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

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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. …
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Equal Liberty and the Establishment clause, then and now
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Download file to see previous pages 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. 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. 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.

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. ...Download file to see next pagesRead More
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