the people to keep and bear arms, and shall not require excessive bail. School janitors and bus drivers are similarly constrained.
When acting in their individual capacities, they are free to exercise their religions as they please.
Whew!... Thanks for the favor, Doug.
If their right to free exercise of religion extended even to their discharge of their official responsibilities, however, the First Amendment constraints on government establishment of religion would be eviscerated.
That is enumerated by the "... Free Exercise except for school employees at work" clause to the First Amendment, which is often overlooked.
While figuring out whether someone is speaking for the government in any particular circumstance may sometimes be difficult, making the distinction is critical.
The whole point of the First Amendment, Doug, is that the government is prohibited from making "distinctions" as to when religious expression is permitted and when it is not.

Let me say it again in case I was unclear:

The whole point of the First Amendment, Doug, is that the government is prohibited from making "distinctions" as to when religious expression is permitted and when it is not.

Uncle Sam doesn't get to make distinctions about Free Exercise. That is what the "Free" is all about, Doug.
Nor does the constitutional separation of church and state prevent citizens from making decisions based on principles derived from their religions.
Whew!, again...
Moreover, the religious beliefs of government officials naturally may inform their decisions on policies. The principle, in this context, merely constrains government officials not to make decisions with the predominant purpose or primary effect of advancing religion;
Your principle of "separation" has no basis in the Constitution, Doug, so it constrains no one.
in other words, the predominant purpose and primary effect must be nonreligious or secular in nature.
Citizens, and that includes government officials, may have any damn purpose or primary effect they want. No "purpose or primary effect" police.

No. Established. Church. That's it, Doug. Otherwise, free exercise.

And government officials exercise religion freely all the time, Doug. This ain't just theoretical. The president says "God Bless America" until he's hoarse, asks the nation to pray for our soldiers, and issues National Day of Prayer proclamations until he gets writer's cramp. National monuments are slathered with God-talk (should the schoolchildren cover their eyes, Doug?), and military chaplains conduct Mass, hear Confession, and administer Last Rites in Afghanistan. Are the Sacraments' "predominant purposes and primary effects non-religious and secular"?

Why don't you take the chaplains to court, Doug? After all, administering Last Rites to a soldier in Kandahar is a whole hell of a lot more religious than an anodyne little prayer on a school wall. Both are paid acts of government agents. Why take one to Federal Court, and not the other? Why not seek an injunction against military chaplains, as well as teachers?

Here's why, Doug: it would blow the lid off your hate campaign against Christianity, and set you bigots back a century.
A decision coinciding with religious views is not invalid for that reason as long as it has a secular purpose and effect.
A religious purpose or effect does not render a government official's act unconstitutional. There have been countless acts with religious purposes and effects made by government officials. They're all perfectly Constitutional.

Only making a law establishing a national religion would be unconstitutional. We've never even been close to that, Doug, so breathe easy.

Otherwise, free expression of religion, Doug, and that's for everyone, not just you.

More to come...

51 comments:

  1. Michael,

    So what was the result of the federal court case? You've written a lot of threads claiming that a public school supported by public funds is constitutionally entitled to display a prayer.

    Either the federal court will decide that the school is constitutionally allowed to display the prayer, or it will decide that it is prohibited from doing so.

    The trouble with displaying a prayer is that it's actually supporting a religion, a generic religion admittedly, but it is an usurpation of the parents' right to decide which if any religion the family will follow.

    If the parents wish their children to receive religious influence in school, then they're entitled to send their children to a faith based school of their choice. If they want to send them to a public school, then they're entitled to take them to a church of their choice.

    When I was a child, my parents sent to church every week for years (I went to the Methodist Church, which eventually amalgamated with 2 other churches to form the Uniting Church). It never actually took, and eventually I stopped going (from memory I was about 12). Of my 6 siblings, 3 are serious churchgoers, 3 are not (I'm not certain whether they're apathetic or atheist; religion just isn't a topic in family discussion).

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  2. @bach:

    [So what was the result of the federal court case?]

    It's just starting. It will take a long time.

    [You've written a lot of threads claiming that a public school supported by public funds is constitutionally entitled to display a prayer.]

    The government has no Constitutional authority to stop it.

    [Either the federal court will decide that the school is constitutionally allowed to display the prayer, or it will decide that it is prohibited from doing so.]

    That authority is specifically denied to the federal government by the Constitution. (Free Exercise Clause).

    [The trouble with displaying a prayer is that it's actually supporting a religion, a generic religion admittedly, but it is an usurpation of the parents' right to decide which if any religion the family will follow.]

    Government supports religion all the time. "God" is invoked constantly by officials. Prayers are on monuments, money, etc. There's nothing unconstitutional about a school displaying a prayer. It's not an Establishment of Religion, because there's no compulsion involved.

    [If the parents wish their children to receive religious influence in school, then they're entitled to send their children to a faith based school of their choice. If they want to send them to a public school, then they're entitled to take them to a church of their choice.]

    Atheists can leave the school just as easily. Can't stand the sight of a prayer, find a school without a prayer.

    Use your imagination, Bach.

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  3. Michael,

    So why don't you stop wasting your and our time and just wait until the Federal Court hands down its decision. It will either confirm your repeated (almost ad infinitum) assertion that the school displaying a prayer is constitutional or it won't.

    Either way, you can then post a thread explaining why the Federal Court made the right decision, or alternately, why it botched the decision.

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  4. “The whole point of the First Amendment, Doug, is that the government is prohibited from making "distinctions" as to when religious expression is permitted and when it is not.”

    When a school decides to make a religious display permanent it is making a distinction between the sentiments of the allowed display and all of the opinions not represented. By your own bizarre understanding of the First Amendment, as soon as one religious display is allowed, all possible religious displays must be allowed or the school would indeed be making a distinction. In order to avoid making distinctions, the public school must stick to strictly secular purposes.

    -KW

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  5. “Atheists can leave the school just as easily. Can't stand the sight of a prayer, find a school without a prayer. “

    I doubt there are many kids in private religious schools who’s parents would have been quite happy to keep their kids in public school if only their where a dusty old prayer in the corner of the auditorium. Our public schools are secular institutions and all but the most fundamentalist Christians understand that.

    The case of the religious person sending their kids to a private school because the want the school to participate in the religious indoctrination of their children is far different than the case where someone is trying to simply avoid religious bias by public schools.

    In one case kids go to a private school because the public school doesn’t provide sufficient religious indoctrination, and in the other case kids would be compelled to leave public school to avoid unwanted religious indoctrination. In one case a family has to pay money for religious indoctrination, in the other the family pays money to avoid religious indoctrination. The two situations are not analogous.

    -KW

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  6. Once again Egnor posts a fact-free diatribe on a subject that he knows nothing about and ignores the entirety of First Amendment jurisprudence. How predictable.

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  7. It's really funny. It took atheists 50 years to notice the existence of that school prayer! Talk about being slow between the ears...

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  8. PePe, I noticed many, if not most of your comments are simple insults with no substantive counterpoint to any argument. This is just the kind of thing that drives people away from Christianity. Keep up the good work.

    -KW

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  9. ACLU defends religious practice and expression.

    Oh, and Pepe? If you understood the meaning of irony, you'd see it's highly ironic you call people slow between the ears. Vade retro morona!

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  10. Bach wrote:
    "The trouble with displaying a prayer is that it's actually supporting a religion, a generic religion admittedly, but it is an usurpation of the parents' right to decide which if any religion the family will follow"

    As I understand it, the right to religious expression does not guarantee the right to NOT be offended by the expression of others. It's purpose is to guarantee the right to express, and the responsibility (a necessary COST of any right) is one of tolerance - to tolerate the expression of others. If we are to consider the right NOT believe as a protected form of that religious expression, then the same responsibility applies to the non-believer as the believer: TOLERANCE of the other's faith. Things like prayers and murals for example.
    In short: The 'Atheists' who are using this girl's grief to make a political statement are DEFILING the rights they say they claim to seek to defend.

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  11. Let's interpret the Free Exercise clause the same way that Egnor wants to interpret the Establishment clause.

    The Free Exercise clause says that "Congress shall make no law . . . prohibiting the free exercise thereof" ("thereof" referring to the antecedent noun "religion").

    Okay. Let's treat this as narrowly as Egnor thinks the Establishment clause should be treated. Taxing something isn't prohibiting it, and the only limitation on Congress is that it cannot prohibit the free exercise of religion. So we could impose a $10 national excise tax on attending Catholic Mass. Congress could pass a law saying that any person who attends Catholic Mass must kick in $10 to the Federal government. That should be just fine under Egnor's version of Constitutional interpretation, because they aren't prohibiting Catholics from exercising their religion. They are just asking them to pay a little bit when they do.

    Or perhaps we could pass a law making it illegal for Catholics to own real property in the United States. They aren't being prohibited from practicing their religion. They just can't own land or houses. They can lease them from non-Catholics though. Once again, under Egnor's version of Constitutional interpretation, that's okay, since Catholics are not having their ability to exercise their religion prohibited.

    I imagine Egnor, given his openly avowed stance concerning how the Constitution should be interpreted, should be perfectly happy to say that both of these laws would pass Constitutional muster with flying colors.

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  12. It's purpose is to guarantee the right to express, and the responsibility (a necessary COST of any right) is one of tolerance - to tolerate the expression of others.

    Who is doing the expressing with the high school prayer banner in this case? Once you sort this out you will figure out why it is unconstitutional.

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  13. @KW:

    [When a school decides to make a religious display permanent it is making a distinction between the sentiments of the allowed display and all of the opinions not represented.]

    "Congress shall make no law..."

    Displays of creches or prayers on walls aren't laws. They are routine administrative decisions made by towns and schoolboards. No one is fined or jailed for disobeying them. In fact, you can't 'disobey' them. How do you 'disobey' a creche?

    Try disobeying a federal court injunction not to pray.

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  14. @mregnor: You ready to start paying that $10 Mass tax then?

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  15. "This is just the kind of thing that drives people away from Christianity."
    He did not mention Christ, God, or super-nature. How is the corpus of Christianity culpable for a comment on atheism by a single Christian? How would simple observation (it did take them 50 years!) drive a Christian from the faith.
    Just plain weird, KW.

    BTW why on Earth don't you get a google log in, so your name/tag appears at the top? It is very easy and quite anonymous. Sure would make it a little easier on the readers.

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  16. Displays of creches or prayers on walls aren't laws. They are routine administrative decisions made by towns and schoolboards.

    So, if a town decided, as a routine administrative matter, to give the local Mormon church $10,000 a month, that would be okay with you? It isn't a law. It's just a routine administrative decision.

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  17. @anon:

    [You ready to start paying that $10 Mass tax then?]

    That would be mandatory and thus unconstitutional, unlike voluntary prayer in school.

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  18. @mregnor; Nope, it wouldn't. I don't see any words in the Free Exercise clause that prohibit mandatory payments for attending Mass. Just a restriction on prohibiting the free exercise of religion.

    It wouldn't prohibit you from exercising your religion. Therefore, because according to you, if the words aren't in there it can't be part of the Constitutional principle, it would be perfectly okay.

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  19. @anon:

    [So, if a town decided, as a routine administrative matter, to give the local Mormon church $10,000 a month, that would be okay with you? It isn't a law. It's just a routine administrative decision]

    Is it an Establishment of Religion? Because it involves payment of taxpayer money to a church (an Establishment), I think it is. Therefore it's unconstitutional.

    Voluntary prayer, or display of a prayer on a wall, aren't Establishments.
    They transfer tax money to no church, and there's no compulsion.

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  20. "Who is doing the expressing with the high school prayer banner in this case?"
    The answer to who is doing the expressing: Who made the mural? STUDENTS!

    "Once you sort this out you will figure out why it is unconstitutional."
    So students making a banner and the school hanging it up for 50 years is 'unconstitutional'(illegal?)?
    That is a pretty MARXIST interp of the US constitution, no? Lowest common denominator and all...

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  21. @mregnor: They transfer tax money to no church, and there's no compulsion.

    You're contradicting yourself. You said that routine administrative decisions weren't subject to the Establishment Clause. This isn't a law. It is just a routine administrative decision to give $10,000 to the Mormons.

    You're also now adding interpretation to the Establishment Clause. You're saying that if tax dollars are transferred, that's a violation. You said you weren't supposed to do anything but read the bare text of the clause. But now you've decided that isn't enough. You need to add content to determine what an establishment of religion is.

    Now, suppose the town decided to give $1 to the Mormon church instead. As a routine administrative decision. Would that be okay?

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  22. The answer to who is doing the expressing: Who made the mural? STUDENTS!

    Wrong. The only entity who determines what can be put up in the school as an expression of the school as a whole is the school board.

    Nice try though.

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  23. @anon:

    [It wouldn't prohibit you from exercising your religion. Therefore, because according to you, if the words aren't in there it can't be part of the Constitutional principle, it would be perfectly okay.]

    I never said that. I said that the only religious thing prohibited by the First Amendment is an Establishment of Religion.

    A Mass Tax is specifically a part of an Establishment of Religion (the British were forced to support the Church of England via taxes). It's unconstitutional.

    One of the problems with your bullshit "separation" crap is that it obscures what is genuinely unconstitutional.

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  24. @anon:

    The government can't give money to a church to advance its religious mission, because that is a hallmark of an Establishment.

    The government can support churches in their non-religious needs, such as providing police and fire protection.

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  25. I never said that. I said that the only religious thing prohibited by the First Amendment is an Establishment of Religion.

    No, now we're interpreting the Free Exercise clause the same narrow way you want to interpret the Establishment clause.

    The mass tax is a tax on attending Mass. it isn't establishing a religion at all. It is taxing your attendance at Mass to fill the government's general coffers. No money is being paid to any Church. Catholics attending Mass are being required to pay $10 every time they attend Mass.

    And since this is not a prohibition on the free exercise of their religion, it should be perfectly okay. Because the only thing the text of the Constitution bars is a prohibition on free exercise. And a tax isn't a prohibition.

    So you should be okay with it.

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  26. @mregnor: The government can't give money to a church to advance its religious mission, because that is a hallmark of an Establishment.

    So, the fact that the creche or banner would be done via a "routine administrative decision" is pretty much irrelevant. A red herring you introduced to prop up your flailing attempts to mangle first amendment jurisprudence.

    Answer this: How much do you think a public expression of faith by the government is worth? Because I'm pretty sure that the value a church would place on having a prayer banner erected at a school is well over $1.

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  27. @anon:

    I misunderstood what you meant by a "Mass tax". I thought you meant a tax to pay for Masses.

    A tax on Masses would have to be judged by the Free Exercise clause. If the tax were restricted to Masses only, then it would seem to restrict free exercise, and be unconstitutional.

    If it were a tax on ceremonies of all kinds, religious and non-religious, then I don't think that it would be unconstitutional.

    Stupid, yes. But not unconstitutional, as long as it did not single out religious ceremonies.

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  28. @mregnor: If the tax were restricted to Masses only, then it would seem to restrict free exercise, and be unconstitutional.

    But the Free Exercise clause does not bar restricting the free exercise of religion, on the prohibition of the free exercise.

    According to the narrow version of interpretation you've espoused for the Establishment clause, you are limited to the specific words of the Constitution. hence, restricting is okay. Only prohibition is banned.

    So a mass tax should be just hunky dory in your book. Unless you want to come back to reality and revise your methodology for interpreting the Constitution.

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  29. That first sentence should read:

    The Free Exercise clause does not bar restricting the free exercise of religion, only the prohibition of the free exercise.

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  30. @anon:

    Restricting freedom is prohibition of that aspect of freedom that is restricted. Duh.

    The test is simple:

    Is it a law respecting an Establishment of Religion?

    Is it a law prohibiting the Free Exercise of Religion?

    If yes to either, it is unconstitutional.

    If no to both, it is Constitutional.

    Courts can decide, based on actual Constitutional law.

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  31. @mregnor: Restricting freedom is prohibition of that aspect of freedom that is restricted.

    Oh, so now we add interpretation to the clause you want interpretation added to it? How very nicely self-contradictory of you.

    A restriction isn't a prohibition. It is a restriction. Since we are limited to the explicit text, restrictions are fine, because they are not prohibitions.

    Unless you are saying you'd like to revise your "only the explicit text" statements? Because if you do, then "establishment of religion" becomes much more expansive to include concepts like "endorsement", just like you've expanded "prohibition" to "restriction".

    Courts can decide, based on actual Constitutional law.

    By applying appropriate precedents, like Everson and Lemon. Glad to see you waking up to reality at last.

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  32. @anon:

    I win, because I've reduced you to gibberish.

    Everson and Lemon were based on the doctrine of "wall of separation of church and state" which is not Constitutional.

    Like other decisions outside of the Constitution (Dred Scott, Topeka, Buck v. Bell, etc) they will be overturned.

    There is a powerful movement among honest Constitutional scholars to do so (http://www.amazon.com/Separation-Church-State-Philip-Hamburger/dp/0674013743). This movement has the support of several Supreme Court justices.

    We'll get this "separation" fraud out of our law, hopefully soon.

    It will probably remain in the KKK Creed, but you can bring that up at your next Klavern meeting.

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  33. I win, because I've reduced you to gibberish.

    You lose because you started with gibberish. And when actual constitutional jurisprudence is brought up, you confuse it with gibberish.

    Everson and Lemon were based on the doctrine of "wall of separation of church and state" which is not Constitutional.

    1. No they weren't. They used the language as a rhetorical flair. They were rooted in solid Constitutional precedents - which is why Everson garnered unanimous support for its interpretation of the Establishment clause. Lemon was an 8-1 case - and the "dissent" concurred with the majority's interpretation of the Establishment clause.

    2. Your "powerful movement" is a fringe group of wishful thinkers who have no hope of ever impacting actual jurisprudence. There is effectively no chance that Everson or Lemon will be overturned in your lifetime or mine. You need to stop lapping up dominionist bullshit and come back to reality.

    3. You still don't get it. Your narrow interpretation of the Establishment clause when applied to the Free Exercise clause leads to the conclusion that the government may do anything it wants to restrict the exercise of religion so long as Congress doesn't prohibit it. Like most "originalists" you are only an originalist when it is convenient for your political goals, and happily toss originalism aside when it gets in the way of your pet issues. Your "originalism" is essentially "unprincipled opportunism". Which makes you a hypocrite.

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  34. @anon & troy

    That prayer has been hanging on that school wall for 50 years, for goodness sake! Why all the atheist fuss now? What's the atheists’ secret agenda? Why are they only realizing NOW how offending to them that little prayer is?

    As Dr Egnor said, references to God are all over the place. Are the atheists going to sue the US into oblivion because the are offended each time they ear the word God.

    I would suggest atheists take an aspirin or two and try not to think about it…

    @troy

    What's your beef with the Morona river?

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  35. 1. You observe that the Constitution founds the government on the power of the people and says nothing about god(s), but fail to recognize that that is a reflection of the very separation of church and state you otherwise deny. As I said earlier (and you largely ignore in your post), separation of church and state is a bedrock principle of our Constitution much like the principles of separation of powers and checks and balances. In the Constitution, the founders did not simply say in so many words that there should be separation of powers and checks and balances; rather, they actually separated the powers of government among three branches and established checks and balances. Similarly, they did not merely say there should be separation of church and state; rather, they actually separated them by (1) establishing a secular government on the power of the people (not a deity), (2) saying nothing to connect that government to god(s) or religion, (3) saying nothing to give that government power over matters of god(s) or religion, and (4), indeed, saying nothing substantive about god(s) or religion at all except in a provision precluding any religious test for public office. Given the norms of the day, the founders' avoidance of any expression in the Constitution suggesting that the government is somehow based on any religious belief was quite a remarkable and plainly intentional choice. They later buttressed this separation of government and religion with the First Amendment, which constrains the government from undertaking to establish religion or prohibit individuals from freely exercising their religions. The basic principle, thus, rests on much more than just the First Amendment.

    That the phrase "separation of church and state" does not appear in the text of the Constitution assumes much importance, it seems, to some who may have once labored under the misimpression it was there and, upon learning they were mistaken, reckon they’ve discovered a smoking gun solving a Constitutional mystery. To those familiar with the Constitution, the absence of the metaphor commonly used to name one of its principles is no more consequential than the absence of other phrases (e.g., Bill of Rights, separation of powers, checks and balances, fair trial, religious liberty) used to describe other undoubted Constitutional principles.

    To the extent that some nonetheless would like confirmation--in those very words--of the founders' intent to separate government and religion, Madison and Jefferson supplied it. Madison, who had a central role in drafting the Constitution and the First Amendment, confirmed that he understood them to “[s]trongly guard[] . . . the separation between Religion and Government.” Madison, Detached Memoranda (~1820). He made plain, too, that they guarded against more than just laws creating state sponsored churches or imposing a state religion. Mindful that even as new principles are proclaimed, old habits die hard and citizens and politicians could tend to entangle government and religion (e.g., “the appointment of chaplains to the two houses of Congress” and “for the army and navy” and “[r]eligious proclamations by the Executive recommending thanksgivings and fasts”), he considered the question whether these actions were “consistent with the Constitution, and with the pure principle of religious freedom” and responded: “In strictness the answer on both points must be in the negative. The Constitution of the United States forbids everything like an establishment of a national religion.”

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  36. 2. Your suggestion that the primary purpose of the establishment clause was to strengthen and protect state established churches is partially true, but largely off. While some of the founders no doubt aimed to limit the federal government in this arena in order to leave it free to the states, others undoubtedly were motivated by the political "disestablishment" movement then sweeping the country. The First Amendment was largely an accomplishment, at the federal level, of that movement, which also succeeded in disestablishing all state religions by the 1830s. (Side note: A political reaction to that movement gave us the term "antidisestablishmentarianism," which amused some of us as kids.) It is worth noting, as well, that this disestablishment movement largely coincided with another movement, the Great Awakening. The people of the time saw separation of church and state as a boon, not a burden, to religion.

    This sentiment was recorded by a famous observer of the American experiment: "On my arrival in the United States the religious aspect of the country was the first thing that struck my attention. . . . I questioned the members of all the different sects. . . . I found that they differed upon matters of detail alone, and that they all attributed the peaceful dominion of religion in their country mainly to the separation of church and state. I do not hesitate to affirm that during my stay in America, I did not meet a single individual, of the clergy or the laity, who was not of the same opinion on this point." Alexis de Tocqueville, Democracy in America (1835).

    While the First Amendment undoubtedly was intended to preclude the government from establishing a national religion as you note, that was hardly the limit of its intended scope. The first Congress debated and rejected just such a narrow provision ("no religion shall be established by law, nor shall the equal rights of conscience be infringed") and ultimately chose the more broadly phrased prohibition now found in the Amendment. During his presidency, Madison vetoed two bills, neither of which would form a national religion or compel observance of any religion, on the ground that they were contrary to the establishment clause. While some in Congress expressed surprise that the Constitution prohibited Congress from incorporating a church in the town of Alexandria in the District of Columbia or granting land to a church in the Mississippi Territory, Congress upheld both vetoes. Separation of church and state is not a recent invention of the courts. (Nor, by the way, is separation of church and state an atheist concept. Enough said about that silliness.) In keeping with the Amendment's terms and legislative history and other evidence, the courts have wisely interpreted it to restrict the government from taking steps that could establish religion de facto as well as de jure. Were the Amendment interpreted merely to preclude government from enacting a statute formally establishing a state church, the intent of the Amendment could easily be circumvented by government doing all sorts of things to promote this or that religion--stopping just short of cutting a ribbon to open its new church.

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  37. 3. You make much of the First Amendment's references to "Congress" and "law." By your literal reading, are we to suppose the President could, by proclamation, establish a national religion or prohibit the free exercise of one or more religions? Nonsense. First, Congress itself cannot make any law whatsoever without the approval of the President, except in the instance of overriding a President's veto, so to read the language as simplistically and literally as you suggest would actually do violence to the intent of the Amendment. As laws in the ordinary course are "made" by actions by both Congress and the Executive, the establishment clause is reasonably understood to constrain both branches of government. By the literal reading you suggest, it would, I suppose, only stop Congress from overriding a veto to make a law establishing a religion--a manifestly silly result. If the clause were interpreted to leave the Executive free, by proclamation or some such, to establish a religion, what really would be the point of the clause? No, such an interpretation would enable the Executive to eviscerate the purpose of the clause.

    In any event, watch what you wish for. Any such crabbed reading of the First Amendment would mess with the free exercise clause as well. Anonymous correctly warns of the mischief the government might do that falls short of "prohibiting" the free exercise of religion.

    Finally, you note that the government does sometimes take actions on religious matters, e.g., hiring chaplains for the houses of Congress and the army and navy. Madison discussed just this point in his Detached Memoranda, excerpts of which I quoted earlier. As it happens, he not only stated plainly his understanding that the Constitution prohibits the government from promoting religion by such acts as appointing chaplains for the houses of Congress and the army and navy or by issuing proclamations recommending thanksgiving, he also addressed the question of what to make of the government’s actions doing just that. Ever practical, he answered not with a demand these actions inconsistent with the Constitution be undone, but rather with an explanation to circumscribe their ill effect: “Rather than let this step beyond the landmarks of power have the effect of a legitimate precedent, it will be better to apply to it the legal aphorism de minimis non curat lex [i.e., the law does not concern itself with trifles]: or to class it cum maculis quas aut incuria fudit, aut humana parum cavit natura [i.e., faults proceeding either from negligence or from the imperfection of our nature].” Basically, he recognized that because too many people might be upset by reversing these actions, it would be politically difficult and perhaps infeasible to do so in order to adhere to the constitutional principle, and thus he proposed giving these particular missteps a pass, while at the same time assuring they are not regarded as legitimate precedent of what the Constitution means, so they do not influence future actions.

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  38. 4. In any event, the very fact that evidence and arguments can be advanced in support of both sides of issues like this is one of the reasons we have courts and call on them to resolve such issues. In this instance, the Supreme Court has done just that--decisively, authoritatively, and, in the most important respects, unanimously. In its jurisprudence, the Court has, in effect, followed Madison’s advice, though not his suggested legal theories. The Court has confirmed the basic constitutional principle of separation of church and state, while also giving a pass to the appointment of chaplains for the house of Congress and army and navy and the issuance of religious proclamations, as well as various governmental statements or actions about religion on one or another theory. Wake Forest University recently published a short, objective Q&A primer on the current law of separation of church and state–as applied by the courts rather than as caricatured in the blogosphere. I commend it to you. http://tiny.cc/6nnnx As that paper serves to show, notwithstanding sometimes lofty rhetoric by courts and commentators about an impenetrable wall of separation, as maintained by the courts, that wall is low and leaky enough to allow various connections between government and religion. Indeed, the exceptions and nuances recognized by the courts can confuse laymen and lawyers alike, occasionally prompting some to question the principle itself, since decisions in various cases may seem contradictory (e.g., depending on the circumstances, sometimes government display of the 10 commandments is okay and sometimes not). In any event, the Court's rulings confirming the Constitution's separation of church and state have long since become integral to the law and social fabric of our nation--not the sort of decisions to be overruled lightly.

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  39. @Doug: it is pretty clear that Egnor has been parroting Kenneth Gutzman's revisionist interpretations of the Constitution and doesn't actually understand the legal implications of the position that Gutzman takes. Hence, he doesn't understand how taking such a reductionist view of the Constitution to allow for wedging religion into the public sphere would negatively affect all of the other liberties he holds dear.

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  40. The little ghouls and ghosts have started arriving at our door, and I thought I would just hop on and wish everyone a Happy Halloween! Have a fun and safe one folks.

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  41. @Doug:

    Your comments warrant more detailed reply than I can give in a comment box. I'll reply to them in posts over the next week or so.

    Mike

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  42. Michael,

    Or better still, why don't you just wait until the Federal Court hands down its decision, then you can post again on this topic with something new to add. I trust your interpretation of American constitutional law as much as I trust your definition of simple words as 'imaginary'.

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  43. Bringing up the 'imaginary' thing again and again is kind of retarded and childish, Bachfiend.

    Oh, yes, and tiresome.

    I can understand, though, that you provincials would have a tough time grokking simple American Constitutional principles.

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  44. Alt Numlock,

    I'll bring up Michael Egnor's erroneous definition of 'imaginary' until he admits that he got the definition wrong.

    And anyway, Australia has states, not provinces.

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  45. I can understand, though, that you provincials would have a tough time grokking simple American Constitutional principles.

    Bachfiend seems to have a better grasp on them than Egnor does.

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  46. There is a thing in the U.S. called compulsory education. (Think of it as your compulsory love for jesus).
    Meaning, by law, that the federal government maintains, that all children of certain ages (which is left to the states) must attend school. Now correct me if i'm wrong, but if a government makes education a LAW, and the constitution says Congress shall make no law establishing a religion, then why should ANY prayer or religious symbol appear in any public school? Seems like a conflict of interest to me.

    And as far as the government handing out money to churches, didnt your boy Bush jr. start a 'faith-based initiative' program a few years back? You mean to tell me the U.S. citizens dont pay the difference of all the lost tax revenue from the 70,000+ churches, and all that they own?
    Hell, even the cult of $cientology pays no tax. And they're like billion-dollar cult-scary.

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  47. Doug, makes good sounding arguments, then ignores other facts that prove him wrong, then he leaves before he's pinned down to face the facts.

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  48. Way to go Michael from one Catholic Conservative to another! VERY well said. Doug has visited MY blogspot as well this week & has pretty much cut & paste his exact same argument there. I couldn't agreed with your sentiments more & you have an EXCELLENT knack of how you express them. WELL DONE! I'll be sure to follow you. -LS

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  49. Liz:

    Thank you for your kind comment! It means a lot to me.

    Mike

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  50. Mike,

    I understood from your October 31 comment that you planned a substantive response to my comments. Have I missed it or did you change your mind?

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