| Topic: |
Religions > Atheism |
| User: |
"" |
| Date: |
29 May 2005 04:16:55 AM |
| Object: |
JUSTICE C. THOMAS v THE US SUPREME COURT |
On June 14, 2004, the Supreme Court decided the closely -watched
appeal of a Ninth Circuit decision finding the addition of the words
"under God" to Pledge of Allegiance to violate the Establishment
Clause. On a vote of 5-3, the Court in Elk River Unified School
District v Newdow ruled that the non-custodial parent who brought the
suit against the school district lacked standing to do so. Three
justices, in concurring opinions, indicated that they would have
concluded on the merits that the Pledge law did not violate the
Establishment Clause. In an interesting opinion, Justice Thomas went
so far as to say he would find that the Establishment Clause was not
incorporated through the Fourteenth Amendment, and therefore doesn't
limit states at all!
WALLACE v. JAFFREE, 472 U.S. 38 (1985)
http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=volpage&court=us&vol=472&\
page=69#
t7
[EXCERPT]
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.
You are invited to check out the following:
The Constitutional Principle: Separation of Church and State
http://members.tripod.com/~candst/index.html
[and the discussion group for the above site listed below]
HRSepCnS · Hampton Roads SepChurch&State
http://groups.yahoo.com/group/HRSepCnS/
[Its not just Hampton Roads folks who are members]
***************************************************************
.. . . 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)
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