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Equal Liberty And The Establishment Clause, Then And Now - Essay Example

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I. Introduction: 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…
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Equal Liberty And The Establishment Clause, Then And Now
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I. Introduction: 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, finally, I will discuss some hot button social issues that involve the Establishment clause. II. Origins of the Clause A. The Establishment clause has generally been interpreted to prohibit 1) the establishment of a national religion by Congress, or 2) the preference by the U.S. government of one religion over another. A. The Establishment clause arose during James Madison's efforts to have the constitution ratified. Virginia had disestablished the gentry-supported Church of England during and after the American Revolution. B. He garnered support among the local Baptists by warning them that the constitution had no safeguard against creating a new national church. B. The process of incorporating the two Religion Clauses in the First Amendment was twofold. The first step was the Supreme Court’s conclusion in 1940 that the Free Exercise Clause was made applicable to the states through the Fourteenth Amendment. A. Conceptually, this raised few difficulties: the Due Process Clause protects those rights in the Bill of Rights “implicit in the concept of ordered liberty,” B. and free exercise of religion is a quintessential individual right (and had been recognized as such at the state level from the beginning). C: Financial assistance A. Bradfield v. Roberts (1899). The federal government had funded a hospital operated by a Roman Catholic institution. In that case, the Court ruled that the funding was to a secular organization—the hospital—and was therefore permissible. B. Everson v. Board of Education (1947), the Supreme Court upheld a New Jersey statute funding student transportation to schools, whether parochial or not. Justice Hugo Black held,The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the federal government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. 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. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between church and State." C. Lemon v. Kurtzman (1971), the Supreme Court ruled that government may not "excessively entangle" with religion. The case involved two state laws: one permitting the state to "purchase" services in secular fields from religious schools, and the other permitting the state to pay a percentage of the salaries of private school teachers, including teachers in religious institutions. The Supreme Court found that the government was "excessively entangled" with religion, and 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. D. It was held that in both cases, the state unconstitutionally provided aid to religious organizations. The ruling was partially reversed in Mueller v. Allen (1983). There, the Court upheld a Minnesota statute permitting the use of tax revenues to reimburse parents of students. The Court noted that the Minnesota statute granted such aid to parents of all students, whether they attended public or private schools. E. Tilton v. Richardson (1971), the Court permitted the use of public funds for the construction of facilities in religious institutions of higher learning. It was found that there was no "excessive entanglement" since the buildings were themselves not religious, unlike teachers in parochial schools, and because the aid came in the form of a one-time grant, rather than continuous assistance. One of the largest recent controversies over the amendment centered on school vouchers—government aid for students to attend private and predominantly religious schools. D. Prayer in Public Schools A. Engel v. Vitale in 1962. The case involved the mandatory daily recitation by public school officials of a prayer written by the New York Board of Regents, which read "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country". The Supreme Court deemed it unconstitutional and struck it down, with Justice Black writing "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. B. Abington Township v. Schempp (1963), the case involving the mandatory reading of the Lord's Prayer in class, the Supreme Court introduced the "secular purpose" and "primary effect" tests, which were to be used to determine compatibility with the establishment clause. Essentially, the law in question must have a valid secular purpose, and its primary effect must not be to promote or inhibit a particular religion. Since the law requiring the recital of the Lord's Prayer violated these tests, it was struck down. The "excessive entanglement" test was added in Lemon v. Kurtzman (vide supra). C. Wallace v. Jaffree (1985), the Supreme Court struck down an Alabama law whereby students in public schools would observe daily a period of silence for the purpose of private prayer. The Court did not, however, find that the moment of silence was itself unconstitutional. Rather, it ruled that Alabama lawmakers had passed the statute solely to advance religion, thereby violating the secular purpose test. D. Lee v. Weisman (1992), the Supreme Court ruled unconstitutional the offering of prayers by religious officials before voluntarily attended ceremonies such as graduation. Thus, the Court established that the state could not conduct religious exercises at public occasions even if attendance was not strictly compulsory. In Santa Fe Independent School Dist. v. Doe (2000), the Court ruled that a vote of the student body could not authorize student-led prayer prior to school events. E. Elk Grove Unified School District v. Newdow (2002), which struck down a California law providing for the recitation of the Pledge of Allegiance (which includes the phrase "under God") in classrooms. 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. E. Religious displays A. Lynch v. Donnelly (1984), and again in Allegheny County v. Greater Pittsburgh ACLU (1989). In the former case, the Court upheld the public display of a creche, ruling that any benefit to religion was "indirect, remote, and incidental." In Allegheny County, however, the Court struck down a creche display, which occupied a prominent position in the county courthouse and bore the words Gloria in Excelsis Deo, the words sung by the angels at the Nativity (Luke 2:14 in the Latin Vulgate translation). At the same time, the Allegheny County Court upheld the display of a nearby menorah, which appeared along with a Christmas tree and a sign saluting liberty, reasoning 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. III. Theoretical Framework a. Avoidance of dogmas key to civil society. a. As a fundamental element of religion, the term "dogma" is assigned to those theological tenets which are considered to be well demonstrated, such that their proposed disputation or revision effectively means that a person no longer accepts the given religion as his or her own, or has entered into a period of personal doubt. b. 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. To a skeptic, any proposition regardless how venerated might be false. A skeptic lacks faith altogether. Investigations may be empirical or logical, but can always be used to evaluate, eject or accept a proposition. The whole idea of Truth exists only for the dogmatist, not for the skeptic. IV. Hot Button Issues A. Under God in the Pledge B. In God we Trust V. Conclusion Read More
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