"Thunder" <RidgeRunner@hotpop.com> wrote:
:|
:|"Professor Perfesser" <PrPerf@mindspring.com> wrote in message
:|> Our government is secular and religion
:|> neutral. That means it has nothing to
:|> say about religion.
:|Nonsense. The free exercise of religion
:|is a protected right.
Let's look at this:
FREE EXERCISE CLAUSE
(1)
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. Thus the Amendment
embraces two concepts,-freedom to believe and freedom to act. The first is
absolute but, in the nature of things, the [310 U.S. 296, 304] second
cannot be. Conduct remains subject to regulation for the protection of
society. (4) The freedom to act must have appropriate definition to
preserve the enforcement of that protection. In every case the power to
regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom. No
one would contest the proposition that a state may not, be statute, wholly
deny the right to preach or to disseminate religious views. Plainly such a
previous and absolute restraint would violate the terms of the guarantee.
(5) It is equally clear that a state may by general and non-discriminatory
legislation regulate the times, the places, and the manner of soliciting
upon its streets, and of holding meetings thereon; and may in other
respects safeguard the peace, good order and comfort of the community,
without unconstitutionally invading the liberties protected by the
Fourteenth Amendment.
CANTWELL v. STATE OF CONNECTICUT, 310 U.S. 296 (1940)
(2)
THE FREE EXERCISE CLAUSE
The Free Exercise Clause forbids the outlawing of any religious belief.
Note, however, that it is the right to believe that is unconditionally
protected. The right to act Pursuant to one's beliefs is subject to
reasonable regulation designed to protect a compelling state interest.
Therefore, a religious practice may be limited, curtailed or restrained to
the point of outright prohibition where it involves a clear and present
danger to the interests of society.
Direct v. Indirect Burdens on the Free Exercise of Religion
1. Direct Burden
A direct burden on the free exercise of religion occurs
when an individual's conduct is made illegal by a statute.
The Supreme Court will balance the direct burden on the
individual's religious interests against the compelling state interest.
a. A state statute requiring compulsory school attendance
for children after the eighth grade was held to violate
the Free Exercise Clause as it applied to followers of
the Amish faith. Wisconsin v. Yoder.
b. A state statute making polygamy illegal was held not to violate the
Mormons' right to the free exercise of their religion. Reynolds v. United
States.
2. Indirect Burden
An indirect burden occurs when a statute makes the free
exercise of one's religion more difficult but does not
coerce the individual to act contrary to his religious belief.
A state need not show compelling state interest to establish the validity
of a statute which indirectly burdens the free exercise of religion.
a. A statute that advances a state's secular goals but also indirectly
burdens a religious activity does not violate the Free Exercise Clause.
Lyng v. Northwest Indian Cemetery Protective Association.
b. A state law advancing no strong state interest but
which denies someone of an important benefit, such as
the award of unemployment compensation benefits for
refusal to work on religious grounds, violates the Free Exercise Clause.
Sherbert v. Verner and Thomas v. Indiana Employment Security Review Board.
Note, however, that a state statute granting Sabbath observers an absolute
and unqualified right not to work on their chosen Sabbath violates the
Establishment Clause as the statute had the primary effect of
impermissibly advancing a particular religious practice. Estate of Thorton
v. Caldor, Inc.
FREE EXERCISE CLAUSE MATERIAL IS QUOTED FROM BLOND'S CONSTITUTIONAL LAW LAW
GUIDE, by Neil C. Blond Revised edition prepared by Brett I. Harris,
Robert M Novick, Sulzburger & Graham Publishing, LTD. (1993) Pages 393-394
:|You need to
:|differentiate what the Federal Congress
:|is required not to do (as well as protect)
:|and what rights the States have. Jefferson
:|commented on this:
:| "[Since] no power over the freedom of
:| religion, freedom of speech, or freedom
:| of the press [was] delegated to the
:| United States by the Constitution nor
:| prohibited by it to the States, all
:| lawful powers respecting the same did
:| of right remain and were reserved to
:| the States or the people... Thus was
:| manifested their determination to retain
:| to themselves the right of judging how
:| far the licentiousness of speech and of
:| the press may be abridged without
:| lessening their useful freedom, and how
:| far those abuses which cannot be
:| separated from their use should be
:| tolerated rather than the use be
:| destroyed."
:| --Thomas Jefferson:
:| Draft Kentucky Resolutions, 1798.
The above was him venting. Aside from that however, it represnted the state
of law as it was applied at that point in time, i.e. The Bors were only
appled to the Federal Government and territories.
Pre 14th Amendment days and incorporation.
Jefferson also had this to say:
The Writings of Thomas Jefferson, 1903. Andrew A. Lipscomb,
Ed-in-chief, 20 vols. Vol. 7, page 93.
THOMAS JEFFERSON to James Madison Paris, July 31, 1788.
". . . The new regulations present a preponderance of good over their evil;
but they suppose that the King can model the constitution at will, or, in
other words, that his government is a pure despotism. The question then
arising is, whether a pure despotism in a single head, or one which is
divided among a king, nobles, priesthood, and numerous magistracy, is
the least bad. . . ."
"I sincerely rejoice at the acceptance of our new constitution by
nine States. It is a good canvass, on which some strokes only want
retouching. What these are, I think are sufficiently manifested by the
general voice from north and south, which calls for a bill of rights. It
seems pretty generally understood, that this should go to juries, habeas
corpus, standing armies, printing, religion and monopolies. I conceive
there may be difficulty in finding general modifications of these, suited
to the habits of all the States. But if such cannot be found, then it is
better to establish trials by jury, the right of habeas corpus, freedom of
the press and freedom of religion, in all cases, and to abolish standing
armies in time of peace, and monopolies in all cases, than not to
do it in any. . .?"
.. . . A declaration, that the federal government will never restrain the
presses from printing anything they please, will not take away the
liability of the printers for false facts printed. The declaration, that
religious faith shall be unpunished, does not give impunity to criminal
acts, dictated by religious error."
:|I said the most recent Courts, not the
:|historical Courts. The recent Courts
:|have certainly been trying to remove
:|Christianity in particular from every
:|facet of public life. I wouldn't be
:|surprised if a Left Coast liberal Court
:|wouldn't try to have the phrase
:|"God bless you" classified as hate speech
:|even when it was said in response to a
:|sneeze.
***************************************
ESTABLISHMENT CLAUSE:
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.
************************************
EVEN IF YOU DO AWAY WITH #5 WHICH is what Rehnquist
has been working to accomplish for 30 years, you still all the other
elements which would be and are still good law.
************************************
The wording does not say:
Congress shall make no law making a state religion
Congress shall make no law establishing religion
Congress shall make no law establishing a state religion
Congress shall make no law establishing a national religion
What it does say is:
Congress shall make no law RESPECTING an establishment of religion, . . .
That is far broader.
***********************************************
" In recent discussions of religious freedom and Church-State separation in
the United States attention has been so much centered constitutionally on
the Bill of Rights that the importance of this Provision in the original
Constitution as a bulwark of Church-State separation has been largely
overlooked. As a matter of fact it was and is important in preventing
religious tests for Federal office--a provision later extended to all the
states. It went far in thwarting any State Church in the United States; for
it would be almost impossible to establish such a Church, since no Church
has more than a fifth of the population. Congress as constituted with men
and women from all the denominations could never unite in selecting any one
body for this privilege. This has been so evident from the time of the
founding of the government that it is one reason why the First Amendment
must be interpreted more broadly than merely as preventing the state
establishment of religion which had already been made almost impossible."
(SOURCE OF INFORMATION: CHURCH AND STATE IN THE UNITED STATES, VOLUME I,
Anton Phelps Stokes, D.D., LL.D, Harper & Brothers Publishers (1950) page
527)
***********************************************
.. . . it is clear that the amendment does not say, "Congress shall make no
law establishing religion," but does say "no law respecting an
establishment of religion." It therefore cannot be construed as
authorizing Congress to support religious institutions. [or religion, any
kind of religion.]
Religious Liberty and the Secular State, The Constitutional Context. John
M. Smomley.Prometheus Books, (1987) p. 49
***********************************************
[EMPHASIS ADDED]
The still more important fact is that the type of article used in the
establishment clause makes no difference. The First Amendment does not say
that Congress shall not establish a religion or create an establishment of
religion. It says Congress shall make no law RESPECTING an establishment of
religion. Whether "respecting" connotes honoring or concerning, the clause
means that Congress shall make no law on that subject THE BAN IS NOT JUST
ON ESTABLISHMENTS OF RELIGION BUT ON LAWS RESPECTING
THEM, A FACT THAT ALLOWS A LAW TO FALL SHORT OF CREATING AN ESTABLISHMENT
YET STILL BE UNCONSTITUTIONAL.
(SOURCE: The Establishment Clause, Religion and the First Amendment,
Leonard W. Levy, Second Edition, Revised, The University of North Carolina
Press, (1994) p. 118
***********************************************
The following is written by an attorney, who also happens to have a Bs, &
Ms. in linguistics:
Some Thoughts on Religion and Law, Written by Susan Batte, Esq.
1. The Constitution did not provide any mechanism for the establishment
of religion or for the support of religion.
2. Religious tests were the primary mechanism for perpetuating an
established church within the political structure.
3. The Constitution specifically prohibits religious tests or oaths for
office.
THEREFORE, the Constitution created the concept of Separation of Church and
State by providing nothing in the constitution that supports the idea that
Government as Government is allowed to support any religion for any reason
and by specifically prohibiting the primary political mechanism for
supporting religion.
The 1st Amendment may only be interpreted, as being consistent with the
Constitution and the views expressed in the Constitution concerning
religion because:
1. The 1st Amendment was drafted after the Constitution was ratified and
was not designated as repealing any provision in the Constitution.
2. The 1st Amendment does not provide any mechanism for establishing
religion.
3. The 1st Amendment does provide the mechanism to allow an individual
as an individual and not as government to exercise the religion of his or
her choice.
THEREFORE, the 1st Amendment cannot be interpreted to mean that some
governmental entities may support religion in some ways (i.e., vouchers,
welfare programs, etc.).
Once the 1st Amendment prohibited Congress from establishing religion by
prohibiting it from making any law respecting an establishment of religion
- Congress was thereby precluded from passing any kind of appropriation
bill to fund any religious enterprise.
In order for the above to be true, the interpretation of "establishment"
would have to be broad, and in fact the broad interpretation of
"establishment" is supported. First, the O.E.D. (Oxford English Dictionary)
sets out a 1561 definition of establishment as "a means of establishing;
something that strengthens, supports or corroborates. Into the 1700s -
1800s, "establishment" could be defined as "the establishing by law (a
church, religion, form of worship.) As an example, the O.E.D. sets out the
following: 1886 Earl Selborne De Ch. Eng. I. iv. 77 All such relations of
the Church to the State as those which are summed up in the term
'Establishment'.
Second, a broad interpretation of"establishment" is consistent with the
indefinite article that proceeds it. "An"'establishment of religion' refers
to all or any religious establishment --- not to one or some
establishments. In the absence of definiteness, the inclusion of "of one
Christian sect over another" after "Congress shall make no law respecting
an establishment" would be necessary if, as Mr. Barton argues, the 1st
Amendment was all about stamping out competing rivalries between Christian
sects.
In addition, the operative word in the Establishment Clause is RESPECTING.
Respecting an establishment of religion. Any religious institution, be it a
20 member country church or a huge multimillion member international
religion, is an establishment of religion. The government is forbidden from
making any laws, positive or negative that would pertain to an
establishment of religion.
The narrow definition of establishment is that the 1st Amendment meant only
to prevent a "State Church" from being officially sanctioned by the
Government. (In this way, some people have tried to argue that supporting
religious schools doesn't establish anything.) However, such a narrow
reading of "Establishment" would need specific language added to the
Amendment to support it since a plain language reading of the Constitution
clearly shows no bias for (or against) Christianity as opposed to any other
religion or even irreligion. And neither does the 1st Amendment.
SOURCE: Excerpt from Some Thoughts on Religion and Law
http://members.tripod.com/~candst/bthot-lr.htm"
***********************************************
Along with that, let me add the following:
"Although Madison intiallly proposed "nor shall any national
religion be established," in the debate that followed he explained himself
by saying that his proposal meant that "Congress shall not establish a
religion." The word "a" has great significance for the nonpreferentialists.
They emphasizethe fact that in the debate Madison wished to proscribe "a
national religion," that is, a single or exclusive religion preferred over
allothers "and nothing else." Similarly, they stress that the term used in
the final version of the amendment is "an establishment of religion." The
use of the singular noun, "an establishment," supposedly has the effect of
narrowing the scope of the prohibition.7 Madison allegedly wanted only to
prohibit "discriminatory religious assistance" and "a national church." The
climax of this view follows: "At the same time, the phrase `an
establishment' seems to ensure the legality of nondiscriminatory religious
aid. Had the framers prohibited `the establishment of religion,' which
would have emphasized the generic word `religion,' there might the been
some reason for thinking they wanted to prohibit all official preferences
of religion over irreligion. But by choosing `an establishment' over `the
establishment,' they were showing that they wanted to prohibit only those
official activities that tended to promote the interests of one or another
particular sect."8 Preferring "religion over irreligion" is a red herring;
the question of such a preference was not an issue. The government
possessed no power to aid irreligion or religion.
What shall we say, however, about the interpretation based on the
use of the indefinite rather than the definite article? First, we are not
interpreting a verbatim record of the debate. The record we have derives
from unreliable newspaper reports. It is incomplete and does not purport to
be a literal transcription of the words of the speakers. Reporters took
notes that they later rephrased and expanded for publication. Any
interpretation of the debate that turns on single words or precise nuances
of phrasing must be suspect.9 And any interpretation that turns on the use
of the indefinite article rather than the definite article must be utterly
rejected, for the simple reason that the reporter who took shorthand notes
of the debates on the Bill of Rights omitted articles, both definite and
indefinite. He recorded the main outlines of speech and later reconstructed
those speeches from his memory. He omitted a great deal and sometimes
garbled what he included. Madison said, when sending a copy of the
reporter's work to Jefferson, it gave "some idea of the discussion," though
it showed "the strongest evidences of mutilation & perversion, and of the
illiteracy of the Editor." To another correspondent Madison wrote that the
reporter "sometimes filled up blanks in his notes from memory or
imagination" and that he also made drunken reports.10
Second, the nonpreferentialists stress the "a" in Madison's
recommended amendment without considering that it did not pass the House.
The amendment as adopted bans any law "respecting the establishment of
religion." It does not refer to "a religion" or "a national religion." The
reference is to religion in general. The nonpreferentialist argument is
founded on a discarded proposal rather than the constitutional text.
Nevertheless, Madison had an interpretation of "national religion," as we
shall see, that undoes the nonpreferentialist argument.
Third, "the" is not "generic"; it is specific. Contrary to Robert
Cord, Daniel Dreisbach, and the others, the employment of "the" instead of
"an" as the article preceding "establishment of religion" would not have
broadened the establishment clause. Fourth, "the" can be as singular as "a"
or "an." But those are quibbles.
A more important objection to the nonpreferentialist emphasis on
the definite article in the establishment clause derives from the attempt
to construe it literally or strictly. That which is inherently ambiguous
cannot be strictly construed. Worse still, strict construction of the First
Amendment, if ever taken seriously, would lead to the destruction of basic
rights. Strict construction often leads to narrow-mindedness. Consider the
exact language of the amendment: "Congress shall make no law respecting an
establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press" The framers of the
amendment deliberately used different verbs in the freedom of religion and
freedom of the press clauses. That is a matter of considerably greater
semantic importance than the difference between "an" and "the" in the
establishment clause. If the framers meant what they said and said what
they meant, then Congress may abridge the free exercise of religion so long
as Congress does not prohibit it. The point is that contrary to Rehnquist
and company, the principles embodied in the First Amendment's clauses, not
some misunderstanding based upon a grammarian's niceties, command our
constitutional respect.
The still more important fact is that the type,of article used.in
the establishment clause made no difference. The First Amendment does not
say that Congress shall not establish a religion or create an establishment
of religion. It says Congress shall make no law respecting an establishment
of religion. Whether "respecting" connotes honoring or concerning, the
clause means-that Congress shall make no law on that subject. The ban is
not just on establishments of religion but on laws respecting them, a fact
that allows a law to fall short of creating an establishment yet still be
unconstitutional.
7. Cord, Separation of Church and State, p. 5.
8. Malbin, Religion and Politics, p. 14.
9. See Appendix.
10. James Madison to Thomas Jefferson, May 9, 1789, in William T.
Hutchinson et al., eds., The Papers of James Madison, ser. in progress
(Chicago, 1 962-), I2:I42. See Marion Tinling, "Thomas Lloyd's Reports of
the First Federal Congress," William and Mary Quarterly, 3d set., 18 (Oct.
1961): 530, on the ornission of articles, and pp. 530-38 for contemporary
criticism of Lloyd's reporting. Tinling quotes a Madison letter of Jan. 7,
1832, describing the reporter as a "votary of the bottle" who made "too
free use of it" (pp. 5 37-38).
SOURCE OF INFORMATION: The Establishment Clause, Religion and the First
Amendment, Leonard W. Levy, Second Edition, Revised, The University of
North Carolina Press, (1994) pp. 115-18
***********************************************
Please note the "noun endings."
http://www.uvsc.edu/owl/handouts/partsosp.html
***********************************************
From: Joni Rathbun <jrathbun@orednet.org>
Newsgroups:
alt.education,alt.politics.liberalism,alt.politics.usa.constitution,alt.politics.usa.republican,alt.socie
ty.l iberalism
Subject: Re: Judge Refuses to Remove Ten Commandments Display
Date: Sun, 17 Aug 2003 13:12:23 -0700
On Sun, 17 Aug 2003, Dana wrote:
Wrong, no where does the 1st Amendment state in any manner that there is a
seperation between church and state. The only thing the 1st states is that
the feds cannot impose a national religion.
(sigh)
Assuming you are looking at the FA as written in English, you could not be
more wrong. This should be understandable by anyone who has moved beyond
the concrete operational level of development as defined by Piaget.
.... shall make no laws respecting (concerning or regarding) AN
(indefinite article not definite article such as "the") establishment
(noun not verb for the English challenged among us) of religion (iow a
religious organization or code).
Change "an" to "the" and you can have it your way. But the
learned author chose "an" and demonstrated on many occasion that
"an" is exactly what he meant.
*****************************************
From: Beacher <me@privacy.net>
Subject: Re: What is "Establishment"
Newsgroups: alt.politics.usa.constitution
Date: Mon, 08 Sep 2003 09:26:51 -0400
On Fri, 05 Sep 2003 17:40:25 -0400, K C wrote:
--(-@
How does one establish a religion?
Is English not your native language or did you just sleep through high
school English?
The Constitution says "... an establishment of religion ..." The word
"an" is the indefinite article so what follows it is a noun. If they
were just worried about a national church they would have used a verb like
"establishing." They used a noun clause and not a verb. They knew their
grammar and used it with precision.
The word "thereof" in the free exercise clause refers back to "an
establishment of religion" so what Congress cannot make laws about is
precisely what you are free to exercise and not just a national religion.
If you are free to exercise any religion whatsoever, then Congress may
not make any law about any religion whatsoever. The government must
remain deaf, dumb, and blind when it comes to religion. The people are
free to exercise religion but the government is not.
The Fourteenth Amendment applies the first amendment to the states.
Otherwise states would be able to not only have official religions but to
prohibit the free exercise, free speech, and assembly of other religions
not approved by the state.
***********************************************
RELIGION CLAUSES 101
by Gene Garman
http://www.sunnetworks.net/~ggarman/rc101-1.html
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