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"Separation of Church and State":

The New York Times is running an interesting series on voluntary religious accommodations -- mostly statutory exemptions for religious institutions and individuals from generally applicable laws, exemptions that are not mandated by the Free Exercise Clause. One tidbit from the first item struck me:

An analysis by The New York Times of laws passed since 1989 shows that more than 200 special arrangements, protections or exemptions for religious groups or their adherents were tucked into Congressional legislation, covering topics ranging from pensions to immigration to land use. New breaks have also been provided by a host of pivotal court decisions at the state and federal level, and by numerous rule changes in almost every department and agency of the executive branch.

The special breaks amount to "a sort of religious affirmative action program," said John Witte Jr., director of the Center for the Study of Law and Religion at the Emory University law school.

Professor Witte added: "Separation of church and state was certainly part of American law when many of today's public opinion makers were in school. But separation of church and state is no longer the law of the land."

Now I think there are quite good arguments against religious-specific exemptions that end up giving special treatment to religious institutions and individuals that's not available to comparable nonreligious institutions and inviduals, though there are also often good counterarguments. It is this skepticism about favoritism for religion that led the Supreme Court, for instance, to read the conscientious objector exemption from draft laws to apply to people who have deeply held nonreligious philosophical objections to war as well as to those who have religious objections.

But note how unhelpful the appeal to separation of church and state is here. The exemptions discussed in the story generally involve the government's decision not to apply various regulations and restrictions (various child care center regulations, employment discrimination laws, financial disclosure laws for charities, and the like) to religious institutions. A few involve exemptions for religious individuals, but most involve religious institutions.

Such decisions to leave church free from state regulation, it seems to me, are separation of church and state, at least under one plausible definition of "separation." It is abolishing the affirmative action for religion, by applying laws to religious institutions the same way it's applied to other institutions, that would bring church and state closer, here in the sense of having the state have more authority over the church. In fact, one form of "separation of church and state" that many "separationist" judges and legal scholars have urged is (1) discriminatory exclusion of religious institutions from many generally available government-run benefits (such as school choice funds), but (2) preferential exemption of religious institutions from many generally available government-imposed restrictions (such as many aspects of employment laws, historic preservation laws, and the like).

Of course, one can define "separation of church and state" to mean "the state ignoring people's and institutions' religion and religiosity, and treating everyone equally regardless of their church affiliation or lack thereof." This would mean (1a) evenhanded inclusion of religious institutions in generally available government-run benefits, (1b) prohibition on preference for religious institutions in such benefits, (2a) evenhanded application of generally applicable laws to religious institutions and people (though perhaps with some exemptions to some laws for all conscientious objectors to that law, whether the objection is religious or secular philosophical), and (2b) prohibition on laws that single out religious institutions and people for special burdens. Some judges and legal scholars have endorsed this view, though generally without calling it "separation." (My view comes close to this one, though with a few exceptions that I don't want to dwell on here, since this post is about the phrase "separation of church and state" rather than about any particular legal proposal.)

One can also, I imagine, define "separation of church and state" as "discriminatory exclusion of religious institutions from generally available funding programs, but evenhanded coverage of religious institutions and people in regulatory programs." That seems an odd definition to me, but who can say for sure?

My point here is that "separation of church and state" is more a slogan than a well-defined term. Though it seems to me that it should cut in favor of such "affirmative action" programs that exclude religious institutions from generally applicable burdens, obviously others use the term diferently, and the term is capacious enough to be used differently. And on top of that, even those who take the first view of separation that I described -- exclusion from some benefits and exemption from some burdens -- have to explain just where they draw the line: Few, for instance, would bar the police or fire departments from investigation crimes or putting out fires at churches, or would bar cities from providing the same tax-subsidized sewer access to churches as they do to all other institutions.

So when you hear talk of "separation of church and state," keep in mind that this term by itself isn't much of a well-defined legal concept (such as, say, "probable cause," "strict scrutiny," or even "freedom of speech," as defined by the Court's decision) or a clear philosophical concept. It's generally a slogan, these days probably mostly a means for rallying people with a certain set of attitudes about religion-and-government issues, not a helpful tool for analysis.

Steve:
I don't want to get all Lemony, but it seems to me that avoiding excessive entanglement between church and state is a valid policy goal. In other words, as a general matter, laws ought to apply equally to everyone. But where a law is sufficiently intrusive as applied to religious organizations that it would effectively put government in the position of micromanaging that organization's affairs, it seems appropriate to simply grant an exemption.

For example, one currently hot topic involves partisan advocacy by churches. Religious organizations are not supposed to be in the business of supporting a particular candidate or party, lest they lose their tax exemption, and most churches abide by this. But imagine if we were to take the enforcement of this provision seriously - we would have government functionaries reviewing copies of sermons, poring over church literature, making sure nothing crosses the line into partisan politics. Most of us would find that intolerable.

In this case, one solution that frees the churches from intrusive government oversight would be to simply eliminate the tax exemption for churches in general, thus freeing them to advocate for whatever they want. (The same would be accomplished if we eliminated exemptions for charities and non-profits across the board.) Another solution would be to lift the bar on partisan advocacy. Obviously, these would all have detrimental policy effects to one extent or another. I'm not convinced, however, that our present policy of having a rule in place but basically giving a wink and a nod to any violations of the rule is the best answer.
10.10.2006 6:09pm
PaulV (mail):
Funnt, there is nothing in First Amendment about separation of church and state. It prohibits Congress from enacting a law respecting establishment of religion or any law that prohibits the free exercise of religion. Going to source makes this easier to analyse
10.10.2006 6:17pm
Virginia:
It is one thing to argue that the government can neither subsudize churches nor interfere in their internal affairs. That is "separation of church and state."

It is quite another thing to argue that otherwise constitutional government action becomes unconstitutional because support for that action comes from "religious" or "sectarian" legislators/officials/voters. The latter proposition has nothing to do with separation of church and state or, for that matter, with the Constitution. Unfortunately, it crops up frequently in modern jurisprudence.
10.10.2006 6:28pm
Virginia:
"subsudize" = subsidize
10.10.2006 6:29pm
Dilan Esper (mail) (www):
PaulV:

And the Fourteenth Amendment applies that doctrine to the states as well as Congress.

Plus, the establishment clause and the free exercise clause are mechanisms for separating church and state, i.e., no governmental endorsement of religion, and no interference with religion.

I do agree with Professor Volokh's broad point, which is that the "separation of church of state" slogan doesn't really answer the question of what to do about religious exemptions, but just because the framers didn't use the words "separation of church and state" in the Constitution (though Jefferson used it in another context) doesn't mean that the Constitution doesn't separate church and state.
10.10.2006 6:29pm
Preferred Customer:

But note how unhelpful the appeal to separation of church and state is here. The exemptions discussed in the story generally involve the government's decision not to apply various regulations and restrictions (various child care center regulations, employment discrimination laws, financial disclosure laws for charities, and the like) to religious institutions. A few involve exemptions for religious individuals, but most involve religious institutions.

Such decisions to leave church free from state regulation, it seems to me, are separation of church and state, at least under one plausible definition of "separation."




Hypothetically, if the state were to begin systematically exempting religious institutions from all generally applicable laws, how would this be any different in effect from laws that specifically favored religious groups? Assume two groups, group X and group Y--one can favor group X either directly or indirectly, by either passing laws that directly favor group X or by imposing rigorous requirements on group Y and exempting group X from those requirements.

Even under PaulV's strict formulation, we could imagine a series of punitive regulations with religious exemptions that might amount to a de facto "establishment" of religion by the state--imagine, e.g., 90 or 100 percent taxes imposed on any and all social organizations, religious groups excepted. Or, even worse (and concededly unlikely), imagine laws that exempted members of religious organizations from prosecution for "normal" criminal activities.

We can quibble over whether such extreme examples are ever likely to be a concern, but the panoply of federal regulation has grown so pervasive that freedom from those strictures can be a real boon. If there truly is a trend toward exempting religious groups from generally applicable regulations (as the article suggests), it doesn't seem at all far-fetched to call into question whether the government is remaining "separate" from religion, or whether instead the government has decided to intervene on behalf of religion by simply allowing it to play by rules different from those that apply to everyone else.
10.10.2006 6:43pm
Jon Rowe (mail) (www):
Yes, given that the BOR have been incorporated -- and given that there is strong historical justification for incorporation (see the work of, among others, Akhil Amar) -- those who argue the Establishment Clause shouldn't be incorporated have to make a convincing argument for that proposition, beyond the glib assertion that the EC restrains only Congress.
10.10.2006 6:47pm
Houston Lawyer:
The largest part of our problem arises out of the intrusiveness of our regulatory scheme. Since we have determined to regulate on what basis a person cannot refuse to hire someone, exclusions were necessary to allow members of a religion to insist that their leaders at least belong to that religion. If we were to lessen the regulatory load, religious exemptions would be much less common.
10.10.2006 6:52pm
Phutatorius (www):
Well, if we're going to endorse the "separation of church and state" as a principle (if not a verbatim constitutional requirement), then I think we have to recognize its two dimensions: (1) separation in the sense that churches are not unduly regulated by the state, and (2) separation in the sense that the state is not unduly influenced by religion. In short, keep the state out of my church and the church out of my state.

These two dimensions, of course, roughly align with the First Amendment protections of free exercise and against the establishment of religion.

The problem I have with the prerogatives granted to churches -- be they tax exemptions or the ministerial exception that in some circuits disemburden them from complying with antidiscrimination laws -- is that the same folks handing out these prerogatives like candy are elsewhere doing their best to get religion into government. This is attempted directly, through "faith-based programs" (see the series in the Boston Globe that describes taxpayer-funded foreign aid programs that are committed to evangelizing Christianity in Africa and awarding business loans to Christians -- but not Moslems -- in Pakistan), and indirectly, through the efforts of the religious right to transform the law in a way that parrots back their religious dogma and impresses it on the nation's majority of non-adherents.

So yes, Professor, you can isolate this phenomenon and recite the principle of "separation of church and state" in defense of it. But you know and I know that what the Times and Globe are describing is not an effort at separating church and state so much as the inevitable result of an alliance between the two: statutory and common law exemptions to churches, on one hand, and the subjection of the public interest to the goals of (again, certain) churches, on the other.

This isn't a principled Administration and Congress grappling meaningful with an important (but sadly neglected) component of separationism. This is an interest group exacting its pound of flesh from the politicos -- some of it comes in the form of regulatory exemptions that (incidentally) advance the separationism you've identified, and the rest comes in the form of government contracts to religious organizations, or pledges to cut funding for contraception.

I'm happy to keep the state away from religion, if religion will, in turn, pull out of my government. And for what it's worth, I think the Founders, many of whom knew full well the danger posed by a religiously-vested government, would stand with me.
10.10.2006 7:10pm
Archon (mail):
Let me make it really easy to understand the establishment clause - its sole purpose was to forbid Congress (and coincidentially only Congress) from establishing a state religion. That's it. Nothing more.

It was never meant to end prayer in state owned schools, prevent school vouchers, or tear down the 10 commandments in public buildings.

The most violence done to our constitution is not by Bush or overzelous police officers - it is done by those who perverted this clause.
10.10.2006 7:20pm
jdmurray:
It has always seemed to me that for the government to even ask the question "is this a religious entity" puts it in a position of power over that entity. If special exemptions are involved, find an excuse (like the mention of any given politician in last Sunday's sermon) and yank the exemption. The problem with special burdens is equally obvious.

Steve, when you say
But where a law is sufficiently intrusive as applied to religious organizations that it would effectively put government in the position of micromanaging that organization's affairs, it seems appropriate to simply grant an exemption...
is there really a reason to single out religion for this? Why not apply that principle across the board?
10.10.2006 7:30pm
Randy R. (mail):
I always love it when people argue that the 10 Commandments ought to be in public buildings, especially court houses. First, which one? There are at least two versions in the Bible. Second, if you are going to put that up, why not the Four Pillars of Islam? I'm sure many religions have point-by-point checkoff, so let's not stop at the Bible.

But I would love to see people take those 10 Commandments seriously. My fav, of course, is that one that prohibits graven images. Wasn't there a debate about the 10 being engraved in granite that was suppossed to be on public land? Well, wouldn't that monument itself violate that commandment? And what exactly IS a graven image? Photographs? Woodcuts? Words cut into stone? And is there any law in the US that prohibits such 'graven images?'

I mean, it doesn't take a brain trust to figure out that most of the Commandments aren't even a law. Honor your father and mother? Nice to do, but if you don't there is no court of law that would hear your case. Don't covet your neighbors slaves -- oh, I mean 'servants.' How nice that the 10 have been cleaned up to be politically correct for our times. But slaves are slaves -- and if there good enough for the Bible, then they are good enough for me. Where can I get some?
10.10.2006 7:34pm
Randy R. (mail):
As for prayer in schools, they have never been prohibited by law. Some educators may misread the law, but students can pray whenever they want to. Organized prayer, by contrast, IS against the law, and for good reasons. Unless, of course, you are perfectly comfortable to have your children praying to Mohammad as well as to Jesus. And why, pray tell, is it so necessary?

Finally, when it comes to school vouchers, many people are against them for many reasons. Perhaps one is the 1st Amendment grounds. But I'm a single gay man, and I pay property taxes, just like everyone else. And I really don't want my tax money, that is, MY money, going to fund a religious school that teaches that gay people are evil, or that creationism is how the world began.

Or that George Bush talks to God and that's why good Christian people should vote for him.
10.10.2006 7:39pm
Archon (mail):
Our system of law is partially based on the 10 commandments.

Furthermore, you live in a society where the majority believes in God and their elected representatives mirror those beliefs. So, of course, you will find references to it in our laws and public displays. The same would be true if the majoritarian view was Muslim, Athiest, or Buddist.

Learn to tolerate the fact that the majority of Americans believe in God instead of perverting our constitution in order to forward your agenda of intolerance.
10.10.2006 7:40pm
frankcross (mail):
Let's move past all the rants and think about this practically. This is fabulous rent-seeking. Religious organizations can run businesses, e.g., child care, with a much lower cost structure because of no need to comply with government regulations. Giving them a big advantage over ordinary companies.

This makes me wonder about the extent to which religions lobby for such protections for financial issues.
10.10.2006 7:43pm
JB:
Randy R: Which of the five pillars of Islam should they not put up alongside the 10 commandments?

(end snark)

You make a great point. Why should we put up a foreign legal code in our houses of law? Since the 10 Commandments forbid some things that are legal under US law, and allow some things that US law forbids, putting them up seems to me to be of questionable value.
10.10.2006 7:52pm
Archon (mail):

Since the 10 Commandments forbid some things that are legal under US law, and allow some things that US law forbids, putting them up seems to me to be of questionable value.



Maybe we should put it up because it has historic value and not because it is controlling law today.
10.10.2006 7:56pm
bruce (mail):
by exempting churches/religion from legal requirements applicable to everyone/thing else, that means we are all involuntarily forced to fund or otherwise support religion/religious people. That is squarely a separation of church and state issue.

Every $100 a church does NOT have to pay the government is $100 the rest of secular society does have to pay.
10.10.2006 7:58pm
Steve:
Learn to tolerate the fact that the majority of Americans believe in God instead of perverting our constitution in order to forward your agenda of intolerance.

Lots of people who believe in God don't believe the Ten Commandments should hang in courthouses.

It's an interesting conception of tolerance, where the minority is expected to tolerate the majority, but not vice versa. Some would say that makes the majority seem a tad intolerant.
10.10.2006 7:58pm
Archon (mail):
Why does the majority have to be "tolerant" by comprimising their beliefs when the minority demands it? Hmmm...that seems like the minority is intolerant of the majority, not vice versa.
10.10.2006 8:04pm
Steve:
And if the white majority doesn't want any black people in their neighborhood, I assume you'd conclude the blacks are the intolerant ones. Since they're the minority, and all.
10.10.2006 8:08pm
Archon (mail):
Yes exactly Steve - I want all black people to be locked in small cages and sent back to Africa. How could you not derive this from my position on the display of religious sybmols. I mean displaying religious symbols and segregating people based upon their race are almost exactly the same.

Wow! Your childish, irrational comparison blows me away.
10.10.2006 8:11pm
Colin (mail):
frankcross,

Let's move past all the rants and think about this practically. This is fabulous rent-seeking. Religious organizations can run businesses, e.g., child care, with a much lower cost structure because of no need to comply with government regulations.

This is an excellent point. The NY Times series discusses this, although really only anecdotally. They do mention that a number of churches in whatever state they were focusing on chose, voluntarily, to obtain licenses. I was curious when I read that whether those churches that obtain the licenses are more competitive than those that don't, especially given Texas' experience with the poor quality of care in unlicensed religious institutions. The article doesn't go that far in-depth, unfortunately.
10.10.2006 8:15pm
Steve:
I mean displaying religious symbols and segregating people based upon their race are almost exactly the same.

Of course they're not the same. I completely understand that you think the minority should be tolerant of the majority when the majority is correct, but not when the majority is incorrect. However, that's not much of a guiding principle.

Look, I accept that we have different views of what tolerance means. I was raised on Midwestern values, where we show tolerance by accepting that different people hold different religious beliefs and letting them go their way while we go ours. You don't talk about religion at the dinner table, you don't try to wave it in people's faces, you treat it as a personal matter. And so when someone says, this is the majority religion and everyone else just needs to suck it up, I don't see that as very tolerant.

It's an odd notion of tolerance to push yourself in other people's faces, and then to complain that they're intolerant of you getting in their face. To me, prominently posting the Ten Commandments in a public building is an in-your-face gesture, and many people who believe in the Ten Commandments agree with that. To accuse even these believers of being intolerant towards religion is simply unjustified.
10.10.2006 8:26pm
Jon Rowe (mail) (www):

Let me make it really easy to understand the establishment clause - its sole purpose was to forbid Congress (and coincidentially only Congress) from establishing a state religion. That's it. Nothing more.


We are going to need more than your bare assertions to support such a broad and sweeping statement, especially when the other side can marshall quotations from founders like James Madison -- the father of the Constitution -- against your understanding.
10.10.2006 8:28pm
Archon (mail):
You should be tolerant enough of other people's belief to realize that when a religious symbol is placed in a public building it is because the elected officials who placed it there mirror the values of the people that elected them.

Tolerance is NOT demanding the removal of objects which you do not share a belief with.

If you don't like the fact that there is the ten commandments displayed in a Christian mayor's office, the pillars of Islam displayed in a muslim community public building, or a statute of buddha displayed in a public building where there are a majority of Buddhists, then just deal with it. In a free society, you will probalby be offended more then once in your life by something you don't agree with.
10.10.2006 8:33pm
Steve:
That's really your notion of tolerance? Winner take all, and it's intolerant to object?
10.10.2006 8:36pm
Randy R. (mail):
We gays suffer from the same degree of intolerance that ARchon describes. Quite often, we want the same rights as everyone else -- the right to hold a job and not be fired simply because we are gay, the right to lease an aparment and not be evicted simply because we are gay.

However, there are religious people for whom homosexuality is evil. So they want to be able to fire us or evict us. When we say no, that's not right, and even get laws passed to say that, they claim that they are being discriminated against, and that the intolerance is going their way.

In short, what they claim is that if they are preventing from discriminating against gay people, that is in itself discrimination against their religion, since their religion requires the discrimination.

This was the exact same argument made against blacks. Prior to the civil rights revolution, many whites claimed that they had a right to discriminate against blacks, and that any laws that prevented this discrimination was discrimination against themselves. It lost then, and it will lose today.

So Archon: Are we supposed to allow the 10 commandments only where there is majority of Christians, the pillars of Islam only in Muslim buildings, and Buddhas only where there are a majority of Buddhists?

Let me guess -- you are a Christian, and you live in a community where the Christians are the majority, and you really don't give a damn about the rights or sensitivities of non-Christian people, right?
10.10.2006 8:42pm
Randy R. (mail):
One more point: Freedom of religion also means freedom from religion.
10.10.2006 8:42pm
Phutatorius (www):
The only real overlap between the Commandments and the law is the two prohibitions against stealing and killing. And since probably every civilized society proscribes theft and murder (it's in fact a big part of why we form civilized societies), one has to assume that the crossover is coincidental, and not causal.

"Does more violence?" Whatever you say. If the nativity scenes are that important to you, I'll let you have them if you give up Bush and the overze[a]lous cops. Easy trade for me. I'll even throw in a "Merry Christmas" on the house.

The religious right so skillfully works the manger scenes angle, people forget that its mission doesn't stop there. The fact that I'm taxed so that some evangelical church group can wave dollars under the noses of impoverished Third Worlders -- "not until you convert" being the condition -- it outrages me. When it comes to that, hell, yeah, I'm intolerant.

Take the manger scene and run. The offer expires at midnight.
10.10.2006 8:42pm
Paddy O. (mail):
"Every $100 a church does NOT have to pay the government is $100 the rest of secular society does have to pay."

Not necessarily. Churches in our communities almost certainly bear a greater than average weight in charitable giving and charitable services. I cannot think of any church in which the tithing is entirely focused inward. Most churches, I believe, spend over 50% on outside activities, with many spending more. The biggest churches, those that are saving the most in taxes, are doing the most in community work. If churches were, by some magical or legal way, shut down the cost to taxpayers to make up for the loss of services would be immense. Or, more likely, people would just suffer for it.

Though, personally, I'm all for making churches pay the same sorts of taxes. It'd free up the pastors to participate in political discussions, and would energize the religious zeal in much better directions than building programs.
10.10.2006 8:43pm
Paddy O. (mail):
"Freedom of religion also means freedom from religion."

This is like saying freedom of politics means freedom from politics. No, it just means other sorts of politics are doing the influencing. An atheist or agnostic state is still expressing a religious preference over a portion of non-agreeing people.
10.10.2006 8:45pm
logicnazi (mail) (www):
First of all these claims that all seperation of church and state was supposed to do is prevent a state religion seem wildely unsupported to me. Many of the founding fathers, who did have considerable influence over the ammendments, were deists or otherwise not sympathetic to the notion that the government should be able to compel religiousity even if they didn't make a specific religion mandatory.

I think even an orignalist analysis of the 'seperation of church and state' requirement would support the conclusion that a law imposing criminal penalties on those not active members in some organized relition is unconstitutional. In other words seperation of church and state mandates that the government compel religiousness even if they don't specify the form of religiosity required. At the very least the government cannot discriminate against those whose religious beliefs include a rejection of organized relition.

Yet surely the first ammendment doesn't allow the government to penalize through tax/regulatory power the same thing they were not allowed to criminalize. Suppose the government exempted everyone who belonged to an organized religion from income tax (or from half of income tax). Or only applied zoning laws to those who weren't members of organized religion. Surely this would violate seperation of church and state, at the very least by discriminating against unorganized religion.

But taxes and regulations on institutions are merely indirect taxes or regulations on the individuals constituting, donating and supporting those institutions. I can see no substantive difference between saying that members of organized religions get a bigger tax write off for charitable donations and exempting the religious organizations they donate to from taxes. Some percent (say 10%) of every dollar I give to my non-religious charities goes to pay the government property tax yet my religious neighbor can donate 90% of what I do and support his causes just as effectively. Thus in effect the government has said (organized) religious folk are to be taxed at a lower rate and given more privleges than non-religious folk. This seems exactly equivalent to the scenarios I described above.

Exempting religion from regulation seems even more problematic. In effect this amounts to a fairly direct transfer of money from society's pockets to that of religion by allowing them to outcompete secular concerns trying to perform the same activity.

Even if you don't buy my claim that favoritism toward organized religion (versus unorganized religion or secularity) is a violation of the seperation of church and state pragmatically regulatory exemption seems to amount to favoritism for the dominate religions. Surely it would be just as unconstitutional to pass a law saying 'the most common religion shall be given 20 billion dollars' as it would be to say 'christianity shall be given 20 billion dollars'. Yet many of these regulatory breaks are only beneficial to churches of sufficent wealth or large enough flock. The five druids worshiping in some forest somewhere can't avail themselves of the cheaper services these religious exemptions let larger churches enjoy.

So yes I will take the position that any reasonable coherent theory of seperation of church and state either requires that one accept blanket government mandates for everyone to join some organized religion (where this might require a certain level of paperwork causing difficulties for small groups) OR that one adopt the evenhanded approach you describe. So I think the use of the phrase in the article is perfectly reasonable.

But sure, I agree that most people use it more of a slogan than a precise concept but that's not different than any term bandied about in the newspaper or public speech. If you don't like that you might as well stop reading the papers.
10.10.2006 8:54pm
Archon (mail):
Randy R -

No I am not religious. I was raised in a religious household, but stopped going to church in my teenage years. If I had to guess, it has been twenty years since I last went to any church (excluding weddings and funerals).

So now on to the meat:

1. Very few whites thought they had a "right" to discriminate against blacks. Your assertion is baseless.

2. If Muslims, Buddhists, Christians, or Jews hold the proper position to order the display of their religious symbols in a government building, so be it. Who am I to tell someone that my non-belief somehow trumps their belief. if I find the display offensive I avoid it or look the other way. That is the same thing I do when I cross a KKK rally, pornography on the street, or a shirt declaring that the wearing is a "pimp".

3. If your boss or landlord discriminate against you solely because you are gay, then advertise their hate on message boards, forums, billboards, mailings, community meetings, etc. You will quickly find that the First Amendment is a powerful tool in a free society when like minded people start boycoting the hatemonger. It will be far more effective then any law compelling a religious person to accept your lifestyle.

4. You have no right to marry, no right to live wherever you want, no right to a job, no right to live without being offended. You have the freedoms enumerated in the Bill of Rights and nothing more. Any other "rights" found therein by Courts are perversions and an afront to the rule of law.
10.10.2006 8:55pm
dick thompson (mail):
Randy,

You are wrong about kids being able to pray in school. Just last year kids were expelled from school for a period of time for holding hands and saying grace before they ate in the cafeteria. The teacher/monitor told them they could not do that because if they did then it would be as if the school supported the establishment of their religion. Granted it is because of some stupid teachers but it does happen and it happens because of some of the judicial rulings and the strong leadership of the ACLU against any kind of prayer.

I find it funny today of all days. I was called for jury duty and when we were in the courtoom (in Queens, NYC), there is a marble block behind the judge's podium with the words "In God We Trust." I am surprised that the powers that be get away with that one, especially in a liberal bastion like NYC.
10.10.2006 9:13pm
Owen Hutchins (mail):
Dick- please cite the case, and the outcome. Because that teacher was wrong (if in fact you are relating it correctly), and the ACLU has defended such cases.
10.10.2006 9:38pm
Randy R. (mail):
As I said, there is nothing wrong or illegal with kids praying in schools. What is needed is more education on the part of the teachers to know what is acceptable and what is not. Blaming judges for the failings of the teachers benefits no one.

Archon: Where do I begin?

1. Not true. Many whites argued that they had the freedom of assembly, also in the 1st Amendment, and that that if a person owned a restaurant, he could not serve blacks under this freedom, and that desegregation violated that freedom.

2. Unless the KKK rally, the pornography on the street, or the shirt wearer is an elected official or a state sponsored activity, then everyone has that right. The difference is when the KKK rally is sponsored by the Town, the pornography is on the public buildings, or the shirt wearer is the mayor. Your examples fail to prove your point.
When a criminal defendant, who is muslim, enters a courtroom and sees quotes from the Bible, can he be assured that he is not at a disadvantage because he belongs to a minority religion? That is the point, and it's the base of everyone believes he or she will be treated fairly in our court system regardless of whether they belong to the dominant religion.

3. If my boss or landlord discriminates against me solely because I am gay, there are many municipalities which declare that illegal. Thank goodness for that. I will take them to court. In those instance where it is not illegal, I can speak up, and thank goodness for that. None of these laws, however, require that anyone 'accept my lifestyle' whatever that is supposed to mean.

4. You are correct, I have no right to marry, although most other people do. I am working to insure equality on that front, and we have it in Massachusetts. As for the other rights, I agree. I would only add that you have no right to offend others with your religion, and any right found to do so would be an affront and perversion to the Constitution and rule of law. Agreed?
10.10.2006 9:40pm
Elliot Reed:
Our system of law is partially based on the 10 commandments.

This is not really on-topic, but I have to take the opportunity to debunk this particular myth. I'll work off the Exodus version:

No other gods before me: no parallel in American law.
No bowing down to graven images, sins of the father visited unto the third and fourth generations, etc.: no parallel in American law.
No taking the name of the Lord in vain: no parallel in American law.
Work for six days a week, but remember the Sabbath and keep it holy: no parallel in American law.
Honor thy father and mother: no parallel in American law.
No murder: murder is illegal in the U.S.
No adultery: adultery is grounds for divorce in those states that allow fault-based divorce, but it's not a crime.
No stealing: stealing is illegal in the U.S.
No perjury: perjury is illegal in the U.S.
No coveting: no parallel in American law.

In other words, the only points where the Ten Commandments and American law line up (no murder, no theft, no perjury) are things American law shares with every other legal system ever, and that any society would be crazy to legalize. Do people who think the Ten Commandments provide a grounding for American law just not know what they say?
10.10.2006 9:41pm
Randy R. (mail):
Minor point, but one I have to ask, since you brought it up. What exactly IS my lifestyle? I'd love to hear it, since my life is pretty normal and boring. But hey, perhaps you know more about me than I do. Lots of conservatives think that way.....
10.10.2006 9:42pm
Ship Erect (mail) (www):
Archon: Very few whites thought they had a "right" to discriminate against blacks.

What do you think the term "states' rights" meant to Strom Thurmond? And the idea that you have no other rights than those in the first ten amendments is patently absurd: just look at the Ninth.

dick thompson: it happens because of some of the judicial rulings and the strong leadership of the ACLU against any kind of prayer.

Let's hear about these judicial rulings. Please cite where the ACLU has fought "against any kind of prayer."
10.10.2006 9:47pm
Randy R. (mail):
I should amend my previous comment. it's true that I have no right to a job, or a place to live. Neither does anyone else. However, in America, we also believe that a person should not be discriminated against in employment or housing for unjust reasons, such as their religion, sex, race, age, disability, or pregnancy status. In short, Americans believe that your performance on the job should be the main criteria, not the factors listed above, and that as long as you pay your rent on time, and are not a nuisance to the neighbors, you should be able to stay in your apartment. Most Americans also agree that no one should be evicted or fired based on their sexual orientation, and we are coming around to that based on laws passed by local legislatures.

A Christian similarly has not right to a job or apartment, but they shouldn't be evicted or fired for their 'lifestyle'. I ask only the same thing for me.
10.10.2006 9:49pm
Ship Erect (mail) (www):
Do people who think the Ten Commandments provide a grounding for American law just not know what they say?

Stephen Colbert proved it!
10.10.2006 9:50pm
Steve:
Ancient codes of laws may not provide the textual basis for our substantive laws, but they provide the foundation for the fact that we live under the rule of law in the first place.
10.10.2006 10:02pm
Duffy Pratt (mail):
Just a slight addendum to the analysis of the ten commandments: murder and theft are only generally prohibited by the individual states. The federal government not only does not have general murder or theft statutes, but it also probably could not constitutionally enact them. There would need to be some nexus to some federal power, typically the commerce clause.

The more important point on the ten commandments is that there are many churches that would forbid an image of them inside the church. This is precisely because these churches believe that such images violate the commandments themselves. Another popular myth now is that there is no important difference between the different versions of the commandments. This would have been news to the founders. The Thirty Years War, persecutions of protestants (including the pilgrims and other people who had fled to the U.S), the acts of Cromwell against the high church, all these were fairly recent history. A fair bit of the disputes between the Catholics, the high Anglican church, and the new sects came from the differing versions of the commandments -- specifically the prohibition on graven images.

Finally, every time the government creates an exemption for religions, it then has to decide which religicions qualify. Can Wiccans put their marks on veteran gravestones. Can they take advantage of IRS parsonage exemptions. How bout Scientologists? Rastafarians? Secular Humanists? If the government got out of the business of giving these preferences, it would no longer have to put its stamp of approval on some religions as being real.
10.10.2006 10:22pm
Anony Mouse (mail):
Hmm, why do I doubt that Dick Thompson has a valid citation for the "kids expelled from school for saying grace" tale?
10.10.2006 10:32pm
ReaderY:
I personally have no problem with religious exemptions in general, believing that the Free Exercise Clause indeed includes a right for churches to run their own affairs, and also believing that a tax exemption does not risk government entanglement or other serious First Amendment considerations.

That said, I am also sympathetic to the idea that charities serve genuine charitable purposes, and that there be some sort of floor to ensure that a religious institution is doing something genuinely religious, a charitable institution is doing something genuinely charitable, etc.

An example that comes to mind is Martha's Vineyard, still run as a summer religious revival and with its property exempt from taxation as a religious institution. How many people who own a tax-exempt cottage in Martha's Vineyard, ostensibly because they are there for religious purposes, have actually attended a church service there?

Likewise, I am sympathetic to the view that the high-end Indiana retirement home the New York Times featured, while run by a religious institution, is nonetheless not a genuine charitable endeavor.
10.10.2006 10:32pm
Archon (mail):
1. The "states' rights" crowd ere advocating against the federal courts trampling on powers which had histroically been reserved to the states.

2. The Ninth Amendment argument is absurd. There is little historic evidence that suggests the drafters of the Bill of Rights wrote in a catch-all which judges could use to force their will upon the people. In fact, this would have ran counter to the very basis of a constitutional republic.

3. If I were to talk into a courtroom and saw a Buddha statute behind the judge I would think, "Oh the judge must be buddhist" and not "oh shit, that judge is buddhist and I'm a Christian. Since he is a Buddhist he must be prejudiced against all other religions. I don't stand a chance of having a fair trial."

You would have to be one irrational, bigotted human being to think that a person in a free society is pre-disposed against you simply becuase you might not have the same religious belief.

You would also have to be a pretty stupid human being to think that simply forcing a person who is predisposed to discriminate against you on the basis of religion will not do so simply because he cannot display his religious symbol in the courtroom.

4. Just as I have no right to use the police to stop a KKK rally because it offends me; I have absolutely no right to use the courts to tear down a religious symbol simply because it offends me.

5. A lot of people are treated differently by the government because of their situation. Poor people get welfare, veterans get perks, rich people get tax breaks, etc., etc., etc. Just because you are gay doesn't mean that the government is somehow mandted to confer benefits upon you.

6. Laws that force people to accept things they find repugnant do no favors to a free society. There are plenty of other remedies available to free people that will fix the problem without resorting to the use of the government's police powers.
10.10.2006 10:37pm
ReaderY:
The whole issue of religion had resulted in a 4-4-1 split in the Court, with 4 Justices supporting Lemon, 4 expressly repudiating it, and Justice O'Conner using equivocal language that tended to distance her from Lemon at times without expressly rejecting it. The result has been a mess, a bit like the state of obscenity in the 1960s where the Justices served as a sort of national censorship board, viewing movies in a special screening room and declaring them legal or illegal by majority vote without clear rhyme or reason why. Recently the Court seemed inclined to do something similar with 10 Commandments monuments.

Hopefully Justice Alito will bring some sort of clarity and predictability to the law. Clarity and predictability is valuable no matter which way the law ends up; a position where courts have to make a call on every situation is a tremendous drain on society.
10.10.2006 10:39pm
RichC:

Or only applied zoning laws to those who weren't members of organized religion. Surely this would violate seperation of church and state, at the very least by discriminating against unorganized religion.


Interestingly, Massachusetts does just that. Religious institutions are exempt from most zoning laws (which is why, for example, the Mormons were able to build a ginormous temple in the middle of a residentially-zoned neighborhood). And this provision (colloquially known in the state as the "Dover Amendment") has been upheld by the courts.
10.10.2006 11:22pm
frankcross (mail):

2. The Ninth Amendment argument is absurd. There is little historic evidence that suggests the drafters of the Bill of Rights wrote in a catch-all which judges could use to force their will upon the people. In fact, this would have ran counter to the very basis of a constitutional republic.


Interesting declaration, but pretty dubious. It does not at all counter a constitutional republic and, there is good evidence that it was precisely such a catch-all, to make up for rights whose expression was omitted from the BoR.
10.10.2006 11:39pm
Dilan Esper (mail) (www):
"The Ninth Amendment argument is absurd. There is little historic evidence that suggests the drafters of the Bill of Rights wrote in a catch-all which judges could use to force their will upon the people. In fact, this would have ran counter to the very basis of a constitutional republic."

You throw in some inflammatory rhetoric about judges (who EVERYONE understood were going to be interpreting the Constitution), but really, what is the Ninth Amendment but a catch-all? Of course the Bill of Rights was not exhaustive. Indeed, opponents of the Bill of Rights argued that explicit recognition of these rights would PRECLUDE the recognition of other rights that they felt were already implicitly recognized by the Constitution.

The one position that was NOT on the table is the one Justice Scalia (supposedly faithful to the original meaning of the Constitution) espouses, i.e., that if it isn't specifically mentioned in the text of the Constitution, it can't be recognized as a constitutional right.

(This is actually neither here nor there for the establishment clause discussion. It just shows you how easily conservatives, who style themselves to be principled about constitutional interpretation while liberals are unprincipled, will endorse completely frivolous interpretations of the Constitution when they don't like the way the cases will come out otherwise.)

"You would also have to be a pretty stupid human being to think that simply forcing a person who is predisposed to discriminate against you on the basis of religion will not do so simply because he cannot display his religious symbol in the courtroom."

That's not really the point. The point is, the appearance of impropriety or bias matters. Imagine if, in a case involving Wal-Mart, the judge came into the courtroom every day with a bunch of shopping bags from Wal-Mart. Or if, in a case involving a kidnapping, the judge wore a button every day to court with the picture of his own kid, who was a kidnapping victim. Or if the judge in the Jonathan Pollard case had displayed a miniature Israeli or Palestinian flag on the bench.

Establishing religion (which by the way, is NOT limited to the federal government recognizing an official church) is bad for many reasons, but one of them definitely is that it creates the appearance of bias. Indeed, I have a feeling that quite a few of the same right-wing Biblical literalist Christians who bloviate about the deprivation of their supposed right to use government power to coerce other people to accept their disproven superstitions would get VERY uncomfortable with the display of Islamic symbols, or Wiccan symbols, or Pagan symbols, or Satanist symbols, by government officials who are supposed to treat them fairly.

"Just as I have no right to use the police to stop a KKK rally because it offends me; I have absolutely no right to use the courts to tear down a religious symbol simply because it offends me."

Nobody's USING the courts. It has been established for 200 years that it is entirely the province of the judiciary to say what the law is. The religious symbols you are talking about are on public— i.e., your and my— property, put up with public money, by public officials. I am actually not an absolutist on these things— some amount of ceremonial Deism is unavoidable and relatively harmless— but if something violates the establishment clause, there is a case or controversy and courts are fully permitted under Article III of the Constitution to rule upon it. Nobody's "using" the courts; the courts are empowered to act.

"A lot of people are treated differently by the government because of their situation. Poor people get welfare, veterans get perks, rich people get tax breaks, etc., etc., etc. Just because you are gay doesn't mean that the government is somehow mandted to confer benefits upon you."

As far as I know, gays aren't asking for special welfare benefits, free health care like veterans get, a special tax break for homosexuality, etc. They are asking for equal treatment. Do you consider employment discrimination laws that allow blacks and women to get work to confer a "special benefit" upon them? Does Loving v. Virginia confer a "special benefit" on blacks and whites who want to marry each other?

This whole language of "special rights" was created by dishonest bigoted extreme right-wing homophobes who didn't want to admit that they hate gays and lesbians and want to ensure that discrimination against them continues.

"Laws that force people to accept things they find repugnant do no favors to a free society. There are plenty of other remedies available to free people that will fix the problem without resorting to the use of the government's police powers."

That's sure how it happened with interracial marriage, which people found repugnant, isn't it?
10.11.2006 12:03am
Randy R. (mail):
Archon: Just because you are gay doesn't mean that the government is somehow mandated to confer benefits upon you."

Very true. But where did I or any other gay ask that benefits be mandated for me just because I'm gay? I ask only to be treated exactly as you are treated -- to be free of the same forms of discrimation as you are. I'm not asking for the right to go to the head of the line for a popular movie, nor am I asking for a tax break every time I sing a showtune. I want to be free of discrimination in housing and employment as you are.



Archon: 6. Laws that force people to accept things they find repugnant do no favors to a free society. There are plenty of other remedies available to free people that will fix the problem without resorting to the use of the government's police powers.

And what laws are you specifically talking about? Please cite them.

And you still haven't told me what is so repugnant about my lifestyle. Please inform the crowd. Is it that I have a gov't job that I work from 9 to 5? Is that I have two cats that I feed daily? That I visited my mother as often as I could when she was alive? That I am active member of the bar and chair various committees? Please let me know what is so repugnant about these things and why you distort what I argue for.
10.11.2006 12:16am
logicnazi (mail) (www):
Randy R said:


In short, Americans believe that your performance on the job should be the main criteria, not the factors listed above, and that as long as you pay your rent on time, and are not a nuisance to the neighbors, you should be able to stay in your apartment.


I wish this were true. If so then drug testing for jobs would never happen (except perhaps for jobs like pilot and even there it is debateable), quite pot smokers who don't bother anyone wouldn't be troubled. Similarly finding out a teacher was a prostitute on the side (servicing only adults) or acted in porn wouldn't cause the community to demand they are fired.

I mean do you really think that americans believe strongly that people who look at computer generated child porn at home, worship satan, sneak off to private resorts for bisexual orgies, star in porn or otherwise radically violate social standards in their private life without harming anyone should be given an equal chance at a job as a god fearing christian.

Hell there was just that recent court case about the police officer who stared in porn and got fired.
10.11.2006 12:48am
Randy R. (mail):
Most companies don't actually test for drugs. Some do because they have security clearances, or other valid reasons. But the fact is that most Americans who hold jobs don't have to undergo drug tests. For those that do for no reason, I agree -- it's silly.

However, when the job is a public job, funded by taxpayers -- such as teacher, policeman, fireman, and so on -- then the line gets a little more blurry. Do the taxpayers have a right to set the conditions of employment? Ought public officials be held to a higher standard? Reasonable minds can differ on this. In general, if it doesn't affect job performance, then I don't really see why it should be an issue. But I don't have kids, and maybe if I did, I would be hestitant to let a porn actor also be teaching my kids. It may not be rational, but I could understand it. (I would hold this true whether the actor was a straight porn actor or a gay porn actor -- there should be no difference in how people are treated based on sexual orientation).

On the other hand, this is exactly what I have been arguing. We ought to hold our elected officials and mayors to a higher standard. And part of that standard is that they should not visibly or obviously favor one religion over another. It is their job to appear impartial and treat the public with equal equinimity in all matters related to that position.

But that's not enough for some people. Some people want to rub it in your face that you are not part of the majority, and that if you are offended, that's your problem. These people have rather deep insecurities about themselves, that they have to be reassured that they are part of the majority.
10.11.2006 1:02am
Cornellian (mail):
Let me make it really easy to understand the establishment clause - its sole purpose was to forbid Congress (and coincidentially only Congress) from establishing a state religion. That's it. Nothing more.

Read the text. It doesn't say quite what you claim as its purpose.
10.11.2006 2:02am
Jay Myers:
Dilan Esper:

Plus, the establishment clause and the free exercise clause are mechanisms for separating church and state, i.e., no governmental endorsement of religion, and no interference with religion.

Not quite. "Establishment of religion" actually has a very specific meaning. An Established Church is one that is officially sanctioned and supported by the government. Such as The Church of England in Great Briton, The Church of Ireland in Ireland, The Lutheran Church in Sweden, The Roman Catholic Church in Argentina, and Islam in all the obvious places. Six states also had Established Churches at the time of ratification. You might think that those states might want some reassurance that the federal government wasn't going to mess with their arrangements and possibly institute a conflicting federal religion. Well, to tell the truth they probably should have but really, it's as simple as the fact that Madison drafted the bill of rights for Congress to consider and as an opponent of Established Churches, he thought that was important to add.


logicnazi:

First of all these claims that all seperation of church and state was supposed to do is prevent a state religion seem wildely unsupported to me.

There was no "separation of church and state." That phrase is from a private letter of Jefferson's and is taken out of context besides. Why not quote Jefferson when he mentions proudly in an 1822 letter that, "In our village of Charlottesville, there is a good degree of religion, with a small spice only of fanaticism. We have four sects, but without either church or meeting-house. The court-house is the common temple, one Sunday in the month to each." Dear me. A courthouse being used as a church by four different denominations! What about that supposed wall between church and state?

Many of the founding fathers, who did have considerable influence over the ammendments, were deists or otherwise not sympathetic to the notion that the government should be able to compel religiousity even if they didn't make a specific religion mandatory.

I think that what you mean to say is that several of the founders worked to disestablish the Established Churches in the six states that still had them after the Constitution was ratified. For example, Madison and Jefferson worked to disestablish the Church of England in Virginia. In fact, that was the whole point of Madison's Remonstrance. I am assuming you are familiar both with the word "disestablish" and James Madison's "Memorial and Remonstrance Against Religious Assessments".

I think even an orignalist analysis of the 'seperation of church and state' requirement

Since the phrase is not in the Constitution at all, let alone as a requirement, an originalist analysis would ignore it completely and look instead to what the document actually says.

Yet surely the first ammendment doesn't allow the government to penalize through tax/regulatory power the same thing they were not allowed to criminalize. Suppose the government exempted everyone who belonged to an organized religion from income tax (or from half of income tax). Or only applied zoning laws to those who weren't members of organized religion. Surely this would violate seperation of church and state, at the very least by discriminating against unorganized religion.

"The power to tax is the power to destroy." Since governments under our Constitution have no power to outlaw or destroy religious institutions, they therefore do not have the power to tax them. At least that's what a consistent application of McCulloch v. Maryland would hold. Yes, I'm mostly being snarky but can you refute the legal argument?

But taxes and regulations on institutions are merely indirect taxes or regulations on the individuals constituting, donating and supporting those institutions. I can see no substantive difference between saying that members of organized religions get a bigger tax write off for charitable donations and exempting the religious organizations they donate to from taxes.

In at least some states (such as Illinois) all charities, religious and secular, are eligible for property tax abatements. Check your facts.
10.11.2006 3:48am
Josh_Jasper (mail):

It is one thing to argue that the government can neither subsudize churches nor interfere in their internal affairs


Funny, the Bush administration seems to be doing exactly that.

What other fundamental concenpts of American democracy can Republicans under Bush turn into "just a slogan". Habeas Corpus, free speech, freedom from unreasonable search and seizure, and so on...

But remember. There's a war on. Oceania is at war with Eastasia. Oceania will allways be at war with Eastasia.
10.11.2006 10:39am
Clayton E. Cramer (mail) (www):
logicnazi writes:


First of all these claims that all seperation of church and state was supposed to do is prevent a state religion seem wildely unsupported to me. Many of the founding fathers, who did have considerable influence over the ammendments, were deists or otherwise not sympathetic to the notion that the government should be able to compel religiousity even if they didn't make a specific religion mandatory.
Isn't it odd, if the founding fathers were so overwhelmingly opposed governments being "able to compel religiousity" that the state governments did so? Massachusetts' 1780 Constitution not provided for government support of churches, but required the legislature to pass a mandatory church attendance law. Most state constitutions had provisions that either limited officeholding to Christians (sometimes to Protestants), or guaranteeing that whatever laws the state passed regulating officeholding would not preclude Protestants from holding office.

The First Amendment's guarantee about "establishment of religion" was originally intended only as a limitation on the federal government, and meant something rather specific: the granting of specific legal or economic advantages to a particular church. See Article 19 of the New Jersey Constitution of 1776 for an example of how "establishment" was understood:
XIX. That there shall be no establishment of any one religious sect in this Province, in preference to another; and that no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect. who shall demean themselves peaceably under the government, as hereby established, shall be capable of being elected into any office of profit or trust, or being a member of either branch of the Legislature, and shall fully and freely enjoy every privilege and immunity, enjoyed by others their fellow subjects.
The ACLU's misuse of Jefferson's 1803 letter to the Danbury Baptist Association is so typical of their intellectual dishonesty to achieve a goal contrary to original intent--with the ACLU using precedents to defend their position that they would be arguing against today. Here's a detailed examination of the Revolutionary and early Republic's understanding of the role of religion in government.
10.11.2006 11:28am
Phutatorius (www):
Even accepting (because why shouldn't read all the U.S. Constitution's protections as narrowly as possible?) the proposed minimalist reading of the Establishment Clause -- that there should be no state religion -- shouldn't we be concerned that, under the guise of "foreign aid," our government pays people to go to Africa to convert people to Christianity?
10.11.2006 1:17pm
Archon (mail):
Randy R -

I frankly don't care if you are gay or not. There is nothing repugnant about it. In a free society you can live your life as you see fit. I don't hate gay people and don't discriminate against them. I have hired several openly gay men to work in my office. Please stop trying to paint anyone who fights against your radical agenda to secularize America and destroy the institution of marriage as being a hatemonger.

1. To suggest that judges are free to use the Ninth Amendment to invent any type right is patently absurd. That would confer the power to just about anything upon the unelected branch of government, pretty much free of any checks and balances. That runs completely counter to the core concept of a constitutional republic.

2. I highly doubt that the founding fathers ever envisioned "judicial review" especially to the extent it is practiced today. To assume that judges have the power to interpret the constitution, yo have to assume 1) it is the supreme law of land 2) it is meant to be enforced by judicial fiat 3) the courts, through their power to interpret the law were implicitly given the power to interpet the supreme law, the constitution 4) given that they have the power to interpet law that is supreme to all others, the court has the power to invalidate conflicting inferior law.

Judicial review can't be found anywhere in the actual text of the constitution. The Courts are the last of the three branches discussed in the document and were most likely to be the inferior of the 3 if they were to be ranked. Article 3 is much shorter then the other articles implying that the founding fathers thought the courts would have a very minor role in the federal government. Furthermore, each branch has checks and balances on its use of power. One would think that if the founding fathers intended judicial review, they would have written some kind of check into it. In fact, the drafters rejected two proposals which would have done just that by involving the Supreme Court, in some fashion, in the approval of laws.

3. With that said, yes, it is a perversion of the establishment clause for judges to force public officials to remove religious symbols from the public square. In fact, it is sort of sickening because that is the sort of thing Stalin or Lenin would have done.

What would the public do if the court said "freedom of speech, also means freedom from speech" and then followed by ordering the removal of offensive books from libraries, banning hurch sermons denouncing homosexuality, and ordered the arrest of pornographers purely because people have the right to freedom from speech which means they don't have to tolerate things that are offensive?
10.11.2006 1:47pm
Mark Field (mail):

I highly doubt that the founding fathers ever envisioned "judicial review" especially to the extent it is practiced today.


I'm not sure how much you're qualifying your point with the "especially" phrase, but if you're seriously claiming that NONE of the founding generation envisioned judicial review, that's demonstrably false. Federalist 78 does so; the responses of some of the state legislatures to the VA and KY resolutions do too; arguments in the courts in the 1790s assume it and sometimes even demand it; John Marshall -- who WAS a Founding Father -- certainly held this view.
10.11.2006 2:02pm
Colin (mail):
I have hired several openly gay men to work in my office. Please stop trying to paint anyone who fights against your radical agenda to secularize America and destroy the institution of marriage as being a hatemonger.

Shorter Archon: Stop portraying my attempts to demonize you as some sort of demonization!
10.11.2006 2:14pm
Stomalian:
If it were not for the pathological attachment of the Court to a footnote (i.e. four), religious affirmative action would be a no-brainer violaton of the Equal Protection Clause.
10.11.2006 2:45pm
Jon Rowe (mail) (www):

To suggest that judges are free to use the Ninth Amendment to invent any type right is patently absurd. That would confer the power to just about anything upon the unelected branch of government, pretty much free of any checks and balances. That runs completely counter to the core concept of a constitutional republic.


I don't think anyone is suggesting "that judges are free to use the Ninth Amendment to invent any type right" (strawman argument?). Rather, there is a tremendous amount of originalist scholarship, done by most notably Randy Barnett, which suggests the Founders thought that individuals by their very nature possessed a general natural right to liberty, which would make such specific rights so numerous that they are literally unenumerable.

It's not a matter of judges creating these rights: All governments should voluntarily operate under and hence recognize the natural liberty rights that inhere in the individual, i.e., legislatures shouldn't pass such laws, even if their constituents want them to. And executives should veto such laws, should the legislatures pass them. If they make it to the third stage -- judicial review -- that's when the court gets its say and strikes down the unconstitutional law, even if, for instance, as in Griswold or Lawrence, the right is not enumerated in the Constitution.

I don't see how the process as I have described it, "runs completely counter to the core concept of a constitutional republic."
10.11.2006 5:19pm
Jon Rowe (mail) (www):
"Judicial review can't be found anywhere in the actual text of the constitution." Again, Randy Barnett's scholarship, among the work of others, demonstrates that the original meaning of "the judicial power" includes the power to nullify unconstitutional laws.
10.11.2006 5:21pm
Clayton E. Cramer (mail) (www):
Jon Rowe writes:

I don't think anyone is suggesting "that judges are free to use the Ninth Amendment to invent any type right" (strawman argument?). Rather, there is a tremendous amount of originalist scholarship, done by most notably Randy Barnett, which suggests the Founders thought that individuals by their very nature possessed a general natural right to liberty, which would make such specific rights so numerous that they are literally unenumerable.
As a general principle, this sounds pretty good--until you start seeing that state governments regulated all sorts of items in Barnett's "general natural right to liberty" list, and no one at the time seemed to see any problem with this. A number of states shortly after the Revolution abolished establishments of religion. A number did not. Many states regulated alcohol sales and consumption (leading to some interesting struggles about the interstate commerce clause in the early Republic). There is no shortage of state laws prohibiting premarital sex, adultery, sodomy, and many other items that Rowe and Barnett want to imagine are constitutionally protected by that "general natural right to liberty." Why, oh why, didn't the state courts or the U.S. Supreme Court notice this "general natural right to liberty" back then?
10.11.2006 7:35pm
Randy R. (mail):
Archon: Please stop trying to paint anyone who fights against your radical agenda to secularize America and destroy the institution of marriage as being a hatemonger.

I will. Just as soon as you stop referring to my 'lifestyle' as 'repugnant.' And I never once stated that I wanted to secularize America. Where did you get that one? Or are you just assuming that all gay people want have an 'agenda' to 'secularize American and destroy ... marriage?.'

I have no such agenda, never stated that I did, and I would hardly want to destroy the very institution that I wish to participate in. To paint all gay people as wanting to remove religion from America, and to (GASP!) utterly completely and forever DESTROY marriage so that no one could have even think of getting married every again -- is pretty much the definition of bigotry and, yes, hatemongering.
10.12.2006 2:47am
markm (mail):

But where a law is sufficiently intrusive as applied to religious organizations that it would effectively put government in the position of micromanaging that organization's affairs, it seems appropriate to simply grant an exemption.


I'd rewrite that: But where a law is sufficiently intrusive as applied to any organization that it would effectively put government in the position of micromanaging that organization's affairs, it seems appropriate to simply repeal that law.
10.12.2006 8:44am
markm (mail):
"Even under PaulV's strict formulation, we could imagine a series of punitive regulations with religious exemptions that might amount to a de facto "establishment" of religion by the state--imagine, e.g., 90 or 100 percent taxes imposed on any and all social organizations, religious groups excepted."
How about if the taxes are only about 30%, and religious groups are excepted - but we already have that. How about if churches are exempt from zoning laws - true in several states, and I've never seen a request for a zoning variance to build a church turned down. Not that it bothers me that my neighbor turned his garage into a small church (they're much better neighbors than the previous owner), but the county would be all over me if I were to run some sort of business out of my garage.

"Or, even worse (and concededly unlikely), imagine laws that exempted members of religious organizations from prosecution for "normal" criminal activities." It's not "unlikely", since at least one such law already exists. Look up the law on peyote: this dangerous hallucinogenic drug is banned, but there's an exemption for certain religions to use it in their ceremonies.
10.12.2006 1:01pm