First, every American is certainly free to believe what you will, religious or irreligious. We respect your beliefs, as we know you respect ours. Respect does not require agreement; by the same token, neither does disagreement excuse disrespect. This is the beauty of the American system – you won’t find such freedom in many places, for instance, most Muslim countries (and we would argue that this freedom is not unconnected to the Christian presuppositions we mention below)
Second, whether you believe in Supreme Being (and its effect or non-effect on our institutions) is one thing. Whether the people who created those institutions believed in such a being is another. Georgie thinks he is in the minority when it comes to presupposition of a Divine, we personally have no way of knowing whether he is or he isn’t – polls seem to fluctuate too much based on who’s giving them and what results they want. Regardless of present polls, however, this still does not change the fact that those who created the institutions by which we govern ourselves were a religious people who did presuppose a Supreme Being.
Take for example, our beloved South Carolina, where the people presuppose a God, and assume that liberty some how flows from that God. The preamble to the Constitution begins:
We, the people of the State of South Carolina, in Convention assembled, gratefulOr Colorado, where we presently are working, which is by no means a part of the “Bible Belt”:
to God for our liberties, do ordain and establish this Constitution for the
preservation and perpetuation of the same.
We, the people of Colorado, with profound reverence for the Supreme Ruler of the
Universe, in order to form a more independent and perfect government…
Or consider the self-evident truths contained in our own Declaration of Independence, from which we glean our American notion of equality, and which declares in no uncertain terms that all men are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
These examples should suffice it to say that Justice Douglas had not misspoken when he premised his opinion upon the assumption that our institutions presuppose a Supreme Being.
Third, Justice Frankfurter has frankly missed the point. At issue is whether a parent can choose to allow their child to leave school during the day to be instructed at a religious center. Frankfurter’s beef is twofold: he seems to have a problem with the fact that children are “forced” to remain in school and participate in the regularly scheduled curricular activities, and he doesn’t like the fact that religious instruction can substitute for school credit. First, the children left behind are not being required to do anything they weren’t already required to do – attendance is compulsory. They were going to be in school, like it or not. Second, if fully private and religious schooling is recognized under law as sufficient educational instruction, and it is, then supplementing a public school education with third party instruction is completely acceptable. If the left behind kids want an excuse to “get out of school,” they’re more than welcome to go the religious instruction with the rest of their classmates. And if the school already allows exceptions for students (i.e. permission to leave school for musical instruction, athletic competition, etc.), the First Amendment jurisprudence is relatively clear that to deny such an exception to a person because of the religious nature of their request is a blatant violation of the Free Exercise Clause and is subject to strict scrutiny.
To be honest, we think even Justice Douglas has some sketchy points, and our initial post was not to condone or condemn the case or the opinions. It was merely to recognize the correct usage of two phrases that we find frequently misused.
But since you brought it up…
3 comments:
as previously noted in my email to you, i have a hard time avoiding the debate!
ok, first off, terrible play on words: "Frankfurter has frankly missed the point." :)
where i seriously do disagree is on the following characterizations of frankfurter's argument and your reaction to them:
"First, the children left behind are not being required to do anything they weren’t already required to do – attendance is compulsory. They were going to be in school, like it or not."
i'm not sure where you're going with this argument - nobody disputes that school attendance is mandatory, merely that public schools should actively allow some students to replace part of this school attendance with religious instruction.
and your next point:
"Second, if fully private and religious schooling is recognized under law as sufficient educational instruction, and it is, then supplementing a public school education with third party instruction is completely acceptable."
why is that? there are public schools and there are private schools (religious or non-religious). there are separate rules for separate entities. it doesn't seem so intuitive to me, as it does to you, that public schools should "supplement" any public education with religious instruction. my gut reaction is: "supplement" that part of your life on your own time, and it's not the place of public schools to be either supporting or complementing public school curriculum with religious instruction. there is also the issue of putting public funds into deciding whether such instruction is worthwhile or not. i realize that the public funds argument may be a little of a stretch in that it probably doesn't take much time or money to decide on the logistics of outside religious instruction (although i could see bussing being a significant expense in certain situations, but i also recognize that these outside programs may also be fully independent from a financial standpoint), but it's still a part of the argument.
"If the left behind kids want an excuse to 'get out of school,' they’re more than welcome to go to the religious instruction with the rest of their classmates."
this is beside the point. the point (from my standpoint, if not also from justice frankfurter's) is NOT to intermingle religion with public education, not to "go with the crowd" and get out of school.
"And if the school already allows exceptions for students (i.e. permission to leave school for musical instruction, athletic competition, etc.), the First Amendment jurisprudence is relatively clear that to deny such an exception to a person because of the religious nature of their request is a blatant violation of the Free Exercise Clause and is subject to strict scrutiny."
it's not a matter of denying the request based solely on the religious nature of the activity. i don't think that musical instruction and school competition are comparable with planned outside-of-the-curriculum instruction, be it religious or not. i'm assuming you're talking about allowing students to miss school for musical/athletic competitions AS EXCEPTIONS to their normal schedules. i.e. letting the football team miss 2 days of classes in a semester b/c they made it to the state semifinals and finals. or letting the school orchestra miss 3 days of classes b/c they were selected to perform at the white house b/c of their achievements in some competition. that is very different from allowing a group of kids to leave (mandatory) public education an hour a week for the entire semester or year to attend instruction outside of the public school curriculum, be it religious or otherwise.
i'm all for religious instruction if parents so choose to do that for their kids (i went to christian camps and study groups of all denominations throughout my childhood and think there was a lot of good in that for me, and for kids in general, to be placed in that kind of environment).
just do it on your own time and not on that of the public school's.
respect,
georgie
Good points. I'm probably more in agreement with your position on religious instruction in public schools than you think - not because I think it shouldn't be there, but more because I wouldn't trust/expect most teachers instructing my kids to get the religious instruction correct!
Your arguments are generally questions of public policy, and you make some good points that I think a legislature should consider when passing a law like New York had.
Bottom line, however, is that they considered the arguments and passed the legislation anyway. As a validly enacted law legislating public policy, the only question remaining is whether the law violates any provision of the Constitution (particularly Amendment 1).
It doesn't. Why? The answer brings me full circle to my original point: there is no "wall of separation."
1) you are more informed on this subject than i am, and i appreciate not only your insights and logic but your clear manner of presentation in a humble and respectful manner.
2) based on my limited research (on wikipedia), it sounds like your views allign themselves in direct conflict with james madison and thomas jefferson:
"The phrase 'separation of church and state' is derived from a letter written by Thomas Jefferson to a group identifying themselves as the Danbury Baptists. In that letter, referencing the First Amendment of the United States Constitution, Jefferson writes: 'I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should 'make no law respecting an establishment of religion, or prohibiting the free exercise thereof,' thus building a wall of separation between Church & State.'[4]
Another early user of the term was James Madison, the principal drafter of the United States Bill of Rights, who often wrote of 'total separation of the church from the state.' [5] 'Strongly guarded . . . is the separation between religion and government in the Constitution of the United States,' Madison wrote, and he declared, 'practical distinction between Religion and Civil Government is essential to the purity of both, and as guaranteed by the Constitution of the United States. [6] This attitude is further reflected in the Virginia Statute for Religious Freedom, originally authored by Thomas Jefferson, but championed by Madison, and guaranteeing that no one may be compelled to finance any religion or denomination.... The United States Supreme Court has referenced the separation of church and state metaphor more than 25 times, first in 1878. In the Reynolds case the Court defended marriage as between a man and a woman and denied the free exercise claims of Mormons in the Utah territory. The Court used the metaphor again in 1947 when it was used by Justice Hugo Black in Everson. The term was used and defended heavily by the Court until the early 1970s. Since that time, the Court has distanced itself from the metaphor, often suggesting the metaphor conveys hostility to religion in contrast to Jefferson's original meaning '...in behalf of the rights of [religious] conscience.' In Wallace v. Jaffree, Justice Rehnquist presented the view that the establishment clause was intended to protect local establishments of religion from federal interference-- a view which diminished the strong separation views of the Court. Justice Scalia has criticized the metaphor as a bulldozer removing religion from American public life."[8]
while i have a lot of respect for william rehnquist (and think he was a very good chief justice of the supreme court) and think that scalia is very, very perceptive and intelligent (even when i disagree with him), i'm going to have to side with tommy j and jimmy madison on this issue!
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