The intent of this amendment has been warped by government--mostly liberal and the ACLU--to oppose any and all religion. We have heard about the lawsuits to prevent nativity scenes on public property, the Ten Commandments posted in government buildings, and even the term, Merry Christmas. Locally, a district court just ruled on a lawsuit brought by a group of atheists from Texas. Apparently, the white crosses along side Utah roads showing where Highway Patrol troopers died, show a preference for Christianity. It is ludicrous enough to be almost funny. What other kind of a monument would signify that someone had died? Some atheist speeding along the highway would be worried that he wouldn't be treated fairly because troopers' families paid for memorial reminders?
Then, there is the media brouhaha about the building of a mosque close to ground zero. Much of the liberal left have been calling for tolerance, fairness, religious freedom. Don't they get the hypocrisy? Where are the atheists now? What if a place built for the religion that led to the deaths on 9-11 offends the people who pass it? Not the same thing? Why not? Does it depend on who is offended?
Finally, Islam has NO separation of church and state. It seems strange that the same leaders who make such a huge deal out of ours, don't seem to be concerned about that.
You suppose the First Amendment was intended merely "to keep government from forcing its citizens into any certain belief," but the amendment's legislative history belies the narrow scope you would give it. The first Congress debated and rejected a narrow provision (though even it wasn't as narrow as your idea; it said "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. In keeping with the Amendment's terms and legislative history, 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 Congress and/or the Executive doing all sorts of things to promote this or that religion--stopping just short of formally establishing a church.
ReplyDeleteJames 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."
It is important to distinguish “individual” from "government" speech on religion. The First Amendment protects the right of individuals to exercise their religions--publicly and privately--and constrains only the government not to promote or otherwise take steps toward establishment of 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. When acting in their individual capacities, they are free to exercise their religions as they please. While figuring out whether someone is speaking for the government may sometimes be difficult, making the distinction is critical.
With respect to symbols and such, generally, if a monument is displayed “by” a government on its land, then that likely will be regarded as “government speech” to be assessed for compliance with the establishment clause. If a monument is displayed by a private person or group on government land, it may well be regarded as “individual speech” to be evaluated under the free exercise clause. In sorting this out, much depends on the details of each case. 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. It does a nice job of describing how the courts have approached the issues in this context. I commend it to you. http://tiny.cc/6nnnx
As for the brouhaha about the muslim prayer center, since that is proposed by private persons and not the government, it has nothing to do with separation of church and state.
I always like it if people read my stuff--even lawyers.
ReplyDeleteI still don't understand why memorial crosses alongside Utah roads harm atheists in Texas.
I like it when anyone--even teachers--read my stuff.
ReplyDeleteNot sure this is what you had in mind but I'll gas on about it anyway. The First Amendment constraint against government promotion (or opposition) of religion applies regardless of whether anyone (in Texas or elsewhere) is harmed or offended. Under our Constitution, our government has no business doing that--regardless of whether anyone is offended.
While the First Amendment thus constrains government from promoting religion without regard to whether anyone is offended, a court may address the issue only in a suit by someone with "standing" (sufficient personal stake in a matter to present a real dispute and thus) to bring suit; in order to show such standing, a litigant may allege he is offended or otherwise harmed by the government's failure to follow the law; the question whether someone has standing to sue is entirely separate from the question whether the government has violated the Constitution.