"Separation of Church and State"
"Begs the question"
Today, as we read through a 6th Circuit Court of Appeals opinion, we witnessed a judge get not one, but both of these phrases correct in one brilliant stroke of the pen.
Separation of Church and State:
"[T]he ACLU makes repeated reference to “the separation of church and state.” This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state. [citations] Our Nation's history is replete with governmental acknowledgment and in some cases, accommodation of religion. [citations] After all, “[w]e are a religious people whose
institutions presuppose a Supreme Being.” Zorach, 343 U.S. at 313, 72 S.Ct. 679. Thus, state recognition of religion that falls short of endorsement is constitutionally
permissible.
Beg the Question:
Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address. That they are religious merely begs the question whether this display is religious; it does not answer it. “[T]he Establishment Clause inquiry cannot be distilled into a fixed, per se rule.” [citations] Although treating the subject matter categorically would make our review eminently simpler, we are called upon to examine Mercer County's actions in light of context. “Simply having religious content or promoting a message consistent with a religious
doctrine does not run afoul of the Establishment Clause.” Van Orden, 125 S.Ct. at 2863 (plurality opinion). Moreover, “[f]ocus exclusively on the religious component of any activity would inevitably lead to its invalidation under the Establishment Clause.” Lynch, 465 U.S. at 680, 104 S.Ct. 1355. The Constitution requires an analysis beyond the four-corners of the Ten Commandments. In short, “proving” that the Ten Commandments themselves are religious does not prove an Establishment Clause violation.
Stephen and Rich, our aspiring linguist friends, would be pleased.
3 comments:
i, for one, disagree with the premise in the zorach majority opinion that "[w]e are a religious people whose institutions presuppose a Supreme Being."
i realize that i am probably in the minority on this issue in this country based on public opinion, and perhaps that is why i find justice frankfurter's dissent more persuasive:
"There is all the difference in the world between letting the children out of school and letting some of them out of school into religious classes. If every one is free to make what use he will of time wholly unconnected from schooling required by law-those who wish sectarian instruction devoting it to that purpose, those who have ethical instruction at home, to that, those who study music, to that-then of course there is no conflict with the Fourteenth Amendment. The pith of the case is that formalized religious instruction is substituted for other school activity which those who do not participate in the released-time program are compelled to attend. The school system is very much in operation during this kind of released time. If its doors are closed, they are closed upon those students who do not attend the religious instruction, in order to keep them within the school. That is the very thing which raises the constitutional issue. It is not met by disregarding it. Failure to discuss this issue does not take it out of the case."
Slueth, legally, I am educated. Linguistically, I am pleased.
A few remarks on Zorach:
1. Neither the majority nor the dissent makes clear whether the students who are released for religious instruction are exempt from a portion of the state-mandated curriculum the other students are attend. As both groups presumably receive the same secular education, the idea that some students are "getting off easy" is untenable.
2. The both the majority and dissent make much of the "coercive" qualities of the school's action. Whether attending religious classes somehow involves coercion from private individuals within the community is irrelevant to the question of whether that State's action involves coercion. The State of NY has nothing whatever to do with the power of "what will the neighbors think?". Like the majority intimates, the State does not actively encourage students to attend religious instruction, it merely accommodates the requests of parents who are so inclined. Passive acquiescence does not approach coercion.
3. I am puzzled as to why we suppose school is exclusively intended to educate our children's minds. The dissent believes the State's action is coercive because such action forces the children to do what they would rather not, given the choice. That a child would rather play cops-and-robbers than listen to a clumsily dressed man talk about kindness and honesty goes without saying. Many children would choose to do anything before electing to practice their arithmetic or grammar. Nonetheless, we do not allow our children to learn these subjects at the leisure. "Lets not teach them algebra until they're older; perhaps they'll pick it up when they understand why it is necessary." What good is educating a child's mind if you do not also educate his heart?
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