| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
31 Dec 2005 07:57:17 AM |
| Object: |
11th Circuit May 1983 |
PART I I I
NON-STATUTORY PRAYER
ACTIVITIES
The district court did not specifically analyze or discuss in detail the
constitutionality of the two Alabama statutes. The court stated: "In light
of the reasoning in [the school prayer activities case], the court holds
that the claims in this case fail to state any claim for which relief could
be granted under the federal statute." Jaffree, 554 F.Supp. at 1132. By
permitting the Mobile County school prayer activities to survive the first
amendment attack, the district court implicitly concluded that the Alabama
school prayer statutes were constitutional. 554 F.Supp. at 1132.
[3, 4] The first amendment provides, in pertinent part, that
"Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof ...." U.S. Const. amend. I. The
objective of the first amendment's religious guarantees are two-fold: to
preclude government interference with the practice of religious faith, and
to preclude the establishment of a religion dictated by government. Larkin
v. Grendel, U.S. , 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). This
fundamental and enduring concept of separation of church and state was
translated by early decisions into a wall "high and impregnable." See
Reynolds v. United States, 98 U.S. (8 Otto) 145, 164, 25 L.Ed. 244 (1878);
quoting Reply from Thomas Jefferson to an address by a committee of the
Danbury Baptist Association (January 1, 1802), reprinted in 8 Works of
Thomas Jefferson 113 (Washington ed. 1861). The establishment clause
requires that government be neutral in its relations between various
religions and between non-believers and believers. Everson, 330 U.S. at 18,
67 S.Ct. at 513. Repeatedly, the Supreme Court has struck down the
recitation of prayers, Bible readings, and devotional activities in public
schools. Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963);
Engel, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601 (1962). This circuit has
also followed the Supreme Court's lead in holding that public school prayer
is unconstitutional because it is inherently a religious exercise. Karen B.
v. Treen, 653 F.2d 897 (5th Cir.1981). Having recalled these well-settled
principles of constitutional jurisprudence, we now turn to the Mobile
County school prayer activities.
The appellee contends that since the teachers' prayer activities
were not motivated by school board policy or by state statute, the
establishment clause is not violated. The appellee reasons that since no
Board policy existed or no statutory authority motivated the teachers'
prayer activities, no state involvement exists. Thus, the establishment
clause is inapplicable by virtue of the absence of state action.
[5-7] Under Alabama law, teachers are appointed, suspended, and
removed by the county school boards. See Ala.Code § 168-23 (192'7). The
Alabama county school boards are creatures of the state and are controlled
by the state. See Ala.Code § 16-3-11 (1927); Ala.Code § 16-8-8 (1927); Lee
v. Macon County Board of Education, 267 F.Supp. 458 (M.D.Ala.1967); Opinion
of the Justices, 276 Ala. 239, 160 So.2d 648, 650 (Ala.1964). It is clear
from the record that the Board members were on notice of the teachers'
prayer activities and took no steps to discourage these activities.6
____________________________________
6. The district court found as a fact:
Finally, Ms. Boyd was made aware of the contents of a letter drafted by Mr.
Jaffree, dated May 10, 1982, which had been sent to Superintendent Hammons
complaining about the prayer activity in Ms. Boyd's classroom.... [Board of
School Commissioners of Mobile County, 554 F.Supp. at 1107]
room.... [Board of School Commissioners of Mobile County, 554 F.Supp. at
1107.]
Upon learning of the plaintiffs concern over prayer activity in
their schools, defendants Reed and Phillips consulted with teachers
involved, however. neither defendant advised or instructed the defendant
teachers to
1534
Evidence exists to indicate that a large number of teachers discussed the
prayer
activities with the superintendent of schools. On this record, it is easy
to find that the Board's actions ratified the teachers' conduct. If a
statute authorizing the teachers' activities would be unconstitutional,
then the activities, in the absence of a statute, are also
unconstitutional. In Schempp, Justice Douglas, in his concurring opinion,
pointed out the mockery that would be made of the establishment clause if
unconstitutional activities could be carried on merely because no statute
authorized the activities. 374 U.S. at 230, 83 S.Ct. at 1575-1576.
[8, 9] The Supreme Court has enunciated three standards that a
statute must satisfy in order to survive a first amendment attack: first,
the statute must have a secular purpose; second, its principal or primary
effect must be one that neither advances nor inhibits religion; and
finally, the statute must not foster "an excessive government entanglement
with religion." Lemon v. Kurtzman, 403 U.S. 602, 612-13, 91 S.Ct. 21 In
applying the Supreme Court's Kurtzman test, the Eleventh Circuit in the
recent case of American, eta v. Rabun County Chamber of Commerce, 678 F.2d
1379 (11th Cir.1982), held that the establishment clause may be violated by
actions of state officials discontinue the complained of activity. [55405,
2111, 29 L.Ed.2d 745; Committee for Public Education and Religious Liberty
v. Nyquist, 413 U.S. 756, 773, 93 S.Ct. 2955, 2965-2966, 37 L.Ed.2d 948
(1973); Walz v. Tax Commission, 397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25
L.Ed.2d 697 (1970). See Murray v. Corlett, 374 U.S. 203, 83 S.Ct. 1560, 10
L.Ed.2d 844 (1963); and Engel, 370 U.S. 421, 82 S.Ct. 1261, 8 L.Ed.2d 601
(1962). If a statute does not meet this standard, it must fall to the first
amendment's prohibitions. Stone v. Graham, 449 U.S. 39, 40-41, 101 S.Ct.
192, 193-194, 66 L.Ed.2d 199 (1980). The objective of these tests is to
insure neutrality of government involvement in religious activity. E.g.,
Watson v. Jones, 13 Wall. 679, 728, 20 L.Ed. 666 (1872).
In applying the Supreme Court's Kurtzman test, the Eleventh Circuit
in the recent case of American, eta v. Rabun County Chamber of Commerce,
678 F.2d 1379 (11th Cir.1982), held that the establishment clause may be
violated by actions of state officials where no statute or ordinance
authorizes the particular activity. In that case, Judge Tuttle, writing for
the court stated:
In interpreting the Establishment Clause,
the Supreme Court has identified three
tests to be applied to the challenged ac-
tions of a state:
(1) Whether the action has a secular
purpose;
(2) Whether the "principal or primary
effect" is one which neither "advances
nor inhibits religion;" and
(3) Whether the action fosters "'an ex-
cessive government entanglement with
religion.' Waltz [v. Tax Commissioners,
397 U.S. 664, 674, 90 S.Ct. 1409, 1414, 25
\L.Ed.2d 697 (1970) ]."
678 F2d at 1389 (emphasis added).
[10] Although prayer activities in public schools may not be
statutorily authorized or conducted pursuant to written school board
policy, if state action is present and the activities satisfy the statutory
test articulated by the Supreme Court as modified by this circuit, the
activities may be declared unconstitutional. See Burton v. Wilmington
Parking Auth., 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); Marsh v.
Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946). The reach of the
establishment clause is not limited by the lack of statutory authorization.
See Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Murray,
374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844 (1963); Engel, 370 U.S. 421, 82
S.Ct. 1261, 8 L.Ed.2d 601 (1962). Here, we are not concerned with the
mechanism used to advance a concept, but the evil against which the clause
protects. See Nyquist, 413 U.S. at 772, 93 S.Ct. at 2965.
[11] This circuit has stated that "prayer is perhaps the
quintessential religious practice ... since prayer is a primary religious
activity in itself, its observance in public school classrooms [implies a
religious purpose]." Treen, 653 F.2d at 901. Recognizing that prayer is the
quintessential religious practice implies that no secular purpose can be
satisfied. The primary effect
_____________________________
discontinue the complained of activity. [554 F.Supp. at 1108]
1535
of prayer is the advancement of ones religious beliefs. It acknowledges the
exist-ence of a Supreme Being. The involvement of the Mobile County school
system in such activity involves the state in advancing the affairs of
religion. The Supreme Court and this circuit have indicated that such
prayer activities cannot be advanced without the implication that the state
is violating the establishment clause. Schempp and Treen. Indeed, the
Supreme Court held in McColhim that use of a tax-supported building for the
advancement of religious activity, in close cooperation with school
authorities, violated the establishment clause. McCollum, 333 U.S. at 209,
68 S.Ct. at 464; cf. Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679, 96
L.Ed. 954 (1952) (religious instruction off school grounds implemented by
New York school board held constitutional). The record indicates that the
teachers' prayer activities were conducted in the classrooms and did not
appear to be secularly motivated. We, therefore, conclude that the Mobile
County school activities are in violation of the establishment clause.
THE STATUTES
[12, 13] As to the statutes authorizing prayer, both statutes
advance and encourage religious activities. The district court recognized
this when it stated:
The enactment of Senate Bill 8 [Ala-
bama Act 82-735] and § 16-1-20.1 is an
effort on the part of the State of Ala-
bama to encourage a religious activity.
Even though these statutes are perm-
issive in form, it is nevertheless state in-
volvement respecting an establishment
of religion. Engel v. Vitale, 370 U.S. 421,
430, 82 S.Ct. 1261, 1266, 8 L.Ed.2d 601
(1962). Thus, binding precedent which
this Court is under a duty to follow indi-
cates the substantial likelihood plaintiffs
will prevail on the merits.
James, 544 F.Supp. at 732. The statutes are specifically the type which the
Supreme Court addressed in Engel. Aggravating in this case is the existence
of a government composed prayer in Ala.Code § 16-1-20.2.
In Engel, the Supreme Court held unconstitutional the
"non-denominational" state prayer approved for public schools. The prayer
involved in Engel contained considerably fewer religious references than
the prayer now before this court. The Supreme Court held unconstitutional
the "non-denominational" state prayer approved for public schools. The
prayer involved in Engel contained considerably fewer religious references
than the prayer now before this court. The Supreme Court stated that "the
constitutional prohibition against law respecting an establishment of
religion must at least mean that in this country it is no part of the
business of government to compose official prayers for any group to recite
as part of a religious program carried on by government." Engel, 370 U.S.
at 425, 82 S.Ct. at 1264. Section 16-1-20.2, as its proponents admit,
amounts to the establishment of a state religion. The record reveals that
passage of the statute was motivated by religious considerations, and its
intention to advance religious beliefs. The fact that the prayer is
voluntary and non-denominational does not neutralize the state's
involvement. The state must remain neutral not only between competing
religious sects, but also between believers and non-believers. See Schempp,
374 U.S. at 218, 83 S.Ct. at 1569. The practical effect of this neutrality
means that state schools should not function to inculcate or suppress
religious beliefs or habits of worship. The implications of the district
court's opinion firmly recognizes that Alabama is involving itself in the
affairs of religion. Section 16-1-20.2 violates the establishment clause of
the first amendment and is therefore unconstitutional.
The objective of the meditation or prayer statute (Ala.Code §
16-1-20.1) was also the advancement of religion. This fact was recognized
by the district court at the hearing on the motion for preliminary relief
where it was established that the intent of the statute was to return
prayer to the public schools. James, 544 F.Supp. at 731. The existence of
this fact and the inclusion of prayer obviously involves the state in
religious activities. Beck v. McElrath, 548 F.Supp. 1161 (M.D.Tenn.1982).
This demonstrates a lack of secular legislative purpose on the part of the
Alabama Legislature. Additionally, the statute has the primary effect of
advancing religion. We do not imply that simple meditation tor silence is
barred from the public schools; we hold that the state cannot participate
in the advancement of religious activities through any guise, including
teacher-led meditation. It is not the activity itself that concerns us; it
is the purpose of the activity that we shall scrutinize. Thus, the
existence of these elements require that we also hold section 16-1-20.1 in
violation of the establishment clause.
CLASS CERTIFICATION
Jaffree sought class certification under rules 23(a) and 23(bX2) of
the Federal Rules of Civil Procedure.7 The complaint identified as the
class, students currently enrolled in the Mobile County public school
system. Upon the pleadings, the district court denied Jaffree's class
certification.
Under Federal Rule of Civil Procedure 23, a class action
determination is left to the sound discretion of the district court.
Zeidman v. Ray McDermott & Co., Inc., 651 F.2d 1030, 1038-39 (5th
Cir.1981); 7A C. Wright & A. Miller, Federal Practice and Procedure, §
1785, at 134 (1972). The district court's decision is reversible only when
it abuses its discretion. See Guerine v. J & W Inv., Inc., 544 F.2d 863
(5th Cir.1977).
[14] Jaffree contends the court abused its discretion by denying
class certification without first holding an evidentiary hearing. He cites
Shepard v. Beaird-Poulan, Inc., 617 F.2d 87, 89 (5th Cir.1980), as
authority for the requirement of an evidentiary hearing. We disagree with
Jaffree's reading of Shepard. Shepard teaches that a district court must
hold a hearing if it denies certification on the ground that the plaintiff
would not adequately represent the class interest. Shepard, 617 F.2d at 89.
In this instance, the court did not deny certification on this ground. We
therefore affirm the district court's denial of class certification.
[15] Appellees, state superintendent and state board, argue that no
case or controversy exists between them and Jaffree. Appellees argue that
the statutes give teachers the discretion of leading prayers, not the Board
nor the state superintendent. Thus, they argue, neither the state board nor
the state superintendent has the authority to implement or enforce the
statutes. We find that a case or controversy exists between Jaffree and the
county superintendent and county education board. Therefore, federal
jurisdiction exists and the case or controversy question regarding the
state board and the state superintendent becomes inconsequential.
CONCLUSION
Supreme Court and Eleventh Circuit precedent regarding prayer in
public schools is abundantly clear. No new issues were presented to the
district court. In keeping with this precedent, we hold that the Mobile
County school prayer activities, Ala.Code § 16-1-20.1 and Ala.Code §
161-20.2, are in violation of the establishment clause of the first
amendment to the Constitution of the United States. We do not decide today
whether prayer in public schools is the proper policy to follow. This court
merely applies the principles established by the Supreme Court. While many
may disagree on the subject of prayer in public schools, our Constitution
provides that the Supreme Court is the final arbiter of constitutional
disputes. In this instance, these religious exercises failed to survive
__________________________________________________
7. Fed.R.Civ.P. 23(a) and 23(b)(2) reads, in pertinent part:
(a) Prerequisites to a Class Action. One or more members of a class
may sue or be sued as representative parties on behalf of all only if (1)
the class is so numerous that joinder of all members is impracticable, (2)
there are questions of law or fact common to the class. (3) the claims or
defenses of the representative parties are typical of the claims or
defenses of the class and (4) the respresenative parties will fairly and
adequately protect the interests of the class.
(b) Class Actions Maintainable. An action may be maintained as a
class action if the prerequisites of subdivision (a) are satisfied, and in
addition:
(2) the party opposing the class has acted or refused to act on
grounds generally applicable to the class, thereby making appropriate final
injunctive relief or corresponding declaratory relief with respect to the
class as a whole ...
1537
the three standards articulated by the Supreme Court. See Lemon, Nyquist,
Engel, and Everson. Consequently, (1) we reverse the district court's
dismissal of these actions, (2) affirm the decision denying class
certification, (3) reverse the denial of costs to the appellants, and (4)
remand the case to the district court. Upon remand the district court is
directed to award costs to appellant and forthwith issue and enforce an
order enjoining the statutes and activities held in this opinion to be
unconstitutional.
AFFIRMED IN PART, REVERSED IN
PART, and REMANDED WITH DIRECTIONS
.
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|
| User: "Mickey" |
|
| Title: Re: 11th Circuit May 1983 |
31 Dec 2005 12:35:34 PM |
|
|
wrote:
I do hope you intend to post the SCOTUS opinion on this case including
the dissents.
.
|
|
|
| User: "" |
|
| Title: Re: 11th Circuit May 1983 |
31 Dec 2005 01:12:41 PM |
|
|
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|buckeye-elo@nospam.net wrote:
:|
:|I do hope you intend to post the SCOTUS opinion on this case including
:|the dissents.
Why would I want to do that?
BTW you might enjoy this
Rehnquist, Wallace v. Jaffree: a Rebuttal
Rehnquist's fallacious ideas of history are rebutted with historical
references and material provided.
http://members.tripod.com/~candst/rebuttal.htm
This was posted for a reason. The reason being that unless you subscribe to
WestLaw or Lexis it was not available online anywhere.
now it is and it will shortly be available online on our websire as well.
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
The Districtr court opinion, the USSC stay by Justice Powell, and the USSC
case are all alreay available on online. They all have URLs that can be
used to direct someone to
This case didn't. Right now it will have a google URL that can be used to
direct someone to it and soon it wuill have the URL ffrom our website to
use to direct people to it
This is in preparaiton for this
The increasing assault on church state separation
The Following is an outline of a series of articles that I am going to
create and will be posting here, as well as the Con Principle Web site, in
some threads in UseNet Newsgroups, and the secular Web if they will allow
me to post there as well
I began in ernest two days ago working on the Jaffeee v Wallace
background. I already had some of it done, but it was disorganized and I
had discovered in the past that the Circuit Court opinion in that case did
not appear anywhere on line. I had a photocopy of it here but it wasn't
online anywhere. I spent the last day and half scanning and in some cases
manually typing in that opinion to it can be placed online where a
official URL will exist for it to be used to read and reference said case.
The realization that I had goofed off long enough on this hit me when the
6th Circuit issued its recent Ten Commandments ruling and the judge who
wrote the majority opinion took ut upon himself to advance the cause of the
destruction of the Establishment Clause. Though that particular aspect of
that ruling means nothing legally speaking, since the other two judges of
the three judge panel concurred in the actual holding they did not join the
other judge in his reasoning. Thus making him a lone voice crying in the
wilderness.
However, that lone voice (that section of the opinion) is going to become a
rallying cry for the theocrats. It has already started in the Usenet
Newsgroups and I suspect in other message and chat forums as well.
Thus I am picking up the pace drastically on putting together material to
be posted that fits the following outline.
In other times in the past I had already gathered a good deal of
information regarding the attempts by Clarence Thomas to remove the
Establishment Clause from 14th Amendment incorporation and the
constitutional restoration legislation. Along with some evidence of a
possible Clarence Thomas Dominions connections
Others who wish to help are more than welcome and would be appreciated.
THE OUT;LINE
The increasing assault on church state separation
(1) Increasing propaganda aimed at the dumbed down (Historically and /or
legally speaking poorly educated, informed or ignorant) US citizens
a. activist courts propaganda
b. stepped up attacks via the web, newspapers, network news, books
and other publications against separation of church and state
(2) The restore the constitution legislation
a. Congress has very little say with regards to the US Supreme
Court since that court was established by the Constitution.
b. However, Congress has a good deal more power over lower federal
courts including the power to abolish them.
c. prohibiting lower federal courts from hearing and deciding
cases on such things as religion would just about eliminate any such cases
from ever reaching the USSC thus pretty much indirectly prohibiting them
from hearing any such cases as well. .
(3) US Supreme Court - Clarence thomas
a. roots found in the Fed District court ruling in Jaffree v
Wallace, 1983.
b. Courts and .judges such as the lone judge found on the 6th.
Circuit. More and more of these are going to be turning up as a result of
the Reagan. Bush, Bush appointees
**************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
|
|
| User: "Mickey" |
|
| Title: Re: 11th Circuit May 1983 |
31 Dec 2005 02:41:57 PM |
|
|
wrote:
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:| wrote:
:|
:|I do hope you intend to post the SCOTUS opinion on this case including
:|the dissents.
Why would I want to do that?
BTW you might enjoy this
Rehnquist, Wallace v. Jaffree: a Rebuttal
Rehnquist's fallacious ideas of history are rebutted with historical
references and material provided.
http://members.tripod.com/~candst/rebuttal.htm
I've only had a little time to skim the rather windy debate and find
much of it less than compelling. For example, the refutation of
Rehnquist argument with Everson ignores that the question was never
argued but merely written into law through the subsequent citing of
Everson obiter dictum. Subsequent reliance on Everson as a prop to
argument is intellectually dishonest and probably as good an example of
activism as can be shown. If anything, the refutation offered on this
point actually supports Rehnquist assertion that the Everson court and
subsequent courts relying on its dicta were overstepping. (I.e., Everson
was not settle on a matter of separation.)
The refutation wastes much effort pointing up supposed but insignificant
inaccuracies in Rehnquist dissent as if they invalidated the entire
argument. After a couple of these carps, which also infect the debate in
these fora, I ceased reading, which is too bad if something truly
significant existed somewhere in that ocean of verbage and html cites.
Sometimes less is more.
But as usually, thanks for the effort and info. Happy New Year
.
|
|
|
| User: "" |
|
| Title: Re: 11th Circuit May 1983 |
31 Dec 2005 03:33:43 PM |
|
|
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|buckeye-elo@nospam.net wrote:
:|
:|> Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|>
:|>
:|>>:|buckeye-elo@nospam.net wrote:
:|>>:|
:|>>:|I do hope you intend to post the SCOTUS opinion on this case including
:|>>:|the dissents.
:|>
:|>
:|>
:|> Why would I want to do that?
:|> BTW you might enjoy this
:|>
:|> Rehnquist, Wallace v. Jaffree: a Rebuttal
:|> Rehnquist's fallacious ideas of history are rebutted with historical
:|> references and material provided.
:|> http://members.tripod.com/~candst/rebuttal.htm
:|>
:|I've only had a little time to skim the rather windy debate and find
:|much of it less than compelling.
What you find compelling is rather irrelevant to me
Your approval or agreement is non essential
:| For example, the refutation of
:|Rehnquist argument with Everson ignores that the question was never
:|argued but merely written into law through the subsequent citing of
:|Everson obiter dictum.
Dictum? Not hardly, Try again
Try rule of law.
That pesky thing that is one of the elements of a court case, that item
they use to answer the legal issue which is posed in the form of a
question, Did such and such violate such and such, you know that silly
little thing.
:|Subsequent reliance on Everson as a prop to
:|argument is intellectually dishonest and probably as good an example of
:|activism as can be shown.
Your unsubstantiated claim is noted.
-------------------------------------------------------------------------------
Ordinary or extraordinary claims require ordinary or extraordinary proof.
If you're going to claim something and especially something outlandish
you're going to need some pretty extraordinary and/or irrefutable proof to
back up such a claim. "Where's the beef?" Where's the ordinary or
extraordinary proof for their ordinary or extraordinary claims? If one is
not responding with ordinary or extraordinary, *factual* proof, then the
claim is not worth considering
----------------------------------------------------------------------
[ as Homer@nospam said]
Why is asking for "proof" considered truculence? Do you consider it
truculence for a judge to ask for evidence in a trial. Would you rather
that
people just testified that they believed in the guilt of the suspect?
-----------------------------------------------------------------------------
[as Gray Shockley said:]
Your "opinion" is not an adequate citation.
You forgot your citations.
Or, are your opinions more valid than facts?
You do realize, do you not?, that opinion without substantiation is just
propaganda for those without critical thinking abilities and originate with
those who are attempting to manipulate rather than those who are attempting
to clarify.
*****************************************************************
:| If anything, the refutation offered on this
:|point actually supports Rehnquist assertion that the Everson court and
:|subsequent courts relying on its dicta were overstepping. (I.e., Everson
:|was not settle on a matter of separation.)
Since you are still referring to the rule of law given in Everson as dicta
you have no credibility with me
Last time I looked the latest editions of Con Law books published for use
in Law schools, law Libraries, lawyers offices etc, still defined the
Establishment Clause as follows
The Establishment Clause as defined by the USSC in Everson v. Bd of Ed,
1947
The "establishment of religion" clause of the First Amendment means at
least this:
(1) neither a state nor the Federal Government can set up a church.
(2) Neither can pass laws which aid one religion,
(2a) aid all religions,
(2b) or prefer one religion over another.
(3) Neither can force
(3a) nor influence a person to go to
(3b) or to remain away from church against his will
(3c) or force him to profess a belief
(3d) or disbelief in any religion.
(4) No person can be punished for entertaining [p*16]
(4a) or professing religious beliefs
(4b) or disbeliefs,
(4c) for church attendance
(4d) or non-attendance.
(5) No tax in any amount,
(5a) large or small, can be levied to support any religious activities
(5b) or institutions, whatever they may be called,
(5c) or whatever form they may adopt to teach
(5d) or practice religion.
(6) Neither a state
(6a) nor the Federal Government can, openly or secretly, participate in the
(6b) affairs of any religious organizations
(6c) or groups,
(6d) and vice versa.
Everson v. Bd of Ed, 330 U.S. 1 (1947)
http://laws.findlaw.com/us/330/1.html
:|
:|The refutation wastes much effort pointing up supposed but insignificant
:|inaccuracies in Rehnquist dissent as if they invalidated the entire
:|argument.
CREDIBILITY:
His bottom line (point, conclusion) was based on what he presented.
Showing that what he presented was inaccurate also shows his conclusions
are faulty
Here, you might enjoy this one too
It also is based on inaccuracies
Revisiting Marsh v. Chambers
http://members.tripod.com/~candst/marshchm.htm
Now it will be irrelevant to you since we live in a society and time frame
where lies, misrepresentations etc are not only common but expected.
:\After a couple of these carps, which also infect the debate in
:|these fora, I ceased reading, which is too bad if something truly
:|significant existed somewhere in that ocean of verbage and html cites.
:|Sometimes less is more.
There was a lot of truly significant info there but I understand that the
modern American is firmly fixed in now, the headline and sound bite
generations and as a result has a attention span of about 30 seconds
maybe..
Too bad so sad.
**************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
|
|
| User: "Mickey" |
|
| Title: Re: 11th Circuit May 1983 |
31 Dec 2005 04:53:09 PM |
|
|
wrote:
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:| wrote:
:|
:|> Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|>
:|>
:|>>:| wrote:
:|>>:|
:|>>:|I do hope you intend to post the SCOTUS opinion on this case including
:|>>:|the dissents.
:|>
:|>
:|>
:|> Why would I want to do that?
:|> BTW you might enjoy this
:|>
:|> Rehnquist, Wallace v. Jaffree: a Rebuttal
:|> Rehnquist's fallacious ideas of history are rebutted with historical
:|> references and material provided.
:|> http://members.tripod.com/~candst/rebuttal.htm
:|>
:|I've only had a little time to skim the rather windy debate and find
:|much of it less than compelling.
What you find compelling is rather irrelevant to me
Your approval or agreement is non essential
Nor is your rather snotty attitude. I would also point out that mere
physical weight (or bit count) of argument does not signify the "weight"
of the argument.
:| For example, the refutation of
:|Rehnquist argument with Everson ignores that the question was never
:|argued but merely written into law through the subsequent citing of
:|Everson obiter dictum.
Dictum? Not hardly, Try again
No, dicta is exactly the issue. The case did not require the court to
determine a minima for the establishment clause, but the maxima. The
last three sentences of the opinion assert that this was their stated
criterion.
" That wall must be kept high and impregnable. We could not approve the
slightest breach. New Jersey has not breached it here."
Strict scrutiny was what they claimed they supplied, but rather than
positing a theory of the clause's maxima, which would have been correct,
the court read into the record an unstantiated (Reynolds v. U.S., was a
free exercise challenge) theory of the mimimum.
That you can find law texts that quote the view of the Everson court as
law of the land should not be surprizing, since, at the moment, it is.
That does not alter the fact the its erection as law of the land was not
achieved with either ethical nor intellectual rigor.
.
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|
| User: "" |
|
| Title: Re: 11th Circuit May 1983 |
07 Jan 2006 11:17:33 AM |
|
|
Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|buckeye-elo@nospam.net wrote:
:|
:|> Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|>
:|>
:|>>:|buckeye-elo@nospam.net wrote:
:|>>:|
:|>>:|> Mickey <mickey_and_edith@nomorephishsbcglobal.net> wrote:
:|>>:|>
:|>>:|>
:|>>:|>>:|buckeye-elo@nospam.net wrote:
:|>>:|>>:|
:|>>:|>>:|I do hope you intend to post the SCOTUS opinion on this case including
:|>>:|>>:|the dissents.
:|>>:|>
:|>>:|>
:|>>:|>
:|>>:|> Why would I want to do that?
:|>>:|> BTW you might enjoy this
:|>>:|>
:|>>:|> Rehnquist, Wallace v. Jaffree: a Rebuttal
:|>>:|> Rehnquist's fallacious ideas of history are rebutted with historical
:|>>:|> references and material provided.
:|>>:|> http://members.tripod.com/~candst/rebuttal.htm
:|>>:|>
:|>
:|>
:|>>:|I've only had a little time to skim the rather windy debate and find
:|>>:|much of it less than compelling.
:|>
:|>
:|>
:|> What you find compelling is rather irrelevant to me
:|>
:|> Your approval or agreement is non essential
:|
:|Nor is your rather snotty attitude. I would also point out that mere
:|physical weight (or bit count) of argument does not signify the "weight"
:|of the argument.
:|
:|>
:|>
:|>
:|>>:| For example, the refutation of
:|>>:|Rehnquist argument with Everson ignores that the question was never
:|>>:|argued but merely written into law through the subsequent citing of
:|>>:|Everson obiter dictum.
:|>
:|>
:|> Dictum? Not hardly, Try again
:|
:|No, dicta is exactly the issue.
Black letter law, rule of law, is the issue.
THE BASIC ELEMENTS OF A COURT OPINION:
Know what a case is. It's elements, The Citation, The Parties, The Docket
Number, The court. The date, The Summary, The Decision,
Know how an opinion is organized:
The Facts, The legal question (the legal issue or issues being presented as
a question or questions) The Answer (The holding or ruling) The rule of law
used to reach the answer, Black letter law. The Rationale (The Rationale
is mostly and usually dicta. Any principle of law given in the rationale is
of course important, it is law, but the usual rambling on one frequently
finds is dicta. Remember and this is essential to remember and fully
understand:
[Definitions of Black Letter Law on the Web:
* An informal term indicating the basic principles of law generally
accepted by the courts and/or embodied in the statutes of a particular
jurisdiction.
members.aol.com/ronin48th/5hlsglos.htm
* A statute is a formal, written law of a country or state, written and
enacted by its legislative authority, perhaps to then be ratified by the
highest executive in the government, and finally published. Typically,
statutes command, prohibit, or declare something. Statutes are sometimes
referred to as legislation or "black letter law."
en.wikipedia.org/wiki/Black_letter_law
Definitions of rule of law on the Web:
* The principle that every member of a society, even a ruler, must
follow the law.
www.nmlites.org/standards/socialstudies/glossary.html
* A legal system in which rules are clear, well-understood, and fairly
enforced, including property rights and enforcement of contracts.
www-personal.umich.edu/~alandear/glossary/r.html
* another phrase for law and order; the principles that require that
the powers of the state be derived from and limited either by legislation
enacted by Parliament or a legislature or judicial decisions made by
independent courts;
www.manitobacourts.mb.ca/english/definitions.html ]
No USSC had actually defined the Establishment Clause prior to that case.
thus that case defined it and it is defined as follows, like it or not
*******************************************************************************
ESTABLISHMENT CLAUSE: [This is based on Madison's view]
The Establishment Clause as defined by the USSC in Everson v. Bd of Ed,
1947
The "establishment of religion" clause of the First Amendment means at
least this:
(1) neither a state nor the Federal Government can set up a church.
(2) Neither can pass laws which aid one religion,
(2a) aid all religions,
(2b) or prefer one religion over another.
(3) Neither can force
(3a) nor influence a person to go to
(3b) or to remain away from church against his will
(3c) or force him to profess a belief
(3d) or disbelief in any religion.
(4) No person can be punished for entertaining [p*16]
(4a) or professing religious beliefs
(4b) or disbeliefs,
(4c) for church attendance
(4d) or non-attendance.
(5) No tax in any amount,
(5a) large or small, can be levied to support any religious activities
(5b) or institutions, whatever they may be called,
(5c) or whatever form they may adopt to teach
(5d) or practice religion.
(6) Neither a state
(6a) nor the Federal Government can, openly or secretly, participate in the
(6b) affairs of any religious organizations
(6c) or groups,
(6d) and vice versa.
Everson v. Bd of Ed, 330 U.S. 1 (1947)
http://supct.law.cornell.edu/supct/html/historics/USSC_CR_0330_0001_ZS.html
Look up just about any Con Law legal book and you will find the above given
as the meaning of the Establishment Clause and usually cited as Everson v
Bd of Ed.
As I said befroe, you mistaking the Rule of law given in Everson as mere
dicta cost you any credbility you had with me.
**************************************************************
Posting and reading from alt.politics.usa.constitution OR alt.education
You are invited to check out the following:
The Rise of the Theocratic States of America
http://members.tripod.com/~candst/theocracy.htm
American Theocrats - Past and Present
http://members.tripod.com/~candst/theocrats.htm
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and to join the discussion group for the above site and/or Separation of
Church and State in general, listed below]
HRSepCnS · Hampton Roads [Virginia] SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members, there are members from
all over the U.S. and a couple from overseas as well]
***************************************************************
.. . . You can't understand a phrase such as "Congress shall make no law
respecting an establishment of religion" by syllogistic reasoning. Words
take their meaning from social as well as textual contexts, which is why "a
page of history is worth a volume of logic." New York Trust Co. v. Eisner,
256 U.S. 345, 349, 41 S.Ct. 506, 507, 65 L.Ed. 963 (1921) (Holmes, J.).
Sherman v. Community Consol. Dist. 21, 980 F.2d 437, 445 (7th Cir. 1992)
.. . .
****************************************************************
THE CONSTITUTIONAL PRINCIPLE:
SEPARATION OF CHURCH AND STATE
http://members.tripod.com/~candst/index.html
****************************************************************
.
|
|
|
|
|
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|
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|
| User: "" |
|
| Title: 11th Circuit May 1983 |
01 Jan 2006 07:16:47 AM |
|
|
[PDF] COMMONWEALTH'S MEMORANDUM IN OPPOSITION
(Background)
Jaffree v. Wallace, 705 F.2d 1526 (11th Cir. 1983). ... See Jaffree v.
Wallace, 70 F.2d 1526, 1529 (11. th. Cir. 1983). ...
www.oag.state.va.us/PDF_files/MOS%20Reply%20Brief.pdf
http://www.oag.state.va.us/PDF_files/MOS%20Reply%20Brief.pdf
16
.. . .. In Jaffree, Justice Powell stayed a final judgment of a district
court which had ruled that "the United States Supreme Court has erred,"
that the Establishment Clause did not apply to the States, and that Alabama
could establish a state religion if it chose to do so. Jaffree v. Board of
Sch. Comm'rs of Mobile County, 554 F. Supp. 1104, 1128 (S.D. Ala. 1983).
Such open defiance of this Court is rare, perhaps unique.
1. Wallace: A Test Case by Alabama.
In Wallace, Alabama sought to use a challenge to its minute of
silence law as a test case for overturning settled Supreme Court precedent
that the Establishment Clause is applicable to the States. See Everson v.
Board of Educ., 330 U.S. 1 (1947). In the years leading up to Wallace,
Alabama passed three statutes: (1) § 16-1-20, a 1978 statute that required
a minute of silence "for meditation" in public elementary schools; (2) §
16-1-20.1, a 1981 statute that authorized a minute of silence "for
meditation or voluntary prayer" in all public schools; and (3) § 16-1-20.2,
a 1982 statute that authorized public school teachers to lead willing
students in prayer, including a prayer written by the Alabama legislature.
Wallace, 472 U.S. at 40. Later in 1982, all three statutes were challenged
in the same lawsuit. At the preliminary injunction stage, the district
court found the first statute to be unobjectionable, but enjoined the other
two because the sole purpose of both was "to encourage a religious
activity." Jaffree v. James, 544 F. Supp. 727, 732 (S.D. Ala. 1982); see
also Wallace, 472 U.S. at 41.
After trial on the merits, the district court did not change its
interpretation of legislative purpose, but took it upon itself to overturn
Everson as Alabama had sought. Remarkably, the district court declared that
"the United States Supreme Court has erred" and that "the establishment
clause
does not prohibit the state from establishing a religion
."
Jaffree v. Bd. of Sch. Comm'rs of Mobile County, 554 F. Supp. 1104, 1128
(S.D. Ala. 1983); see also Wallace, 472 U.S. at 41.
Obviously, such a result could not stand. While an appeal was
pending, petitioner was denied an injunction from the Eleventh Circuit, but
obtained a stay of the district court judgment from the Justice of this
Court. Jaffree, v. Bd. of Sch. Comm'rs of Mobile, 459 U.S. 1314 (1983)
19
(Powell, J. in chambers).6 On hearing the appeal, the Eleventh Circuit
reaffirmed that States are indeed subject to the Establishment Clause, and
ruled that the two statutes originally enjoined by the district court . §
16-1-20.1 (1981 minute of silence statute) and § 16-1-20.2 (teacher prayer
statute) . violated that key constitutional provision.7 Jaffree v. Wallace,
705 F.2d 1526 (11th Cir. 1983). The Eleventh Circuit's opinion striking
down the teacher prayer statute was affirmed unanimously and summarily.
Wallace v. Jaffree, 466 U.S. 924 (1984).
Granting certiorari on the 1981 minute of silence statute, this
Court used the occasion to reiterate both the vitality of the incorporation
doctrine as applied to the Establishment Clause, and the duty of lower
courts to adhere to Supreme Court precedent. Wallace, 472 U.S. at 41-55.
The Court then reaffirmed the Lemon test, and again made it plain that
statutes with a dual legislative purpose part secular and part religious
would pass the first prong. 8 "[E]ven though a statute that is motivated
in part by a religious purpose may satisfy the first criterion, the First
Amendment requires that a statute must be invalidated if it is entirely
motivated by a
__________________________________
6 This stay of the final judgment apparently had the effect of reviving the
preliminary injunction that the final judgment had vacated. See Jaffree v.
Wallace, 70 F.2d 1526, 1529 (11th Cir. 1983).
7 The challenge to § 16-1-20 (original minute of silence statute) was not
discussed by the Eleventh Circuit and was abandoned by plaintiffs in that
case. See Wallace, 472 U.S. at 40. Thus, unlike the results petitioners
seek here, Alabama still had a minute of silence statute even after the
decision in Wallace.
8 The three prongs of the Lemon test are:
First, the statute must have a secular legislative purpose; second, its
principal or primary effect must be one that neither advances nor inhibits
religion; finally, the statute must not foster an excessive government
entanglement with religion.
Lemon v. Kurtzman, 403 U.S. 612 (1971) (quotation marks and citations
omitted). In their application for an injunction, petitioners do not raise
challenges under the second and third prongs.
20
purpose to advance religion." Wallace, 472 U.S. at 56 (emphases added,
citations omitted). Accord Lynch v. Donnelly, 465 U.S. 668, 680 and 681,
n.6 (1984).
With this standard in hand, this Court turned to the Alabama
statute and struck it down on the grounds that "the enactment of §
16-1-20.1 was not motivated by any clearly secular purpose indeed, the
statute had no secular purpose." Id. at 56 (emphasis added). Chief among
the facts on which this Court relied was the position taken by the sponsor
of the legislation. "The sponsor
inserted into the legislative record
apparently without dissent a statement indicating that the legislation
was an effort to return voluntary prayer' to the public schools." Id. at
56-57. In testimony before the district court, the sponsor had been even
more emphatic. Asked "whether he had any purpose for the legislation other
than returning voluntary prayer to the public schools, he stated: No, I
did not have no other purpose in mind.'" Id. at 57. Moreover, as part of
its anti-Everson strategy, Alabama was content to rely on that explanation
at trial and "did not present evidence of any secular purpose." Id.
(emphasis added). Indeed, Governor James went so far as to tell the
district court that it had "no jurisdiction
because prayer flows from the
Almighty." Jaffree, 544 F. Supp. at 729.
Faced with a trial record in which Alabama insisted (i) that it had
only a religious purpose, and (ii) that the Establishment Clause did not
apply to the States, a majority of this Court felt it had no choice but to
strike down the statute. By contrast, the Virginia law does have a secular
purpose. See infra at 40-43. Moreover, Virginia does not seek to evade the
Establishment Clause and fully complies with it. Thus, the unusual
circumstances that compelled the result in Wallace have no counterpart
here. Contrary to petitioners' argument, Wallace is not dispositive of the
case at bar. This conclusion is confirmed by examining the two false
analogies that petitioners seek to draw in their mistaken reliance on
Wallace.
.
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|
| User: "" |
|
| Title: 11th Circuit May 1983 |
01 Jan 2006 07:29:26 AM |
|
|
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=459&invol=1314#1315
U.S. Supreme Court
JAFFREE v. BOARD OF SCHOOL COM'RS OF MOBILE COUNTY , 459 U.S. 1314 (1983)
459 U.S. 1314
Ishmael JAFFREE, et al., Applicants
v.
BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al.
No. A-663.
Feb. 11, 1983.
Justice POWELL, Circuit Justice.
This is an application for a stay of the judgment of the United States
District Court for the Southern District of Alabama pending an appeal to
the United States Court of Appeals for the Eleventh Circuit. Applicant
Ishmael Jaffree is the father of minor applicants Jamael Aakki Jaffree,
Makeba Green, and Chioke Saleem Jaffree, three students in the Mobile
County, Alabama, public schools. Respondents are various school and state
officials. The application was filed here on February 2. In my capacity as
Circuit Justice, I entered an order staying the judgment of the District
Court until respondents were afforded an opportunity to respond. Their
responses are now in hand, and I have considered the merits of the
application for a stay.
The situation, quite briefly, is as follows: Beginning in the fall of 1981,
teachers in the minor applicants' schools conducted prayers in their
regular classes, including group recitations of the Lord's Prayer. At the
time, an Alabama statute provided for a one-minute period of silence "for
[459 U.S. 1314 , 1315] meditation or voluntary prayer" at the
commencement of each day's classes in the public elementary schools.
Ala.Code 16-1-20.1 (Supp.1982). In 1982, Alabama enacted a statute
permitting public school teachers to lead their classes in prayer. 1982
Ala.Acts 735.
Applicants, objecting to prayer in the public schools, filed suit to enjoin
the activities. They later amended their complaint to challenge the
applicable state statutes. After a hearing, the District Court granted a
preliminary injunction. Jaffree v. James, 544 F.Supp. 727 (1982 ). It
recognized that it was bound by the decisions of this Court, id., at 731,
and that under those decisions it was "obligated to enjoin the enforcement"
of the statutes, id., at 733.
In its subsequent decision on the merits, however, the District Court
reached a different conclusion. Jaffree v. Board of School Commissioners of
Mobile County, --- F.Supp. ___ (1983). It again recognized that the prayers
at issue, given in public school classes and led by teachers, were
violative of the Establishment Clause of the First Amendment as that clause
has been construed by this Court. The District Court nevertheless ruled
"that the United States Supreme Court has erred." Id., at ___. It therefore
dismissed the complaint and dissolved the injunction.
There can be little doubt that the District Court was correct in finding
that conducting prayers as part of a school program is unconstitutional
under this Court's decisions. In Engel v. Vitale, 370 U.S. 421 (1962), the
Court held that the Establishment Clause of the First Amendment, made
applicable to the States by the Fourteenth Amendment, prohibits a State
from authorizing prayer in the public schools. The following Term, in
Murray v. Curlett, decided with School District of Abington Township v.
Schempp, 374 U.S. 203 , 83 S. Ct. 1560 (1963), the Court explicitly
invalidated a school district's rule providing for the reading of the
Lord's Prayer as part of a school's opening exercises, despite the fact
that participation in those exercises was voluntary. [459 U.S. 1314 , 1316]
Unless and until this Court reconsiders the foregoing decisions, they
appear to control this case. In my view, the District Court was obligated
to follow them. Similarly, my own authority as Circuit Justice is limited
by controlling decisions of the full Court. Accordingly, I am compelled to
grant the requested stay.
It is so ordered.
*****************************************************************************
Our unanimous affirmance of the Court of Appeals' judgment concerning
16-1-20.2 makes it unnecessary to comment at length on the District Court's
remarkable conclusion that the Federal Constitution imposes no obstacle to
Alabama's establishment of a state religion. Before analyzing the precise
issue that is presented to us, it is nevertheless appropriate to recall how
firmly embedded in our constitutional jurisprudence is the proposition that
the several States have no greater power to restrain the individual
freedoms [472 U.S. 38, 49] protected by the First Amendment than does
the Congress of the United States.
As is plain from its text, the First Amendment was adopted to curtail the
power of Congress to interfere with the individual's freedom to believe, to
worship, and to express himself in accordance with the dictates of his own
conscience. 32 Until the Fourteenth Amendment was added to the
Constitution, the First Amendment's restraints on the exercise of federal
power simply did not apply to the States. 33 But when the Constitution was
amended to prohibit any State from depriving any person of liberty without
due process of law, that Amendment imposed the same substantive limitations
on the States' power to legislate that the First Amendment had always
imposed on the Congress' power. This Court has confirmed and endorsed this
elementary proposition of law time and time again. 34 [472 U.S. 38, 50]
Writing for a unanimous Court in Cantwell v. Connecticut, 310 U.S. 296, 303
(1940), Justice Roberts explained:
". . . We hold that the statute, as construed and applied to the
appellants, deprives them of their liberty without due process of law in
contravention of the Fourteenth Amendment. The fundamental concept of
liberty embodied in that Amendment embraces the liberties guaranteed by the
First Amendment. The First Amendment declares that Congress shall make no
law respecting an establishment of religion or prohibiting the free
exercise thereof. The Fourteenth Amendment has rendered the legislatures of
the states as incompetent as Congress to enact such laws. The
constitutional inhibition of legislation on the subject of religion has a
double aspect. On the one hand, it forestalls compulsion by law of the
acceptance of any creed or the practice of any form of worship. Freedom of
conscience and freedom to adhere to such religious organization or form of
worship as the individual may choose cannot be restricted by law. On the
other hand, it safeguards the free exercise of the chosen form of
religion."
Cantwell, of course, is but one case in which the Court has identified the
individual's freedom of conscience as the central liberty that unifies the
various Clauses in the First Amendment. 35 Enlarging on this theme, THE
CHIEF JUSTICE recently wrote: [472 U.S. 38, 51]
"We begin with the proposition that the right of freedom of thought
protected by the First Amendment against state action includes both the
right to speak freely and the right to refrain from speaking at all. See
Board of Education v. Barnette, 319 U.S. 624, 633 -634 (1943); id., at 645
(Murphy, J., concurring). A system which secures the right to proselytize
religious, political, and ideological causes must also guarantee the
concomitant right to decline to foster such concepts. The right to speak
and the right to refrain from speaking are complementary components of the
broader concept of `individual freedom of mind.' Id., at 637.
. . . . .
"The Court in Barnette, supra, was faced with a state statute which
required public school students to participate in daily public ceremonies
by honoring the flag both with words and traditional salute gestures. In
overruling its prior decision in Minersville District v. Gobitis, 310 U.S.
586 (1940), the Court held that `a ceremony so touching matters of opinion
and political attitude may [not] be imposed upon the individual by official
authority under powers committed to any political organization under our
Constitution.' 319 U.S., at 636 . Compelling the affirmative act of a flag
salute involved a more serious infringement upon personal liberties than
the passive act of carrying the state motto on a license plate, but the
difference is essentially one of degree. Here, as in Barnette, we are faced
with a state measure which forces an individual, as part of his daily life
- indeed constantly while his automobile is in public view - to be an [472
U.S. 38, 52] instrument for fostering public adherence to an ideological
point of view he finds unacceptable. In doing so, the State `invades the
sphere of intellect and spirit which it is the purpose of the First
Amendment to our Constitution to reserve from all official control.' Id.,
at 642." Wooley v. Maynard, 430 U.S. 705, 714 -715 (1977).
Just as the right to speak and the right to refrain from speaking are
complementary components of a broader concept of individual freedom of
mind, so also the individual's freedom to choose his own creed is the
counterpart of his right to refrain from accepting the creed established by
the majority. At one time it was thought that this right merely proscribed
the preference of one Christian sect over another, but would not require
equal respect for the conscience of the infidel, the atheist, or the
adherent of a non-Christian faith such as Islam or Judaism. 36 But when the
underlying principle has been examined in the crucible of litigation, the
[472 U.S. 38, 53] Court has unambiguously concluded that the individual
freedom of conscience protected by the First Amendment embraces the right
to select any religious faith or none at all. 37 This conclusion derives
support not only from the interest in respecting the individual's freedom
of conscience, but also from the conviction that religious beliefs worthy
of respect are the product of free and voluntary choice by the faithful, 38
[472 U.S. 38, 54] and from recognition of the fact that the political
interest in forestalling intolerance extends beyond intolerance among
Christian sects - or even intolerance among "religions" - to encompass
intolerance of the disbeliever and the uncertain. 39 [472 U.S. 38, 55]
As Justice Jackson eloquently stated in West Virginia Board of Education v.
Barnette, 319 U.S. 624, 642 (1943):
"If there is any fixed star in our constitutional constellation, it
is that no official, high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein."
The State of Alabama, no less than the Congress of the United States, must
respect that basic truth.
WALLACE v. JAFFREE, 472 U.S. 38 (1985)
http://laws.findlaw.com/us/472/38.html
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