Equal Liberty and the Establishment clause, then and now - Research Paper Example

? The establishment clause and the wall of separation have been milestones in the establishment of a secular rule of law that allows individuals to freely exercise their ideological rights. The supreme court indicated that pursuant to its interpretation of the establishment clause that we would have a neutral government. In this paper I will discuss the origins of the establishment clause, the theoretical framework that justifies it, and finally I discuss some hot button social issues that involve the establishment clause and their implications in terms of equal liberty. The establishment clause has generally been interpreted through judicial ruling to do two primary things. First, to prevent the establishment of a national religion by Congress. Secondly, to prohibit the preference by the U.S. government of one religion over another.1 As a principle, the establishment clause came to be during James Madison's efforts to have the constitution ratified. Madison garnered support among the local Baptists by warning them that the constitution had no safeguard against creating a new national church. This was important because their free exercise of religion. Initiating the establishment clause occurred in a two step process. The initial step was the Supreme Court’s conclusion in 1940 that the Free Exercise Clause was made applicable to the states through the Fourteenth Amendment.2 The conceptual implications were the raising of few difficulties. The application of the federal governments jurisdiction over the states created the federalism framework that ensures each states actions are constitutional. Additionally, the Due Process Clause protects those rights in the Bill of Rights “implicit in the concept of ordered liberty,” which made the protection of the establishment clause necessary. Moreover, free exercise of religion is an extremely important individual right.3 The establishment clause has been used in many cases to draw the boundaries of state activities. Specifically, in terms of financial aid for religious purposes or to religious institutions. One key example of this is the 1899 Bradfield v. Roberts supreme court case.4 The issue here was that the federal government provided funds to a hospital operated by a Roman Catholic institution. In that case, the Supreme Court ruled that the funding was specifically given to a secular organization i.e. the hospital and was therefore permissible. This is important because it established the precedent that the state could not fund a religious institution. Another critical case in this matter was the 1947 case of Everson v. Board of Education, in which the Supreme Court upheld a New Jersey statute that was funding student transportation to schools, whether parochial or private. Justice Hugo Black explained that the establishment of religion" clause of the First Amendment means at least that “neither a state nor the federal government can set up a church.5 Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor coerce an individual to attend or to remain away from church against his/her freewill or force him/her to profess a belief or disbelief in any religion. Moreover, the ruling held that no person can be punished for entertaining or professing religious beliefs and ideologies or disbelief's, for church attendance or non-attendance. Another important precedent founded here is that fact that no tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Additionally, it is impermissible for either a state or the Federal Government to, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. As stated by Thomas Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State."6 The infamous lemon test was developed in the 1971 ruling of Lemon v. Kurtzman in which the Supreme Court ruled that government may not "excessively entangle" with religion. The issue for the case involved two state laws: one of which was permitting the state to "purchase" services in secular fields from religious schools, and the other permitted the state to pay a percentage of the salaries of private school teachers, which included teachers in religious institutions.7 The Supreme Court found that the government was "excessively entangled" with religion in both scenarios, and consequentially it invalidated the statutes in question. The excessive entanglement test, together with the secular purpose and primary effect tests thereafter became known as the Lemon test, which judges have often used to test the constitutionality of a statute on establishment clause grounds. This test has been critical in preserving the equal liberty of citizens. On the other hand, Mueller v. Allen in 1983 where the Court upheld a Minnesota statute permitting the use of tax revenues to reimburse parents of students represents the limitations of the Lemon Test. In this decision the Court indicated that the Minnesota statute granted such aid to parents of all students, whether they attended public or private schools. This is important in terms of the principle of equal liberty, because individuals are all equally able to access the benefits. Furthermore in Tilton v. Richardson which occurred in 1971, the Court permitted the use of public funds for the construction of facilities in religious institutions of higher learning.8 This case also indicated the boundaries of the Lemon Test because it was found that there was no "excessive entanglement" since the buildings were themselves not religious, unlike teachers in parochial schools. Additionally, because the aid came in the form of a one-time grant, rather than continuous assistance the state was further justified in providing the institution with the funds. Beyond financial aid and support, religious activity and prayer in public schools has been another hot issue that the Supreme Court made several rulings on. The first of which was Engel v. Vitale in 1962.9 This case involved the mandatory daily recitation by public school officials of a prayer written by the New York Board of Regents. The prayer specifically mandated the school officials to say "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country". The pray is extremely clear in its religious affiliation. The Supreme Court deemed it unconstitutional. Justice Black explained that "it is no part of the official business of government to compose official prayers for any group of American people to recite as part of a religious program carried out by the Government." The reading of the Lord's Prayer or of the Bible in the classroom of a public school by the teacher was ruled unconstitutional in 1963 by Abington Township v. Schempp. In this case the Supreme Court established the "secular purpose" and "primary effect" tests, which determined compatibility with the establishment clause. At the most basic level, the law in question must possess a valid secular purpose, and its primary implication must not be to promote or inhibit a particular religion.10 In the 1985 case of Wallace v. Jaffree, the Supreme Court ruled against an Alabama law whereby students in public schools were forced to observe a daily period of silence for the purpose of private prayer. What is interesting here is the fact that the Court did not find that the moment of silence was itself inherently unconstitutional. Instead, it ruled that Alabama lawmakers had codified the statute for the sole purpose of advancing religion, thereby violating the secular purpose test.11 Additionally, in the 1992 case of Lee v. Weisman, the Supreme Court ruled unconstitutional the offering of prayers by religious officials before voluntarily attended public ceremonies such as graduation. Thereby establishing the precedent that the state could not conduct religious exercises at public occasions, even if attendance was not strictly compulsory. This principle even supersedes communal agreements of breaching the establishment clause.12 Specifically, in Santa Fe Independent School Dist. v. Doe, the Court ruled that a vote of the student body could not authorize student-led prayer prior to school events. Another important case that involves public prayer is the Elk Grove Unified School District v. Newdow decision of 2002. In this Court decision the justices voted down a California law providing for the recitation of the Pledge of Allegiance due to the fact that it includes the phrase "under God".13 Each House of Congress passed resolutions reaffirming their support for the pledge; the Senate vote was 99–0 and the House vote was 416–3. The Supreme Court heard arguments on the case, but did not rule on the merits, instead, reversing the Ninth Circuit's decision on standing grounds. The social argument here is that reciting “under god” by no means forces students to observe a religion, as well it is embedded in a secular pledge. On the other hand, “under god” is explicitly religious in connotation and when its compulsory it in some form of another causes students to make an ideological statement that is by no means strictly secular.14 Beyond financing religious institutions and public prayer, another issue where the establishment clause has been a critical standard in deciding the cases has been religious displays. In the 1984 case of Lynch v. Donnelly. The Court upheld the public display of a creche, in the ruling the justices indicated that any benefit to religion was "indirect, remote, and incidental."In terms of equal liberty this case set the precedent that the state may not directly benefit religions through public displays. Furthermore, five years later in 1989, the Supreme Court heard the case of Allegheny County v. Greater Pittsburgh ACLU.15 In this case the Court struck down a creche display, due to the fact that it occupied a prominent position in the county courthouse and bore the words Gloria in Excelsis Deo, the words that the Bible indicates were sung by the angels at the Nativity. This indicated that there was a direct benefit to a religion because the display went beyond symbols as well it centralized the focus on the display. What is interesting about the Allegheny ruling is the fact that the Court upheld the display of a nearby menorah, which appeared along with a Christmas tree and a sign saluting liberty. The justification for the ruling indicated that "the combined display of the tree, the sign, and the menorah simply recognizes that both Christmas and Hanukkah are part of the same winter-holiday season, which has attained a secular status in our society. This created the standard that religious activity can be accepted insofar as it has gained secular status in the social system at large.16 These cases have been crucial in establishing the wall of separation between church and state. There are a couple reasons as to why it is important to erect a wall of separation, especially in a democratic society. The establishment clause has been critical in preserving equal liberty for each citizen and respecting their right to free expression. In societies where dogma’s are proliferated there is no wall dividing the political arena from the religious. In fact, avoiding dogma’s are key to civil societies.17 Secondly, all faith-based religion is dogmatic, inasmuch as belief in revealed truths does not require or allow critical thought. To be fair, this is not to say that theists don't think about their dogmas. They do, but they don't investigate the claims in the same way that a skeptic would. To the faith-based theist, the holy text is True without question; study and criticism merely add clarity and interpretation. This kind of questioning is commonplace, for example, in the Judeo-Christian tradition.18 To a skeptic, any proposition regardless how venerated might be false. In a democratic society it is important that individuals are skeptical of the representatives, the laws, and the status quo. This is key to the democratic process and preserving the freedoms of individuals. When dogmas are at large, individuals are willing to sacrifice their freedoms as well as the freedoms of others.19 We reside in the era of the rational being. Mankind has accepted logic as the primary method through which decisions are calculated. In terms of the constitution and the establishment clause, there have been many developments in its application. The important facet is that individuals who are a part of the minority groups still fill comfortable living within our social system. 20 This has been done by ensuring that the majority at any level does not impose their ideological foundations on any group or persons. Specifically in terms of religious displays, prayer in public schools, and even financing religious institutions. The establishment clause preserves the equal liberty of all persons by ensuring that the state does not unfairly support one faith or institution over any other. What is becoming increasingly relevant in the social arena is the question whether or not students have the right to discuss religious issues within educational facilities. Democratic Principles have established Separation of Church and State as a means of preventing the politicization of religion. Therefore the discussion of sensitive religious issues within the context of state sponsored educational activities violates the wall of separation between the church and the state. According to the first amendment of the constitution: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ."21 This notion has been long extended since its inception through various legal codes and supreme court decisions. The Supreme Court Decision of McCollum v. Board of Education was a historic evaluation of the separation of church and state within the public school system. The issue revolved around the states ability to use its tax supported dollars to aid religious instruction. The discussion of the wall of separation would not be complete without discussing its broad reaching implications. This has been an extremely important clause for a number of reasons, but most importantly, is the fact that it saves the lives of American citizens by preventing the escalation of religious conflict and avoiding state sponsored conflict. Between 1940 and 2000 there were 42 religious civil wars.22 Religion was central in 25 of the wars and peripheral in 17. An examination of the occurrence of civil wars across the decades reveals an increase in the proportion of religious civil wars. From the the 1940’s to the 50’s the occurrence rose from 20 to 30 percent. By the 90’s this figure reached approximately 45 percent.23 These wars are still ongoing in the modern era and have not escaped even the most ration of beings. What is important here is the fact that these wars take place in areas where there is no separation of church and state and the wall of separation that our country has worked so hard to build is not existent in such countries.24 In fact, as of the year 2000, there were 14 ongoing wars and 7 of which were religious. This is a startling figure that indicates religion is a sensitive issue and, if we aren't careful, it can lead to negative outcome. The existence of religion itself within a region is not the central cause of the conflict, rather it is the integration of religion with political bodies that make the conflict inevitable.25 The wall of separation has been a critical ideological standard that has consistently ensure that individuals within our society receive equal and fair treatment. The principle of equal liberty exist at the very core of U.S. values. Maintaining equal liberty for each individual means protecting all persons from situations where their beliefs are threatened. This is important because the first colonies were built by pilgrims escaping the religious persecution of the Monarch of England. It is important that, in the spirit of the founders, this country remains a safe haven to those who feel persecuted for their beliefs in their homelands. Additionally, it is important that those who practice religion within our borders feel safe and comfortable. Bibliography Bellah, Robert Neelly (Winter 1967). "Civil Religion in America". Journal of the American Academy of Arts and Sciences 96 (1): 1–21. Archived from the original on 2005-03-06. http://web.archive.org/web/20050306124338/http://www.robertbellah.com/articles_5.htm. From the issue entitled Religion in America. Hall, Mark David. “Jeffersonian Walls and Madisonian Lines: The Supreme Court’s Use of History in Religion Clause Cases.” Oregon Law Review 85 (2006), 563-614 Hamilton, Marci A. (2005). God vs. the Gavel: Religion and the Rule of Law. Cambridge: Cambridge University Press. ISBN 0521853044. Jefferson, Thomas. “Jefferson’s Letter to the Danbury Baptists: The Final Letter, as Sent.” The Library of Congress Information Bulletin: June 1998. Lib. of Cong., June 1998. Marnell, William, H. (1964). The First Amendment: Religious Freedom in America from Colonial Days to The School Prayer Controversy. Doubleday & Company. Scarberry, Mark S. (April 2009). "John Leland and James Madison: Religious Influence on the Ratification of the Constitution and on the Proposal of the Bill of Rights". Penn State Law Review 113 (3): 733–800. http://pennstatelawreview.org/articles/113%20Penn%20St.%20L.%20Rev.%20733.pdf. Wiecek, William M.; United States. Permanent Committee for the Oliver Wendell Holmes Devise (2006). "The Establishment of Religion". The birth of the modern Constitution: the United States Supreme Court, 1941-1953. Cambridge University Press. pp. 250–284. ISBN 978-0-521-84820-6. http://books.google.com/books?id=eaAivaq6zVAC&pg=PA250. Read More