| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
10 Apr 2004 07:53:36 AM |
| Object: |
Ceremonial Deism, Public Religion |
PART V
CEREMONIAL DEISM PROTECTS THE REMNANTS OF
THE DE FACTO ESTABLISHMENT OF RELIGION
There are world leaders in other countries that tell us we don't even live
up to our own ideal of church state separation so long as we have things
like "ceremonial deism" that are hold overs from our de facto establishment
of Protestant Christianity at times in the 1800s that we refuse to declare
them unconstitutional which in fact they are, and we have things like
Chaplains in Congress etc.
************************
HOW UNITED STATES CHURCH-STATE RELATIONS PLAY ON THE WORLD STAGE By MARCI
HAMILTON
http://writ.news.findlaw.com/hamilton/20010705.html
[EXCERPT]
What the European Professors Had to Say About Our Application of James
Madison's Theory
For example, two professors came to me after my talk, in which I discussed
James Madison's devotion to the concept of separation of church and state.
They thought that Madison's theory was all well and good, but they believed
that it was obsolete; the United States, they claimed, had long ago decided
to adopt an established church. Our actions, they said, speak louder than
our words.
As I shook my head vigorously, thinking we had a language barrier
between us, they pulled out their prime proof: legislative chaplains — that
is, chaplains who recite a prayer before the opening of a state or federal
legislative. And not just any legislative chaplains, they pointed out, but
a preponderance, a dominance of Protestant legislative chaplains since the
beginning of the country. Didn't that prove, they said, that this country
has an established church, no matter how we try to argue otherwise? Isn't
this a "Christian" country? Moreover, they continued, as I opened my mouth
to attempt to finesse the point, the United States Supreme Court expressly
upheld legislative chaplains in a "very famous case," Marsh v. Chambers.
Marsh v. Chambers?, I thought to myself. That is such a small case
in the constellation of our religion jurisprudence. At least from a
stateside perspective. Sure, the Court held that the presence of
legislative chaplains does not violate the Establishment Clause, but the
Court emphasized that is because having such chaplains is a long-held
practice, a type of "ceremonial deism." In any case, having such chaplains
really does not make much difference; the legislators aren't there to hear
the prayer. And, if they are, they aren't paying attention. Even if they
were, it would never be coercive because they are adults. Chaplains were
like the "In God We Trust" motto on the coins, containing a religious
element, but surely not "real" establishment.
Their point was hard to deny: we had opened the door to
establishing a church, the Protestant church, in this country. This
seemingly inconsequential case, which is reasoned away by the Supreme Court
and most religion theorists, stands as an example to the world of the
establishment of religion. It brings a tarnish, obviously, to the claims by
the United States that it is the home of diversity and the haven for
pluralism.
****************************************
MARSH V CHAMBERS, 463 U. S. 783 (1983)
[Be sure and read the dissenitng opinions as well]
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=463&invol=783
You will find Marsh v. Chambers cited in a number of cases. It played a
very important role in some especially Allegheny County v. Greater
Pittsburgh ACLU, 492 U.S. 573 (1989}The only problem is Marsh v. Chambers
is a flawed decision. It is a classic example showing just how far a court
will go to avoid during the right thing. The right thing in that case was
to rule something that was unconstitutional exactly that, unconstitutional.
When one combines the following with the dissenting opinions in Marsh v
Chambers one has a very compelling argument in favor of overturning Marsh v
Chambers.
SEE:
Chaplains and Congress
http://members.tripod.com/~candst/chaptest.htm
Chief Justice Burger, I Would Like You To Meet Mr. Madison
http://members.tripod.com/~candst/meet.htm
Discrepancies
http://members.tripod.com/~candst/discrep.htm
Addition info
.. . . In the Walz case, Burger was not content with noting that tax
exemption for churches was a common practice when the Constitution and the
First Amendment were adopted; he tested the practice by the purpose,
effect, and entanglement standard and found that it passed that test.
In Marsh v. Chambers (1983), Burger did not subject legislative
chaplaincies to the same test."
In that case, a rather courageous member of the Nebraska
legislature brought suit challenging the constitutionality of a
longstanding practice of starting each day the legislature met with a
prayer recited by a salaried chaplain. At the time the suit was brought,
the chaplain had occupied the office for sixteen years, and during most of
this period, his prayers were Christological. This had come to an end in
1980, as indicated by footnote 14 of the majority opinion: "[Chaplain]
Palmer characterizes his prayers as `non-sectarian,' Judeo Christian,' and
with `elements of the American civil religion.' App. 75 and 87. (Deposition
of Robert E. Palmer). Although some of his earlier prayers were often
explicitly Christian, Palmer removed all references to Christ after a 1980
complaint from a Jewish legislator.
In the Marsh case, the district court held, and it was this holding
that was appealed, that the state's appropriation of funds used to pay the
chaplain's salary was unconstitutional, but that the practice itself was
not. (In this respect, it was echoing Madison's position.) The court of
appeals (echoing Jefferson's) went further and ruled that the practice was
unconstitutional in its entirety and that it did not matter whether or not
the chaplain received salary for his services. The Supreme Court decided
that both lower courts were wrong and held that the practice itself was
valid and so, too, was the chaplain's receipt of monetary compensation for
his services. The Court, in an opinion by Burger, held immaterial the fact
that the chaplain had served for sixteen years; he noted that for the
twenty years between 1949 and 1969, one chaplain had served in the United
States Senate.
In reaching their decisions, both lower courts had relied on the
purpose, effect, and entanglement test, but, beyond mentioning this fact,
the Supreme Court paid no further attention to it. Burger relied
exclusively on history. Perhaps he did so because, as Brennan suggested in
his dissenting opinion, the Nebraska law could not escape invalidation
under any of the facets in the three-pronged test of constitutionality,
especially the one relating to Burger's own contribution in Walz v. Tax
Commission.
In his recitation of history, Burger could hardly pretend that the
"Detached Memoranda" never existed. He disposed of it in a short footnote."
To Brennan, the "Detached Memoranda" was more significant and relevant to
the issue before the Court in the Marsh case than Burger considered it to
be. In his dissenting opinion, he quoted, not as a footnote but in its
body, the two paragraphs quoted above, answering in the negative the
question whether the appointment of congressional chaplains is consistent
with the Constitution. Brennan also suggested that "Madison's later views
[in the "Detached Memoranda"] may not have represented so much a change of
mind as a change of role, from a member of Congress engaged in the
hurley-burley of legislative activity to the detached observer engaged in
unrepressed reflection. " The difficulty with this rationalization is that,
what Madison voted for in the First Congress cannot be easily reconciled
with what he had written five years earlier in the "Memorial and
Remonstrance."
(Internal citations and footnotes have been removed, supplied upon request)
Source of Information:"Madison's ‘Detached Memoranda': Then and Now." Leo
Pfeffer, The Virginia Statue for Religious Freedom, Its Evolution and
Consequences in American History, Edited by Merrill D. Peterson and Robert
C. Vaughan, Cambridge University Press (1988) pp. 298-99
****************************
"What is significant with respect to the date of its writing is that
Madison's "Detached Memoranda' interprets the Constitution and the Bill of
Rights and, unlike the Declaration of Independence, does not rest
exclusively on the laws of nature or nature's God, on Madison's own
"Memorial and Remonstrance, or on Jefferson's Virginia Statute for
Religious Freedom, although all are reported, confirmed, and defended. It
would seem, therefore that the "Detached Memoranda" would be the best
source for determining the intended meaning of the "religion" clauses of
the First Amendment (and the provision of article VI of the Constitution
forbidding religious test for public office) at least by the primary
draughtsman of both the Constitution and First Amendment.
The "Detached Memoranda" considers eight issues relating to religion
that have reached the Supreme Court in one way or another since the
Constitution was adopted: (1) ecclesiastical monopolies; (2) incorporation
of churches; (3) grants of public land to churches; (4) tax exemption of
religious entities; (5) the Deity in government documents; (6)
congressional chaplaincies; (7) military chaplaincies; and (8) religious
proclamations by the government."
Source of Information: "Madison's ‘Detached Memoranda": Then and Now." Leo
Pfeffer.
The Virginia Statue for Religious Freedom, Its Evolution and Consequences
in American History, Edited by Merrill D. Peterson and Robert C. Vaughan,
Cambridge University Press (1988) pp 286, 87.
************************************
CONCLUSION
Since the emergence of its Establishment Clause jurisprudence
nearly fifty years ago, the Supreme Court has struggled mightily to explain
why ceremonial deism is permitted in our constitutional framework while
other practices the Court has invalidated are not. The normative vision
embraced by the endorsement test is blurred beyond recognition if practices
such as legislative prayer, the National Day of Prayer, a Pledge of
Allegiance to a nation "under God," and the like are permitted to persist.
Any explanation of why these practices survive constitutional scrutiny
under this test, while school prayer and other practices invalidated by the
Court do not, is hopelessly inadequate. As justice Kennedy noted in his
Allegheny dissent, "[e]ither the endorsement test must invalidate scores of
traditional practices ... or it must be twisted and stretched to avoid
inconsistency with practices we know to have been permitted in the past."
Equally, if not more problematic, the Court's embrace of the "any more
than" syllogism, coupled with its acceptance o£ ceremonial deism, has
created a slippery slope that will likely erode the endorsement test
significantly in the years ahead.
If, however, the Court means what it says when it espouses the
principle that government may not, consistent with the Establishment
Clause, endorse religion and send messages to citizens that cause them to
feel like outsiders in the political community, the Court should have the
intellectual honesty and fortitude to recognize that ceremonial deism
violates a core purpose of the Establishment Clause. Undoubtedly, such a
decision will be very unpopular in an America in which the religious
majority has grown all too accustomed to seeing its practices and
traditions endorsed by the government. But the Court has in the past had
the courage to make and enforce unpopular decisions in the areas of
segregation, school prayer, criminal procedure, and abortion. just as
society has, in large measure, grown to accept these decisions, American
citizens can certainly learn to accept a decision that will ensure that
their grandchildren and great-grandchildren, no matter what America's
religious composition is in their time, will never be made to feel like
outsiders.
SOURCE: Rethinking the Constitutionality of Ceremonial Deism, Steven B.
Epstein, 96 Colum L. Rev. 2I73-74 (1996)
***********************************
History shows us that from the very beginning of the efforts to
separate church and state in this country there were two camps. I am not
going to attach labels to those camps since labels can mean different
things at different times in history. I will just say there was those who
wished to maintain the status quo of unions between church and state and
those who saw that real freedom couldn't be achieved as long as that were
the case.
What we have seen over the past 50 or so years in Establishment
Clause jurisprudence has been re enactments of that same philosophical
battle, only it has been judges and justices who have been fighting the
battle. Most if not all of the confusion that has been created in
Establishment Clause jurisprudence was created as a direct result of this
struggle between these two mind sets
Ceremonial deism was a way for justices to maintain elements of
that de facto Protestant establishment or union between church and state
that existed at times in the 1800s and even into the 1900s perhaps. A place
to hide newer forms of unions between church and state. It was a way to
keep them save and alive, when they should have been buried along with the
other elements that have been ruled, properly so, unconstitutional.
There really are guidelines given by James Madison, with regards to
Establishment Clause that could have been and could be followed now that
would clear up the problems with regards to Establishment Clause
jurisprudence, but it would require justices who are willing to do the hard
things. We haven't had many of thise lately, and we do so need some.
.
|
|
|
Related Articles |
|
|
