Tuesday, April 3, 2012

Separation of Church and State Part 2: The Establishment Clause and Accommodationist Position

Notes and Thoughts on the Legal Issues Surrounding the Separation of Church and State in the Context of the Establishment Clause

So, what's the establishment clause?  It's the part of the first part of the first amendment that says "Congress shall make no law respecting the establishment of a religion".  The free exercise clause follows it is, "[...] shall make no law impeding the free exercise of religion".  The first clause  is a guard against there being a state religions and the second forbids the gov't from obstructing people's ability to worship however and whomever they please.  So, if someone wants to worship me the gov't can't stop them.  Now I just need disciples.  I'll be accepting applications.    

Historically there are two basic reasons for the inclusion of the establishment clause: the first is political, the second is philosophical.  Obviously, in reality the latter never would have  been considered if not for the former.  Enough jibber-jabber.  Lets talk about the political reasons.

Prior to the 'mercan revolution the Church of England had been the national state religion.  After the 'mercan revolution it was not.  Pretty simple so far.  But now in Virginia the Baptists held most of the political power.  They realized that there were no protections in the Constitution against there being a national religion which they di'int want.  Other religious groups realized this too, so basically as a safeguard against one religion taking over, the establishment clause was included.  

Here comes the tricky part! Who needs the Quikee Mart?  A couple of background points.  First, is that up until the 14th Amendment was passed (extending the Bill of Rights, including 1st Amendment, to state laws), the Bill of Rights only applied to Federal laws.  But part of the reason why the states had originally ratified the agreement in 178-whatever is because they didn't want federal interference in their state in the religious sphere.  

So, it sounds like the signatories were against gov't intervention in religion.  Not so.  The reality was 6 of the states had official state religions.  Ah!  Now we see why they really signed.  They di'int want their particular state religion to be banned or subjugated by a national religion.

In 1940 when the Supreme Court ruled that the 1st Amendment was included state-level laws, no one really had any issues with the "free exercise clause"--but the establishment clause was going to be a problem.  Anytime people have to give up power and privilege there will always be resistance.

Two Arguments Against Extending the Establishment Clause to State Law

There are 2 main arguments against extending the scope of the establishment clause to state law.  The first regards original intent.  Recall that when the states originally ratified the constitution it was to protect their state religions and religious laws from federal interference.  Apparently, in 1947 the Supreme Court acknowledges this fact (I need to read the opinions).   Despite this acknowledgment, the court still ruled that the establishment clause extends to the state level (interesting).

The other argument involves individual rights.  The argument is that the 14th amendment is only intended to extend the Bill of Rights to prohibitions on government interference with individual rights; that is, what were previously only restrictions on federal gov't laws vis a vis individual rights were now being extended to state laws.  However, accommodationists contend that the establishment clause doesn't violate anyone's individual rights.  It is not in the domain of individual rights, so it should be exempt from the extension of the Bill of Rights.  Extending the establishment clause to state laws is an "unconstitutional" intrusion of the federal gov't into state sovereignty.  And we all know how whipped up 'mericans can get when the big bad gov't extends it's powers in any way, shape, or form, including triangles.  In 'merica, gov't is always baaaaaaaaaaaaad; especially the federal gov't (except when it provides the services that are required for a modern civilized nation...but lets ignore that).

Interesting.  So, it looks like the accommodationists have some technical arguments...but do they have philosophical arguments?  I'll keep looking...it'll make a better paper when I crush them!

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