Sorry Jim, but I'm going to have to disagree with you here. The Framers
didn't say "Congress shall make no law establishing a religion," but
"Congress shall make now law RESPECTING an establishment of religion." If
we study Jefferson and Madison's actions and statements at both the
national level and in the Virgina legislature, both were arguing for
something broader than the nonpreferentialist doctrine you advocate above.
Both fought against laws which would have applied tax monies to not just
one church, but to all clergy.
>It wasn't until 1947, when Hugo Black incorporated a phrase in a letter from
>Thomas Jefferson (the infamous "wall of separation"--a phrase which is NOT in
>our Constitution) into official First Amendment jurispriduence that the slide
>into suppression of religious speech began.
This makes it sound like an arbitrary decision by Black (who was a Sunday
school teacher in a Baptist church) to use the wall metaphor, which was
hardly the case. Black had been searching for Framers' Intent in his
opinion, and used the wall metaphor as a metaphor--to illustrate the
principle articulated in his opinion. And arguably one of the purposes of
the 14th Amendment was to apply the Bill of Rights to the states (for why
this hasn't been done uniformly, see the Slaughterhouse Cases from the late
18th century). To date, almost the entire Bill of Rights has been
incorporated into the 14th Amendment.
Incidentally, the case you refer to above (Everson vs. Board of Education,
Ewing Township, NJ) was decided 5-4. It concerned reimbursing parents who
sent their children to parochial schools for bussing expenses. The Court
was not divided on the principle of separation--all nine justices agreed.
They disagreed on the application. BTW, the majority decided that such
reimbursement DID NOT violate the Establishment Clause and upheld the
practice.
>I wouldn't necessarily view the ACLU as employing a double standard over
>religious speech. They believe what they're doing is right, and even compelled
>by the First Amendment. However, that compulsion is only due to the latter-day
>interpretation of the amendment by a liberal high court. We're beginning to
>lean the other way now.
Perhaps. The cases decided this past summer by the Court (particularly
Rosenburger) seem to indicate so, unfortunately. The Supreme Court has
gone out of its way to demonstrate that no hostility to religion is shown
in its decisions, but only a concern for neutrality. See particularly
Justice William Brennan's concurring opinion in Abington School District
vs. Schempp (1963). The problem has not been with the Court, but at the
local level of school boards and city government, prompting further
litigation in which the Court has had to expand and apply its earlier
decisions. One such example is Westside School District vs. Mergens
(1987?). The district had decided that it wouldn't allow a student-led
Bible study to meet on school grounds, but the Court said the district had
to allow it on equal access grounds. The ruling is entirely consistent
with earlier separationist rulings because the district was not endorsing
or inhibiting religion (yes, the Court's rulings have consistently said
that government can neither endorse NOR INHIBIT religion) by allowing the
Bible study to meet. Another example is Lee vs. Weisman (1989).
Graduation prayers led and/or composed by school officials are
unconstitutional, but if they're composed and led by students, the picture
changes entirely.
I personally am satisfied that most of the Court's decisions have both
correctly constructed the religion clauses of the First Amendment, and are
to the benefit of Christians. The church is strongest when government
keeps its hands off of ALL religion. The hand of the state that supports
one sect or faith today can inhibit religion as well, as James Madison
noted 200 years ago. The state needs to let the church be, period. If the
majority of Americans were Buddhist, I'm sure most Christians would agree.
On a last note, I'd encourage interested people to read the actual
decisions of the Court, particularly those written by Hugo Black. They are
not difficult to read. I've read enough of the secondary and tertiary
literature in my research that I'm skeptical of it.
Justin Keller
==============================================================================
Justin Keller
650 Emerson #310
Evanston IL 60201
847/332-8478
jkeller@merle.acns.nwu.edu
http://pubweb.acns.nwu.edu/~jkeller/index.html
Jesus, my all in all thou art:
My rest in toil, my ease in pain,
The medicine of my broken heart,
In war my peace, in loss my gain,
My smile beneath the tyrant's frown,
In shame my glory and my crown.
--Charles Wesley