Monday, October 27, 2008

We're all anti-establishment, but what is the establishment?

Marriage is just one issue that is potentially affected by what is known as "the Establishment clause" of the U.S. Constitution. takes this tack:

Leaders of the Religious Right claim that government has authority to promote religion. They say the First Amendment’s prohibition on laws "respecting an establishment of religion" prevents only the establishment of a national church such as exists in some European countries. The historical record refutes their view....

Consistent with the Constitutional Convention's decision to deny the government any power to deal with religion, the language adopted for the First Amendment bans not just a national church. Instead, it prohibits any laws "respecting" an establishment of religion. Church-state scholar John Swomley explains that the word "respecting" meant then, as it does now, concerning, touching upon, in relation to, or with regard to.

Moreover, constitutional historian C. Herman Pritchett states: "The phrase ‘establishment of religion’ must be given the meaning that it had in the United States in 1791, rather than its European connotation. . . . It was . . . nonpreferential assistance to organized churches that constituted ‘establishment of religion’ in 1791 and it was this practice that the Amendment forbade Congress to adopt."

Pritchett's view is supported by the fact that in the six states that still retained establishments in 1791, none had an establishment of a single church. Each supported multiple denominations of Christianity.

Of course, those six states eventually followed the example of the federal government by separating church and state. In doing so, they interpreted the separation principle as calling for an end to their nonpreferential support of religion.

Additionally, the writings of Madison and other founders show that nonpreferential governmental support was considered "establishment of religion" in the parlance of the time. For example, as a member of the Virginia House of Delegates, Madison successfully opposed a bill that would have granted nonpreferential tax support for Christian education. Although the bill sought to provide aid for all Christian denominations, Madison repeatedly referred to it as a proposed "establishment."

It's no surprise that Alan Keyes takes a different view:

When he ordered the removal of the Ten Commandments monument from the Supreme Court building in Alabama, federal judge Myron Thompson stated that the issue at stake involved the question of whether or not the state has the right to acknowledge God.

Actually, this formulation is a distraction from the real issue, which is whether or not Myron Thompson or any other federal judge has the right to interfere with state actions that may or may not constitute an establishment of religion.

Someone who simply reads the text of the Constitution of the United States would be thoroughly surprised to learn that a federal judge claimed the right to act in this manner. The First Amendment to the Constitution plainly states: "Congress shall make no law respecting an establishment of religion. . . ." Since there can be no federal law on the subject, there appears to be no lawful basis for any element of the federal government—including the courts—to act in this area.

Moreover, the 10th Amendment to the Constitution plainly states that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." This means that the power to make laws respecting an establishment of religion, having been explicitly withheld from the United States, is reserved to the states or to the people.

Taken together, therefore, the First and 10th Amendments reserve the power to address issues of religious establishment to the different states and their people.

Ah, but what of the 14th Amendment? "joe" cites a U.S. Supreme Court decision:

The court pointed out in Everson v. Board of Education (1947) that after the Fourteenth Amendment made the First Amendment applicable to the states, the Establishment Clause means that neither the federal government nor a state "can pass laws which aid one religion, aid all religions, or prefer one religion over another."

Keyes dismisses it:

We have already seen that the actual language of the Constitution does not forbid an establishment of religion. Rather, it forbids Congress to legislate on the subject at all, reserving it entirely to the states. No language in the 14th Amendment deals with this power of government.

The First Amendment Center disagrees:

For the first 150 years of our nation’s history, there were very few occasions for the courts to interpret the establishment clause because the First Amendment had not yet been applied to the states. As written, the First Amendment applied only to Congress and the federal government. In the wake of the Civil War, however, the 14th Amendment was adopted. It reads in part that “no state shall ... deprive any person of life, liberty or property without due process of law... .” In 1947 the Supreme Court held in Everson v. Board of Education that the establishment clause is one of the “liberties” protected by the due-process clause. From that point on, all government action, whether at the federal, state, or local level, must abide by the restrictions of the establishment clause.

Well, sometimes:

I reported in July 2002 on a court case concerning the use in the Byron, California school district of a three-week curriculum unit called Islam: A Simulation of Islamic History and Culture, 610-1100. Among other things, these materials instruct students to fight mock battles of jihad against "Christian crusaders" and other assorted "infidels," after which, upon gaining victory, they "Praise Allah." I pointed out how "This simulation blatantly contradicts Supreme Court rulings which permit public schools to teach about religion on condition that they do not promote it"...

U.S. District Judge Phyllis J. Hamilton found no evidence that the simulation induced students to engage in activities with devotional or religious intent. She ruled that no reasonable student would find the assignment to be an endorsement of Islam.

Praise Allah.

Enter Rick Warren, who is doing his best to be disliked by everybody. (Perhaps that means he's right.) In the video, he makes the point that marriage has been practiced as a heterosexual institution in all religions for the last 5,000 years. Although Warren doesn't make the point, perhaps he believes that since heterosexual marriage is not exclusive to a single religion, it is therefore not an "establishment."

But if, as many assert, the establishment clause can be applied to establishment of ALL religions (rather than just establishment of one religion over another), then where does that leave marriage (which is not solely practiced by Christians, but by people of many faiths)? asserts that marriage has both a sacred and a secular basis:

Marriage has a long history in the religious world. It has become so ingrained in the social fabric of the people of the nation, and indeed of the world, that the benefits of marriage to society at large became apparent. Because this religious rite had so many secular benefits, it became recognized by the secular world, and became subject to governmental definition and regulation.

In the religious world, marriage is almost exclusively the committed union between a single man and a single woman.

It should be noted, however, that there are religious groups that presently practice (or formerly practiced) polygyny. Moving on:

With so many disparate religions seeing marriage as a crucial part of the religious life of their adherents, with so many benefits, it was inevitable that government would also see these same benefits. In the end, the goal of good government is maintaining order and providing for its members. Secular marriage is seen in this light.

So if something is both sacred and secular, how does one determine whether something such as marriage, murder, or communion is an "establishment" of religion? By the Lemon Tests:

Based on its 1971 decision in the case of Lemon v. Kurtzman, the Supreme Court came up with the three "tests" of any religion-related law. The "Lemon" test is still used by the Court today to determine whether or not the law meets constitutional muster. In order for any law to satisfy the First Amendment, it:

1. Must have some secular, or non-religious legal purpose;
2. must neither promote or inhibit the practice of religion; and
3. must not must not foster "an excessive government entanglement with religion."

In its Lemon decision, the Supreme Court concludes, "[i]f a statute violates any of these three principles, it must be struck down under the Establishment Clause."

Thus, prohibitions on murder and promotion of marriage meet the Lemon Tests, while something such as communion would fail the first test.

The second test is interesting when applied to gay marriage. Depending upon how gay marriage is implemented, it could be construed to "inhibit the practice of religion." Certainly a mere allowance of gay marriage would not inhibit religion, but a requirement that Catholic, Mormon, Lutheran Missouri Synod, and other churches be REQUIRED to perform gay marriage could be considered an inhibition.

Well, we'll just see what the practitioners of the religion of Molech have to say about all this.

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